was convicted and sentenced to death by one single judgment, a
2-judge bench of this court found that there was infraction of
Section 235(2) of the Code of Criminal Procedure and set aside
the sentence and remanded the matter to the Sessions Court. The
aspect of remand was considered by a 3-judge bench in Dagdu
and Others v. State of Maharashtra,5 wherein it was observed
that the failure on the part of the trial court to hear the accused on
sentencing does not necessarily entail a remand to that court. If
the trial court has failed to do so and the accused challenges the
same before the higher court, it would be open to the higher court
to remedy the breach by giving a hearing to the accused on the
question of sentence. More precisely, Goswami J. in Dagdu
(supra) observed:
“Whenever an appeal court finds that the mandate of
Section 235(2) CrPC for a hearing on sentence had
not been complied with, it, at once, becomes the duty
of the appeal court to offer to the accused an
adequate opportunity to produce before it whatever
materials he chooses in whatever reasonable way
possible.”
Analysing several decisions of this Court on this issue, Uday
U. Lalit, J., in Shatrughna Baban Meshram v. State of
Maharashtra,6 observed that merely on account of infraction of
Section 235(2) of the Code of Criminal Procedure, the death
5
(1977) 3 SCC 68
6
(2021) 1 SCC 596
Criminal Appeal Nos. 1473-1474 of 2017
Page 25 of 30
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