Author: Kurella Shanmukha Harshitha, Damodaram Sanjivayya National Law University

Section 258(2) of Bharatiya Nyay Sanhitha , 2023 laid down for pre-sentence hearing after conviction but  before deciding the sentence which replaces section 235(2) of the Code of Criminal procedure code . This provision is  an essential part of the procedure and promotes justice by upholding the principles of fair procedure under article 21 of the constitution. Also ensures  the courts proceed with a balanced approach before deciding the sentence to the accused. 

Pre-sentence hearing is a legal procedure where the judges or jury ask about the

relevant information or background about the accused before deciding the

punishment or it is an opportunity for the accused to represent himself before the

court  about his age ,background, health or any circumstances , which may influence the sentence. 

Pre-sentence hearing was not there earlier in the old criminal procedure code , 1973 but

later it was incorporated into the criminal procedure code by the recommendations of

48 th law commission report .pre sentence hearing is important in the trail of the

case because before deciding the punishment for the accused , he was given a

chance to prove himself before the court by considering all the aggravating and

mitigating factors like situations on what made him to commit the offence , his family

background, criminal history of the accused.

The purpose of the pre-sentence hearing is to give the sentence to the accused

which is fair and just. Particularly in cases involving heinous crimes , pre-sentence hearings ensure that sentences were given only after the careful consideration of all aspects.it also ensures the accused is not deprived of their liberty without taking account of all factors which safeguards the article 21 which guarantees the right to a “just, fair and reasonable” procedure.

After the conviction of an offence by the accused , the court   has the responsibility to give the individual a sentence which is fair and just after all  considering the factors and information. One such information where the court relies to decide the punishment is a pre-sentence report.

This pre-sentence report is an information which is written or verbal report given by

the probation officer after an interview with the offender and consulting his family

members , friends and colleagues . this report usually takes time between two to six

weeks to prepare. and This report includes about the accused background ,

circumstances and possible recovery. It also suggests the recommendations to court

about the sentence but the court is not bound by it .  

Probation officers play an  important role in the criminal justice system as they prevent repeat offences and help them to integrate in the society . The probation officers help the court to impose a sentence that is fair and just and sometimes also suggest alternatives to punishment if they deemed fit , thereby promoting rehabilitation and reducing  recidivism. 

Under section 14 of the probation offenders act ,addresses the duties of the probation officer and their responsibilities  which is crucial during the pre sentence hearing because they help in the decision making process of whether probation is a suitable option and what punishment should be given to them .

14 (a) of the act laid down that the probation officer should conduct an inquiry about the offender's background , his family , living conditions and circumstances of the accused of an offence ,with a view to give recommendations to the court for the suitable method to deal with the offender.

This act also instructs that the probation officers must find them suitable employment for their living and also suggests the court to help the offenders in the payment of compensation or costs and perform the duties which may be required or prescribed.

The probation officer serves as a neutral counsellor to the court which helps them in the decision making process. They also  focus on rehabilitating offenders if the accused does not possess any risk to the society  and upheld the principle of reformative justice by providing alternatives to imprisonment or suggesting sentence is necessary if they deem fit for it.

 The probation officers must provide a pre- sentence report with specific details to the court about the accused ,this report must be confidential Under section 7 of the probation offenders act if it  is submitted to the court one day before the judgement and if it is delivered on the specified date to the court then it shall be included in sealed cover.

Background of the accused ; the pre-sentence hearing report includes the

accused personal background such as his age , education , family background ,

employment status ,living conditions and any other habits such as alcohol ,drugs

usage etc. by considering this information the court might get an idea about the

individual and what made him commit the offence .

Criminal history: by looking at the criminal background of the accused ,the court

understand his intentions and behaviour also whether the accused is a repeat offender or first time accused.

Offence details: this report provide a complete account of the offence , outlines the

nature of the offence and its aggravating and mitigating grounds.

Mental health or any substantial usage ; this report also provides about the

mental health of the accused and any substantial usage of drugs by him .because

The court takes this factor into consideration for deciding the punishment . if the

accused is an sufferer of using drugs, then court might consider this fact and give

him recourse to this while giving punishment ,like sending him to the rehabilitation

centre.

Risk evaluation- this report also provides the risk analysis of the accused if he possess

any risk to the victim , public or children . because punishment was given to the

accused for his crimes and to reform himself .Sometimes punishment can also be

used as an deterrent to the society to show and not to repeat the offence or else there will be a serious consequence by the court of law.

Recommendations- the recommendations are also given by the probation service

in this report. The suggestions and recommendations were given by considering all

the factors like severity of the offence , his behaviour, remorse .This report must submit the suggestions if the accused qualified for probation , if he should be released by the probation then he must mention the specific findings and conditions under which the offender should be released under probation or the imprisonment is necessary .

Before deciding the punishment to give to the accused the judge hears both recommendations about the sentence from the  prosecutor and the lawyer of the offender. These recommendations may differ.The prosecutor includes the concerns and point of view of the victim and uses them in making recommendations to the court about the sentence of the accused.

The victim impact statement is a document describing the impact on them. They face many consequences such as physical or mental harm which includes injury , disability or trauma . there might be material damage , or any financial losses .

This victim impact statement is an opportunity to the victim who faced damages may express their contentions , fears and  also ask for their safety.  This victim impact statement can be completed by the victim or any person acting behalf of the victim , any family member. The statement provides awareness about the consequences of the crime, how the crime has affected their lives , and causes damages personally which can influence the type and gravity of the sentence . and helps to achieve a fair trial and justice.

The appropriate sentence is determined by the judge after considering all the factors like pre-sentence report from the probation officers ,victim impact statements , arguments from both the parties , nature and severity of the offence ,criminal history of the accused, aggravating and mitigating circumstances.

While giving the sentence the judge ensures the punishment  is fair and just and it protects the society from the accused if it poses any risk to the society .They also tried to bring the balanced approach to the harm faced by the victim and the society and it can also be the deterring to the  future crimes, also provides rehabilitation to the offender if he is need. The jury decision in pre sentence hearing could lead to any punishment or combination of both 

This punishments include such as

1. imprisonment , usually given if the accused is involved in  serious or violent cases and can cause significant risk to the society.

2. probation

3. fines 

4. restitution , the offenders should compensate the victim , if they incurred losses by the accused.

5. community service , the accused must perform the beneficiary acts to the society or community. 

6. rehabilitation programs , the courts might order or recommend the accused to participate in the rehabilitation programmes to get treatment or cured by it. 

7. death penalty , it is the most severe form of punishment given to the accused , if the offence is heinous in nature.

This judicial decision ensures an effective approach which serves punitive, rehabilitative and deterrent to the future crimes.

Indian jurisprudence has developed a lot throughout the years and the supreme court has established that the pre-sentence hearing is an important opportunity for the accused for the fair trial and justice in the landmark cases.

SANTA SINGH VS STATE OF PUNJAB (1976) 

In this case Santa singh vs state of punjab (1976) the accused was liable with double murder and convicted him death sentence by the learned  session judge of ludhiana , but due to the absence of the accused advocate , he isn't able to represent himself .later this case was sent to high court where the high court also upheld the same sentence  which is confirmed by the learned session judge. The petitioner contended that he wasn't allowed to be heard under section 235(2) of the code of criminal procedure . When this case came before the supreme court for the appeal and held that if he had been given an opportunity to represent himself , the sentence might have been  reduced . so the matter was sent back to the trial court again and gave the accused an opportunity to represent himself and to be heard. 

This case highlights the importance of section 235 (2) of code of criminal procedure to ensure that every person must be given an opportunity to represent himself before giving the punishment either death penalty or punishment.

EDIGA ANAMMA VS STATE OF ANDHRA PRADESH (1974)

In the case Ediga anamma vs state of Andhra Pradesh (1974)the offender was a young woman who had killed another young woman with prearrangement and advance planning because the extramarital affair with her love caused the rage of the accused to commit the offence. The accused was found guilty and given the death penalty by the sessions court . The same sentence was upheld by the andhra pradesh high court. The accused went to supreme court for the appeal and contended to revoke the death sentence and give life sentence .The supreme court held that ,even though she committed the offence but the court considered many factors such as the social background of the accused , her being mother of a young boy and her in laws she has to take care of them and also youthfulness . By taking into account all these factors the court awarded life imprisonment rather than death sentence .

This landmark case highlights that before giving the sentence the court must consider all the socio economic , psychological background or any compulsions of the accused and death penalty can only be awarded in the rarest of the rarest principle which was  established in the bachan singh vs state of punjab .

MANIAPPAN VS STATE OF TAMIL NADU (1981 )

In the case Maniappan vs state of Tamil Nadu (1981) ,held that  the pre sentence hearing is an integral part of the procedure and is essential for the fair trial and justice to any individual . under the procedural fairness guaranteed by the article 21 of the Indian constitution to the individual  and embodied in the court .The judges must make a rightful  effort to consider all the  information from the accused which will eventually hold up the question of sentence. It is also a duty to the judge to consider the factors such as social , economic aspects to deal with the question of sentence . 

ALLAUDDIN MIAN AND OTHERS SHARIFF MIAN & ANR VS STATE OF BIHAR(1989)

In the case , Allauddin Mian and others shariff mian & anr vs state of bihar (1989) the death sentence given by both the trial  court and high court was overturned by the supreme court because section 235 (2) was not compiled in the case before determining the sentence . The court observed that they had not considered any socio economic aspects , family background of the accused and consequences of the crime on the society  and held that  it plays an important role in the judicial system because it helps the court to reach a balanced approach while deciding the sentence which is fair and just . This section 235(2) also provides a better opportunity for being heard or representing himself before the court before deciding the punishment.

MITHU VS STATE OF PUNJAB (1983)

Another important case is Mithu vs state of Punjab (1983)  which highlights that section 235(2) ensures that  the court must conduct a pre-sentence hearing and allows the accused to present himself before the court before passing the sentence. Even if the provision of a mandatory death punishment under section 303 of IPC denies  a chance to provide to the accused then it is violative of natural justice and article 21 guaranteed by the Indian constitution .

So the court must consider all the aggravating and mitigating factors before deciding the punishment to the accused to provide fair trial  and justice.

BACHAN SINGH VS STATE OF PUNJAB (1980)

In  the landmark Bachan Singh vs state of Punjab (1980) judgement which upheld the constitutional validity of the death penalty in India under sec 302 of the IPC and laid down the principle only in the “rarest of rare cases” and also highlighted the crucial part of the trail which is pre sentence hearing under section 235(2) of the code of criminal procedure.  So the supreme court held that a judge must take into account all the personal factors and circumstances of the accused before giving a death sentence. This section 235(2) of the CRPC ensures that the sentencing process is fair , just and reasonable in line with article 21.

The pre-sentence hearing is a vital component in the Indian judicial system. Providing an opportunity to the accused to present himself before the court and by considering all the relevant factors before giving the sentence to the accused in pre-sentence hearing , the court's goal is to provide a sentence which incorporates both the aim of protecting society and rehabilitating offenders and it also brings confidence to the public that the legal system makes decisions which are fair and transparent and provides justice.