On Transfer Of Judge Who Convicted, No Need For Fresh Hearing On Conviction; New Judge Need Hear Only On Sentence: Supreme Court
In a case where the Trial Judge was transferred after pronouncing a judgment of conviction but prior to passing of the order on sentence, the Supreme Court recently held that the new Judge was not required to hear the case afresh on the point of conviction/acquittal. A hearing on the quantum of sentence alone remained to be afforded for compliance with Section 235 CrPC.
"The contention of the appellant, 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, is wholly misconceived and misdirected. Once the judgment...was pronounced, the conviction of the appellant stood finalized within the meaning of Section 235(1) of the Cr.P.C., whereupon the Trial Court became functus officio for the purpose of sub-section (1) of Section 235 of the Cr.P.C. 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" said a bench of Justices Surya Kant and Ujjal Bhuyan.
Background
Briefly stated, the appellant was convicted by the Trial Court under Sections 376(1) and 506 IPC on 30.04.2015. Before he could be heard on the quantum of sentence, he moved an application for exemption from personal appearance on the ground of having met with an accident. This resulted in the matter being adjourned on a few occasions.
In the meantime, the Judge who heard the appellant's case and convicted him was transferred and a new Judge posted in his place.
Relying on Sections 353 and 354 CrPC, the appellant moved the Chhattisgarh High Court for a direction that the new Judge re-hear his case, including on the question of conviction. On 13.05.2019, the High Court passed the impugned order dismissing the appellant's petition, on the view that the judgment was duly pronounced by the predecessor judge and there was no illegality in his successor-in-office conducting the hearing on quantum of sentence.
Assailing the High Court's direction to the new Judge to hear him on the quantum of sentence, the appellant approached the Supreme Court.
Relevant Provision
The provision under consideration was Section 235 CrPC, which reads as follows:
“Judgment of acquittal or conviction
1. After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
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.”
Supreme Court Observations
The Supreme Court observed that after the judgment was pronounced, the appellant himself sought adjournments due to injuries suffered by him in a road accident; meanwhile, the Presiding Officer got transferred. As such, the new Presiding Officer was required to hear him on quantum of sentence, for compliance with Section 235(2) CrPC and to pass an appropriate order of sentence.
"The process and procedure contemplated under Section 235(2) of the Cr.P.C. 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 Cr.P.C. 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 Cr.P.C.", the Court said.
Opining that the judgment of conviction stood crystallized as soon as it was pronounced, no illegality was found in the impugned order, which directed the new Judge to hear the appellant on the quantum of sentence.
Insofar as the appellant contended that Section 353 CrPC (which stipulates the manner in which judgment on a criminal trial is to be pronounced) and Section 354 CrPC (which deals with language and contents of judgment on a criminal trial) were not complied with, the Court found no merit.
"the Trial Court delivered a self speaking judgment of conviction which satisfies all the constituents illustrated in Section 354(1) of the Cr.P.C...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."
Conclusion
The appeal was dismissed, with a direction to the new Judge to hear the appellant on the question of sentence in a period not later than 1 month.
Further, the appellant was directed to surrender before the Trial Court to be taken into custody.
Case Title: HARSHAD GUPTA V. THE STATE OF CHHATTISGARH, Crl.A. No. 4080 of 2024
Citation : 2024 LiveLaw (SC) 800