LLM Notes: Pre-Sentence Hearing in India: An Overview

 In India, a pre-sentence hearing is a crucial stage in criminal proceedings that takes place after a conviction but before the sentence is pronounced. This hearing allows the convicted individual to present mitigating factors and arguments that may influence the court's decision on the appropriate sentence.

Historical Context

The concept of pre-sentence hearings was not initially present in the Code of Criminal Procedure (CrPC) of 1898. It was later introduced in the CrPC of 1973, based on the recommendations of the Law Commission of India. The aim was to ensure that courts consider not only the crime but also the circumstances of the criminal, aligning with the principle of rehabilitation.

 Legal Provisions

The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the CrPC, contains provisions for pre-sentence hearings. Section 258(2) of the BNSS stipulates that after a conviction, the judge must hear the accused on the question of sentencing unless the accused is eligible for release on probation. Section 271(2) of the BNSS contains a similar provision for warrant cases tried by a Magistrate

Purpose of the Hearing

The primary goal of a pre-sentence hearing is to allow the court to assess the socio-economic and psychological consequences of the crime before determining the sentence. It provides an opportunity for both sides to present evidence and arguments relevant to the sentencing decision.

 Evidence and Arguments Presented

During the hearing, several factors may be considered as relevant evidence:

1) Previous criminal record: The court considers any prior convictions of the accused.

2) First-time offense: Evidence can be presented to show that this is the individual's first conviction.

3) Societal behavior: Testimony from neighbors or colleagues can shed light on the convict's behavior in the community.

4) Impact on victims: The impact of the crime on the victims may be discussed, if relevant.

5) Personal circumstances: Mitigating factors such as being the sole breadwinner or having disabled family members can be brought to the court's attention.

6) Other mitigating factors: Any other personal facts that could lead to a lesser punishment may be presented.

 Bifurcation of Trial

Section 235(2) of the CrPC 1973 (now section 258(2) of the BNSS) effectively divides the criminal trial into two phases: pre-conviction and post-conviction. The first phase focuses on determining guilt or innocence, while the second phase concerns the appropriate sentence for the convicted person.

 Importance of Compliance

The requirement to conduct a pre-sentence hearing is considered obligatory. Failure to comply with this requirement can invalidate the final order of the court. The hearing is not a mere formality but a substantial exercise in the administration of criminal justice.

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