TMI Blog1976 (8) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... Penal Code and sentenced him to death. It was common ground that after pronouncing the judgment convicting the appellant, the learned Sessions Judge did not give the appellant an opportunity to be heard in regard to the sentence to be imposed on him and by one single judgment, convicted the appellant and also sentenced him to death. The appellant preferred an appeal to the High Court and the case was also referred to the High Court for confirmation of the death sentence. The High Court agreed with the view taken by the learned Sessions Judge and confirmed the conviction as also the sentence of death. The appellant thereupon preferred the present appeal with special leave obtained from this Court. The appeal is limited to the question of sentence and the principal argument advanced on behalf of the appellant is that in not giving an opportunity to the appellant to be heard in regard to the sentence to be imposed on him after the judgment was pronounced convicting him, the learned Sessions Judge committed a breach of section 235 (2) of the Code of Criminal Procedure, 1973 and that vitiated the sentence of death imposed on the appellant. This argument is a substantial one and it rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal and sentencing should, therefore, receive serious attention of the court. In most of the countries of the world, the problem of sentencing the criminal offender is receiving increasing attention and that is largely because of the rapidly changing attitude towards crime and criminal. There is in many of the countries, intensive study of the sociology of crime and that has shifted the focus from the crime to the criminal, leading to a widening of the objectives of sentencing and, simultaneously, of the range of sentencing procedures. Today, more than ever before, sentencing is becoming a delicate task, requiring an inter-disciplinary approach and calling for skills and talents vary much different from those ordinarily expected of lawyers. This was pointed out in clear and emphatic words by Mr. Justice Frankfurter: I myself think that the bench we lawyers who become judges--are not very competent, are not qualified by experience, to impose sentences where any discretion is to be exercised. I d9 not think it is in the domain of the training of lawyers to know what to do with a fellow after you find out he is a thief. I do not think legal training gives you any special com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to. oral submissions ? That depends on the interpretation to be placed on the word 'hear'. 'Now, the word 'hear' has no fixed rigid connotation. It can bear either of the two rival meanings depending on the context in which it occurs. It is a well settled rule of interpretation, hallowed by time and sanctified by authority, that the meaning of an ordinary word is to be found not so much in strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be attained. It was Mr. Justice Holmes who pointed out in his inimitable style that a word is not a crystal, transparent and unchanged: it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used . Here, in this provision, the word 'hear' has been used to give an opportunity to the accused to place before the court various circumstances bearing on the sentence to be passed against him. Modern penology, as pointed out by this Court in Ediga Annamma v. State of Andhra Pradesh([1974] 3 S.C.R. 329)' regards crime and criminal as equall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide, then to produce evidence for the purpose of establishing the same. Of course, 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 harmonised with the requirement of expeditious disposal of proceedings. Now there can be no doubt that in the present case the requirement of section 235(2) was not complied with, inasmuch as no opportunity Was given to the appellant, after recording his conviction, to produce material and make submissions in regard to the sentence to be imposed on him. Since the appellant was. convicted under section 302 of the Indian Penal Code, only two options were available to the Sessions Court in the matter of sentencing the appellant: either to sentence him to death or to impose on him sentence of imprisonment for life. It the Sessions Court had, in- stead of sentencing him to death, imposed on him sentence of life imprisonment, the appellant could have made no grievance of the breach of the provision of section 235(2), because, even after hearing the appellant, the Sessions Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in regard to the sentence and given him an opportunity to be heard. It is unfortunate that in our country there is no system of continuing education for judges so that judges can remain fully informed about the latest developments in the law and acquire familiarity with modern methods and techniques of judicial decision-making. The world is changing fast and in our own country, vast social and economic changes are taking place. There is a revolution of rising expectation amongst millions of human beings who have so far been consigned to a life of abject poverty, hunger .and destitution. Law has, for the first time, adopted a positive approach and come out openly in the service of the weaker sections of the community. It has ceased to be merely an instrument providing a framework of freedom in which men may work out their destinies. It has acquired a new dimension, a dynamic activism and it is now directed towards achieving socio-economic justice which encompasses not merely a few privileged classes but the large masses of our people who have so far been denied freedom and equality-social as well as economic--and who have nothing to hope for and to live for. Law strives to give th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make submissions in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit. Section 465 cannot, in the circumstances, have any application in a case like the present. I accordingly allow the appeal and whilst not interfering with the conviction of the appellant under section 302 of the Indian Penal Code, set aside the sentence of death and remand the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the appellant to be heard in regard to the question of sentence in accordance with the provision of section 235 (2) as interpreted by me. FAZAL ALI, J.--I entirely agree with the judgment pro- posed by my learned brother Bhagwati, J., and I am at one with the views expressed by him in his judgment, but I would like to add a few lines of my own to highlight some important aspects of the question involved in this appeal. In this appeal by special leave which is confined only to the question of sentence an interesting question of law arises as to the interpretation of the provisions of s. 235(2) of the Code of Criminal Procedure, 1973---hereniafter after referred to as 'the 1973 Code'. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be made aware during the trial. Para 6(d) of the statement of objects and reasons of the 1973 Code' runs thus: 6. Some of the more important changes intended to provide relief to the poorer sections of the community are :-- (d) the accused will be given an opportunity to make representation against the punishment before it is imposed.'' The statement of objects and reasons further indicates that the recommendations of the Law Commission were examined carefully keeping in view, among others, the principle that an accused person should get a fair trial in accordance with the accepted principles of natural justice . In these circumstances, therefore, I feel that the provisions of s. 235 (2) are very salutary and contain one of the cardinal features of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him. Section 235 of the 1973 Code runs thus: 235(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facement of the criminal but also a complete socio-economic destruction of the family which he leaves behind. Similarly there may be cases, where, after the offence and during the trial, the accused may have developed some virulent disease or some mental infirmity, which may be an important factor to be taken into consideration while passing the sentence of death. It was for these reasons that s. 235(2) of the 1973 Code was enshrined in the Code for the purpose of making the Court aware of these circumstances so that even if the highest penalty of death is passed on the accused he does not have a grievance that he was not heard on his personal, social and domestic circumstances before the sentence was given. My learned brother has very rightly pointed out that our independence has led to the framing of numerous laws on various social concepts and a proper machinery must be evolved to educate not only the people regarding the laws which have been made for their benefit but also the Courts, most of whom are not aware of some of the recent and the new provisions. It is, therefore, the prime need of the hour to set up Training Institutes to impart the new judicial recruits or even to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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