K.A. Mohamed Shafi, J. 1. This M.C. is filed by the accused in C.C. 210/85 to quash the N.B.W. issued by the Addl. Chief Judicial Magistrate, Thiruvananthapuram against the petitioners under Section 482 of the Cr.P.C.
2. Crime No. 40/85 was registered against the petitioners who are son and mother respectively alleging offence punishable under Section 498-A r/w Section 34 of I.P.C. The allegation is that on account of mental as well as physical cruelty inflicted by the petitioners to Santhi, the wife of the 1st petitioner, she was driven to commit suicide on 2.4.1985 by jumping into a well in the neighbouring compound. After completing investigation, the Investigating Officer laid charge-sheet against the petitioners alleging offence punishable under Section 498-A r/w Section 34 of I.P.C. before the Addl. judicial First Class Magistrate, Court-I, Thiruvananthapuram. Accordingly, C.C. 210/85 was registered against the petitioners and after trial by judgment dated 27.3.1987 the Addl. Judicial First Class Magistrate's Court-I, Thiruvananthapuram found the petitioners not guilty and acquitted them.
3. The State preferred Crl. Appeal No. 357/87 before this Court against the order of acquittal. The defecto complainant, the 2nd respondent herein also filed Crl. R.P. 604/88 before this Court challenging the order of acquittal. Both the appeal and revision were jointly heard by this Court, and as per the common judgment dated 28.10.1988 this Court set aside the order of acquittal of the petitioners by the Trial Court, found them guilty of the offence punishable under Section 498-A of the I.P.C. and remanded the case to the Trial Court for exercising the sentencing discretion. In that judgment this Court also observed that in exercising the sentencing discretion the Magistrate will be at liberty to call for1 a report from the District Probation Officer and consider the feasibility of applying the benevolent provisions of the Probation of Offenders Act. After remand, the Addl. CJ.M/s Court, Thiruvananthapuram after hearing both sides sentenced both the accused to undergo R.I. For three years each for the offence punishable under Section 498-A of I.P.C. by judgment dated 18.1.1989.
4. The accused preferred Crl. R.P. No. 149/1989 before the Sessions Court, Thiruvananthapuram challenging the sentence awarded by the Trial Court which was dismissed by the Appellate Court by judgment dated 27.3.1990 finding that no interference regarding the sentence imposed by the Trial Court is called for in the revision. The accused preferred Crl. M.C. No. 344/90 before this Court to set aside the order dated 27.3.1990 in Crl. R.P. No. 149/89 confirming the judgment of the Trial Court dated 18.1.1989. This Court by order dated 17.1.1992 set aside the judgment passed by the Trial Court as confirmed by the Appellate Court and remanded the case to the Trial Court directing the Trial Court to get a report from the Probation Officer and hear the petitioners and the prosecution before exercising the sentencing discretion.
5. The 2nd respondent herein filed Crl. Appeal No. 535/1992 before the Supreme Court against the order passed by this Court in Crl. M.C. 344/90. The petitioners filed S.L.P. before the Supreme Court challenging the judgment passed by this Court in Crl. Appeal No. 357/87 and Crl. R.P. 604/88 dated 28.10.1988. The Hon'ble Supreme Court by common order dated 28.3.2000 dismissed the S.L.P. filed by the petitioners and allowed the appeal filed by the 2nd respondent herein, setting aside the order passed by this Court in Crl. M.C. 344/90 dated 17.1.1992.
6. Subsequently the 2nd respondent herein filed CM.P. 5561 /2000 before the Trial Court on 29.5.200 seeking to execute the sentence awarded against the petitioners-accused. Though the petitioners filed C.M.P. 5641 /2000 in C.C. 210/85 on 30.5.2000 to keep the N.B.W. issued against them in abeyance contending that there is no subsisting sentence to be executed against them, the learned Magistrate dismissed that application by order dated 30.6.2000. Hence the above M.C. is filed by the petitioners before this Court.
7. Heard Counsel for the petitioners and the Public Prosecutor as well as the Counsel for the 2nd respondent.
8. The petitioners have urged two contentions before this Court in support of their argument that there is no subsisting sentence to be executed against them and, therefore, the N.B.W. issued against them is not sustainable. The first contention is that even though this Court remanded the case to the Trial Court directing to exercise the sentencing discretion, the Trial Court has not complied with the mandatory provisions of Section 235(2) of the Cr.P.C and, therefore, the sentence awarded by the Trial Court is illegal and unsustainable. In support of the contention that Section 235(2) of the Cr.P.C. should be complied with and the accused should be heard before the award of sentence giving him opportunity to place full and adequate material before the Court and if necessary giving him opportunity to lead evidence and failure to give such opportunity to the accused will vitiate the award of sentence, the Counsel for the petitioners relied upon the decisions in Santa Singh v. State of Punjab, (1976) 4 SCC190; Allauddin Mian v. State of Bihar, (1989) 3 SCC 5; and Jai Kumar v. State of M.P., (1999) 5 SCC 1=V (1999) SLT 37=111 (1999) CCR 42 (SC).
9. The fact that the requirement of affording an opportunity to the accused for pre-sentencing hearing and to adduce any documetary or oral evidence with regard to the sentence is mandatory under Section 235(2) of the Cr.P.C. is beyond challenge. It is sufficient that the Court complied substantially with that provision. In this case the contention of the petitioners is that in spite of the fact that this Court remanded the case to the Trial Court with the specific direction to exercise its sentencing discretion, the Trial Court did not give the petitioners an opportunity to be heard. According to the petitioners, after the documents were received by the Trial Court on 28.12.1988, after the case was remanded to the Trial Court by Annexure-A judgment, the Trial Court posted the case to 18.1.198 and the learned Magistrate disposed of the case by stating that the accused were heard about the sentence. Therefore, according to the petitioners, there is absolutely no compliance of the mandatory provisions of Section 235(2) of the Cr.P.C. and the petitioners were not in fact heard by the Addl. C.J.M., after the case was remanded to that Court for exercising its sentencing discretion. They submitted that if in fact they were heard regarding the sentence, they had to place several facts and circumstances of the case before the Court mitigaing the sentence to be imposed against them. They have contended that they were undergoing the ordeal of trial in this case for the last about 15 years, that they had to incur huge expense for the conduct of the cases, that the 1st petitioner is a cardiac patient suffering from hypertension and living on continuous medication, that the 2nd petitioner is aged 65 years and she is suffering from all sorts of physical complaints of old age, hypertension and osteo arthrities, that after the petitioners were acquitted in the case initially on 27.3.1987, the 1st petitioner re-married on 4.6.1987 and he has got two children in that wedlock and that the petitioners did not get an opportunity to urge all their contentions before the Trial Court, before the sentence was pronounced. They have also contended that since they wee denied the opportunity to place all these mitigaing circumstances before the Court, the maximum sentence awardable in the case viz. R.I. for three years is awarded by the Trial Court against them.
10. It is pertinent to note that the petitioners had raised this contention before the Sessions Court,, Tiruvananthapuram in Crl. R.P. 149/89 and the learned Sessions Judge after considering the entire evidence on record and the facts and circumstances of the case found that the petitioners herein do not deserve any leniency with regard to the sentence and the learned Addl. C.J.M. is justified in imposing the sentence of maximum imprisonment in this case. Though that order passed by the Revisional Court confirming the judgment passed by the Trial Court is set a side by this Court in Crl. M.C No. 344/90dated 17.1.1992and remanded that matter to the Trial Court directing the Magistrate to get a report from the Probation Officer and to hear the petitioners herein and the prosecution before exercising the sentencing discretion, that Annexure-C order is set aside by the Supreme Court as per Annexure-D order dated 28.3.2000 in Crl. Appeal No. 535/92 and S.L.P. 6579-80/92. In view of the judgment passed by the Supreme Court setting aside the order passed by this Court and upholding the sentencing discretion exercised by the Trial Court as confirmed by the Revisional Court, the above contention raised by the petitioners that they were not properly heard regarding the sentence and thereby the learned Addl. C.J.M. has violated the mandatory provisions of Section 235(2) of the Cr.P.C. and therefore/ the sentence awarded is vitiated, is not sustainable.
11. It is also pertinent to note that apart from the allegation that the learned Addl. C J M. did no afford the petitioners an opportunity to be heard, since after receipt of records from this Court on 28.12.1988 the learned Addl. C.J.M. posted the case for hearing to 18.1.1989 and disposed of the case on that day itself, nothing is stated by the petitioners that they have sought for any adjournment of the case to any other date so as to enable them to place the necessary materials regarding the sentence to be imposed before the learned Addl. C.J.M. and the same was disallowed. Under the circumstances the contention raised by the petitioners that the sentencing discretion is not properly exercised by the Addl. C.J.M. and since there is violation of the mandatory provisions of Section 235(2) of the Cr.P.C. there is no executable sentence against the petitioners, is not sustainable.
12. The further contention raised by the petitioners is that the Supreme Court by Annexure-D order only set aside the order passed by this Court in Crl. M.C. 344/ 90 and the sentence awarded against the petitioners is not restored and, therefore, there is no executable sentence against them.
13. It has to be noted that Crl. M.C. 344/90 is filed before this Court challenging the sentence awarded by the Trial Court in CC. 210/85 as confirmed by the Revisional Court by order dated 27.3.1990 in Crl. R.P. 149/89, wherein this Court set aside the sentence awarded by the Trial Court as confirmed by the Revisional Court. It is against that order Crl. Appeal No. 535/92 is preferred by the 2nd respondent before the Supreme Court and the Supreme Court by Annexure-D order set aside the order passed by this Court in the Crl. M.C. It is common knowledge that by setting aside an order passed by the Appellate Court or the Revisional Court by this Court, or the judgment or order passed by this Court by the Supreme Court, the original order passed by the Trial Court or the Appellate or Revisional Court which is interfered with by the Appellate Court or Revisional Court or this Court, will survive. Therefore, by reversal of the order passed by this Court in the Crl. M.C. by the Supreme Court, the order passed by the Addl. CJ.M. as confirmed by the Sessions Court survives. Therefore, the contention raised by the petitioners that there is no executable sentence passed against the petitioners in this case, is also not sustainable.
In view of what is stated above, I find absolutely no ground to interfere with the order passed by the Trial Court issuing N.B.W. against the petitioners in execution of the sentence awarded to the petitioners. Hence this Crl. M.C. being devoid of any merits, is dismissed.