Santa Singh v. State of Punjab
Judgment
The Judgment of the Cour twas delivered by
P. N. Bhagwati, J. S. Murtaza Fazal Ali, J. gave a separate Opinion.
BHAGWATI, J.-This appeal, by special leave, raises an interesting
question of law relating to the construction of section 235(2) of the
Code of Criminal Procedure, 1973. The appellant was tried before
the Sessions Judge, Ludhiana for committing a double murder, one of
his mother and the other of her second husband. He was represented
by a lawyer durnig the trial and after the evidence was concluded and
the arguments were heard, the learned SessiollS Judge adjourned the
case to 13th February, 1975 for pronouncing the judgment. It appears
that ou 13th February, 1975, the judgment was not ready and hence
the case was adjourned to 20th February, 1975 and again to 26th
February, 1975. The Roznamcha of the proceedings shows that orr
26th February, 1975 the appellant was present without his lawyer and
the learned Sessions Judge pronounced the judgment convicting the
appellant of the offence under section 302 of the Indian Penal
Code and sentenced him to death. It was common ground that after
pronouncing the judgment convicting the appellant, the learned Ses
sions Judge did not give the appellant an opportunity to be heard irr
regard to the sentence to be imposed on him and by one single judg
ment, convicted the appellant and also sentenced him to death. The
appellant preferred an appeal to the High Court and the case was
a!so 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 appel!ant thereup~n preferred the presen~ appeal with special
leave obtamed from this Court.
The appeal is f!Dlited to the question of sentence and t:he principal
argument advanced on behaJf of the appellant is that in not giving an
opportunity to the appellant to be heard ir:t regard to t:he sentence-to
IA
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232 SUPREME COURT REPORT~ (1977] 1 S.C.R.
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 rests on the true interpretation of section 235 (2). This
is a new provision and it occurs in section 235 of the Code of Criminal
Procedure, 1973 which reads as follows :
"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 section
360, hear the accused on the question of sentence, and then
pass sentence on him according to law."
This provision is clear and explicit and does not admit of any doubt.
It requires that in every trial before a court of sessions, there must
first be a decision as to the guilt of the accused. The court must, in
the first instance, deliver a judgment convicting or acquitting the
accused. If the accused is acquitted, no further question arises.
But if he is convicted, then the court has to "hear the accused on the
question of sentence, and then pass sentence on him according to
law". When a judgment is rendered convicting the accused, he is,
at that stage, to be given an opportunity to be heard in regard to the
sentence and it is only after hearing him that the court can proceed
to pass the sentence.
This new provision in section 235 (2) is in consonance with the
modern trends in penology and sentencing procedures. There was
no such provision in the old Code. Under the old Code, whatever the
accused wished to submit in regard to the sentence had to be stated
by him before the arguments concluded and the judgment was deliver
ed. There was no separate stage for being heard in regard to sentence.
The accused had to produce material and make his submissions in regard
to sentence on the assumption that he was ultimately going to be
convicted. This was most unsatisfactory. The legislature, there
fore, decided that it is only when the accused is convicted that the
question of sentence should come up for consideration and at that
stage, an opportunity should be given to the accused to be heard in
regard to the sentence. Moreover, it was realised that sentencing
is an important stage in the process of administration of criminal
justice as important as the adjudication of guilt-,.and it should npt ·be
consigned to a subsidiary position as if it were a matter of not much
consequence. It should be a matter of some anxiety to the court to
impose an appropriate punishment on the 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
..
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SANTA SINGH v. PUNJAB (Bhagwati, J.) 233
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 pro~edures. Today_, .more t~an ev.er. b~fore,
sentencing is becoming a de~1cate task, reqmrmg an mte~-d1sc1plmary
approach and calling for skills and talent~ vary m~ch dIIIere?t from
those ordinarily expected of lawyers. This was pomted out m clear
and emphatic words by Mr. Justice Frankfurter:
"I myself think that the bench-we lawyers who be
come judges-are not very competent, are not qualified by
experience, to impose sentences where any discretion is to be
exercised. I do not think it is in the domain of the train-
ing 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 competence. I, myself, hope that one of these
days, and before long, we will divide the function&_of crimi-
nal justice. I think the lawyers are people who are compe-
tent to ascertail} whether or not a crime has been commit-
ted. The whole scheme of common law judicial
machinery-the rule of evidence, the ascertainment of what
is relevant and what is irrelevant and what is fair, the whole
question of whether you can introduce prior crimes -in order
to prove intent-I think lawyers are peculiarly fitted for that
task. But all the questions that follow upon ascertainment
of guilt, I think require very different and much more diver
sified talents than the lawyers and judges are normally likely
to possess."
The reason is that a proper sentence is the amalgam of many factors
such as the nature of the offence, the circumstances-extenuating or
aggravating--0f the offence, the prior criminal record, if any, of the
offender, the age of the offender, the record of the offender as to
employment, the background of the offender with reference to educa-
tion, home life, society and social adjustment, the emotional and
mental condition of the offender, the prosi>ects for the rehabilitation of
the offender, the possibility of return of the offender to a normal life
in the community, the possibility of treatment or training of the offen-
der, the possibility that the sentence may serve as a deterrent to crime
by the offender or by others and the current community need, if any,
for such a deterrent in respect to the particular type of offence. These
are factors which have to be taken into account by the court in
deciding upon the appropriate sentence, and therefore, the legisla
ture felt that, for this purpose, a separate stage should be provided
after conviction when the court can bear the accused in regard to
these factors bearing on sentence and then pass proper sentence on
the accused. Hence the new provision in section 235(2).
8
But, on the interpretation of section 235 (2), another question
arises and that is, what is the meaning and content of the words H
"hear the accused". Does it mean merely that the accused has to
be given an opportunity to make his submissions or he can also produce
17-1003 SCI/76
material bearing on sentence which has so far not come before the
court ? Can he lead further evidence relating to the question of
sentence or is the hearing to be confined only 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". Heri::, in this provi
sion, 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(')
"regards crime and. criminal as equally material when the right sen
tence has to be picked out". It turns the focus not only on the crime,
but also on the criminal and seeks to personalise the punishment
so that the reformist component is as much operative as the deterrent
element. It is necessary for this purpose that "facts of a social and
personal nature, sometimes altogether irrelevant, if not injurious, at
the stage of fixing the guilt, may have to· be brought to the notice of
the court when the actual sentence is determined". We have set out
a large number of factors which go into the alchemy which ultimately
produces an appropriate sentence and full and adequate material rela
ting to . these factors would have to be brought before the court in
order to enable the court to pass an appropriate sentence. This mate
rial may be placed before the court by means of affidavits, but if either
party disputes the correctness or veracity of the material sought to be
produced by the other, an opportunity would have to be given to the
party concerned to lead evidence for the purpose of bringing such
material on record. The hearing on the question of sentence, would
be rendered devoid of all meaning and content and it would become
an idle formality, if it were confined merely to hearing oral submis
sions without any opportunity being given to the parties and particu
larly to the accused, to produce material. in regard to various ~actors
bearing on the question of sentence, and if necessary, to lead evidence
for the purpose of placing such material before the court. This was
also the opinion expressed by the Law Commission in its Forty Eighth
Report where it was stated that "the taking of evidence as to the
circumstances relevant to sentencing should be encouraged and both
the prosecution and the accused should be allowed to cooperate in the
process." The Law Commission strongly recommended that 'if a
request is made in that behalf by either the prosecution or the accused,
an opPOrtunity for leading "evidence on the question" of sentence
"should be given". We are, therefore, of the view that the hearing
(l) [1974] 3 S.C.R. 329.
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SANTA 'SINGH v. PUNJAB (Bhagwati, J.) 235
contemplated by section 235 (2) is not confined merely to hearing
'()ral 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 estabilishing 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 pro
tracting the pro~edings. 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 require
ment of section 235 (2) was not complied with, inasmuch as no oppor
tunity was given to the appellant, after recording his conviction, to
produ~ material and make submissions in regard to the sentence to
be imposed on him. Since the appellant was convicted under seg-
tion 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 imprison-
ment for life. It the Sessions Court had, instead of sentencing him to
<leath, imposed on him sentence of life imprisonment, the appellant
wuld have made no grievance of the breach of the provision of section
235 ( 2), because, even after hearing the appellant, the Sessions Court
would not have passed a sentence more favourable to the appellant
than the sentence of life imprisonment. In such a case, even if any
complaint of violation of the requirement of section 235(2) were made,
it would not have been entertained by the appellate court as it would
lmve been meaningless and futile. But, in the present case, the Sessions
Court chose to inflict death sentence on the appellant and the possi
bility cannot be ruled out that if the accused had been given opportunity
to proouce material ano make submissions on the question of sentence,
as contemplated by section 235 (2), he might have been able to per
suade the Sessions Court to impose the lesser penalty of life imprison
ment. The bre.acb of the mandatory requirement of section 235(2)
cannot, in the circumstances, be ignored as inconsequential and it must
be held to vitiate tbe sentenc6 of death imposed by the ..Sessions Court.
It was, however, contended on behalf of the State that non-com
pliance with the mandatory requirement of section 235 (2) was a mere
irregularity curable under section 465 of the Code of Criminal Proce
dure, 1973 as no failure of justice was occasioned by it and the trial G
could not on that account be held to be bad. The State leaned heavily
on th"l fact that the appellant did not insist on his right to be heard
under section 235 (2) before the Sessions Court, nor did he make any
complaint before the High Court that the Sessions Court had com
mitted a breach of section 23 5 ( 2) and this ,emission on the part of
the appellant, contended the State, showed that he had nothing to say
in regard to the question of sentence and consequently, no prejudice H
was suffered by him as a result of non-compliance with section 235(2).
This contention is, in my opinion, without force and must be rejected.
It must be remembered that section 235 (2) is a new provision intro-
236 SUPREME COURT REPORTS [1977) 1 S.C.R.
duced for the first time in the Code of Criminal Procedure, and 1n3
aml it is quite possible that many lawyers and judges might be un
aware of it. Before the Sessions Court, the appellant was not represent
ed by a lawyer at the time when the judgment was pronounced and
obviously he could not be aware of this new stage in the trial provided
by section 235(2). Even the Sessions Judge was not aware of it, for
it is reasonable to assume that if he had been aware, he would have
informed the appellant about his right to be heard 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 deve
lopments 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 en
compasses not merely a few privileged classes but the large masses
of our people who have so far been denied freedom anfl equality
social as well as economic-and who have nothing to hope for and
to live for. Law strives to give them social and economic justice and
it has, therefore, necessarily to· be weighted in favour of the weak and
the exposed. This is the new law which judges are now called upon
to administer and it is, therefore, essential that they should receive
proper training which would bring about an orient.aiion in their
approach and outlook, stimulate sympathies in them for the vulnerable
sections of the community and inject a new awareness and sense of
public commitment in them. They should also be educated in the
new trends in penology and sentencing procedures so that they may
learn to use penal law as a tool for reforming and rehabilitating cri
minals and smoothening out the uneven texture of the social fabric
and not as a weapon, fashioned by law, for protecting and perpetuat
. ing the hegemony of one class over the other. Be that as it may, it is
clear that the learned Sessions Judge was not aware of the provision
in section 235(2) and so also was the lawyer of the appellant in the
High Court unaware of it. No inference can, therefore, be drawn
from the omission of the appellant to ·raise this point, that he had
nothing to say in regard to the sentence and that consequently no
prejudice was caused to him.
So far as section 465 of the Code of Criminal Procedure, 1973 is
concerned, I do not think it can avail the State in the present case.
In the first place, non-compliance with the requirement of section
23 5 ( 2) cannot be described as mere irregularity in the course of the
trial curable under section 465. It is much more serious. It amounts
to by-passing an important stage of the trial and omitting it altogether,
so that the trial cannot be aid to be that contemplated in the Code. It
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SANTA SINGH v. PUNJAB (Fazal Ali, J.) 237
is a elifferent kind of trial conducted in a manner different from that
prescribed by the Code. This deviation constitutes disobedience to
an express provision of the Code as to the mode of trial, and as pointed
out by the Judicial Committee of the Priyy Council in Su'Jramania
Iyer v. King Emperor('), such a deviation cannot be regarded as a
mere irregularity. It goes to the root of the matters and the resulting
illegality is of such a character that it vitiates the sentence. Vide
Pulukurti Kotayya v. King Emperor( 2 ) and Magga & Anr. v. State
of Rajasthan.( 3 ) Secondly, when no opportunity has been given to
the appellant to produce material and 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 appli
cation in a case like the present.
1 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 2 3 5 (2}
as interpreted by me.
FAZAL ALI, J.-1 entirely agree with the judgment proposed by
my learned brother Bhagwati, J ., and I am at one with the views ex
pressed 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 invol-
ved 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 E
interpretation of the provisions of s. 235 (2) of the Code of Criminal
Procedure, 1973-hereniafter after referred to as 'the 1973 Code'.
In the light of the arguments advanced before us by the parties the
question may be framed thus :
"Does the non-compliance with the provisions of
s. 235 (2) of the 1973 Code vitiate the sentence passed by F
the Court?"
In order to answer this question it may be necessary to trace the
historical background and the social setting under which s. 235 (2)
was inserted for the first time in the 1973 Code. It would appear
that the· 1973 Code was based on a good deal of research done by
several authorities including the Law Commission which made several
recommendations for revolutionary changes in the provisions of the
previous Code so as to make the 1973 Code in consonance with the
growing needs of the society and in order to solve the social problems
of the people. Apart from introducing a number of changes in the
procedure, new rights and powers were conferred on the Courts or
sometimes even on the accused. For instance, a provision for anti
cipatory bail was introduced to enable the accused to be saved from
(!) (1901) 28 I.A. 257.
(2) (1947) 74 I.A. 65.
(3) [1953) S.C.R. 973 at pp. 983-984.
unnecessary harassment. In its 48th Report the Law Commission,
while recommending the insertion of a provision which would enable
the accused to make a representation against the sentence to be im
posed after the judgment of conviction had been passed, observed as
follows :
"It is now· being increasingly recognised that a rational
and consistent sentencing policy requires the removal of
several deficiencies in the present system. . One such defi
ciency is the lack of comprehensive information as to chara
cteristics and background of the offender."·
"We are of the view that the taking of evidence as to the
circumstances relevant to sentencing should be encouraged,
and both the prosecution and the accused should be allowed
to co-operate in the process."
In the aims and objects of 1973 Code which have been given clause
by clause, a reference to this particular provision has been made
thus :
"If the judgment is one of conviction, the accused will be
given an opportunity to make his representation, if any, on ·
the punishment proposed to be awarded and such represen
tation shall be taken into consideration before imposing the
sentence. This last provision has been made because it
may happen that the accused may have some grounds to urge
for giving him consideration in regard to the sentence such
as that he is the bread-winner of the family of which the
Court may not be made aware during the trial."
Para 6(d) of the statement of objects and reasons of the 1973 Code
runs thus:
F "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 im
posed."
The statement of objects and reasons further indicates that the recom
mendations of the Law Commission were examined carefully keeping
in view, among others, the principle that "an accused person should
get a fair trial ~n 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 oppor
tunity to make a representation aga.inst the sentence proposed to be
imposed on him.
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SANTA SINGH v. PUNJAB (Fazal Ali, !.) 239
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 section
360, hear the accused on the question of sentence, and then
pass sentence on him according to law."
A perusal of this section clearly reveals that the object of the 1973
Code was to split up the sessions trial or the warrant trial, where also
a similar provision exists, into two integral parts-(i) the stage which
culminates in the passing of the judgment of conviction or acquittal;
and (ii) the stage which on conviction results ·in imposition of sentence
on the accused. Both these parts are absolutely fundamental and
non-compliance with any of the provisions would undoubtedly vitiate
the final order passed by the Court. The two provisions do not
amount merely to a ritual formula or an exercise in futility but have
a very sound and definite purpose to achieve. Section 235 (2) of the
1973 Code enjoins on the Court that after passing a judgment of
conviction the Court should stay its hands and hear the accused on
the question of sentence before passing the sentence in accordance
with the law. This obviously postulates that the accused must be
given an opportunity of making his representation only regarding the
question of sentence and for this purpose he may be allowed to place
such materials as he may think fit but which may have bearing only
on the question of sentence. The statute, in my view, seeks to achieve
a socio-economic purpose and is aimed at attaining the ideal principle
of proper sentencing in a rational and progressive society. The modern
concept of punishment and 12enology has undergone a vital transfor
mation and the crimina] is now not looked upon as a grave menace
to the society which should be got rid of but is a diseased person
suffering from mental malady or psychological frustration due to
subconscious reactions and is, therefore, to be cured and corrected
. rather than to be killed or destroyed. There may be a number of
circumstances of which the Court may not be aware and which may
be taken into consideration by the Court while awarding the sentence,
particularly a sentence of death, as in the instant case. It will be
difficult to lay down any hard and fast rule, but the statement of
objects and reasons of the 1973 Code itself gives a clear illustration.
It refers to an instance where the accused is the sole bread-earner of
the family. In such a case if the sentence of death is passed and
executed it amounts not only to a physical effacement of the criminal
but also a complete socio-econqmic 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 wh;le 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 point~d out that our indepen
dence 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 serving judges with the changing trends of judicial thoughts
and the new ideas which the new judicial approach has imbibed over
the years as a result of the influence of new circumstances that have
come into existence.
The next question that arises for consideration is whether non
compliance with s. 235 (2) is merely an irregularity which can be
cured by s. 465 or it is an illegality which vitiates the sentence. Having
regard to the object and the setting in which the new provision of
s. 235 (2) was inserted in the 1973 Code there can be no doubt that
it is one of the most fundamental part of the criminal procedure and
non-compliance thereof will ex facie vitiate the order. Even if it be
regarded as an irregularity the prejudice caused to the accused would
be inherent and implicit because of the infraction of the rules of
natural justice which have been incorporated in this statutory pro
vision, because the accused has been completely deprived of an
opportunity to represent to the Court regarding the proposed sentence
and which manifestly re~ults in a serious failure of justice. There is
abundant authority for this proposition to which reference has been
made by my learned brother.
The last point to. be considered is the extent and import of the ~ ·d
"hear" used in s. 235 (2) of the 1973 Code. Does it indicate, tt
the accused should enter into a fresh trial by producing oral and docu
mentary evidence on the question of the sentence which naturally will
result in further delay of the trial? The Parliament does not appear to
have intended that the accused should adopt dilatory tactics under the
cover of this new provision but contemplated that a short and simple
opportunity has to be given to the accused to place materials if neces
sary by leading evidence before the Court bearing on the question of
sentence and a consequent opportunity to the prosecution to rebut those
materials. The Law Commission was fully aware of this anomaly and
it accordingly suggested thus :
"We are aware that a provision for an opportunity to
give evidence in this respect may necessitate an adjourn
ment; and to avoid delay adjournment, for the purpose should,
ordinarily be for not more than 14 days. It may be so pro
vided in the relevant clause."
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SANTA SINGH v. PUNJAB (Fazal Ali, !.) 241
It may not be practicable to keep up to the time-limit suggested bi1"
the Law Commission with mathematical accuracy but the Courts must
be vigilant to exercise proper control over the proceedings so that tpe
trial is not unavoidably or unnecessarily delayed.
I, therefore, agree with the order of my learned Bhagwati, J., that
the appeal should be allowed on the question of the sentence and the
matter should be sent back to the Trial Court for giving an opportunity
to the accused to make a representation regarding the sentence proposed.
V. P. S. Appeal allowed.