Patna High Court - Orders
Pramod Singh @ Pramod Kr.Singh vs State Of Bihar on 21 February, 2012
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Ashwani Kumar Singh
Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Death Reference No.5 of 2010
======================================================
The State Of Bihar
.... .... Petitioner/s
Versus
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.465 of 2010
======================================================
Ravindra Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.471 of 2010
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Nand Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.476 of 2010
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Gopal Sharan Singh & Ors
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.479 of 2010
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Ram Kewal Sharma
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.498 of 2010
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Nawal Singh
.... .... Appellant/s
Versus
State Of Bihar
Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.499 of 2010
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Ashok Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.501 of 2010
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Bijendra Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.514 of 2010
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Surendra Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.516 of 2010
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Girija Singh & Anr
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.517 of 2010
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Nandu Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.528 of 2010
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Shatrughan Singh
.... .... Appellant/s
Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.563 of 2010
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Mithilesh Sharma
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.565 of 2010
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Dharichhan Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.593 of 2010
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Babloo Sharma
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.618 of 2010
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Pramod Singh @ Pramod Kr.Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.619 of 2010
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Ashok Sharma
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.621 of 2010
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Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
Surendra Singh
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.641 of 2010
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Navin Kumar
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.658 of 2010
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Sunil Kumar
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.845 of 2010
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Chandeshwar Singh
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
======================================================
Appearance :
(In D. REF. No.5 of 2010)
For the Petitioner/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.465 of 2010)
For the Appellant/s : Mr.
Mr. Rajesh Kumar
For the Respondent/s : Mr.
(In CR. APP (DB) No.471 of 2010)
For the Appellant/s : Mr.
Mr. Birendra Kumar
For the Respondent/s : Mr.
(In CR. APP (DB) No.476 of 2010)
For the Appellant/s : Mr.
Mr. Jyotsna Shankar Singh
Mr. Birendra Kumar Singh
Mr. Ganesh Prasad Singh
Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
For the Respondent/s : Mr.
(In CR. APP (DB) No.479 of 2010)
For the Appellant/s : Mr.
Mr. Ganesh Prasad Singh
For the Respondent/s : Mr.
(In CR. APP (DB) No.498 of 2010)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.499 of 2010)
For the Appellant/s : Mr.
Mr. Meena Singh
Mr. Manish Kumar 3
Mr. Bhaskar Shanker
For the Respondent/s : Mr.
(In CR. APP (DB) No.501 of 2010)
For the Appellant/s : Mr.
Mr. Meena Singh
Mr. Manish Kumar 3
For the Respondent/s : Mr.
(In CR. APP (DB) No.514 of 2010)
For the Appellant/s : Mr.
Mr. Meena Singh
Mr. Manish Kumar 3
For the Respondent/s : Mr.
(In CR. APP (DB) No.516 of 2010)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.517 of 2010)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.528 of 2010)
For the Appellant/s : Mr.
Mr. Sita Ram Thakur
Mr. Sanjeet Kumar Singh
Mr. Ritesh Kumar 1
For the Respondent/s : Mr.
(In CR. APP (DB) No.563 of 2010)
For the Appellant/s : Mr.
Mr. Rajesh Kumar
For the Respondent/s : Mr.
(In CR. APP (DB) No.565 of 2010)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.593 of 2010)
For the Appellant/s : Mr.
Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
For the Respondent/s : Mr.
(In CR. APP (DB) No.618 of 2010)
For the Appellant/s : Mr.
Mr. Abhay Kumar Roy
Mr. Sanjay Kumar Jha
Mr. Anant Kumar Bhaskar
Mr. Akhil Kumar
Mr. Rajesh Kumar Singh
For the Respondent/s : Mr.
(In CR. APP (DB) No.619 of 2010)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.621 of 2010)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No.641 of 2010)
For the Appellant/s : Mr.
Mr. Dr.Rajendra Prasad
For the Respondent/s : Mr.
(In CR. APP (DB) No.658 of 2010)
For the Appellant/s : Mr.
Mr. Dr.Rajendra Prasad
For the Respondent/s : Mr.
(In CR. APP (DB) No.845 of 2010)
For the Appellant/s : Mr.
Mr. Ram Das Singh
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD
SINGH
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR
SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
10 21-02-2012By order dated 8.2.2012 passed in this Death Reference with analogous cases, we had noticed some peculiar facts and formulated two questions, which have to be answered at this interlocutory stage before we could proceed with the hearing. We had requested the assistance of learned Advocate General and Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 Sri Ashwani Kumar Sinha, learned A.P.P. in this regard. Some learned counsels for the appellants are also present and have been heard.
The facts which gave rise to this Court in formulating the questions to be answered in this group of cases are that sixteen persons were sentenced to death apart from a large number of persons who were sentenced to life imprisonment. As per procedure established under the Code of Criminal Procedure, after recording of evidence , all the parties were heard by the trial court. The arguments having concluded, the judgment was reserved and the date was fixed for delivery of judgment .
On the said date i.e. 7.4.2010 on behalf of four of the accused persons i.e.Shiv Mohan Sharma and Dharma Singh apart from Shekhar Choudhary and Bhola Rai, application, under Section 317 of the Code of Criminal procedure was filed. The trial court rejected the same, cancelled the bail bonds and issued warrants for their arrest by the order of the same day. While doing so, he did not separate their trial but proceeded to deliver the judgment, which, as noted above, was reserved after hearing the parties.By the judgment of the said date Shiv Mohan Sharma and Dharma Singh as well as several other accused were found guilty of offence under Section 302 of the Indian Penal Code . It is in this Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 perspective the first question arises whether in absence of the accused, can a judgment be delivered. Then on the same day, the Sessions Court heard the arguments in respect of sentencing. As noted above, Shiv Mohan Sharma and Dharma Singh apart from others were sentenced to death. So far as Shekhar Choudhary and Bhola Rai are concerned, they were acquitted. Thus, seen Shiv Mohan Sharma and Dharma Singh were sentenced to death without any hearing. Reference for confirmation of death sentence in respect of them and others is before us. It is in this perspective the second question arises whether in absence of a convicted person, can a sentence be passed against them ?
We have heard the parties and considered the matter. Now, it cannot be argued that an order to punish a person can be passed without granting him adequate opportunity of hearing. That is the basic rule of audi alterem partem .The Apex Court in the case of National Textile Workers' Union -Vs.- P.R.Ramakrishnan and others since reported in AIR 1983 Supreme Court 75 has clearly held that this is the general rule of universal application first and then is found recognized in codified law like the Criminal Procedure Code. The relevant paragraph is quoted hereunder:
"There is a peculiar and surprising misconception of natural justice, in some Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 quarters, that it is, exclusively, a principle of administrative law. It is not. It is first a universal principal and, therefore, a rule of administrative law. It is that part of the judicial procedure which is imported into the administrative process because of its universality Courts even more than administrators must observe natural justice."
Recognition of this principle is to be found in Section 235 of the Code of Criminal Procedure so far as the Sessions trials are concerned. This principle would equally apply to other criminal trial as well and there are provisions to that effect. Thus, we must hold that before a person is found guilty in a criminal trial, he must be heard. In other words, before judgment is delivered, the persons must be heard. We must clarify here that hearing a person and the person being present in the Court are two different aspects of the matter. The law does not provide that the judgment can only be delivered when the person is physically present before the Court. All that the law prescribes is that before a judgment is delivered, the person must be heard.
From facts of the present case, as noted by us, it would be seen that after hearing the accused persons, the court reserved the judgment. The law and the legal requirement were fully satisfied and then if on the day the judgment was delivered and the accused person chose not to be present, in our view, the Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 Court is not to wait but to deliver the judgment because no prejudice is caused to the accused, who were aware of the date fixed in the matter and had already been heard. Thus, the answer to the first question is that when the court delivers a judgment, which has been pending consideration after hearing the parties, on the date when the judgment is delivered, physical presence of the accused before the court is not necessary. To repeat, if an accused absconds or is not present, the date for delivering the judgment would not be postponed. The judgment would nevertheless be delivered. In this connection we may also refer to Section 353 of the Code of Criminal Procedure .First we come straightway to Section 353(7) of the Code of Criminal Procedure.
"Section 353(7)- No judgment delivered by any criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place."
The aforesaid sub-section makes it clear that no judgment shall be deemed to be invalid by reason only of the absence of any party.
Now we refer to sub-section 8 of Section 453, which is to be read with Section 465 of the Code of Criminal Procedure. Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 All we can note is that these provisions would come into play only if prejudice is caused to the person leading to failure of justice. To clarify the situation once after the evidence has been recorded, the statement of accused persons recorded, final arguments of both the parties are heard and a date is fixed for delivery of judgment, if on that date the accused person is not present and the judgment is delivered holding him guilty and convicting him , can it be said that any prejudice was caused to the accused or there was failure of justice. In our view, the answer would have to be no, for the accused had a right of hearing in terms of Section 235 of the Code of Criminal Procedure. He has been heard and only judgment had to be delivered, which has been delivered. Thus, we answer the first question in the terms that if after hearing the parties, the judgment is reserved then if on the date when the judgment is fixed for being delivered, the accused person is not present, the judgment can be delivered and should be delivered. If the accused is found guilty then necessary steps be taken thereafter to secure his presence.
Now we come to the second question.It cannot be doubted that the question of hearing on the question of sentence arises only after a person is found guilty of an offence . It is because of this , that the Courts have insisted that after the Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 judgment of conviction is delivered, the Court is obliged to grant hearing to the parties on the question of sentence before pronouncing the sentence. A party can show mitigating factors. The prosecution can show the criminal history of the person and aggravating circumstances. Thus before a person is held guilty, the question of sentence is a debatable question. If that be so, then the fundamental principle of natural justice as well as the statutory provisions, as contained in Section 235 read with Section 353 of the Code of Criminal Procedure stops the Court from passing order in respect of sentence unless the accused, who has been held guilty is granted adequate opportunity of hearing in that regard but to that too there are exception. For example, in the present case, the accused person has been held guilty of offence under Section 302 of the Indian Penal Code, which provides only two punishments either life imprisonment or death. Thus there is minimum prescription of punishments. There is no discretion in the Court to reduce the sentence anything less then life imprisonment. In such a case if the accused person, who has been held guilty is absent and the Court intends to sentence him to life imprisonment, hearing would be futile so far as the accused person is concerned. But so far as prosecution is concerned, hearing is a must because the prosecution can bring on record aggravating Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 circumstances for enhancement of sentence from life imprisonment to death punishment. In such a situation, absence of the accused would cause neither prejudice nor failure of justice where the accused is sentenced to life imprisonment but that cannot be the case in case the accused is to be sentenced to death like in the present case, in absence of convict Dharma Singh. We may point out that accused Shiv Mohan Shama, about six months after the conviction and award of death sentence, is reported to have died. The reference in that regard would, in our view, abate. Police report confirmed his death.
While on this subject we may point out that under the Indian Penal Code or for that matter any penal law there are offences which have maximum and minimum punishment. There are offences in which only maximum punishment is prescribed. There are offences in which punishment with monetary fine is prescribed and there are offences which can be remitted giving benefit under Section 360 of the Code of Criminal Procedure. In all these cases where there is a discretion upon the court in matters of awarding sentence the accused has to be heard before sentencing. Thus with the exception where a minimum sentence is to be awarded and the Court intends to award the minimum sentence, no sentence can be passed without hearing as it is likely Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 to cause prejudice to the accused persons. We therefore feel that the answer to the second question would accordingly be that except where minimum sentence is prescribed leaving no discretion on the Court and the court does not intend to pass a sentence other than the minimum sentence, hearing at the stage of sentencing is not necessary and if the accused choses to be absent or not be represented, the court can proceed to sentence. It would not amount to causing prejudice or failure of justice but in all other cases where sentence is depended upon lawful discretion of the Court, the accused has to be heard. If the accused is absent then sentencing would have to be adjourned and the presence of accused secured first. Thus, we find that so far as delivery of judgment is concerned, that cannot await the presence of accused if the accused has been heard and the judgment reserved but when it comes to sentencing except when the Court choses to impose the minimum sentence in all other cases in absence of the accused, sentence cannot be passed. The Court must adjourn the matter of sentencing alone for securing the presence of the accused and ensuring the same by all coercive methods.
Thus, seen in the present case, so far as Dharma Singh is concerned, he has been sentenced to death without being heard on question of sentence.
Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012
As noted above his bail bond was cancelled. He was not in custody and he was not represented any more. In such a situation, the court could not pass death sentence.
However, the sentence having been passed and the Reference having been made to this Court for confirmation thereof, we would only order that Reference in so far as Dharma Singh is concerned, would be considered only after Dharma Singh is arrested and brought before this Court as has been ordered earlier because as the Apex Court has held in several decisions including in the cases of Dagdu and others -v- Sate of Maharashtra since reported in AIR 1977 SC 1579,Tarlok Singh
-v- State of Punjab since reported in AIR 1977 SC 1747 and Allaudin Mina and others -v- State of Bihar since reported in(1989) 3 SCC 5, that this defect of not hearing the convicted person in respect of sentence can be adequately cured by giving adequate opportunity at the appellate stage. We may point out that the case of Allaudin(supra) was a case, which went from this Court and in that case also the trial court had awarded death sentence without hearing the accused [without complying with Section 235(2) of the Code of Criminal Procedure], which death sentence was confirmed by the High Court in Reference. The Supreme Court heard the convict on the question of sentence and Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 modified the sentence but did not set aside and remand the matter for fresh consideration to the trial court.
Thus, so far as Death Reference in relation to Dharma Singh is concerned, it is directed to be considered only after he is arrested and brought before this Court and the Death Reference in relation to Shiv Mohan Sharma stands abated. The rest of the cases would now proceed accordingly.
(Navaniti Prasad Singh, J)
singh/- (Ashwani Kumar Singh, J)