Guwahati: The Gauhati High Court has, while hearing a criminal appeal recently, held that the trial court has to hear a convicted person before passing a sentence on him or her as mandated under Section 235 (2) of the CrPC.
The High Court relied on a previous case, whereby the apex court noted that the dual purpose of Section 235(2) CrPC is to comply with the rule of natural justice by giving an opportunity of hearing to the convicted person, and secondly, to assist the courts to choose the sentence to be awarded.
The provision stipulates that “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 requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence,” the High Court held.
This is all the more necessary since the courts are generally required to make the choice from a wide range of discretion in the matter of sentencing.
“The said provision, therefore, satisfies a dual purpose; it satisfies the rule of natural justice by giving 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,” it said.
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 trial.
“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,” it said.
The High Court, while observing that the trial court failed to comply with the mandatory statutory provision of providing the appellant a reasonable and adequate opportunity of hearing as required under Section 235 CrPC before the sentence was passed, remanded back the case to the trial court.
Subsequently, the impugned judgement and order was interfered and the criminal appeal was disposed of.
Also read: Assam police firing: DGP asked to conduct departmental probe