During the criminal trial when the innocence or guilt of the accused has to be assessed, the accused is given an opportunity of hearing. That is one of the basic principles of natural justice. But, did you know that the accused is also given the right to a pre-sentence hearing? This means that after conviction, when the Court has to decide on the sentence to be passed, the accused has the right to be heard. Know more about pre-sentence hearing and the legal requirements of the proceedings – one step at a time.

History of Provision on Pre-Sentence Hearing

The legal provision for pre-sentence hearing was nowhere to be found in the colonial era Code of Criminal Procedure of 1898, and was first introduced through the Criminal Procedure Code, 1973. The same was recommended by the Law Commission of India in its 48th Report of July 1972. The Supreme Court in Ediga Anamma v. State of Andhra Pradesh (1974) SCR (3) 329 had recognised the importance of provision for pre-sentence hearing. The Court was considering the lack of comprehensive provision in CrPC 1898 regarding collection of personal and social information about the offender for passing an appropriate order of sentence to be awarded against the accused. 

Law Commission’s 48th Report

The Law Commission of India through its 48th Report discussed the need for hearing the accused on the question of sentence by the Judge. The crucial part of the Law Commissions 48th Report pertaining to pre-sentence hearing read as – “It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender. We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the Prosecution and the accused should be allowed to cooperate in the process.” The Report recognised that the criminal antecedents of an accused play a vital role, and the same aspect has been incorporated in the present day Criminal Justice System in India.

Pre-Sentence Hearing under CrPC 1973

Section 235 of the Criminal Procedure Code, 1973 dealt with the judgment of acquittal or conviction, passed during trial by the Court of Session. Sub-Section (2) of Section 235 provided that if the accused was convicted, the Judge is required to hear the accused on question of sentence and pass an order of sentence accordingly, unless the Judge proceeded with probation and similar options. Another provision under Section 248 provided for acquittal or conviction during trial before the Magistrate. Section 248(2) required a pre-sentence hearing by the Magistrate unless the Magistrate decided to proceed with probation and like options.  

Object for Pre-Sentence Hearing

When a provision is introduced by the lawmakers in the form of a Bill before it becomes an Act/Code, its purpose is also stated thereby. As per the aims and objectives for pre-sentence hearing under the Code of Criminal Procedure Section 235(2) introduced the foundation for the provision. It read as “If the judgment is one of conviction, the accused will be given an opportunity to make his representation, if any, on the punishment proposed to be awarded, and such representation shall be taken into consideration before imposing the sentence.” The provision aims at providing the accused last chance of consideration for his background, such as criminal antecedents, social background of the individual and his family, etc. The Courts thereby deciding criminal cases are required to look at the facts otherwise not relevant for the case trial, but very much crucial when the same Courts need to decide the future of the convicted person. 

Pre-Sentence Hearing under BNSS 2023

The New Criminal Laws came into force on July 1, 2024 and replaced the colonial era laws. There have been some provisions which are improved, others are kept as it is, and there are newly introduced provisions as well to keep up with the technological advancements and betterment of the Indian Legal System. The provision for hearing the accused before passing sentence has been incorporated as it is from the Code of Criminal Procedure onto Bharatiya Nagarik Suraksha Sanhita, 2023. 

Trial Before Court of Sessions 

The provision under Section 235(2) of CrPC has been encapsulated under Section 258(2) of the BNSS. It lays the duty upon the Trial Court Judge to hear the person already convicted, regarding the question of sentence to be imposed as a punishment for offence committed. Once the accused is given due opportunity regarding sentence to be passed by the Court, the Court may thereby proceed with passing the order sentence accordingly. 

Trial before Magistrate

Similar to Section 248 of CrPC which dealt with pre-sentence hearing after trial concluded before the Magistrate, Section 271(2) lays a similar provision. It requires the Magistrate who finds an accused guilty of committing an offence to be heard on the question of sentence by the Magistrate. Once the accused person is given a chance to have a say on the question of sentence, the Magistrate may proceed with placing an order accordingly. 

Landmark Cases on Pre-Sentence Hearing

1. The Supreme Court in Santa Singh v. State of Punjab (1977) SCR (1) 229 held that the provision of pre-sentence hearing is aligned towards socio-economic purpose and the goal of establishing a balancing approach in the process of sentencing in criminal cases. 

2. The Apex Court in Dagdu v. State of Maharashtra (1977) SCR (3) 636 clarified that in Santa Singh v. The State of Punjab, there was no mandate of remanding any case to the Trial Court. Rather, whenever the appellate court discovers that the mandate of section 235(2) CrPC regarding hearing the accused on the question of sentence was not complied with, it becomes the duty of appellate court to extend an adequate opportunity for the accused to produce relevant material before the Court. 

3. In Bachan Singh v. State of Punjab (1983) SCR (1) 145, the Supreme Court emphasised upon the bifurcation of criminal trial with two hearings – one at pre-conviction and the other at the pre-sentence stage. The Apex Court clarified that while making a choice of sentence for offences committed by an accused, the Court should not confine itself to the circumstances connected with the crime but also give due consideration to the circumstances of the criminal who enjoys the right to pre-sentence hearing.

4. The Supreme Court in Alluddin Mian v State of Bihar (1989) SCR (2) 498 took note of the fact that the Trial Court did not thoroughly comply with the mandatory requirement of Section 235(2) of CrPC, and even the High Court had scanty material placed before the Trial Court when it confirmed death penalty. The Court expressed that the “Absence of particulars of antecedents of accused, their socio economic conditions, the impact of their crime on the community, etc. makes the choice of punishment difficult.”  

Pre-Sentence Report

When the provision under pre-sentence hearing is read, what we see is that the Judge or Magistrate is required to give an opportunity of hearing for the accused regarding sentence after conviction is decided. The word ‘hearing’ implies that the various factors need to be considered, including social and personal aspects. It may be noted that the Court itself has no means of investigating the criminal antecedents or other information about the accused so convicted. Thus, it is the Probation Officer who has to compile the information of the accused pertaining to the factors which could affect the decision of sentence to be passed against the convicted person, and termed as a pre-sentence report. 

As discussed by the Court in Dilbag Singh v. State of Punjab (1979) SCR (2) 1134, a pre-sentence report involves careful study of the convict and his potentiality for reform, and not guesswork or insensitive assessments. 

Evidence for Pre-Sentence Hearing

The provision under Sections 258(2) and 271(2) of the Bharatiya Nagarik Suraksha Sanhita lay out the post-conviction procedure to be followed by the Trial Court or Magistrate. It requires the accused person to be heard on the question of hearing. The term “heard” does not necessarily mean orally being heard about the sentence for commitment of offence. It is not even connected to the offence or trial. It may also be noted that the nature of facts and evidence vary for pre-conviction and post-conviction hearing. Here, several social and personal facts may hold relevant for the Court to decide the question of sentence. 

The accused simply has the opportunity to represent himself before the Court and produce relevant material as evidence which may have an influence on the sentence to be imposed by the Court. Though the same may be contested by the Prosecution. It can be understood as another part of the trial where the accused is already convicted and now, both sides need to adduce evidence to prove why or why not the proposed sentence should be passed. The proceedings particularly include social implications, psychological factors and economic consequences of a proposed sentence.  

Non-Compliance with Pre-Sentence Hearing

Now that we have discussed in detail the importance and requirements of provision for hearing on the question of sentence during a criminal trial, here arises a question – what happens if the requirements under Sections 258(2) or 271(2) are not complied with? It may be noted that the provision of pre-sentence hearing is mandatory in nature and not a mere formality, as settled by the Apex Court time and again. The Supreme Court through Santa Singh v. State of Punjab (1977) SCR (1) 229 made it clear that the non-compliance of pre-sentence hearing was not a mere technical irregularity which could be cured, but amounts to by-passing an important stage of the trial and vitiates the entire order of sentence.

The Supreme Court in the matter of Alluddin Mian v State of Bihar (1989) SCR (2) 498 confirmed the conviction of the accused persons for the offence of murder. However, since the Trial Court did not uphold the mandatory requirement under Section 235(2) of CrPC but seemingly undertook it as a mere formality, the Supreme Court converted the death penalty awarded after pre-sentence hearing to imprisonment for life.  

Crux of Law on Pre-Sentence Hearing 

1. Once convicted, the second part of criminal trial begins when the Court is required to hear the accused on the question of sentence to be imposed for committing the specific crime. 
2. The legal provision for pre-sentence hearing has been provided under Sections 258(2) and 271(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023. It states that once the accused is convicted of an offence and the Court skips on proceeding with probation, the Trial Court – be it the Sessions Court or Magistrate, must hear the accused on the question of sentence and pass an order accordingly. 
3. Pre-sentence hearing is not a mere formality but a right of the accused person, being another facet of the principle of natural justice.
4. The explicit provision for pre-sentence hearing was not there under the Code of Criminal Procedure, 1898, but was recommended by the Law Commission’s 48th Report, and introduced through the CrPC 1973. The same has been incorporated under the Bharatiya Nagarik Suraksha Sanhita, 2023 through Sections 258(2) and 271(2). 
5. The opportunity for the accused to have a say on sentence to be imposed by the Court is often termed as the bifurcation of criminal trial into two phases – pre-conviction and post-conviction, both holding immense importance for upholding justice in the Indian Legal System. 
6. While there is no express rule regarding evidence to be deduced by the accused or prosecution during pre-sentence hearing, the Courts have discussed the said aspect. It is somewhat settled that the social implications, psychological factors and economic consequences of the sentence help determine the scope for sentence to be passed by the Court. 
7. The requirement for compliance with proceedings for pre-arrest hearing under Sections 258(2) and 271(2) of BNSS are not suggestive but fundamental and mandatory provisions. Non-compliance with the opportunity for the accused to be heard on the question of sentence to be imposed for the offence committed is held to be not a technical irregularity which could be curable but results in the entire order of sentence to be vitiated.