A Sessions Judge convicts an accused X without hearing him on ‘question of the sentence’, while the case has been proved beyond all reasonable doubts. On appeal in the High Court, the argument advanced by X… Is the conviction of X liable to be quashed on the aforesaid ground?

Question: A Sessions Judge convicts an accused X without hearing him on ‘question of the sentence’, while the case has been proved beyond all reasonable doubts. On appeal in the High Court, the argument advanced by X is that conviction is liable to be set aside as he was not heard by the Sessions Judge on ‘question of the sentence’ which is a mandatory provision under Section 235(2). Is the conviction of X liable to be quashed on the aforesaid ground? Give reasons for your answer.

Find the answer only on Legal Bites. [A Sessions Judge convicts an accused X without hearing him on ‘question of the sentence’, while the case has been proved beyond all reasonable doubts. On appeal in the High Court, the argument advanced by X… Is the conviction of X liable to be quashed on the aforesaid ground?]

Answer

Section 235 in the Code of Criminal Procedure, 1973 lays down provision for Judgment of acquittal or conviction as follow:

“(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

From the perusal of sub-section 2 of Section 235, the imperative of sub-section 2 leaves no room for doubt that after recording the finding of guilt and the order of conviction the Court is under an obligation to hear the accused on the question of sentence unless it released him on probation of good conduct under Section 360, CrPC.

Thus, the right to be heard on the question of sentence is a beneficial provision for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court.

There was no such provision in the old Code of Criminal Procedure Code and under old criminal procedure whatever the accused wished to submit in relation to the sentence had to be stated by him before the arguments in the case were concluded and the judgment was delivered. The accused under the old Code had to produce the material and make his submissions in relation to the sentence on the assumption that he was ultimately going to be convicted and as this was probably not proper, therefore, the Legislature introduced the new provisions in the new Code. [Jasu Alias Jaswant Singh v. the State Of Rajasthan]

Moreover, sub-section 3 of Section 354 CrPC, which is also reproduced below:–

(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

From the aforesaid discussion, it is easily deducible that both sub-section 2 of Section 235 and sub-section 3 of Section 354 are two mandatory provisions. The hearing as contemplated by sub-section 2 of Section 235 is not confined merely to hearing oral submission but is intended to give an opportunity to the prosecution and accused to place before the Court facts and materials relating to various factors bearing on the sentence.

This provision is mandatory and deviation from it cannot be described as a mere irregularly in the course of the trial. It goes to the root of the matter and the resulting irregularity is of such a character that it vitiates the sentence.

In case of non-compliance with this provision, the case may be remanded to the Sessions Judge for retrial on the question of the sentence only. Thus, in the present case in hand, where Sessions Judge convicts an accused X without hearing him on ‘question of the sentence’, while the case has been proved beyond all reasonable doubts.

On appeal in the High Court, the argument advanced by X that conviction is liable to be set aside as he was not heard by the Sessions Judges on ‘question of the sentence’ which is a mandatory provision under Section 235(2) will hold good and his case is necessarily required to be retried on the “question of the sentence” by the session judge. So, the conviction of X is liable to be quashed on the aforesaid ground until mandatory provision is complied with and upon retrial of the accused he is proved guilty.

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