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Hearing On Sentence- Non-Compliance Of S.235(2) CrPC Amounts To 'Bypassing' An Important Stage Of Trial, Not Mere Irregularity Curable U/S 465: Gauhati HC

Upashana Duarah

8 Feb 2022 5:24 AM GMT

    • Hearing On Sentence- Non-Compliance Of S.235(2) CrPC Amounts To Bypassing An Important Stage Of Trial, Not Mere Irregularity Curable U/S 465: Gauhati HC

    The provision mandates the Court to hear a convict before passing an order of sentence.

    The Gauhati High court, in a criminal appeal, has held that when a Trial Court convicts an accused, it has to give him or her an opportunity of hearing on the sentence as mandated under section 235(2) of CrPC.The provision stipulates: 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,...

    The Gauhati High court, in a criminal appeal, has held that when a Trial Court convicts an accused, it has to give him or her an opportunity of hearing on the sentence as mandated under section 235(2) of CrPC.

    The provision stipulates: 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.
    The High Court relied on Allaudin Mian & Others v. State of Bihar, (1989) 3 SCC 5, whereby the Apex Court noted that the dual purpose of section 235(2) CrPC is first, to comply with rule of natural justice by according an opportunity of hearing to the convicted person and second, to assist the courts to choose the sentence to be awarded.
    "The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded."
    The High Court further held that non-compliance of the mandatory provisions of section 235(2) CrPC amounts to "bypassing" an important stage of a trail.
    Such non-compliance constitutes disobedience to an expressed provision of the Code as to the mode of a trail and can result in vitiating of a sentence. It cannot be treated as a mere irregularity curable under section 465 of CrPC.
    "The non-compliance with the mandatory provisions of Section 235 (2) cannot be treated as a mere irregularity curable under Section 465 of the Code of Criminal Procedure, 1973. It is much more serious. It amounts to bypassing an important stage of the trial and omitting it altogether so that the trial cannot be said to be that contemplated in the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial. It goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence".
    Noting that the Trial Court failed to comply with this mandatory statutory provision of providing the appellant a reasonable and adequate opportunity of hearing as required under section 235 CrPC before he was handed down the sentence, therefore, the case was remanded back to the Trial Court.
    Accordingly, the impugned judgement and order was interfered and the criminal appeal was disposed of.
    Case No: Crl.Appeal 8/2020
    Case Name: Mr. Jothapuia v. State of Mizoram
    Citation: 2022 LiveLaw (Gau) 9
    Date: 31.01.2022
    Corum: Justice Nelson Sailo and Justice Marli Vankung
    Tags
    Gauhati High CourtJustice Nelson SailoJustice Marli VankungCriminal Procedure Code 1973 (CrPC)#Section 235(2) CrPCOpportunity of Hearing
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