Sentencing without a personal hearing violates due process, yet the presence of counsel may suffice. Convicted parties must appeal for sentence suspension as per procedural law.

JUDGMENT :

SASHIKANTA MISHRA, J.

The petitioner faced trial in G.R. (Vigilance) Case No. 14 of 2009 in the Court of learned Additional Sessions Judge-cum-Special Judge (Vigilance), Bhawanipatna for the alleged commission of offence under Section 13 (2) read with (1)(c) of the PC Act read with Section 409 /477-A of IPC . Another person, namely, Karunakar Panda also faced trial as co-accused. On 17.05.2023, the trial Court passed judgment convicting both of them of the aforementioned offences. On the said date however, the present accused being represented through his advocate under Section 317 of Cr.P.C. filed a petition for adjournment on the ground of his personal illness. The court below, after passing the order of conviction took up hearing on the question of sentence, co- accused-Karunakar Panda was present and was heard. The advocate of the present petitioner was also present. After such hearing both the accused persons were sentenced to rigorous imprisonment for three and half years along with fine of Rs.3 lakhs, in default, to undergo further rigorous imprisonment for six months. By a later order, the court below held that the convict, Karunakar Panda had not paid the fine amount and accordingly committed him to jail custody to serve the sentence awarded against him. As regards the convict-Damodar Das (present petitioner), he being absent and the fine amount not being paid on his behalf, the court below issued non-bailable warrant of arrest against him and also issued notice to the sureties fixing the case to 12.06.2023 for production of the convict. In the present application, filed under Section 482 of Cr.P.C. the aforementioned order dated 17.05.2023 is under challenge.

2. Heard Mr. Samvit Mohanty, learned counsel for the petitioner and Mr. Niranjan Maharana, learned Standing Counsel for the Vigilance Department.

3. Mr. Mohanty has forcefully argued that the procedure followed by the court below is entirely contrary to the statutory provisions inasmuch as the sentence could not have been pronounced without hearing the convict Damodar Das. The court below ought to have deferred the hearing on the question of sentence in respect of the present petitioner instead of issuing non-bailable warrant of arrest after hearing his advocate. Mr. Mohanty has referred to the provision under Section 248 (2) of Cr.P.C. to submit that sentence could not have been passed without hearing the accused and therefore, such sentence is liable to be interfered with.

4. Mr. Niranjan Maharana, on the other hand, argues that the petitioner’s counsel was very much present at the time of hearing on the sentence and therefore, no illegality was committed. Since the fine amount was not paid, the court below was justified in issuing the non-bailable warrant of arrest.

5. It is stated at the bar that challenging the order of conviction and the sentence the petitioner has already approached this Court by filing appeal being CRLA No. 651 of 2023. Therefore, this Court would not like to pass any comment as regards the legality of either the order of conviction or the sentence. The same is to be decided by the appellate court which is already in seisin over the matter. This Court however, observes that a petition for adjournment having been filed on behalf of the petitioner on the ground of his personal illness supported by medical certificate, the court below could have deferred the hearing on the question of sentence to a later date so as to enable the convict to appear in person or taken coercive steps to compel his attendance, if it felt so proper. Nevertheless, the sentence having been pronounced, the court below issued non-bailable warrant of arrest against the petitioner. Be it noted that the petitioner was convicted and sent