Whether sentence given to accused is vitiated if Magistrate has not heard him on the point of sentence?

  The learned counsel for appellant Sunilkumar submitted that the appellant was not heard in the matter of sentence before the learned Magistrate slapped a harsh sentence on him. The learned counsel submitted that the judgment is vitiated because the appellant was not heard, and hearing on the question of sentence is not confined to oral submissions but also intended to allow the accused to produce material bearing on the sentence. For this purpose, he relied on the judgment of the Supreme Court in Santa Singh v. The State of Punjab, reported at AIR 1976 SC 2386; that of Delhi High Court in Baburao Chandavar and others v. The State, reported at 1977 Cri.L.J. 1980; and that of Surai Prasad Sahu and others v. State, reported at 1972 Cri.L.J. {Para 37}

38. I have gone through the record. It may be seen that on 9-1-2007, the case was ordered to be fixed for judgment on 10-1-2007. It was, therefore, necessary for the appellant to remain present in the Court, if he wanted to be heard on the matter of sentence. When the learned Magistrate pronounced judgment of conviction on 10-1-2007, appellant Sunilkumar was not present. An application for exemption was moved on behalf of the appellant vide Exhibit 126, which was rejected. The learned Magistrate then proceeded to deliver the judgment, since the appellant did not remain present. It is not that the learned Magistrate was not willing to hear the appellant on the matter of sentence. It may be seen from the judgment that appellant Madhukar Smarth was actually heard by the learned Magistrate on the matter of sentence.

39. While it would have been undoubtedly ideal for the learned Magistrate to adjourn the pronouncement of judgment to a future date and to secure the presence of the appellant by causing a warrant to be issued against him, the appellant's absence is not a very serious infraction, particularly since he was represented by a counsel. It has not been stated by the learned counsel for appellant Sunilkumar before this Court that the appellant wanted to tender any specific evidence or produce any material at the hearing on the question of sentence. Therefore, whatever the appellant's counsel could have argued or submitted before the learned Trial Magistrate, he could have and, has, in fact, submitted before this Court also. Therefore, the sentence is not vitiated on account of failure of the learned Magistrate to hear the appellant.

Bombay High Court

Sunilkumar vs State Of Maharashtra on 6 February, 2009

Bench: R. C. Chavan

Citation: 2009 ALL MR Cri 2018.

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