A convict has to be heard on sentencing
If the accused is convicted for any offence, he shall have the right to be heard on the question of sentence before the court pronouncing its sentence. This is what the Section 235 (2) of the Criminal Procedure Code, 1973 (CrPC) states. This hearing usually ends up as a meaningless routine in most of the cases.
This provision of hearing of the accused on the question of sentence is introduced in the CrPC as recommended by the 48th Report of the Law Commission of India. The report, in its Section 45, pointed out that the taking of evidence as to the circumstances relevant to the sentencing should be encouraged and both the parties should be heard on sentencing.
A sentence is a judgement on conviction of the crime when a person is convicted of the offence after the process of trial.
The court must consider the social background of the convict
The provision shows a new trend in penology and awarding of sentence. It takes into consideration the factors such as prior criminal record, his age, employment, education, sociological background, family background, financial position, antecedents, social adjustments, mental condition and the prospect of his returning to normal path in conformity with law.
It is an earnest attempt to humanising individual punishment to suit his background and circumstances. In making the choice of sentence the court should give due consideration to the circumstances of the accused rather than conforming to the circumstances connected with the particular crime.
Therefore, the elements like fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty in Article 21 of the Constitution, should pervade the sentencing policy.
Gather materials to make the sentence fair
Sentencing is a sensitive exercise of discretion. The court must collect all materials essential to help award a just punishment.
The post-conviction hearing of the accused must be on broad sociological prospective casting aside the routine formalities and keeping the constraints imposed by the evidence act away.
What factors are to be considered?
The social background and the personal factors of the accused are very relevant in sentencing. The accused may be the only bread earner of the family which the court may not be aware of during the trial.
The social compulsions the pressure of poverty the retributive instinct to seek extra legal remedy to a sense of being wronged, the lack of means to be educated, the parentage and heredity etc can tilt the scales on the propriety of sentence. The criminal, not the crime must figure prominently in shaping the sentence. The mighty factor It should focus on is the reform of the individual.
A proper sentence is the amalgamation of many factors: nature of offence, extenuating or aggravating circumstances, prior criminal record, age, record of employment, emotional and mental conditions, prospect for rehabilitation, possibility of return to normal life in the community and such other factor.
The post crime developments can also be taken into account in fixing the quantum of sentence.
Hearing need not be oral alone
The post-conviction hearing need not be confined to oral submissions alone. Both the prosecution and the accused can place facts and materials relating to various factors relevant to the sentence. If anything is contested by any party then they have the right to produce evidence for the purpose of establishing it.
If the accused is convicted for murder under the section 302 CrPC the court shall call upon the prosecutor to state whether the case calls for capital punishment by leading submission or by evidence, and its rebuttal by the defence.
Not providing an opportunity is a grave error
It is a grave error for the court not to provide opportunity of post-conviction hearing and to produce evidence in support of it.
The court, while imposing sentence, must consider the cumulative effect of aggravating and mitigating circumstances by giving their respective weightage.
However mere non-allotment of a separate date of hearing cannot vitiate death sentence in a murder case. It is only an irregularity.
Evidence can be produced by both sides
The hearing of the accused can be done by placing in writing by affidavit, or otherwise.
Argument about non-compliance with section 235 (5) cannot be put forth for the first time before the Supreme Court when,
- the accused had been given sufficient opportunity of being heard on the question of sentence and
- they had raised no plea before the trial court or the High court
There is not much illegality in pronouncing sentence by the trial court on the same day on which conviction is passed, if the record does not show that any request was made to the court for adjournment. Under Section 235(2), the accused is entitled to an opportunity to adduce evidence and if need be, the case is to be adjourned to another date.
Not giving an opportunity of hearing is a grave error
The non-affording of opportunity of hearing and to produce evidence to a convict on question of sentence is a grave error.
When the Section 235 (2) CrPC is read with the Section 354(3) CrPC what is discernible is that in fixing the degree of punishment the court should not confine to the circumstances connected with the crime but give due consideration to the circumstances of the criminal.
If the Judge is imposing the minimum punishment among the alternate punishments, such as life imprisonment or death, prescribed for the offence, then it is not essential to hear the accused before sentencing.
