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Synopsis

The Supreme Court recently observed that it is not open for a new presiding judge to reopen the judgment of conviction of an accused in a criminal case, upon the transfer of the previous judge before pronouncement of the order on sentence to him.

A bench of Justices Surya Kant and Ujjal Bhuyan said,

"The process and procedure contemplated under Section 235(2) of the CrPC cannot annul the judgment of conviction recorded under sub-section (1) thereof. Both clauses operate in their respective fields, though sub-section (2) is contingent upon the outcome under sub-section (1) of Section 235 of the CrPC. The occasion to comply with subsection (2) of Section 235, thus, arises only when there is a judgment of conviction passed under Section 235(1) of the CrPC."

The court pointed out that a plain reading of Section 235 of the CrPC leaves no room to doubt that a judgment of conviction would have two components; judgment on the point of conviction; and where the accused is convicted, a separate order of sentence to be passed according to law, after hearing the accused on the question of sentence.

"The provision mandates that once the judgment of conviction is delivered, the accused has a right to be heard on the quantum of the sentence. This is so, in view of the well-established principle of law that various relevant factors, including mitigating circumstances, if any, are to be kept in mind by the Court while awarding an adequate and proportionate sentence," the bench said.

The court termed as "wholly misconceived and misdirected" a contention made by appellant Harshad Gupta that with the transfer of the Presiding Officer post his conviction, the new Presiding Officer was obligated to hear him afresh even on the question of conviction.

The appellant was convicted of the offence of rape on April 30, 2015 in an FIR registered on May 28, 2013.

On April 30, 2015, the appellant moved an application under Section 317 of the CrPC to exempt him from personal appearance on the ground that he had met with an accident. 

The presiding judge J R Banjara, who had convicted the appellant, was transferred between May 04, 2015 and May 15, 2015. A new Presiding Officer Mohammad Rizwan Khan was posted in his place. 

The appellant approached the High Court seeking direction to the new Presiding Officer to re-hear the case, including on the question of conviction. He relied upon Sections 353 and 354 of the CrPC. 

He contended that the new Presiding Officer was obligated not only to hear him on the question of sentence but also on the point of conviction in terms of the provisions. The High Court on May 13, 2019 dismissed his petition.

Considering his appeal, the top court noted it was not in dispute that in deference to Section 235(1) of the CrPC, the appellant was duly heard and a judgment of conviction was recorded and pronounced on April 30, 2015.

Consequential thereto, the appellant was entitled to be heard on the question of sentence. Since the appellant himself had been seeking adjournments and exemption from personal appearance due to the injuries suffered by him in a road accident and meanwhile the Presiding Officer had been transferred, it was but natural that the new Presiding Officer was required to hear the appellant on the quantum of the sentence, for faithful compliance with Section 235(2) of the CrPC and then, to pass an appropriate order of sentence, the bench said.

"Once the judgment dated 30.04.2015 was pronounced, the conviction of the appellant stood finalized within the meaning of Section 235(1) of the CrPC, whereupon the Trial Court became functus officio for the purpose of sub-section (1) of Section 235 of the CrPC. The only issue that survived thereafter was of the quantum of sentence for which, the procedure contemplated under sub-section (2) was to be complied with," the bench said.

The court opined that the High Court had, thus, rightly held that the successor officer would hear the appellant on the question of sentence and pass an appropriate order. 

"We see no legal infirmity in the impugned order passed by the High Court," the bench held.

The appellant's counsel contended that the judgment of conviction, granted against the appellant, did not satisfy the ingredients of Section 353 read with Section 354 of the CrPC and hence, there was no judgment rendered in the eyes of law within the meaning of sub-section (1) of Section 235 of the CrPC.

On this, the bench said, "We are, however, not impressed by the submission. We say so for the reason that the Trial Court delivered a self speaking judgment of conviction which satisfies all the constituents illustrated in Section 354(1) of the CrPC. Further, the operative part of the Judgment as well as the order passed on that very date for granting exemption from personal appearance to the appellant, reveal that the said judgment of conviction was read out by the Presiding Officer in open court, in the presence of the appellant’s counsel, and it was well understood by his pleader."

The bench noted that the Presiding Officer thus, followed the procedure envisaged under sub-section (1) of Section 353 of the CrPC. 

"The next step to be taken by the Presiding Officer, was to list the case to accord a hearing to the appellant on the quantum of sentence. That is precisely what has been done in the instant case. We are, thus, of the view that there is not even a fragment of violation of Sections 353 or 354 of the CrPC, as claimed on behalf of the appellant," the bench said.

The court dismissed the appeal, finding no merit in it. It directed the appellant to surrender before the trial court on November 4, 2024.

The court ordered the Presiding Officer, presently posted in the concerned trial court, to hear the appellant on the question of sentence as early as possible but not later than one month from the date of receipt of a copy of the present order.

Case Title: Harshad Gupta Vs The State of Chhattisgarh