IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 Crl.Rev.Pet.No. 2008 of 2003 ----------------------------------------------- CRA.338/2001 of SESSIONS COURT, TRIVANDRUM CC.603/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER/APPELLANT/ACCUSED: SATHEESAN, S/O.SATHYANESAN, ROADARIKATHU VEEDU, NALPARAKUZHI, KALLIKADU VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2008 of 2003 -------------------------- ORDER Can an accused be convicted and sentenced in his absence, without hearing him on the question of sentence in a warrant trial case, is the question to be settled in the revision. 2. Revision petitioner was the accused in C.C. No.603/1996 on the file of Judicial first Class Magistrate's Court-II, Thiruvananthapuram. He was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.2,000/- and in default, simple imprisonment for one month, for the offence under Section 379 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A. No.338/2001. Learned Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. CRRP 2008/03 2 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Though learned counsel appearing for the petitioner challenged the conviction contending that evidence in the case was not properly appreciated by the courts below and petitioner was convicted solely based on the recovery of MO1 motor cycle under Exhibit P5 recovery mahazar and the recovery should not have been relied on when PW4, the independent attesting witness to the mahazar, turned hostile to the prosecution and the solitary evidence is that of PW5, the police officer, who effected the recovery, which should not have been believed, on going through the evidence, I find no reason to interfere with the conviction. Evidence of PW1 establishes that he is the owner of MO1 motor cycle and on 30.6.1996 night, he heard the sound of his motor cycle being started, which was kept at the courtyard of his house. When he came out, the motor cycle was found missing. He lodged Exhibit P1 F.I. Statement on the very next day, as CRRP 2008/03 3 the theft was on the night. PW5 seized MO1 under Exhibit P4 seizure mahazar from the petitioner on 11.7.1996. Though PW4, the attesting witness to Exhibit P4 mahazar, turned hostile to the prosecution, as rightly found by the courts below, there is no reason to disbelieve the evidence of PW5. Evidence of PW5 establishes that petitioner has been in possession of MO1 motor cycle, which was proved to be the stolen article. As petitioner has been in possession of the stolen article soon after the theft, courts below rightly drawn the presumption available under Section 114(a) of Indian Evidence Act and found that petitioner committed the offence. On the evidence, conviction of the petitioner for the offence under Section 379 of Indian Penal Code is perfectly legal and is in order. 5. As rightly pointed out by the learned counsel appearing for the petitioner, the records of the learned Magistrate show that learned Magistrate convicted the petitioner in his absence CRRP 2008/03 4 and that too, without hearing him on the question of sentence. In paragraph 7 of the judgment, learned Magistrate recorded that petitioner was not heard on the question of sentence as he absconded after questioning under Section 313 of Code of Criminal Procedure. 6. The proceeding paper of the learned Magistrate shows that petitioner was questioned under Section 313 of Code of Criminal Procedure on 28.7.2001 and the case was posted for arguments to 30.7.2001. On that day, petitioner was absent and an application was filed to condone his absence and it was allowed. Proceedings paper further shows that hearing of the prosecution and the defence was completed on that day and the case was posted for judgment on 31.7.2001. The proceedings paper of 31.7.2001 reads: “Accused absent. Applies. Rejected. Accused absconded at the time of pronouncing the judgment for the offence under Section 379 of Indian Penal Code and found guilty and convicted and sentenced to undergo rigorous CRRP 2008/03 5 imprisonment for two years and a fine of Rs.2,000/- and in default, simple imprisonment for one month”. Failure of the petitioner to appear before the Magistrate was only on 30.7.2001 and 31.7.2001. On 30.7.2001, an application was filed to condone his absence and learned Magistrate allowed the same. Hence, the absence was only on 31.7.2001. On that day also, an application was filed by the counsel to condone the absence of the petitioner. It was rejected by the learned Magistrate. It cannot be said that petitioner was absconding after questioning under Section 313 of Code of Criminal Procedure, as stated in the judgment. It is absolutely clear that learned Magistrate passed the judgment in the absence of the accused and he was not heard on the question of sentence. 7. Sub-section (5) of Section 353 of Code of Criminal Procedure provides that if the accused is in custody, he shall be brought up to hear the judgment pronounced. Sub-section (6) provides that if the accused is not in custody, he shall be CRRP 2008/03 6 required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. Therefore, in a case where the personal attendance of the accused was not dispensed with during trial, a judgment, convicting the accused, shall not be pronounced, except in a case where the sentence is of fine only or it is acquittal. The proviso enables the Judge or the Magistrate to pronounce the judgment, notwithstanding the absence of an accused, where there are more accused than one and one or more of them do not attend the court on the date on which the judgment is to be pronounced and the presiding officer finds that in order to avoid undue delay in the disposal of the case, judgment is to be pronounced. 8. True, sub-section (7) of Section 353 of Code of Criminal Procedure provides that no judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any CRRP 2008/03 7 party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve or defect in serving on the parties or their pleaders or any of them, the notice of such day and place. Sub-section (8) clarifies that nothing in the section shall be construed to limit in any way the extent of the provisions of Section 465 of Code of Criminal Procedure. 9. Section 465 of Code of Criminal Procedure provides that when finding of sentence is reversible by reason of error, omission or irregularity, under sub-section (1), no finding of sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code or any error or irregularity in any CRRP 2008/03 8 sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. Sub-section (2) of Section 465 of Code of Criminal Procedure provides that in determining whether any error, omission or irregularity in any proceeding under the Code or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 10. Therefore, it is clear that learned Magistrate should not have pronounced the judgment against the petitioner, when the sentence is not one of fine and his personal attendance during trial was not dispensed with. But, pronouncing the judgment in the absence of an accused by itself will not invalidate the judgment. But, when there is violation of the provisions of sub-section (2) of Section 248 of Code of Criminal Procedure, it cannot be said that failure to comply with the CRRP 2008/03 9 mandatory provisions under Section 353(6) of Code of Criminal Procedure has not resulted in failure of justice as the sentence was passed without hearing the accused. 11. Sub-section (2) of Section 248 of Code of Criminal Procedure mandates that if the Magistrate finds the accused guilty and is not proceeding in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass the sentence. Sub- section (2) of Section 248 of Code of Criminal Procedure reads: Where, in any case under the Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law. 12. Sub-section (2) of Section 248 of Code of Criminal procedure is identical to sub-section (2) of Section 235 of Code of Criminal Procedure, which applies to sessions trial. The compliance necessary CRRP 2008/03 10 under Section 235(2) of Code of Criminal procedure was considered by the Honourable Supreme Court in Shiv Mohan Singh v. The State (Delhi Administration) (1977 KHC 526)(AIR 1977 SC 949) and held that it is mandatory that the accused is heard before sentencing him as the sentencing is to reform the accused and therefore, it is obligatory on the court at the sentencing stage to comply with the mandatory provisions under Section 235(2) of Code of Criminal Procedure. The Honourable Supreme Court in Allauddin Mian v. State of Bihar (AIR 1989 SC 1456), holding that the said provision is mandatory, held: The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfied a dual CRRP 2008/03 11 purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. 13. The principle laid down is applicable to the sentencing of an accused in a warrant trial, as provided under Section 248(2) of Code of Criminal Procedure. As the learned Magistrate did not hear the accused before passing the sentence, the sentence can only be set aside. The Magistrate is to be directed to pass the sentence after hearing the petitioner on the question of sentence, as provided under Section 248(2) of Code of Criminal Procedure. Before passing the sentence, learned Magistrate is also to consider whether petitioner is to be granted the benefit of the provisions of Probation of Offenders Act, as this fact was omitted to be considered by the courts below. CRRP 2008/03 12 Revision is allowed in part. Conviction of the petitioner for the offence under Section 379 of Indian Penal Code in C.C.No.603/1996 by Judicial First Class Magistrate-II, Thiruvananthapuram, as confirmed by the learned Sessions Judge in Crl.A. No.338/2001, is confirmed. Sentence is set aside. Judicial First Class Magistrate-II, Thiruvananthapuram is directed to hear the petitioner on the question of sentence and pass the sentence in accordance with law, as observed earlier. Petitioner is directed to appear before Judicial First Class Magistrate-II, Thiruvananthapuram on 03.09.2010. Send back the records immediately. 27th July, 2010 (M.Sasidharan Nambiar, Judge) tkv