Wednesday, 25 July 2012

Interpretation of Section 235(2) of CRPC

Supreme Court: According to sub-section (2) of Section 235 of CrPC the opportunity of hearing has to be given to the accused on the question of sentence. It means full opportunity has to be given to the accused to produce adequate materials before the court and if found necessary the court may also give an opportunity to lead evidence. Here evidence means the evidence which has some relevance on the question of sentence and not on conviction. Where capital punishment has to be awarded the court has to make conscious effort to elicit relevant information, which has some bearing in awarding a proper and adequate sentence. Awarding death sentence is always an exception, only in rarest of rare cases. The Court reiterated that the object of hearing under Section 235(2) CrPC being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) CrPC which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) CrPC is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. Herein the relevant facts of the case is that the accused Ajay Pandit, a dentist by profession, lured many person on the pretext of sending them to America for better prospects in life. Several persons fell in his net. Some of them were found murdered and few others narrowly escaped from the clutches of death. On these facts the Court observed that the High Court has mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused was informed by the court of the nature of the show-cause-notice i.e. whether the life sentence awarded by the trial court be not enhanced to death penalty. The accused said nothing more than this that he is not involved in the case. He is not guilty. But no genuine effort has been made by the court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. Therefore, the court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. (Ajay Pandit v. State of Maharashtra, Criminal Appeal No. 864 of 2006, decided on 17-7-2012)

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