Harshad Gupta vs The State Of Chhattisgarh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 2024 INSC 776 CRIMINAL APPEAL NO. OF 2024 (@ SLP (Crl.) No. 6303 of 2019)

HARSHAD GUPTA .....Appellant(s)

Vs.

THE STATE OF CHHATTISGARH .....Respondent(s)

O R D E R

Leave granted.

2. The appellant's grievance is against the Judgment

dated 13.05.2019 passed by the High Court of Chhattisgarh at

Bilaspur, whereby his prayer to re-open the judgment of his

conviction, hear the arguments afresh by the new Presiding

Officer, and then deliver a judgment of conviction or

acquittal, has been turned down. The facts may be noticed

briefly:

3. FIR No. 03/13 was registered on 28.05.2013 at

Police Station Jashpur under Sections 376 and 506 of the Indian

Penal Code, 1860 (in short, the “IPC”). The appellant is the

principal accused. His father was also named as accused of

threatening the victim with dire consequences if she would not Signature Not Verified Digitally signed by Ashwani Kumar Date: 2024.10.15 17:00:33 IST Reason: withdraw the complaint. The Trial Court framed charges under

Sections 376(1) and 506 of the IPC against the appellant, in

2013. The Sessions trial was conducted and the final hearing

1 was also concluded. The learned Additional Session’s Judge,

vide order dated 28.04.2015, adjourned the case for 30.04.2015

for pronouncement of judgment. The appellant was held guilty

and convicted vide judgment pronounced on 30.04.2015.

4. Before he could be heard on the quantum of the

sentence, the appellant moved an application on 30.04.2015

under Section 317 of the Code of Criminal Procedure, 1973 (in

short, the “Cr.P.C.”) to exempt him from personal appearance

on the ground that he had met with an accident. In view of

that application, the matter was adjourned on a few occasions

to enable the appellant to recover from the accident.

5. In the meanwhile, the Presiding Officer of the

Court, namely, Mr. J. R. Banjara, who had convicted the

appellant, was transferred between 04.05.2015 and 15.05.2015.

A new Presiding Officer, namely, Mr. Mohammad Rizwan Khan was

posted in his place.

6. After that, the appellant approached the High Court

seeking a direction to the new Presiding Officer to re-hear the

case, including on the question of conviction. He relied upon

Sections 353 and 354 of the Cr.P.C. It was contended that the

new Presiding Officer was obligated not only to hear the

appellant on the question of sentence but also on the point of

conviction in terms of the above-mentioned provisions. The High

Court, vide interim order dated 19.06.2015, stayed the

proceedings before the Trial Court. Finally, vide the impugned

order dated 13.05.2019, the petition filed by the appellant was

dismissed, having found that:

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.(i) the judgment of conviction was duly pronounced

by learned Additional Sessions Judge, Mr. J.R. Ban-

jara; and

.(ii) there was no illegality in the successor-in-of-

fice of the Court of Additional Sessions Judge to

hear and determine the quantum of the sentence, even

in a case where the judgment of conviction was pro-

nounced by his predecessor-in-office.

7. The High Court, consequently, directed the new

Presiding Officer to hear the appellant on the question of

sentence and pass an appropriate order in terms of Section

235(2) of the Cr.P.C.

8. The aggrieved appellant is before us.

9. We have heard learned Senior Counsel/counsel for

the parties and perused the record.

10. Section 235 of the Cr.P.C. 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.”

11. A plain reading of the provision leaves no room to

doubt that a judgment of conviction shall have two components;

namely,

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(i) Judgment on the point of conviction; and

(ii) Where the accused is convicted, a separate order

of sentence to be passed according to law, after

hearing the accused on the question of sentence.

12. The aforesaid provision mandates that once the

judgment of conviction is delivered, the accused has a right to

be heard on the quantum of the sentence. This is so, in view of

the well-established principle of law that various relevant

factors, including mitigating circumstances, if any, are to be

kept in mind by the Court while awarding an adequate and

proportionate sentence.

13. It is not in dispute that in deference to Section

235(1) of the Cr.P.C., the appellant was duly heard and a

judgment of conviction was recorded and pronounced on

30.04.2015.

14. Consequential thereto, the appellant was entitled

to be heard on the question of sentence. Since the appellant

himself had been seeking adjournments and exemption from

personal appearance due to the injuries suffered by him in a

road accident and meanwhile the Presiding Officer had been

transferred, it was but natural that the new Presiding Officer

was required to hear the appellant on the quantum of the

sentence, for faithful compliance with Section 235(2) of the

Cr.P.C. and then, to pass an appropriate order of sentence.

15. The process and procedure contemplated under

4 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 sub-

section (2) of Section 235, thus, arises only when there is a

judgment of conviction passed under Section 235(1) of the

Cr.P.C.

16. 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 dated 30.04.2015 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. The High Court has, thus, rightly held that the successor

officer would hear the appellant on the question of sentence

and pass an appropriate order. We see no legal infirmity in the

impugned order passed by the High Court.

17. Learned senior counsel for the appellant vehemently

urges that the judgment of conviction, granted against the

appellant, does not satisfy the ingredients of Section 353 read

with Section 354 of the Cr.P.C. and hence, there is no

5 `judgment’ rendered in the eyes of law within the meaning of

sub-section (1) of Section 235 of the Cr.P.C.

18. We are, however, not impressed by the submission. We

say so for the reason that 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.

Further, 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. The Presiding Officer

thus, followed the procedure envisaged under sub-section (1) of

Section 353 of the Cr.P.C. The next step to be taken by the

Presiding Officer, was to list the case to accord a hearing to

the appellant on the quantum of sentence. That is precisely

what has been done in the instant case. We are, thus, of the

view that there is not even a fragment of violation of Sections

353 or 354 of the Cr.P.C., as claimed on behalf of the

appellant.

19. There is thus no merit in this appeal which is

consequently dismissed.

20. The Presiding Officer, presently posted in the

concerned trial Court, is directed to hear the appellant on the

question of sentence as early as possible but not later than

one month from the date of receipt of a copy of this Order.

The necessary consequences will follow.

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21. The appellant is directed to surrender before the

Trial Court on 04.11.2024 at 10.00 a.m. for being taken into

judicial custody. He shall be produced before the Trial Court

on the date of hearing on the quantum of sentence as also the

date of pronouncement of the order on sentence. In case he

absents or absconds, the law must take its own course. The

Police Authorities are directed to ensure that the appellant

remains present before the Court to meet the necessary

consequences.

22. Ordered accordingly.

...................J. (SURYA KANT)

...................J. (UJJAL BHUYAN)

New Delhi;

October 01, 2024.

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ITEM NO.16 COURT NO.4 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 6303/2019

(Arising out of impugned final judgment and order dated 13-05-2019 in CRLMP No. 444/2015 passed by the High Court of Chhatisgarh at Bilaspur)

HARSHAD GUPTA Petitioner(s)

VERSUS

THE STATE OF CHHATTISGARH Respondent(s) (IA No. 106189/2019 - EXEMPTION FROM FILING O.T.)

Date : 01-10-2024 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE UJJAL BHUYAN

For Petitioner(s) Dr. Rajesh Pandey, Sr. Adv.

Mr. Prashant Kumar Umrao, AOR Ms. Nishi Prabha Singh, Adv.

For Respondent(s) Mr. Arjun D Singh, Adv.

Ms. Ankita Sharma, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is dismissed in terms of signed reportable

order.

Pending application(s), if any, shall stands disposed of.

(NEETA SAPRA) (PREETHI T.C.) COURT MASTER (SH) ASSISTANT REGISTRAR

(Signed reportable order is placed on the file)

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