Case Note & Summary
The appellant, Dinkar S/o Dudhram Bante, was convicted by the trial court for offences punishable under Sections 135 and 138 of the Electricity Act, 2003, relating to theft of electricity. He was sentenced to rigorous imprisonment for three years and a fine of Rs.61,434/-, with a default sentence of nine months. The appellant moved the Deputy Executive Engineer of the Maharashtra State Electricity Distribution Company Limited (MSEDCL) with a request to compound the offence. However, the grievance raised in this appeal was that the trial court failed to hear the appellant on the point of sentence before imposing the punishment, as mandated by Section 235(2) of the Code of Criminal Procedure, 1973 (CrPC). The appellant's counsel relied on the Supreme Court ruling in Santa Singh v. The State of Punjab, 1976 Cri LJ 1875, which held that non-compliance with Section 235(2) is not a curable irregularity under Section 465 CrPC but amounts to bypassing an important stage of the trial. The High Court, after hearing both sides, found that the trial court had indeed not heard the appellant on the sentence. Consequently, the court set aside the sentence and remanded the matter to the trial court for a fresh hearing on the quantum of sentence, while maintaining the conviction. The appeal was partly allowed.
Headnote
A) Criminal Procedure - Sentencing - Section 235(2) CrPC - Mandatory Hearing - Non-compliance with Section 235(2) of the Code of Criminal Procedure, 1973 is not a mere irregularity curable under Section 465 CrPC but amounts to bypassing an important stage of trial - The trial court sentenced the appellant without hearing him on the quantum of sentence - Held that the sentence is set aside and the matter remanded to the trial court for hearing on sentence afresh (Paras 2-3).
Issue of Consideration
Whether the trial court's failure to hear the accused on the point of sentence before imposing punishment under Section 235(2) of the Code of Criminal Procedure, 1973 vitiates the sentence and requires remand for fresh consideration.
Final Decision
The appeal is partly allowed. The conviction is maintained, but the sentence is set aside. The matter is remanded to the trial court for hearing the appellant on the quantum of sentence afresh, in accordance with Section 235(2) CrPC.
Law Points
- Non-compliance with Section 235(2) CrPC is not a curable irregularity
- it vitiates the sentencing stage
- requirement of hearing accused on sentence is mandatory
Case Details
2012 LawText (BOM) (03) 156
Criminal Appeal No. 434 of 2007
Mr. Rajnish Vyas for the Appellant, Mr. V. M. Deshpande, APP for the respondent-State
Shri. Dinkar S/o Dudhram Bante
Maharashtra State Electricity Distribution Company Limited (M.S.E.D.C.L.) (Erstwhile Maharashtra State Electricity Board (M.S.E.B.))
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Nature of Litigation
Criminal appeal against conviction and sentence for offences under the Electricity Act, 2003.
Remedy Sought
The appellant sought setting aside of the sentence or remand for hearing on sentence due to non-compliance with Section 235(2) CrPC.
Filing Reason
The trial court sentenced the appellant without hearing him on the point of sentence.
Previous Decisions
The trial court convicted the appellant under Sections 135 and 138 of the Electricity Act, 2003 and sentenced him to three years rigorous imprisonment and fine.
Issues
Whether the trial court's failure to hear the accused on sentence under Section 235(2) CrPC vitiates the sentence.
Submissions/Arguments
Appellant argued that the trial court did not hear him on the point of sentence, violating Section 235(2) CrPC, and relied on Santa Singh v. State of Punjab.
Respondent-State did not contest the procedural lapse.
Ratio Decidendi
Non-compliance with Section 235(2) of the Code of Criminal Procedure, 1973, which mandates hearing the accused on the point of sentence, is not a curable irregularity under Section 465 CrPC but a serious omission that vitiates the sentencing stage. The trial must be conducted as contemplated in the Code, and failure to hear the accused on sentence requires the sentence to be set aside and the matter remanded for fresh sentencing.
Judgment Excerpts
Non-compliance with the requirement of Section 235(2) cannot be described as mere irregularity in the course of the trial curable under Section 465. It is much more serious. It amounts to by-passing an important stage of the trial and omitting it altogether, so that the trial cannot be said to be that contemplated in the Code.
Procedural History
The appellant was convicted and sentenced by the trial court for offences under Sections 135 and 138 of the Electricity Act, 2003. He filed an appeal before the High Court challenging the sentence on the ground that he was not heard on the point of sentence as required by Section 235(2) CrPC.
Acts & Sections
- Electricity Act, 2003: 135, 138
- Code of Criminal Procedure, 1973: 235(2), 465
