Hike sentence

Providing an opportunity for a hearing before the sentencing order is a statutory mandate U/S 235(2) CrPC: Gauhati High Court reiterates

The Gauhati High Court, in a criminal appeal, ruled that when a magistrate court convicts a defendant, it must give him an opportunity to be heard on sentence, as provided for in Section 235(2) of the CrPC.

The provision states: If the accused is found guilty, the judge must, unless he proceeds in accordance with the provisions of article 360, hear the accused on the question of the sentence, and then pronounce it according to the law.

The High Court relied on Allaudin Mian & Others v. State of Bihar, (1989) 3 SCC 5, in which the Supreme Court noted that the dual purpose of section 235(2) CrPC is firstto comply with the rule of natural justice by granting an opportunity for a hearing to the convicted person and secondto assist the courts in choosing the sentence to be imposed.

Said provision therefore serves a dual purpose; it satisfies the rule of natural justice by giving the accused the opportunity to be heard on the question of sentence and at the same time helps the Court to choose the sentence to impose.

The High Court further held that failure to comply with the mandatory provisions of Article 235(2) CPRC amounts to “circumventing” a significant stage of a course.

Such non-compliance constitutes a disobedience to an express provision of the Code as to the mode of trial and may result in the nullity of a sentence. It cannot be treated as a simple reparable irregularity under article 465 of the CrPC.

Failure to comply with the mandatory provisions of Section 235(2) cannot be treated as a mere irregularity remediable under Section 465 of the Code of Criminal Procedure 1973. It is much more serious. This amounts to circumventing an important stage of the trial and omitting it altogether so that the trial cannot be said to be that contemplated by the Code. This derogation constitutes a disobedience to an express provision of the Code as to the mode of trial. It goes to the merits of the case and the resulting illegality is of such a character as to vitiate the sentence.“.

Noting that the court of first instance did not respect this mandatory legal provision consisting in offering the appellant a reasonable and adequate opportunity to be heard, as required by article 235 of the CPRC, before he pronounces sentencing, the case was therefore sent back to the trial court.

Accordingly, the impugned judgment and order were varied and the criminal appeal was dismissed.

Case No.: Crl. Call 8/2020

Case Title: M. Jothapuia c. State of Mizoram

Quote: 2022 LiveLaw (Gau) 9

Date: 31.01.2022

Corum: Judge Nelson Sailo and Judge Marli Vankung