Section 235(2) CrPC: Jurisprudential Evolution and Contemporary Challenges in Sentencing Hearings

Section 235(2) CrPC: Jurisprudential Evolution and Contemporary Challenges in Sentencing Hearings

Introduction

Section 235(2) of the Code of Criminal Procedure, 1973 (“CrPC”) inaugurates a bifurcated model of criminal trials before the Court of Session by mandating a distinct, post-conviction hearing on sentence. Conceived as a safeguard that humanises punishment, the provision operationalises the constitutional commitment to fair procedure under Articles 14 and 21. Half a century after its enactment, the Supreme Court of India continues to refine the contours of this right, particularly in capital cases where the liberty—or life—of the convict hinges upon a meaningful opportunity to present mitigating circumstances. This article critically maps the statutory framework, doctrinal evolution, and contemporary dilemmas surrounding Section 235(2), drawing extensively on leading authorities such as Santa Singh[1], Dagdu[2], Sangeet[3] and the 2023 decision in Sundar @ Sundarrajan[4].

Legislative Framework and Purpose

Section 235 CrPC reads:

“(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Three structural elements emerge:

  • Bifurcation: Guilt is adjudicated first; sentence is considered thereafter.
  • Right to be heard: The accused may place oral submissions and evidence bearing on sentence.
  • Obligatory compliance: The court must hear the accused unless probationary release under Section 360 is contemplated.

Coupled with Section 354(3) CrPC—requiring “special reasons” for capital punishment—the provision embodies a legislative policy that life imprisonment is the norm and death the exception[5].

Historical Evolution of Judicial Interpretation

1. Santa Singh v. State of Punjab (1976)

The first authoritative ruling pronounced Section 235(2) “clear and explicit”, holding that non-compliance vitiates the sentence because it offends natural justice and deprives the court of relevant material[1].

2. Dagdu v. State of Maharashtra (1977) & Tarlok Singh v. State of Punjab (1977)

While reiterating the mandatory character, both decisions accepted “same-day” sentencing where the accused did not seek adjournment and no prejudice was shown[2]. The latitude they created would later yield conflicting strands of precedent.

3. Consolidation through Allauddin Mian (1989)

A three-judge Bench underscored that Section 235(2) satisfies a “dual purpose”: protecting the accused’s right to be heard and assisting the court to choose the appropriate sentence. It recommended adjournment to enable collection of mitigating material in serious offences[6].

4. Integration with Death-Penalty Jurisprudence

The Constitution Bench in Bachan Singh (1980) acknowledged Section 235(2) as codifying the right to a separate pre-sentence hearing, vital for applying the “rarest of rare” test[5]. Subsequent decisions—Machhi Singh, Allauddin Mian, C. Muniappan, and most recently Sangeet—further internalised the provision into the capital sentencing framework.

5. Contemporary Clarifications: Sundar @ Sundarrajan (2023)

A two-judge Bench surveyed conflicting authorities on “same-day” sentencing and referred the issue of “sufficient time” to a larger Bench in the 2022 suo-motu matter on sentencing guidelines[4]. While recognising earlier toleration of immediate sentencing (Dagdu, Tarlok Singh), the Court emphasised the common thread that the hearing must be “real, effective and meaningful”.

Doctrinal Core: Mandatory Nature and Meaningful Hearing

Four propositions crystallise from jurisprudence:

  1. Non-compliance is a jurisdictional error. Sentences imposed without hearing the accused stand vitiated and require remand (Santa Singh, Dagdu).
  2. Form cannot eclipse substance. A perfunctory colloquy that elicits no mitigating material violates the mandate (State of Rajasthan v. Dr. Abdul Hameed, 2015 HC)[7].
  3. Accused’s awareness and assistance of counsel are essential. The duty to apprise the convict of his right to present evidence lies with the court (Shobhit Chamar, 1998, though conviction upheld, re-affirmed the principle)[8].
  4. Adjournment is preferred in capital or complex matters. The court should ordinarily separate conviction and sentence by at least one day to facilitate collection of mitigating material (Allauddin Mian; 2020 and 2023 decisions follow this trend).

Procedural Dimensions: Adequacy of Time and Evidence

Two unresolved questions persist:

  • What constitutes “sufficient time”? Precedents diverge. Dagdu tolerated same-day hearings; Dattaraya (2020)[9] and Sundar emphasised advance intimation, opportunity to file affidavits and expert reports.
  • Scope of material admissible at the sentencing stage. Post-Bachan Singh, courts accept socio-economic background, mental health, prospects of reform, and victim-impact statements. The 2022 suo-motu reference aims to standardise such factors.

Interplay with Death-Penalty Jurisprudence

Section 235(2) is not confined to capital cases, yet its operational significance is most visible there. In Sangeet v. State of Haryana (2012) the Court converted death sentences to life imprisonment after interrogating whether mitigating circumstances had been adequately considered; the judgment expressly invoked Section 235(2) as the procedural gateway for such evidence[3]. Likewise, C. Muniappan (2010) reaffirmed that even where overwhelming evidence establishes guilt, procedural lapses under Section 235(2) must be scrutinised before affirming death sentences[10].

Compliance Failures and Appellate Remedies

Appellate courts typically adopt three remedial pathways:

  1. Remand for fresh sentencing: e.g., Tarlok Singh where the case was returned to Sessions Court for a proper hearing.
  2. Commutation: In Allauddin Mian, death was commuted to life partly due to procedural shortcomings.
  3. Retrial confined to sentence: Supreme Court in Suryamoorthi (1989) deferred sentencing to enable hearing under Section 235(2).

Current Developments and Prospective Reforms

Three recent trends merit attention:

  • Guideline formulation: The 2022 suo-motu proceedings on mitigating circumstances may produce uniform protocols, reducing arbitrariness.
  • Technological interface: In Sunita Devi v. State of Bihar (2024) the Court cautioned against routine use of video-conferencing at the charge stage, underscoring the need for direct judicial engagement. A parallel concern arises for sentencing hearings under Section 235(2).
  • Victim-centric considerations: Growing emphasis on victim impact does not dilute the convict’s right to a fair sentencing hearing; rather, it reinforces the court’s duty to balance aggravating and mitigating inputs, as articulated in Sangeet.

Critical Assessment and Recommendations

The jurisprudence reveals admirable fidelity to procedural fairness but also doctrinal ambiguity. To reconcile conflicting lines of authority, the following measures are proposed:

  1. Statutory clarification: An amendment or judicial guideline could prescribe a minimum cooling-off period—for example, 48 hours—between conviction and sentencing in all offences carrying a maximum penalty of ten years or more.
  2. Mandatory pre-sentence reports: Drawing on comparative practices, probation or correctional services should furnish socio-legal background reports, easing the evidentiary burden on indigent convicts.
  3. Judicial training: Sentencing is a specialised function; continuous judicial education should focus on eliciting and evaluating mitigating factors.
  4. Digital safeguards: Where virtual hearings are unavoidable, protocols must ensure confidential communication between counsel and convict, translation facilities, and a recorded confirmation that the convict understands his rights.

Conclusion

Section 235(2) CrPC has transformed Indian sentencing from a discretionary afterthought into a structured, participatory inquiry. Yet, jurisprudential oscillations—particularly regarding timing and adequacy of hearing—continue to create procedural uncertainty. As the Supreme Court moves toward comprehensive sentencing guidelines, the normative ideals underlying Section 235(2)—dignity, fairness, and individualised justice—must remain the lodestar for courts navigating the delicate task of punishment.

Footnotes

  1. Santa Singh v. State of Punjab, (1976) 4 SCC 190.
  2. Dagdu v. State of Maharashtra, (1977) 3 SCC 68; Tarlok Singh v. State of Punjab, (1977) 3 SCC 218.
  3. Sangeet & Anr. v. State of Haryana, (2013) 2 SCC 452.
  4. Sundar @ Sundarrajan v. State, 2023 SCC OnLine SC 310.
  5. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, para 151-163.
  6. Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.
  7. State of Rajasthan v. Dr. Abdul Hameed, 2015 Cri LJ (Raj) 2189.
  8. Shobhit Chamar v. State of Bihar, (1998) 3 SCC 455.
  9. Dattaraya v. State of Maharashtra, (2020) 14 SCC 290.
  10. C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567.