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Published : May 28, 2016 | Author : Manmeet Singh
Category : Criminal law | Total Views : 1096 | Rating :

Manmeet Singh
I am B.A.LL.B (Hon's) final year of LL.M at Himachal Pradesh University

Pre Sentence Hearing

“Any One Can Try A Case; The Difficulty Comes In Knowing What To Do With A Man, Once He Has Been Found Guilty”.

The object of the criminal trial is to determine whether the accused person is guilty of the offence he is charged with or not. Guilt once established the sentencing dilemma begins. A wide discretion is given to the judges in sentencing the offenders. The object of the code of criminal procedure is to split up the trial into two fundamental parts. Once the court delivers a judgment of conviction one part of the trial comes to an end. The second part of the trial is restricted to the question of sentence. The offender’s life, liberty, property and his entire future hinge on the outcome of the sentencing process.

The traditional attitude of the sentencing judges in this regard was that their responsibility ended with the imposition of the sentence. Many criminal court judges sentence offenders to confinement without fully recognizing what would happen after sentence was imposed now in the recent years primarily because of the concept of welfare state, emergence of natural human rights and development of the idea of re socialization of the offenders and growing number of law suits by prisoners courts have become aware of the conditions of prison confinement. However the judge is placed in a very difficult position when he is required to pass sentence on the convicted offender. In arriving at the conclusion about the guilt of the accused, the court has to judge the evidence by the yardstick of the probabilities, its intrinsic worth and the animus of the witness. It is the plain and bounden duty of the court to analyze and discuss the evidence in its judgment. However various pre and post trial safeguards have been provided by code of criminal procedure to ensure an honest and equitable trial. And one of such remarkable safeguard is pre sentence hearing.

Meaning of sentence and pre sentence hearing:

Sentence is a judgment on conviction for crime. The pronouncement by the judge, of the penalty or punishment as the consequence to the defendant, of the fact of his guilt. The sentence is the test as to whether justice has been done both to the victim and to the defendant.

However the term pre sentence hearing means that the hearing is not confined merely to oral submission by the accused on the question of sentence imposed upon him but it is also intended to give an opportunity to the prosecution and accused to place facts and materials relating to various factors bearing on the question and if they are contested by the either side than to produce the evidence for the purpose of establishing the same.

Pre sentence hearing in India:

A proper sentence is the amalgamation of many factors such as the nature of the offence, the circumstances of the offence, the prior criminal record of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life social adjustment, the emotional and mental condition of the offender ,the possibility of rehabilitation, the opportunity of pre sentence hearing. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence. Sentencing powers are derived by the courts from code of criminal procedure and same code provides the mandatory safeguard of pre sentence hearing to the accused.

Section 235 (2) and 248(2) incorporates the rule of pre sentence hearing. These sections provides that if the accused, in a trial before a court of session or in a trial of warrant case by a magistrate, is found guilty and the court or magistrate does not proceed in accordance with the provisions of section 360, the court or magistrate shall hear the accused on the question of sentence and then pass sentence on him according to law. the word hear has been used to give an opportunity to the accused to place before the court or the magistrate the various circumstances bearing on the sentence to be passed against him. Due care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonized with the requirement of expeditious disposal of proceedings. Strictly speaking the provision as to hearing the accused on the question of sentence applies only after the decision of the court not to release the offender under section 360 has been taken. Here it is necessary to mention that the provisions has been made only in respect of trials before a court of session and trials of warrant cases by magistrates and does not apply to other trials.

In Dagdu and others v. state of Maharashtra after the order of conviction is recorded it is obligatory for the court to hear the culprit on the question of sentence unless it releases him on probation of good conduct or admonition under sec.360. the social compulsions, the pressure of poverty, retributive instinct to seek extra legal remedy to a sense of being wronged, the lack of means to be educated in the difficult part of an honest living, the parentage and heredity- all these and similar under considerations , can hopefully and legitimately tilt the scales on the propriety of the sentence.

In Muniappan Vs. State of Tamil Nadu, a two judge bench of Supreme Court emphasized on the importance of hearing the accused on the question of sentence under Section 235(2) CrPC and came to the conclusion that the question of hearing the accused on sentence was not to be discharged without putting formal questions to the accused. The obligation of hearing the accused under Section 235(2) CrPC has been explained as follows:- "The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence... question which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The court, while on the question of sentence is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction". In Arshad v. State of Karnataka -, Supreme Court through Justice Anand (as his Lordship was then) again deplored the practice of proving guilt and sentencing on the same day. Again in shiv mohan v. state of Delhi it was held that session judge delivering the judgment of conviction is to stay his hand and hear the accused on the question of sentence and give him an opportunity to lead the evidence. Which also may be rebutted by the prosecution.

Objectivity Behind These Provisions:-
Hearing is obligatory at the sentencing stage under code of criminal procedure. the humanist principle of individualizing punishment to suit the person and has circumstances is best served by hearing the culprit even on the nature and quantum of the punishment. Justice Fazal Ali in Santa Singh v. state of Punjab observed that the provisions of section 235(2) were very salutary and contained one of the cardinal features of natural justice namely, that the accused be given an opportunity to make a representation against the sentence proposed to be imposed on him. He further observes that the statute has sought to achieve a socio economic purpose and was aimed at attaining the ideal principles of proper sentencing in a rational and progressive society. The Supreme Court again in Tarlok Singh v. state of Punjab observed that the object of the sec 235(2) is to give a fresh opportunity to the convicted person, to bring into the notice of the court such circumstances, as may help the court in awarding an appropriate sentence having regard to the personal, social, and other circumstances of the case. Allauddin Mian Vs. State of Bihar , The learned judges held that the provision of Section 235(2) of the CrPC serves a dual purpose and those purposes are as follows: "...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. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality".

Role of Trial Court Judges:-

It has been considered that the provisions incorporated under sec 235(2) and 248(2) are in consonance with the modern trend in penology and sentencing procedure. It is contended that the judge must make definite and genuine effort to elicit from the accused all information, which will eventually bear on the question of the sentence. In jaiprakash v. state it was held that sentencing an accused is a sensitive exercise of discretion and not routine or mechanical prescription acting on hunch. The court should collect material necessary to help, award a just punishment. The social background and personal factors of the accused are very relevant. even if sec 360 is not attracted, the duty of the court is to be activist enough to collect facts bearing on the punishment with a rehabilitating slant. In kajod v state of Rajasthan, 1977 it was held that hearing accused before passing sentence is mandatory and prayer of the accused to lead the evidence on question of sentence cannot be rejected. Again in Munniappan v. state it was held that the duty of the court to ask on the question of the sentence is not discharged merely by putting the formal questions to him. There should be a genuine effort on the part of trial judge. Further in providing extra safeguard in Dagdu v state of Maharashtra the apex court held that the social compulsion, the pressure of poverty, the retributive instinct to seek extra legal remedy to being a sense of wronged, the lack of the means to be educated, the parentage and heredity these and similar other considerations can hopefully and legitimately tilt the scale on the propriety of the sentence.

Non Compliance With These Provisions:-
A non compliance with the requirement of s. 235(2)cannot be regarded as a mere irregularity, in the course of trial curable under sec 465 of the code of criminal procedure it is much more serious. It amounts to bypassing an important stage of the trial. It is very serious and would be considered as vitiating the order of the sentence particularly in those cases where the accused is deprived of the chance of getting a lesser sentence due to such absence of the hearing, secondly when no opportunity have been given to the accused to produce material and make submission in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit, and sec 465 cannot have any application in such a case. In swaarth mahtov. Dharmdeo narayan the apex court set aside the conviction and sentence, on the ground that fair and reasonable opportunity of being heard was not given to the appellants. Again in narpal singh v. state of Haryana on the similar grounds it was held that if the trial court for any reasons omits to hear the accused on the question of sentence and the accused makes an grievance of it, in the higher court, it would be open to that court to remedy the breach by giving by giving a hearing on the question of the sentence.

Court Awarding Minimum Sentence- Pre Sentence Hearing Necessary?

The main objective behind these provisions is to give a fair opportunity to the accused of being heard so that truth can be infrenced out. And while passing a sentence a judge can have a look into the various factors upon which the quantum of punishment depends but in the cases where judge is already prescribing for the minimum punishment it is not necessary to have presentence hearing. In yhanannan v. state of kerela. In a murder case imprisonment for life is the minimum sentence. If the accused is sentence to the imprisonment for life, failure to ask him any question as to sentence is not fatal. Again in state of Gujrat v gandabhai govindbhai it was held that when minimum sentence is prescribed and the court is prescribing that minimum punishment, there may not be the question of hearing the accused on the question of sentence.

Thus from the above it can be infrenced that the trial between prosecutor and accused ends with delivery of the verdict. It is indeed very ironical that:-

we take the accused, clothe him with the presumption of innocence , insist him that he is having an attorney to represent, provide that he cannot be testified against himself, assure his right to be confronted with witnesses who appear against him, call witnesses for him. Guard all his rights zealously all the way through the trial. Then the minute he is convicted we sheer away the safeguards and use anarchic inhumane method of deciding what to do with him.

No doubt that while awarding sentence no. of factors should be taken into account to safeguard the interest of the accused or convicted person. And sec 235(2) and 248(2) provides for hearing on the question of sentence, but it does not provide for detailed provisions about the information of the background of the accused. Moreover these provisions do not apply to all offences. And passing a sentence largely depends upon judicial discretion. But still these provisions have great significance in today’s socioeconomic circumstances. Where largely masses of the population are poor and falls victim of various crimes.

End notes
# Crime and criminal justice system in India, mir mehraj ud din,1984 at p.159
# Criminology and penology,S.M.A Quadri, 6th edi,2011 at p.377
# Criminology and criminal administration,J.P.S Sirohi,4th edi,1992 at p.139
# The code of criminal procedure, P sarkar,7th edi,2001 at p.769
# Supra note 2.
# Supra note 1.
# Code of criminal procedure, R.V kelkar,5th edi,2012 at p. 583
# Sentencing-an analyses, Joie chowdhury,Cr.L.J,2004,vol.3at p.257
# Code of criminal procedure, N.D.Basu, vol 2, 9th edi ,2002
# supra note 7 at p.596
# Ibid.
# Air 1977 SC1579
# (1981) 3 SCC 11
# (1994) 4 SCC 383
# AIR 1977 sc 949
# AIR 1976SC2386
# AIR 1977SC 1747
# (1989) 3 SCC 5
# 1979 cr. Lj1167
# cr.lj raj166
# Supra note 13
# Supra note 12
# Supra note 7 at 598.
# 1977 crlj 642
# 1987cr.lj14ker 924
# 2000 crlj 92 Guj

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