Judgment:
N.P. Chapalgaonker, J.
1. Raju @ Jitu Santoni was convicted by learned Vth Additional Sessions Judge, Jalgaon on 2nd April, 1996 in Sessions Case No. 250 of 1995 for committing murder of Sanjaykumar Singh and also for committing robbery punishable under section 392 of I.P.C. with the use of deadly weapon punishable under section 397 of I.P.C. Since the learned Sessions Judge awarded death sentence, the matter has come up before us by way of confirmation proceedings and by way of appeal filed by the convict.
2. Today, when we started the hearing of the matter, Shri R.G. Karmarkar, learned Counsel appearing on behalf of the appellant, giving a brief summary of the facts of the case, brought to our notice that the accused was not heard as is required under section 235 of the Code of Criminal Procedure, 1973, on the point of sentence. We find Ground No. (XXXVI) in the appeal memo making grievance about the same. The ground is as under.
'The learned Judge did not give proper consideration as to the quantum of sentence. He held the accused guilty and heard him on the point of sentence and immediately passed the sentence of hanging. The Court should not have passed sentence on the same day without waiting for consideration. This is contrary to section 235(2) of Criminal Procedure Code.'
Paragraph 92 of the judgment reads as under --
'The accused was heard on the point of sentence so (Sic - through) his Advocate. Both of them submitted the accused has not committed any crime.'
Then the paragraph No. 93 proceeds to record as under -
'The learned A.P.P. was also heard on the point of sentence and he submitted that necessary orders in the matter be passed.'
Further portion of the judgment deals with the judgment of this Court reported in Prem alais Santosh s/o Jivandas Satija v. The State of Maharashtra, : 1993(2)BomCR252 and paragraph No. 95 of the judgment records-
'The learned A.P.P. said that in view of these observations, this is a fit case in which extreme penalty should be awarded. The learned Advocate for the accused refused to make any comment on these observations, and even the case at hand was not attempted to be distinguished from the said case.'
This is all that is in the judgment in respect of hearing of the accused on the quantum of sentence.
3. Sub-section (2) of section 235 of the Code of Criminal Procedure, 1973 lays down 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 law is settled that the provisions of section 235(2) are mandatory in nature. Likewise, a sentencing decision taken without following the requirements of sub-section (2) of section 235 in letter and spirit will also have to be struck down, as was pointed out by the Supreme Court in Allauddin Mian and others, Sharif Mian and another v. State of Bihar, ---
'As a general rule the trial Court should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.'
The record in the instant case shows that the case was not adjourned and it proceeded after the accused and his Counsel were asked whether they have to say anything on the point of sentence. There is no record in writing about the answer given by accused to such a query which the Judge appears to have made. The gist reproduced in the judgment does not speak anything about submission of the accused about the quantum of sentence but it merely repeats the denial of having committed offence. The case proceeded on the same day and the death penalty was imposed. The adjournment of the case at least for a day as was advised by the Supreme Court, is not a mere formality but it is an opportunity for the accused to ponder over the possible sentence and to prepare himself for bringing such circumstance to the notice of the Court, as, in his opinion, would be sufficient to mitigate the crime and persuade the Court to impose the lenient or a lesser punishment as would be permissible. Similarly, it also gives opportunity to the prosecution to point out circumstance which calls for a harsh treatment. But we do not find that either of them has submitted reasons which would enable the Court to arrive at appropriate decision.
4. The scope of the hearing to the accused under section 235 was explained by the Supreme Court in Santa Singh v. The State of Punjab A.I.R. 1976 S.C. 2386.
'The hearing contemplated by section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the Court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.'
Though the Supreme Court has directed the courts to take care that this opportunity is not utilized and turned into an instrument for unduly protracting the proceedings, nevertheless sufficient opportunity in compliance of the statutory provision is mandatory.
5. Shri Karmarkar placed reliance on Allauddin Mian and others, Sharif Mian and another v. State of Bihar, and Tarlok Singh v State of Punjab, : 1977CriLJ1139 , to contend that the case need not be sent back at this stage for compliance of section 235 and this Court should hear the appeal on merits and then if occasion arises, hear the accused on the question of sentence in this Court or remit the matter to the trial Court for this purpose. Neither of these two cases lay down an inflexible rule that in case of non-compliance of section 235, the matter should not be remanded to the trial Court but the Appellate Court itself should hear the accused on the point of sentence. Shri Karmarkar further contends that first Appeal should be decided on merits, then confirmation proceedings should be taken up and if at the end of hearing of both these matters accused is found guilty, then he may be heard on the point of sentence.
6. In Tarlok Singh v State of Punjab, : 1977CriLJ1139 , Supreme Court observed:
'It may well be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases it may be more appropriate for the appellate Court to give an opportunity to the parties in terms of section 235(2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial Court. This may, in many cases, save time and help produce prompt justice.'
In this case, the leave granted by the Supreme Court was limited to the question of sentence. The conviction was not a matter of consideration before the Supreme Court but hearing was limited to the quantum of sentence. Therefore, Supreme Court chose to hear the accused at the appellate stage and then, considering circumstances of that case, alter the death sentence into a life imporisonment. If for one reason or the other, the Appellate Court is not able to hear a criminal appeal for a long time and the question of the conviction and sentence is to be considered after the expiry of considerable period, the remand of such matter for hearing accused on the point of sentence would not be proper since it is likely to delay the hearing of the matter on merit for a further time. Therefore, the appellate courts will have to take a decision whether to remand the matter or to hear the case on the quantum of sentence at the appellate stage only considering facts and circumstances of that case. Since the sentence recorded by the learned Judge is only 3 months old and we are able to take up the matter urgently, we feel that the remand would be an appropriate order.
7. 'In a case of life or death as in the case of punishment for murder, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality, to be crossed before making the choice of sentence. If the choice is made without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc; before the Court, the Court's decision on the sentence would be vulnerable.'
'We need hardly be mentioned that in cases a sentencing decision has far more serious consequences on the offender and his family member that in the case of a purely administrative decision, a fortiori, therefore, the principles of fairplay must apply with greater vigour in the case of the former than the latter.'
Looking to these observations of the Supreme Court in Allauddin Mian's case cited supra, the course adopted by the trial Court is in total disregard of the statutory requirement. Even hearing the accused on the quantum of sentence under section 235 is not only procedural matter not touching the merits of the case but it is an important statutory provision which relates to the right of life and liberty under section 21 of the Constitution of India.
8. If the life or liberty of a person is to be taken away or restricted, then it will have to be as per the procedure laid down by law. If the procedure gives opportunity to accused of some kind of representation against proposed extreme penalty of death or duration of restraints on his liberty, then such a hearing will have to be meaningful. We feel that submission of Shri Karmarkar that we should hear the accused if we find him guilty in this Appeal itself without remanding the matter, need not be accepted. The trial Judges cannot overlook statutory requirements of section 235 and leave that job to be done by the Appellate Court. True that the appellate courts in cases where the delay would prejudice the cause of justice, have adopted course of hearing the accused on the quantum of sentence at the time of hearing of the appeal. But since we have considered the matter within shortest possible time after the conviction was awarded, we propose to remand the matter with direction that hearing should be given to the accused as is required under section 235(2) only on the point of sentence. It need not be mentioned here that whenever the matter is remanded for this purpose, the conviction remains as it is and the hearing is limited to the quantum of sentence.
9. In Narpal Singh and others v. State of Haryana, : 1977CriLJ642 , five persons were convicted for murder and three of them were sentenced to death. However, the remaining two were awarded imprisonment for life. Supreme Court considered the appeal on merit and confirmed the finding of conviction for offence punishable under section 302 in respect of all the accused finding that two of them were sentenced to minimum sentence awardable i.e. imprisonment for life and did not feel it necessary to remit their cases to the Sessions Judge. However, the cases of three persons sentenced to death were remitted to the learned Sessions Judge for passing order of sentence after hearing them on the point of sentence but directed that the conviction should not be re-opened and only the question of sentence should be considered. In this case also, we propose to give directions to the Additional Sessions Judge to hear the accused appellant only on the point of sentence without re-opening the conviction but make it clear that we have not confirmed the conviction of the accused appellant for offence punishable under section 302 of I.P.C.
10. We make it clear that we have not applied our minds to the merits either in the confirmation case or in the appeal of the accused against the conviction. Therefore, this remand should not be considered to be an opinion expressed about the guilt of the accused by this Court and it is limited for compliance of the provisions of section 235. Learned Sessions Judge awarded death penalty to the accused- appellant and has not passed any separate sentence for offence under section 392 and 397 for which the accused has been held guilty. Question of sentence is to be considered by the learned Judge afresh after hearing the accused.
11. Shri Karmarkar, learned Counsel for the appellant, contended that appeal may be kept pending in this Court and the Sessions Judge can be asked to record the order of sentence again after compliance of the directions. We do not think that such a course is permissible. Since we are setting aside the order of death sentence, the confirmation proceedings will automatically lapse. If the learned Sessions Judge chooses to re-impose same punishment, he would make proper reference to the Court as required and simultaneously, the accused will have opportunity to challenge conviction and sentence. Even if lesser punishment permitted in law is imposed, the accused always has a right to file appeal against that order.
12. We, therefore, set aside paragraphs No. 2 and 3 in the operative order of the judgment which directs that the accused be hanged by neck till death subject to the confirmation of the High Court and also saying that no separate sentence are awarded under section 392 and 397 of I.P.C. and direct the learned Judge to hear the accused - appellant on the point of sentence and then pass a fresh order regarding the sentence.
13.The accused - appellant shall be produced before the learned Vth Additional Sessions Judge, Jalgaon, who has heard the Sessions Case, on 22nd July, 1996 and the accused will take further date from the learned Sessions Judge. Learned Additional Sessions Judge shall dispose of the case as per the above directions and pass a fresh order about sentence after hearing the accused on the point. He should pass final order within a period of 30 days from the date of appearance of the accused- appellant. With these directions, Criminal Appeal is partly allowed. The Counsel prays for copy of the judgment and order. It be supplied to him forthwith free of cost.