HARSHAD GUPTAversusTHE STATE OF CHHATTISGARH

          [2024] 10 S.C.R. 701 : 2024 INSC 776

                      Harshad Gupta
                             v.
                 The State of Chhattisgarh
              (Criminal Appeal No. 4080 of 2024)
                        01 October 2024
           [Surya Kant and Ujjal Bhuyan, JJ.]

                     Issue for Consideration
The Judge who had convicted the appellant was transferred post
conviction, before the appellant could be heard on the quantum
of sentence and a new Judge was posted in his place. Appellant
relying on Sections 353 and 354, Cr.P.C sought direction from
the High Court to the new Presiding Officer to re-hear the case,
including on the question of conviction. High Court whether justified
in dismissing the petition filed by the appellant and directing 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.

                           Headnotes†
Code of Criminal Procedure, 1973 – ss.235(1), (2) – Operation –
Transfer of the Presiding Officer post conviction, the new
Presiding Officer if obligated to hear the matter afresh including
on the question of conviction:
Held: No – Post the judgment of conviction, the accused has a
right to be heard on the quantum of the sentence – Complying with
s.235(1), the appellant was duly heard and a judgment of conviction
was recorded and pronounced on 30.04.2015 whereafter, the
appellant was entitled to be heard on the question of sentence –
However, since the appellant himself sought adjournments
and exemption from personal appearance on the ground of his
accident, meanwhile the Presiding Officer was transferred, and the
new Presiding Officer was required to hear the appellant on the
quantum of the sentence for compliance with s.235(2) and pass
an appropriate order of sentence – The process and procedure
contemplated u/s.235(2) cannot annul the judgment of conviction
recorded u/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 s.235 – The occasion to comply
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       with sub-section (2) of s.235 arises only when there is a judgment
       of conviction passed u/s.235(1) – Thus, once the judgment dated
       30.04.2015 was pronounced, the conviction of the appellant stood
       finalized within the meaning of s.235(1), whereupon the Trial
       Court became functus officio for the purpose of sub-section (1) of
       s.235 – 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 – No infirmity in the impugned
       order passed by the High Court holding that the new Presiding
       Officer would hear the appellant on the question of sentence and
       pass an appropriate order. [Paras 14-16]
       Code of Criminal Procedure, 1973 – ss.353, 354 – Compliance
       with – Plea of the appellant that the judgment of conviction
       against him did not satisfy the ingredients of s.353 r/w s.354,
       Cr.P.C. and hence, there was no ‘judgment’ within the meaning
       of sub-section (1) of s.235:
       Held: Rejected – Judgment of conviction passed by the Trial Court
       satisfied s.354(1) – The said judgment 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 – Thus, the Presiding
       Officer followed the procedure envisaged under sub-section (1)
       of s.353 – The Presiding Officer then listed the case to accord a
       hearing to the appellant on the quantum of sentence – There is
       no violation of ss.353 or 354. [Para 18]

                                  List of Acts
       Code of Criminal Procedure, 1973; Penal Code, 1860.

                               List of Keywords
       Judgment of conviction; Transfer of the Presiding Officer post
       conviction, New Presiding Officer; Quantum of the sentence; Right
       to be heard on the quantum of the sentence; Order of sentence;
       ‘judgment’; Functus officio.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 4080
       of 2024
       From the Judgment and Order dated 13.05.2019 of the High Court
       of Chhatisgarh at Bilaspur in CRLMP No. 444 of 2015
[2024] 10 S.C.R.                                                       703

              Harshad Gupta v. The State of Chhattisgarh


                        Appearances for Parties
     Dr. Rajesh Pandey, Sr. Adv., Prashant Kumar Umrao, Ms. Nishi
     Prabha Singh, Advs. for the Appellant.
     Arjun D Singh, Ms. Ankita Sharma, Advs. for the Respondent.
                Judgment / Order of the Supreme Court
                                  Order
     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 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 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.
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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:
       (i)    the judgment of conviction was duly pronounced by learned
              Additional Sessions Judge, Mr. J.R. Banjara; and
       (ii)   there was no illegality in the successor-in-office 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 pronounced 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,
       (i)    Judgment on the point of conviction; and
[2024] 10 S.C.R.                                                        705

               Harshad Gupta v. The State of Chhattisgarh


     (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 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
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       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 `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.
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
[2024] 10 S.C.R.                                                  707

                 Harshad Gupta v. The State of Chhattisgarh


     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.

     Result of the Case: Appeal dismissed.



     †
         Headnotes prepared by: Divya Pandey