( 1 ) THIS is an application by accused Abdul Rehman and Mohd. Yakub, under section 482 of the Code of Criminal Procedure for opportunity of hearing a question of sentence and modification of sentence passed on them in Cr. A. No. 1090/ 1981 dated 22. 11. 85.

( 2 ) ASHOK Kumar, Secretary of Riddhi Siddhi Power Loom Weavers Industrial Cooperative Society Ltd. , Sari Dazar, Burhanpur (hereinafter called the Society) filed a complaint against Hazi Abdul Rehman and his son Mohd. Yakub, under section 407 of the Indian Penal Code, on the allegation that they committed criminal breach of trust of 120 bags of yarn valued at Rs. 1,31,849. 22 paise entrusted to them as carrier by M/s. Mama Road Lines, for delivery to the Society. Accepting the plea of the accused that they handed over the consignment of yarn to M/s Raj Agency, the agent of the Society, the trial Court acquitted both the accused persons. The Society through the Secretary filed appeal under section 378 (4) of the Code of Criminal Procedure against their acquittal after obtaining necessary permission. This appeal was allowed by me by my judgment delivered on 21. 11. 1985. Both the accused were convicted under section 407 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for three years and fine of Rs. 5,000/-, in default rigorous imprisonment for nine months.

( 3 ) AFTER delivery of the judgment, the accused persons made an. application under section 482 of the Code of Criminal Procedure for setting aside the sentence passed on them; for affording of an opportunity of hearing and passing appropriate sentence thereafter according to law. They also submitted that before delivery of the judgment, they were not heard on the question of sentence under section 248 (2) of the Code of Criminal Procedure. The provisions of sub-section (2) are mandatory and the non-compliance with this provision constitutes an illegality which cannot be cured and vitiates the sentence passed on them. The error can even now be corrected by me after affording an opportunity of hearing, in exercise of powers under section 482 of the Code of Criminal Procedure. On behalf of the State, it was submitted that section 362 of the Code of Criminal Procedure bars any alteration or review of the judgment. After delivery of the judgment, the Court is functus officio and cannot entertain any prayert so as to modify the sentence already passed on the accused. It was also submitted that the provisions of section 248 (2), Criminal Procedure Code, do not apply to the appeal Court.

( 4 ) THE question for decision is whether the appeal Court converting a judgment of acquittal into conviction must hear the accused on the question of sentence. In other words, whether the provisions of section 248 (2) of the Code also apply to the appeal Court.

( 5 ) THE Law Commission in its 48th Report said. 45 It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to the characteristics and back ground of the offender. The aims of sentencing themselves obscure-become all the more so in the absence of information on which the correctional process is to operate. The public as well as the Courts themselves are in dark about judicial approach in this regard. We are of the view that the taking of evidence as to the circumstances relevant to the sentencing should be encouraged and both the prosecution and the accused be allowed to cooperate in the process. The recommendations of Law Commission were incorporated in sub-section (2) of Section 235 for trial before Court of Sessions and in sub-section (2) of section 248 for trials of warrant cases, of the Code of 1973.

( 6 ) SECTION 248 (2) runs as under: Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provi