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Gulshan Prakash v. State of Haryana (2010) 1 SCC477

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Gulshan Prakash v. State of Haryana (2010) 1 SCC 477||Case Summary  Introduction  In this appeal, the Court has interpreted Article 15(4) of the Fundamental Right. It has been added by the 1st Amendment Act, of 1951. Facts The State of Haryana instructed Maharshi Dayanand University (MDU), Rohtak to conduct entrance examination for MD/MS/PG courses for the Session 2008-2009. The appellant made a representation to the Health Secretary for providing reservation for SC and ST in the Post Graduate courses, Since there was no response from the Health Secretary the Appellant filed a petition in the High Court.  The High Court dismissed the petition of the appellant therefore the appellant approached the Supreme Court by Special Leave Petition under Article 136. Appellant Contentions  MDU, Rohtak has provided 20% reservation for the graduate level courses or undergraduate courses therefore the said University should also provide reservation in for the PG courses.  The Government o
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Ajay Pandit @ Jagdish Dayabhai Patel v. State of Maharashtra (2012)

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 Ajay Pandit @ Jagdish Dayabhai Patel v. State of Maharashtra (2012)

Introduction 

In the present case, the Supreme Court heard two appeals (Criminal Appeal No. 46 of 2000 and 789 of 2001) arising against the order of the Bombay High Court which enhanced the punishment of life imprisonment to be hanged till death for the offence of double murder and attempt to murder of two others without properly hearing the accused. Section 235(2) of the Criminal Procedure Code, 1973 places an obligation on the Judge to hear the accused on the question of sentence before passing the sentence. In this case, the Apex Court elaborately discussed the meaning and objects of "hearing" as provided u/s 235(2) CrPC, 1973.

Facts

The issue raised before this Court is based on the fact that the accused/respondent was convicted for the double murder of Nilesh Bhai Lal Patel and Jayshree and also the attempt to murder of two others. The offence was committed at different times and places. The trial Court made an order for the punishment of life imprisonment. The Bombay High Court by noticing the gruesome manner in which the accused had murdered both the victims enhanced the punishment of life imprisonment to death sentence by considering it as the rarest of rare cases. Although the High Court had made a show cause notice to the accused as to why the sentence of life imprisonment be not enhanced to a death sentence and also fixed a date to hear the accused on the same matter, the accused had not mentioned anything except that he is not involved in this case and he is not guilty.

Contention of the counsel for the appellant

  1. The High Court has not followed the procedure laid down in S. 235(2) CrPC to hear the accused in the matter of sentence before passing any sentence.
  2. By referring to the judgement of this Court in Santa Singh v. State of Punjab (1976) and Rajesh Kumar v. State through Gov. Of NCT of Delhi, he stated that non-compliance of the object will ex-vitiate the order.

Issue

  1. Whether the High Court has properly appreciated the purpose and object of S. 235(2) CrPC, 1973.
  2. Whether, in the absence of adding any materials by the accused, has the Court any duty to elicit any information from whatever sources before awarding a sentence, especially capital punishment.

Ratio Decidendi 

  1. S. 235(2) CrPC was enacted by the Parliament on the recommendation of 41st Law Commission Report which suggested that the taking of evidence as to the circumstances relevant to sentencing should be encouraged.
  2. Santa Singh case- 
    1. Breach of the necessary requirement of S. 235(2) can vitiate the sentence. 
    2. The hearing contemplated u/s 235(2) is not confined merely to hearing oral submissions, but also provides an opportunity for the prosecution and the accused to place before the Court facts and materials relating to the question of sentence and if they are contested, then to produce evidence to establish the same.
  3. Muniappan v. State of Tamil Nadu (1981)-
    1. Asking the accused as to what he has to say on the question of sentence is not enough to satisfy S. 235(2) CrPC.
    2. The Judge must make a genuine effort to get all information from the accused related to the question of sentence.
  4. Allauddin Mian & Ors. v. State of Bihar- 
    1. S. 235(2) is mandatory and should not be treated as formality.
    2. S. 235(2) satisfies dual purpose:-
      1. Satisfies the rule of natural justice by providing fair play to the accused.
      2. Helps the Court in choosing the sentence as the penal code provides a wide range of discretion in the matter of sentencing.
  5. Malkiat Singh v. State of Punjab - Sufficient time must be given to the prosecution or the accused to place any information before the Court related to the question of sentence.
  6. Rajesh Kumar case- S. 235(2) must be ready conjointly with S. 354(3) CrPC which provides for recording of special reason for awarding death sentence.

Decisions

  1. Appeal allowed.
  2. The High Court failed in its duty to get any information or particulars from the accused or the prosecution. They only mechanically recorded what the accused had said. 
  3. Set aside the death sentence awarded by the High Court.

Summary

The Law Commission in its 41st Report suggested that the taking of evidence as to the circumstances relevant to sentencing should be encouraged to minimise the deficiency in the sentencing policy. S. 235(2) was enacted on this recommendation. 
The Apex Court in this present case elaborately discussed the meaning and objects of "hearing" as provided in S. 235(2) CrPC, 1973. The issue raised over the judgement of the Bombay High Court which enhanced the sentence of life imprisonment to death sentence without making proper attempt to get any information from the accused or the prosecution related to the question of sentence, for the offence of double murder in a gruesome manner. The Court held that the hearing contemplated u/s 235(2) is not confined merely to hearing oral submissions, but also provides an opportunity for the prosecution and the accused to place before the Court facts and materials relating to the question of sentence and if they are contested, then to produce evidence to establish the same. 

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Ashbury Railway Carriage and Iron Co. Ltd. v. Riche (1875)

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