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Issues Involved:
1. Interpretation of Section 235(2) of the Code of Criminal Procedure, 1973. 2. Compliance with Section 235(2) and its impact on sentencing. 3. Whether non-compliance with Section 235(2) is a curable irregularity under Section 465 of the Code of Criminal Procedure, 1973. Issue-wise Detailed Analysis: 1. Interpretation of Section 235(2) of the Code of Criminal Procedure, 1973: The primary issue in this case revolves around the interpretation of Section 235(2) of the Code of Criminal Procedure, 1973. The provision states: "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 mandates that after a judgment of conviction, the court must hear the accused regarding the sentence before passing it. This is a new provision introduced in the 1973 Code, aimed at aligning with modern penology and sentencing procedures, which emphasize the importance of considering both the crime and the criminal. The provision intends to give the accused an opportunity to present material and make submissions on factors relevant to sentencing, such as the nature of the offense, extenuating or aggravating circumstances, the offender's background, and prospects for rehabilitation. 2. Compliance with Section 235(2) and its Impact on Sentencing: In the present case, the Sessions Judge convicted the appellant of double murder and sentenced him to death without giving him an opportunity to be heard on the question of sentence, thus violating Section 235(2). The appellant argued that this breach vitiated the death sentence imposed on him. The court agreed, stating that the requirement of Section 235(2) is clear and mandatory. The court emphasized that sentencing is a crucial stage in the criminal justice process and should not be treated as a mere formality. The court noted that the hearing on the question of sentence should not be confined to oral submissions but should allow the accused to present material and, if necessary, lead evidence. The breach of this mandatory requirement was deemed significant, as it potentially deprived the appellant of the opportunity to persuade the court to impose a lesser sentence of life imprisonment instead of the death penalty. 3. Whether Non-compliance with Section 235(2) is a Curable Irregularity under Section 465 of the Code of Criminal Procedure, 1973: The State contended that non-compliance with Section 235(2) was a mere irregularity curable under Section 465 of the Code of Criminal Procedure, 1973, as no failure of justice was occasioned. However, the court rejected this argument, stating that non-compliance with Section 235(2) is not a mere irregularity but a serious breach that bypasses an important stage of the trial. This deviation constitutes disobedience to an express provision of the Code and cannot be regarded as a mere irregularity. The court held that failure of justice must be regarded as implicit when no opportunity is given to the accused to produce material and make submissions regarding the sentence. Therefore, Section 465 could not cure the non-compliance in this case. Conclusion: The court allowed the appeal, set aside the death sentence, and remanded the case to the Sessions Court with a direction to pass an appropriate sentence after giving the appellant an opportunity to be heard in accordance with Section 235(2). The court emphasized the importance of this provision in ensuring that the accused is given a fair opportunity to present material and make submissions on the question of sentence, thereby aligning with the principles of natural justice and modern penology.
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