Yakub Abdul Razak Memon (A-1)
4) At the first instance, let us consider the charges, materials placed by the prosecution, defence and details regarding conviction and sentence insofar as A-1 is concerned.
The following charges were framed against A-1, namely: “…..During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Section 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1-A), (1-B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.” In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts: At head secondly, for commission of the offence under Section 3(3) of TADA Act, for in pursuance to the conspiracy in India, Dubai and Pakistan, during the period between December, 1992 and April, 1993, having conspired advocated, abetted, advised and knowingly facilitated the commission of terrorist acts and acts preparatory to terrorist acts i.e. serial bomb blast in Bombay and its suburbs on 12.03.1993 by:
(i) arranging finance and managing the disbursement by generating the same through Mulchand Shah Choksi (A-97) and from the firm M/s Tejarat International owned by Ayub Memon (AA) for achieving the objective of conspiracy to commit the terrorist act;
(ii) arranging air tickets through Altaf Ali Mushtaq Ali Sayyed (A-
67), East West Travels and others to enable the co-conspirators and accused in the case to undergo weapons training in Pakistan and for having made arrangement for their lodging and boarding;
(iii) purchasing motor vehicles for the purpose of preparing them for being used as bombs and for planting them at important locations in furtherance of objective of conspiracy to commit terrorist act; and
(iv) requesting the discharged Amjad Ali Meharbux and A-67 to store suitcases containing arms and ammunitions, handgrenades which were part of consignment smuggled into India by the absconding accused Tiger Memon and other co-conspirators.
At head thirdly, for commission of the offence under Section 5 of TADA Act, on the count of unauthorisedly, within the notified area of Greater Bombay, from 03.02.1993 onwards, by being in possession of hand grenades, detonators which were the part of the consignment of arms, ammunitions and explosives smuggled into the country by Tiger Memon and his associates for committing the terrorist acts.
At head fourthly, for commission of the offence under Section 6 of TADA Act, on the count of unauthorisedly, within the area of Greater Bombay, with an intent to aid terrorists, from 03.02.1993 onwards, being in possession of handgrenades, detonators which were the part of the consignment of arms, ammunitions and explosives smuggled into the country by Tiger Memon and his associates for committing the terrorist act and thereby having contravened the provisions of the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 and the Explosives Rules, 2008 by keeping the same in his possession and by transporting and distributing the same to different persons.
At head fifthly, for commission of the offences under Sections 3 & 4 read with Section 6 of the Explosive Substances Act on the count of, from 03.02.1993 onwards, providing premises, having procured, concealed, aided and abetted Tiger Memon and his associates for smuggling arms, ammunitions and explosives into the country for commission of terrorist act and also by having in his possession and control explosive substances like handgrenades and detonators with an intent, and by means thereof, to endanger the lives and for causing serious damage to property in India and to enable his co-conspirators to do such acts.”
5) The appellant (A-1) has been convicted and sentenced for the above said charges as follows:-
(i) The appellant-A1 has been convicted and sentenced to death under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellant was ordered to pay a fine of Rs. 25, 000/-. (charge firstly)
ii) The appellant (A-1) was sentenced to RI for life alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 2 years under Section 3(3) of TADA. (charge secondly)
iii) The appellant was sentenced to RI for 10 years alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 2 years under Section 5 of TADA (charge thirdly)
iv) The appellant was sentenced to RI for 14 years alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 2 years under Section 6 of TADA. (charge fourthly)
v) The appellant was sentenced to RI for 10 years with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fifthly).
6) Heard Mr. Jaspal Singh, learned senior counsel for the appellant and Mr. Gopal Subramanium, learned senior counsel duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent-CBI.
Contentions raised by A-1:
7) Mr. Jaspal Singh, learned senior counsel, after taking us through the charges framed against A-1, prosecution witnesses, documents and all other materials raised the following contentions:-
(i) The impugned judgment is not a “judgment” in terms of Sections 353, 354, 362 and 363 of the Code since reasons for conviction and sentence were not provided to the appellant (A-1) along with the order of conviction and sentence dated 12.09.2006 and 27.07.2007 respectively. Inasmuch as only ‘operative portion’ was read out and after hearing the accused the conviction and sentence was imposed, it is not permissible in law. He further pointed out that as per the “operative portion”, A-1 was convicted and sentenced to death, RI along with fine for commission of offences mentioned in charges at head firstly to fifthly. In the absence of the entire judgment in terms of the above mentioned provisions, the conviction and sentence imposed on A-1 cannot be sustained.
(ii) The prosecution mainly relied on the evidence of Mohammed Usman Jan Khan (PW-2), who turned approver. According to learned senior counsel, there is no provision for pardoning an accused and permitting him to become an approver under TADA. He further pointed out that neither under TADA nor under the Code it can be said that PW-2 has been validly pardoned. In any event, according to him, his statement needs to be corroborated and conviction based on his sole testimony cannot be sustained.
(iii) The Special Judge heavily relied on the confessional statements of A- 10, A-11, A-46, A-67 and A-97. Among them, except A-97 others have retracted their statements. Since the prosecution case rests entirely upon the confessional statements of those accused persons, in view of their retraction statements, the conviction and sentence cannot be sustained.
(iv) Several recoveries were made by the prosecution on the statement of Md. Hanif (PW-282) and in the absence of strict adherence to the procedure, those recoveries are inadmissible in evidence. He further pointed out that seizure panchnamas were not in accordance with the procedure and, more particularly, Section 27 of the Indian Evidence Act, 1872.
(v) All the confessional statements are exculpatory and not inculpatory. In view of the same, the entire statements made are not acceptable.
(vi) There is no material to prove that there was a conspiracy among the accused persons pursuant to the demolition of Babri Masjid.
(vii) In any event, the prosecution failed to pin point the specific role of A-1. A-1 had no knowledge of the conspiracy and of the ultimate bomb blasts on 12.03.1993. Even, the confessional statements cannot be used against A-1 since the same were recorded before the amendment of Section 3(5) of TADA. Considering the entire evidence against him, the prosecution failed to point out any specific role, accordingly, the death sentence is not warranted and other sentences are also liable to be set aside.
Reply by CBI:
8) Mr. Gopal Subramanium, learned senior counsel for the CBI duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel met all the points raised by Mr. Jaspal Singh. He pointed out the following evidence against the appellant (A1), namely;
(i) confessional statements made by co-accused;
(ii) testimonies of prosecution witnesses; and
(iii) documentary evidence.
According to him, it is incorrect to state that conviction was based solely on the evidence of Approver (PW-2). He pointed out that the prosecution has placed enough materials to substantiate “conspiracy” and the ultimate role played by each one of the accused persons, particularly A-1, in the commission of offence. He further pointed out that all the confessions made by the accused, namely, A-10, A-11, A-46, A-67 and A-97 are admissible, and on the other hand, their alleged retractions cannot be accepted. He further pointed out that apart from the confession of those accused, the prosecution has established several incriminating materials connecting all the accused in the commission of offence. He pointed out various recoveries made against the accused which clearly show the seriousness of the matter. Among all the accused persons, A-1, brother of Tiger Memon, was in-charge of entire financial management, sending persons to Pakistan via Dubai for training in arms and ammunitions, securing air- tickets and travel documents such as passports, visas etc. He further pointed out that there was no flaw in the procedure adopted by the Special Court in delivering the judgment. There is no merit in the appeal filed by A-1 and prayed for confirmation of death sentence.
9) We have carefully considered the entire materials, oral and documentary evidence and the submissions made by either side. Validity of impugned judgment by the Special Court
10) Among various points raised, since the argument relating to impugned judgment is paramount, we intend to take up the said issue at the foremost. Mr. Jaspal Singh, learned senior counsel for A-1, took us through the impugned judgment which contains two parts. According to him, in the absence of whole judgment for perusal of the accused, the sentence imposed cannot be sustained. In support of the above claim, he relied on Sections 353, 354, 362 and 363 of the Code. He further pointed out that only ‘operative portion’ was read out and after hearing the accused, conviction and sentence was imposed. As per the operative portion, A-1 was convicted under Sections 3(3), 5 and 6 of TADA read with Section 120-B IPC and Sections 3, 4 and 6 of the Explosive Substances Act, 1984. He further pointed out that after convicting and sentencing A-1, the Presiding Officer stated that the reasons will be given within two months which shows that, admittedly, the judgment was not ready on the date of the pronouncement.
11) In view of the above, it is desirable to go through the relevant provisions of TADA. The TADA contains: (a) judgment; and (b) orders, admittedly, it is not defined anywhere that what is meant by judgment/order. It is the claim of the learned senior counsel for the appellant that if it is not a complete judgment, accused cannot be convicted and sentenced. In the absence of specific provision in TADA with regard to the same, we have to look into the relevant provisions of the Code. Chapter XXVII of the Code speaks about ‘Judgment’. The relevant provisions are Sections 353, 354, 362 and 363 which are as under:
“353. Judgment.–(1). The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders.
(a) By delivering the whole of the judgment; or
(b) By reading out the whole of the judgment; or
(c) By reading out the operative part of the judgment and explaining the substance of the judgment in a language, which is understood by the accused or his pleader.
(2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1), as the case may be, it shall be dated and signed by the presiding officer in open court and if it is not written with his own hand, every page of the judgment shall be signed by him.
(4) Where the judgment is pronounced in the manner specified in clause
(c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted:
Provided that, where there are more accused than one, and one or more of them do not attend the court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.
(8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465.
354. Language and contents of judgment. — (1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353, –
(a) Shall be written in the language of the court;
(b) Shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c) Shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced;
(d) If it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the court shall distinctly express the same, and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
(4) When the conviction is for an offence punishable with imprisonment for a term of one year of more, but the court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provisions of this Code.
(5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
(6) Every order under section 117 or sub-section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.
362. Court not to alter judgment. — Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error.
363. Copy of judgment to be given to the accused and other persons. — (1) When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost.
(2) On the application of the accused, a certified copy of the judgment, or when he so desires, a translation in his own language if practicable or in the language of the court, shall be given to him without delay, and such copy shall, in every case where the judgment is appeal able by the accused be given free of cost:
Provided that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same.
(3) The provisions of sub-section (2) shall apply in relation to an order under section 117 as they apply in relation to a judgment, which is appealable by the accused.
(4) When the accused is sentenced to death by any court and an appeal lies from such judgment as of right, the court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred.
(5) Save as otherwise provided in sub-Section (2), any person affected by a judgment or order passed by a Criminal Court shall, on an application made in this behalf and on payment of the prescribed charges, be given a copy of such judgment or order of any deposition or other part of the record:
Provided that the Court may, if it thinks fit for some special reason, give it to him free of cost.
(6) The High Court may, by rules, provide for the grant of copies of any judgment or order of a Criminal Court to any person who is not affected by a judgment or order, on payment, by such person, of such fees, and subject to such conditions, as the High Court may, by such rules provide.”
12) By drawing our attention to Section 353(1)(a)(b)(c), it is contended by learned senior counsel for the appellant that it is incumbent on the part of the trial Judge to provide the whole judgment. In the absence of reasoning and the discussion in the form of full judgment, it is contended that the conviction and sentence under various provisions are not permissible. He also pointed out that in case of death sentence, special reasons have to be assigned. According to Mr. Jaspal Singh, in terms of Section 353 of the Code, the judgment means the whole judgment signed by the Judge. He elaborated that when the Code permits the Court to hear the accused on sentence, he must be provided with the whole judgment including the reasons. According to him, though A-1 was awarded death sentence, no special reasons were assigned by the Designated Court and he was not even furnished the whole judgment. By highlighting various aspects on the issue, in view of the fact that the judgment pronounced is not a “full judgment” in terms of the above said provisions, Mr. Jaspal Singh prayed for remand to the Special Court to go through all the reasoning and hear afresh on the question of sentence. Though Mr. Gopal Subramanium met all the submissions relating to the alleged defect in the impugned judgment, first let us consider the decisions relied on by Mr. Jaspal Singh in support of the above proposition.
13) In Shambhu & Ors. vs. The State AIR 1956 All. 633, learned single Judge of the High Court with regard to the words “judgment” and “order” has held as under:-
“4. The argument sounds plausible; nevertheless I have no hesitation in holding it to be untenable. A study of the provisions of the Code of Criminal Procedure discloses that the expression of the opinion of the criminal Court on any matter at issue arrived at after due consideration of the evidence and of the arguments (if any) falls into two categories : judgments and orders. None-theless neither of these terms has been defined either in the Code of Criminal Procedure or the Indian Penal Code.
There is, however, no controversy as to what a “judgment” is. As held by the Federal Court in Hori Ram Singh v. Emperor AIR 1939 PC 43 (A) and Kuppuswami Rao v. The King, it is used “to indicate the termination of the case by an order of conviction or acquittal of the accused”, and to this, by virtue of Section 367(6), Criminal P. C.
must be added orders under Sections 118 or 123 (3), orders which bear the character of a conviction. Chapter 26 of the Code deals exclusively with judgments and on the basis of its exhaustive provisions there can be no difficulty in recognising a criminal Court’s “judgment”.”
14) In Baldeo. vs. Deo Narain and Ors. AIR 1954 All. 104, there was discussion about how the judgment to be in terms of the provisions of the Code. The relevant para is as under:
“14.…..Under Section 367, Criminal P. C. every judgment must contain:
(1) the points for determination;
(2) the decision thereon; and (3) the reasons for such decision.
Where the reasons given by the trial Court are such as cannot be supported by the evidence on record, they are not reasons for the decision, out reasons against the decision. To constitute a legal appreciation of evidence, the Judgment should be such as to indicate that the Court has applied its mind to it. Every portion of the Judgment of the trial Court seems to indicate non-application of mind by the Court to the evidence on record. The third requirement laid down in Section 367, Criminal P. C. viz., the reasons for the decision, is an important ingredient of a Judgment. Compliance with law in this regard should not be merely formal but substantial and real, for it is this part of the judgment alone which enables the higher Court to appreciate the correctness of the decision, the parties to feel that the Court has fully and impartially considered their respective cases and the public to realise that a genuine and sincere attempt has been made to mete out even-handed Justice. It is in the way the Court discharges its duty in this regard that it is able to instil confidence in its justice and to inspire that respect and reverence in public mind which is its due. Reasons form the substratum of the decision and their factual accuracy is a guarantee that the Court has applied its mind to the evidence in the case. Where the statement of reasons turn out to be a mere hollow pretension of a baseless claim of application of mind by the Court, the Judgment is robbed of one of its most essential ingredients and forfeits its claim to be termed a Judgment in the eye of law.”
15) In Surendra Singh & Ors. vs. State of Uttar Pradesh AIR 1954 SC 194, this Court has interpreted the word “judgment”. The following conclusion is relevant which reads as under:-
“10. In our opinion, a judgment within the meaning of these sections is the final decision of the court intimated to the parties and to the world at large by formal “pronouncement” or “delivery” in open court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there : that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest – the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter – can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open court. The exact way in which this is done does not matter. In some courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.
11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement. We lay on stress on the mode of manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But however it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment which the court performs after the hearing. Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the “judgment”.
14. As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because of the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.”
16) In Ratia Mohan. vs. The State of Gujarat AIR 1969 Guj. 320, the following para is pressed into service:-
“9. In this connection, I was referred to a decision In re. Athipalayan, AIR 1960 Mad 507, where it was held that the irregularity even in pronouncing the judgment in open Court and signing and dating the same would amount to an illegality vitiating the conviction and sentence passed in the case. While saying so, it has been observed thus:–
“…….it is one of the glorious principles of our criminal jurisprudence that we do not try or sentence people in absentia and we do not also convict and sentence people without judgments being pronounced in open court and signed and dated then and there. It may be different in the continental system of criminal jurisprudence.”
It was a case in which a sentence was announced before judgment, which was the final decision of the court intimated to the parties and the world at large by formal pronouncement of delivery in open court by the trial judge and signing and dating it simultaneously and thereby terminating the criminal proceedings finally. In Nathusing Vridhasing v. Vasantlal B. Shah. 8 Guj LR 496 : (AIR 1968 Guj 210), the question arose whether the order of dismissal of a complaint under Section 203 of the Criminal Procedure Code without recording any reasons amounts to an irregularity or illegality curable under Section 537 of the Criminal Procedure Code and it was held that the order was one in contravention of that provision and such a breach of the provision renders the order void and ineffective. It was not curable under Section 537 of the Criminal Procedure Code. Some observations made by the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, were quoted to say that “the complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to move the revisional Court and where he takes a matter to the revisional Court renders his task before that Court difficult, particularly in view of the limited scope of the provisions of Sections 438 and 439, Code of Criminal Procedure.” Those observations may well apply in the present case particularly when the accused has a right of appeal against the order of conviction and sentence passed in the case and he would obviously be at a disadvantage to assail the reasons which were in the mind of the learned Magistrate and which came out so late as on 6-2-68. The accused-appellant had a right to know the reasons which led the learned Magistrate to come to that conclusion. It may well happen that after coming to know about the accused going in appeal, the learned Magistrate may try to record a proper judgment which otherwise he may later on do in some other manner. In any event, the learned Magistrate has clearly contravened the imperative provisions contained in Section 264 of the Criminal Procedure Code by passing the sentence without recording the judgment in the case and has that way acted illegally.
Such an illegality cannot be treated as an irregularity contemplated under Section 537 or an omission as urged by Mr. Nanavati so as to become curable one. Even if it were to be treated as such as coming within the ambit of Section 537, it can easily be said that it had occasioned failure of justice in the circumstances of the case. In any view of the matter, the order is, therefore, liable to be set aside.”
17) The other decision relied on is State of Orissa vs. Ram Chander Agarwala & Ors. (1979) 2 SCC 305. We have gone through the factual position and the ratio laid down therein. Inasmuch as it is only a general observation, the same is not helpful to the case on hand.
18) Another decision relied on is Jhari Lal vs. Emperor AIR 1930 Pat.
148. While considering Sections 367 and 369 of the Code, the Court held that pronouncing sentence before completing the judgment, that is to say, before preparing the essential part of it, such as the statement of points for determination and the reasons for decision makes the sentence illegal and vitiates conviction.
19) In State of Punjab and Ors. vs. Jagdev Singh Talwandi (1984) 1 SCC 596 while considering how the final order/judgment is to be pronounced, this Court pointed out as under:-
“30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.”
20) The next decision relied on is Krishna Swami vs. Union of India and Ors., AIR 1993 SC 1407, which is a Constitution Bench decision. We have gone through the factual position and the ratio laid down therein.
According to us, the said decision is neither helpful nor applicable to the case on hand.
21) The other decision relied on by Mr. Jaspal Singh is reported in K.V. Rami Reddi. vs. Prema (2009) 17 SCC 308 which arose out of a civil proceeding. It is not in dispute that Section 2(9) of the Civil Procedure Code, 1908 defines “judgment”. Order XX Rule 1(1)(2) of the Civil Procedure Code (Madras amendment) refers “judgment when pronounced” and “judgment to be signed”. In para 9, this Court has held as under:
“9. Order XX Rule 5 on which great emphasis was laid by learned counsel for the appellant says that in suits in which issues have been framed, the court shall state its finding or decision with the reason therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.” In the light of the definition clause, namely, “judgment” though the same has not been explained in the Code, the procedure to be followed both in the civil and criminal cases are all acceptable.
22) By pointing out that when the judgment does not contain the material case of the prosecution, defence and discussion on conclusion, according to learned senior counsel, it not only vitiates the principles of natural justice but also infringes the right under Article 21 of the Constitution. He heavily relied on a Constitution Bench decision of this Court reported in Sarojini Ramaswami (Mrs.) vs. Union of India & Ors. (1992) 4 SCC 506. In para 141, the Constitution Bench has held as under:-
“141 …..It is now settled law that the principles of natural justice are an integral part of constitutional scheme of just and fair procedure envisaged under Article 14 of the Constitution.”
23) In M. Nagaraj & Ors. vs. Union of India and Ors. (2006) 8 SCC 212 which is also a decision of the Constitution Bench, the following conclusion is pressed into service.
“20…..Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that “procedure established by law” means any procedure established by law made by Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression “life” in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part III on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, freedom of information has been held to be implicit in the guarantee of freedom of speech and expression. In India, till recently, there was no legislation securing freedom of information.
However, this Court by a liberal interpretation deduced the right to know and right to access information on the reasoning that the concept of an open Government is the direct result from the right to know which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a).”
24) In Confederation of ex-Servicemen Associations and Others vs. Union of India and Ors. (2006) 8 SCC 399 which is also a Constitution Bench judgment, this Court held as under:-
“61. It cannot be gainsaid that the right to life guaranteed under Article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held unconstitutional and ultra vires Part III of the Constitution.…”
25) Now, let us consider the decisions relied on by Mr. Gopal Subramanium, learned senior counsel for the CBI with regard to the contentions raised. In Iqbal Ismail Sodawala vs. The State of Maharashtra and Others (1975) 3 SCC 140, this Court considered almost similar question.
It was argued before the Bench that the allegation of the petitioner therein that the judgment in the case under Sections 392 and 397 of IPC against the petitioner was not pronounced by learned Sessions Judge but by his Sheristedar. It was urged that the procedure adopted in this respect by learned Sessions Judge was not in accordance with law. This submission was not acceptable to the Bench. The following observation and conclusion are relevant:
“6…The report of Shri Gupte shows that he dictated the judgment in the case against the petitioner in open court. The judgment included, as it must, the concluding part relating to the conviction and sentence awarded to the petitioner. The petitioner who apparently did not know English was thereafter apprised by the Sheristedar of the Court of the concluding part of the judgment relating to his conviction and sentence. Although normally the trial Judges should themselves convey the result of the trial to the accused, the fact that the learned Judge in the present case did not do so and left it to the Sheristedar would not introduce an infirmity in the procedure adopted by him. The Sheristedar in the very nature of things must have translated to the petitioner what was contained in the concluding part of the judgment. It was, in our opinion, the dictation of the concluding part of the judgment in open court by the learned Sessions Judge which should in the circumstances be taken to be tantamount to the pronouncement of the judgment.
8. Question then arises as to whether the appellant can be said to be not properly imprisoned if the trial Judge had merely dictated the judgment but not signed it because of its not having been transcribed at the time he pronounced it. So far as this aspect is concerned, we find that Section 537 of the Code of Criminal Procedure provides, inter alia, that subject to the other provisions of the Code, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission, irregularity has in fact occasioned a failure of justice. This section is designed to ensure that no order of a competent court should in the absence of failure of justice be reversed or altered in appeal or revision on account of a procedural irregularity. The Code of Criminal Procedure is essentially a code of procedure and like all procedural law, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. At the same time it has to be borne in mind that it is procedure that spells much of the difference between rule of law and rule by whim and caprice. The object of the Code is to ensure for the accused a full and fair trial in accordance with the principles of natural justice. If there be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results in miscarriage of justice. In all procedural laws certain things are vital. Disregard of the provisions in respect of them would prove fatal to the trial and would invalidate the conviction. There are, however, other requirements which are not so vital. Non-compliance with them would amount to an irregularity which would be curable unless it has resulted in a failure of justice.”
26) The next decision relied on by learned senior counsel for CBI is reported in Rama Narang vs. Ramesh Narang and Ors. (1995) 2 SCC 513 wherein it was held that judgment becomes complete and appealable only after conviction is recorded and also sentence is awarded.
27) In view of the above discussion, it is useful to refer the relevant provision of the Code with regard to right of hearing. Right of hearing under Section 235(2) of the Code Right of hearing to the accused on the question of sentence is provided under Section 235(2) of the Code and this provision was introduced in view of the 48th Report of the Law Commission of India. Section 235(2) of the Code reads as under:
“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.” The purpose of adding the provision is recognition of new trend in penology and awarding of sentence taking into consideration various factors such as the prior criminal record of the offender, his age, employment, educational background, sociological backdrop, family background, financial position, antecedents, social adjustment, emotional and mental condition and the prospects of his returning to normal path in conformity with law. It is in fact humanist principle of individualising punishment to suit the person and his circumstances and, therefore, a hearing is required before imposition of penalty. In order to understand the concept more clearly, it is useful to refer some of the decisions of this Court directly on the point in issue.
28) In Santa Singh vs. The State of Punjab, (1976) 4 SCC 190, this Court observed:
“The provisions of Section 235(2) are very salutary and contain one of the cardinal features of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him.” “7. Non-compliance with the requirement of Section 235(2) cannot be described as mere irregularity in the course of the trial curable under Section 465. It is much more serious. It amounts to by-passing an important stage of the trial and omitting it altogether, so that the trial cannot be aid to be that contemplated in the Code. It is a different kind of trial conducted in a manner different from that prescribed by the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial, and as pointed out by the Judicial Committee of the Privy Council in Subramania Iyer v. King Emperor (1901) 28 I.A. 257 such a deviation cannot be regarded as a mere irregularity. It goes to the root of the matters and the resulting illegality is of such a character that it vitiates the sentence. (Vide Pulukurti Kotayya v. King Emperor (1947) 74 I.A. 65 and Magga and Anr. v. State of Rajasthan 1953 Cri.L.J. 892). Secondly, when no opportunity has been given to the appellant to produce material and make submissions in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit. Section 465 cannot, in the circumstances, have any application in a case like the present”.
“11….This obviously postulates that the accused must be given an opportunity of making his representation only regarding the question of sentence and for this purpose he may be allowed to place such materials as he may think fit but which may have bearing only on the question of sentence. The statute seeks to achieve a socio-economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society. The modern concept of punishment and penology has undergone a vital transformation and the criminal is now not looked upon as a grave menace to the society which should be got rid of but as a diseased person suffering from mental malady or psychological frustration due to subconscious reactions and is, therefore, to be cured and corrected rather than to be killed or destroyed. There may be a number of circumstances of which the Court may not be aware and which may be taken into consideration by the Court while awarding the sentence, particularly a sentence of death, as in the instant case. It will be difficult to lay down any hard and fast rule, but the statement of objects and reasons of the 1973 Code itself gives a clear illustration. It refers to an instance where the accused is the sole bread-earner of the family. In such a case if the sentence of death is passed and executed it amounts not only to a physical effacement of the criminal but also a complete socio-economic destruction of the family which he leaves behind. Similarly there may be cases, where, after the offence and during the trial, the accused may have developed some virulent disease or some mental infirmity, which may be an important factor to be taken into consideration while passing the sentence of death. It was for these reasons that Section 235(2) of the 1973 Code was enshrined in the Code for the purpose of making the Court aware of these circumstances so that even if the highest penalty of death is passed on the accused he does not have a grievance that he was not heard on his personal, social and domestic circumstances before the sentence was given.”
29) In Ram Deo Chauhan @ Raj Nath Chauhan vs. State of Assam, AIR 2001 SC 2231, this Court examined the issue at length and held:
“4…..The requirement contained in Section 235(2) of the Code (the obligation of the Judge to hear the accused on the question of sentence) is intended to achieve a purpose. The said legislative provision is meant for affording benefit to the convicted person in the matter of sentence. But when the Sessions judge does not propose to award death penalty to a person convicted of the offence under Section 302 IPC what is the benefit to be secured by hearing the accused on the question of sentence. However much it is argued the Sessions Judge cannot award a sentence less than imprisonment for life for the said offence. If a Sessions Judge who convicts the accused under Section 302 IPC (with or without the aid of other sections) does not propose to award death penalty, we feel that the Court need not waste time on hearing the accused on the question of sentence. We therefore choose to use this occasion for reiterating the legal position regarding the necessity to afford opportunity for hearing to the accused on the question of sentence is as follows:-
(1) When the conviction is under Section 302 IPC (with or without the aid of Section 34 or 149 or 120B of IPC) if the Sessions Judge does not propose to impose death penalty on the convicted person it is unnecessary to proceed to hear the accused on the question of sentence. Section 235(2) of the Code will not be violated if the sentence of life imprisonment (SIC) awarded for that offence without hearing the accused on the question of sentence.
(2) In all other cases the accused must be given sufficient opportunity of hearing on the question of sentence.
(3) The normal rule is that after pronouncing the verdict of guilty the hearing should be made on the same day and the sentence shall also be pronounced on the same day.
(4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence (especially when the Judge propose to impose death penalty) the proviso to Section 309(2) is not a bar for affording such time.
(5) For any reason the court is inclined to adjourn the case after pronouncing the verdict of guilty in grave offences the convicted person shall be committed to jail till the verdict on the sentence is pronounced. Further detention will depend upon the process of law.”
30) In case, such an opportunity of hearing is not provided, the Appellate Court must remand the case to the trial court on a limited issue for re-trial on the question of sentence. (Vide: Narpal Singh & Ors. vs. State of Haryna, AIR 1977 SC 1066). However, in exceptional circumstances, where remand is likely to cause delay, it is open to remedy the prejudice by giving a hearing to the accused on the question of sentence by the Appellate Court. (Vide: Dagdu & Ors. etc. vs. State of Maharashtra, AIR 1977 SC 1579; Tarlok Singh vs. State of Punjab, AIR 1977 SC 1747; and Kamalakar Nandram Bhavsar & Ors. vs. State of Maharashtra, AIR 2004 SC
503). In case, at the time of trial, there was no objection for not providing sufficient time to the accused or in respect of small fraction of the mandatory provision of Section 235(2) of the Code, he cannot be allowed to raise the plea of prejudice of such non-compliance at Appellate stage. (Vide: Motilal vs. State of M.P. (Now Chhatisgarh), (2004) 2 SCC 469).
31) Thus, in view of the above, it is evident that generally judgment must be complete and it must have points for determination, decision thereon and reasons for such a decision. The basic requirement for such ingredients appears to be that the superior court (appellate/revisional) may be able to examine as to whether the judgment under challenge has been rendered in accordance with law and particularly, based on evidence on record. So, the purpose of recording reasons is to facilitate the superior court to examine the correctness of the judgment of the courts below. So far as the grievance of the accused/convict that opportunity of hearing was not given by the court below and, thus, he failed to address the court appropriately on the issue of sentence, may not have any substance for the reason that the legislative policy discernible under Section 235(2) read with Section 354(3) is that quantum of punishment is to be determined on considerations and circumstances not merely connected with a particular crime but a court is bound to give due consideration to the other circumstances also of the criminal. It is for this reason that court while hearing a convict on sentence is required to give a party an opportunity of producing evidence or materials relating to the various factors having some bearing on the question of sentence. The court, while determining the quantum of sentence, acts in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. Therefore, there is bifurcation of trial as an accused has a right of pre-conviction hearing under Section 234 and secondly right of pre-sentence hearing under Section 235 of the Code. For pre-conviction hearing, the accused must be well informed as to what the exact prosecution case is and what evidence have been adduced by the prosecution to prove its case. It is for the prosecution to prove its case beyond reasonable doubt, as in case the pivot of the prosecution is not accepted, a new prosecution case cannot be made to imperil the defence. The prosecution as well as the convict has a right to adduce evidence to show aggravating grounds to impose severe punishment or mitigating circumstances to impose a lesser sentence. More so, appeal is a continuity of trial.
32) In Akhtari Bi (Smt.) vs. State of M.P., AIR 2001 SC 1528, this Court explained the nature of appeal observing as under:-
“Appeal being a statutory right, the trial court’s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction”.
33) Needless to say that Appellate court has a right of rehearing, re- appreciating the evidence and in exceptional circumstances even to permit a party to adduce additional evidence. Therefore, in a case where there has been some irregularity in delivering the judgment, it can be cured at the appellate stage.
34) As against the above mentioned decisions, it is also useful to refer the following decisions which are directly on the point in issue.
35) Judgment indicates the termination of the case by an order of conviction or acquittal of the accused and judgment is to be rendered in strict adherence to the provisions of Chapter XXVII of the Code. (Vide: Hori Ram Singh vs. Emperor AIR 1939 PC 43; and Kuppuswami Rao vs. The King, AIR 1949 PC 1)
36) In view of the provisions of Section 354 of the Code, it is necessary that every judgment must contain:
(1) the points for determination;
(2) the decision thereon; and (3) the reasons for such decision.
Where the reasons given by the trial Court are such as cannot be supported by the evidence on record, they are not reasons for the decision. To constitute a legal appreciation of evidence, the judgment should be such as to indicate that the Court has applied its mind to it. Every portion of the judgment must indicate application of mind by the Court to the evidence on record. The reason for the decision is an important ingredient of a judgment. Compliance with the law in this regard should not be merely formal but substantial and real, for it is this part of the judgment alone which enables the higher Court to appreciate the correctness of the decision, the parties to feel that the Court has fully and impartially considered their respective cases and the public to realise that a genuine and sincere attempt has been made to mete out even-handed justice. Reasons form the substratum of the decision and their factual accuracy is a guarantee that the Court has applied its mind to the evidence in the case. Where the statement of reasons turned out to be a mere hollow pretension of a baseless claim of application of mind by the Court, the judgment is robbed of one of its most essential ingredients and forfeits its claim to be termed as judgment in the eyes of law.
37) In Bachan Singh vs. State of Punjab, AIR 1980 SC 898, this Court observed:
“151…..Accordingly, sub-section (3) of Section 354 of the Cr.P.C. provides:
“When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” “152. In the context, we may also notice Section 235(2) of the Code of 1973, because it makes not only explicit, what according to the decision in Jagmohan Singh vs. State of U.P. AIR 1973 SC 947 was implicit in the scheme of the Code, but also bifurcates the trial by providing for two hearings, one at the pre-conviction stage and another at the pre-sentence stage….” …..By enacting Section 235(2) of the new Code, Parliament has accepted that recommendation of the Law Commission. Although sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence.
In this view, we are in accord with the dictum laid down in Balwant Singh vs. State of Punjab AIR 1976 SC 230, wherein the interpretation of Section 354(3) first came up for consideration.
“4…..Under this provision the court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case…..” The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of IPC, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.
38) In Allauddin Mian & Ors. Sharif Mian & Anr. vs. State of Bihar, AIR 1989 SC 1456, this Court observed:
“10…..The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality…..”
39) In Muniappan vs. State of T.N., AIR 1981 SC 1220, this Court held that the obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually have a bearing on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of a Judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded.
What then remains is the question of sentence in which not merely the accused but the whole society has a stake. The court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.
40) In Rameshbhai Chandubhai Rathod vs. State of Gujarat, (2009) 5 SCC 740, this Court observed that in a case where the court imposes the death sentence both the aforesaid provisions, namely, Section 235(2) and Section 354(3) of the Code assume signal significance. The constitutional validity of Section 354(3) was upheld in Bachan Singh (supra) as learned Judges have said that the legislative policy in sentencing is discernable from those two sections. In a judgment, both those two sections supplement each other and in a case where death penalty is imposed, both the sections must be harmoniously and conjointly appreciated and read.
41) Section 235(2), as interpreted by this Court in Bachan Singh (supra), provides for a “bifurcated trial”. It gives the accused (i) a right of pre- sentence hearing, on which he can (ii) bring on record material or evidence which may not be (iii) strictly relevant to or connected with the particular crime but (iv) may have a bearing on the choice of sentence. Therefore, it has to be a regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual. Even without referring to Bachan Singh (supra) in Muniappan (supra), a two-Judge Bench of this Court, emphasised the importance of hearing the accused on the question of sentence under Section 235(2) of the Code and came to the conclusion that the question of hearing the accused on sentence was not to be discharged without putting formal questions to the accused. This Court, in Malkiat Singh & Ors. vs. State of Punjab (1991) 4 SCC 341, while explaining the provisions under Section 235(2) of the Code, held as under.
“18. … Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the court facts and material relating to various factors on the question of sentence, and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be…..” Therefore, fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty epitomised in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of “procedure established by law” within the meaning of Article 21 of the Constitution. Thus, a strict compliance with those provisions in the way it was interpreted in Bachan Singh (supra) having regard to the development of constitutional law by this Court is a must before imposing death sentence.
42) It is clear that “judgment” is a formal intimation of the decision and its contents formally declare in a judicial way in open court. In other words, it is a declaration of the mind of the Court at the time of pronouncement. It is also clear that passing sentence without recording the judgment would amount to illegality. Pronouncing sentence before completing the judgment, that is, before preparing the essential part makes the sentence illegal and vitiates the conviction.
43) We have already adverted to the fact that the word “judgment” has not been defined in IPC, and even in TADA. However, the Code, particularly, Sections 353, 354, 362 and 363 make it clear that how the judgment is to be in a criminal trial, language and contents and the procedure to be followed in furnishing copy of the judgment immediately after pronouncement. It is also clear that the ultimate decision, namely, the judgment, shall be pronounced in the open court after the termination of the trial. Section 353(1) of the Code makes it clear that it is incumbent on the part of the Presiding Officer to deliver the whole of the judgment or by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. We have already referred to the fact that the blasts occurred on 12.03.1993. Initially, the charge sheet was filed by the State of Maharasthra on 04.11.1993 relating to 189 persons. Thereafter, CBI was asked to investigate further on 19.11.1993 and filed 19 supplementary charge sheets. Finally, on 10.04.1995, order framing charges was passed. Thereafter, recording of evidence began on 30.06.1995 by examining the first prosecution witness. Recording of the evidence continued till 18.10.2000. Thereafter, the arguments commenced from 09.08.2001 which continued up to 20.09.2003. After having voluminous record of evidence both oral and documentary, the Designated Court reserved for order on 23.11.2003 and the same position continued up till 12.09.2006. It is relevant to point out that in total 123 persons were tried as accused, out of which, 23 persons were acquitted of all the charges and the balance accused were convicted and sentenced under various charges. The records produced show that on 12.09.2006, the Designated Court started reading the conclusion. On that day, the Court passed the following order in respect of A-1.
“For the reasons separately recorded the conclusion being reached of:
A-1 Yakub Abdul Razak Memon being found guilty for offences for which charge at head firstly is framed against him and for offence under Section 3(3) of TADA Act for which charge at head secondly is framed against him and for offence under Section 5 of TADA for which charge at head thirdly is framed against him and for offence under Section 6 of TADA for which charge at head fourthly is framed against him and for offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Act for which charge at head fifthly is framed against him. ” Since at this moment, we are concentrating only on A-1, we are not extracting the conclusion reached in respect of other accused. After recording the above conclusion, the Designated Court has also recorded the following statements:
“The said accused were apprised regarding offences for which they were found to be guilty.
In view of court having reached to such findings A-3, 4, A-8 who are on bail are taken into custody of this court and their bail bonds stand cancelled.
For recording statement of accused who are found guilty about their say regarding quantum of sentence to be imposed, the matter stands posted tomorrow.”
FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:
93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:
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Supreme Court Of India, Yakub Abdul Razak Memon, Death Sentence, Confirmed, Sentence, Appeal, Dawood Ibrahim, Tiger Momon, 93 Bomb Blast, Mumbai Bomb Blast, Don, Gangster, Mafia, Sanjay Dutt, Death Penalty, Serial Blast, Mumbai, maharashtra, India, State Of Maharashtra, CBI, Prosecution, Babri Masjid, Ayodhya, demolition, violence, terrorist, Bombay, arms, ammunitions, conspiracy, Dubai, Pakistan, training, Bombay Stock Exchange, Katha Bazaar, Sena Bhavan, Century Bazaar, Mahim Causeway, Air India Building, Zaveri Bazaar, Hotel Sea Rock, Plaza Theatre, Juhu Centaur Hotel, AirPort Bay-54, AirPort Centaur Hotel, terrorist attack, terror, RDX, Research Department Explosive, Md. Ahmed Dosa, Md. Salim Mira Moiddin Shaikh @ Salim Kutta, Md. Kasam Lajpuria, Ranjitkumar Singh Baleshwar Prasad, Md. Sultan Sayyed, Dighi Jetty, Raigad, Uttan,