IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH SENTENCES

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH SENTENCES

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
SUO MOTU WRIT PETITION (CRL.) NO.1 OF 2022
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL
MITIGATING CIRCUMSTANCES TO BE CONSIDERED
WHILE IMPOSING DEATH SENTENCES
J U D G M E N T
S. RAVINDRA BHAT, J.
1. This order is necessitated due to a difference of opinion and approach
amongst various judgments, on the question of whether, after recording
conviction for a capital offence, under law, the court is obligated to conduct a
separate hearing on the issue of sentence.
2. Section 235 of the Code of Criminal Procedure, 1973 (hereinafter, “CrPC”
or “Code”) reads as follows:
“235. Judgment of acquittal or conviction.— (1) After hearing arguments
and points of law (if any), the Judge shall give a judgment in the case. (2)
If the accused is convicted, the Judge shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.”
Section 235, as it exists in the statute today, was Section 309 of the erstwhile
Code (of 1898). It was introduced on account of the recommendations of the 48th
Report of the Law Commission of India, on Some Questions Under the Code of
Criminal Procedure Bill, 1970 (dated July 1972).
Additionally, Section 309 of the CrPC is also relevant. It reads as follows:
“309. Power to postpone or adjourn proceedings.
(1) In every inquiry or trial, the proceedings shall be held as expeditiously
as possible, and in particular, when the examination of witnesses has once
2
begun, the same shall be continued from day to day until all the witnesses
in attendance have been examined, unless the Court finds the adjournment
of the same beyond the following day to be necessary for reasons to be
recorded.
(2) If the Court, after taking cognizance of an offence, or commencement
of trial, finds it necessary or advisable to postpone the commencement of,
or adjourn, any inquiry or trial, it may, from time to time, for reasons to
be recorded, postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a warrant remand
the accused if in custody: Provided that no Magistrate shall remand an
accused person to custody under this section for a term exceeding fifteen
days at a time:
Provided further that when witnesses are in attendance, no adjournment
or postponement shall be granted, without examining them, except for
special reasons to be recorded in writing: 1
Provided also that no adjournment shall be granted for the purpose only
of enabling the accused person to show cause against the sentence
proposed to be imposed on him.
Explanation 1.- If sufficient evidence has been obtained to raise a
suspicion that the accused may have committed an offence, and it appears
likely that further evidence may be obtained by a remand, this is a
reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may
be granted include, in appropriate cases, the payment of costs by the
prosecution or the accused.”
3. In Bachan Singh v. State of Punjab1
this court, in its majority judgment,
upheld the constitutionality of the death sentence, on the condition that it could
be imposed in the “rarest of rare” cases. The court was conscious of the safeguard
of a separate hearing, on the question of sentence, and articulated such a safeguard
as a valuable right, which insures to a convict, to urge why in the circumstances
of his or her case, the extreme penalty of death ought not to be imposed. This
court, in Bachan Singh, observed as follows:
“151. Section 354 (3) of the CrPC, 1973, marks a significant shift in the
legislative policy underlying the Code of 1898, as in force immediately
before April 1, 1974, according to which both the alternative sentences of
death or imprisonment for life provided for murder and for certain other
capital offences under the Penal Code, were normal sentences. Now
according to this changed legislative policy which is patent on the face
of Section 354 (3), the normal punishment for murder and six other capital
1 1983 (1) SCR 145
3
offences under the Penal Code , is imprisonment for life (or imprisonment
for a term of years) and death penalty is an exception. The Joint Committee
of Parliament in its Report, stated the object and reason of making this
change, as follows:
‘A sentence of death is the extreme penalty of law and it is but fair that
when a Court awards that sentence in a case where the alternative
sentence of imprisonment for life is also available, it should give special
reasons in support of the sentence.
Accordingly, Sub-section (3) of Section 354 of the current Code provides:
“When the conviction is for an offence punishable with death or, in the
alternative with imprisonment for life or imprisonment for a term of years,
the judgment shall state the reasons for the sentence awarded, and, in the
case of sentence of death, the special reasons for such sentence.”
152. In the context, we may also notice Section 235 (2) of the Code of
1973, because it makes not only explicit, what according to the decision in
Jagmohan's case was implicit in the scheme of the Code, but also
bifurcates the trial by providing for two hearings, one at the pre-conviction
stage and another at the pre-sentence stage. It requires that:
“If the accused is convicted, the Judge shall, unless he proceeds in
accordance with the provision of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.”
The Law Commission in its 48th Report had pointed out this deficiency in
the sentencing procedure:
“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 characteristics and background at 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 the dark about judicial
approach in this regard.
We are of the view that the taking of evidence as to the circumstances
relevant to sentencing should be encouraged and both the prosecution and
the accused should be allowed to co-operate in the process."
By enacting Section 235 (2) of the new Code, Parliament has accepted
that recommendation of the Law Commission. Although Sub-section (2)
of Section 235 does not contain a specific provision as to evidence and
provides only for hearing of the accused as to sentence, yet it is implicit in
this provision that if a request is made in that behalf by either the
prosecution or the accused, or by both, the Judge should give the party or
parties concerned an opportunity of producing evidence or material
relating to the various factors bearing on the question of sentence. "Of
course,", as was pointed out by this Court in Santa Singh v State of
Punjab AIR 1976 SC 2386 "care would have to be taken by the Court to
see that this hearing on the question of sentence is not turned into an
instrument for unduly protracting the proceedings. The claim of due and
4
proper hearing would have to be harmonised with the requirement of
expeditious disposal of proceedings.”
153. We may also notice Sections 432, 433 and 433A, as they throw light
as to whether life imprisonment as currently administered in India, can be
considered an adequate alternative to the capital sentence even in
extremely heinous cases of murder.
154. Sections 432 and 433 of the Code of 1973 continue Sections 401 and
402 of the Code of 1898, with necessary modifications which bring them
in tune with Articles 72 and 161 of the Constitution. Section 432 invests
the "appropriate Government" as (defined in Sub-section (7) of that
section) with power to suspend or remit sentences. Section 433 confers on
the appropriate Government power to commute sentence, without the
consent of the person sentenced. Under Clause (a) of the section, the
appropriate Government may commute a sentence of death, for any other
punishment provided by the Indian Penal Code.
155. With effect from December 18, 1978, the Cr. PC (Amendment) Act,
1978, inserted new Section 433A which runs as under:
“433A. Restriction on power of remission or commutation in certain
cases.- Notwithstanding anything contained in Section 432, where a
sentence of imprisonment foe life is imposed on conviction of a person for
an offence for which death is one of the punishments provided by law, or
where a sentence of death imposed on a person has been commuted
under Section 433 into one of imprisonment for life, such person shall not
be released from prison unless he had served at least fourteen years of
imprisonment.”
156. It may be recalled that in Jagmohan this Court had observed that, in
practice, life imprisonment amounts to 12 years in prison. Now, Section
433A restricts the power of remission and commutation conferred on the
appropriate Government under Section 432 and 433, so that a person who
is sentenced to imprisonment for life or whose death sentence is commuted
to imprisonment for life must serve actual imprisonment for a minimum of
14 years.
157. We may next notice other provisions of the extant Code
(corresponding to Sections 374, 375, 376 and 377 of the repealed Code)
bearing on capital punishment. Section 366 (i) of the Code requires the
Court passing a sentence of death to submit the proceedings to the High
Court, and further mandates that such a sentence shall not be executed
unless it is confirmed by the High Court. On such a reference for
confirmation of death sentence, the High Court is required to proceed in
accordance with Sections 367 and 368. Section 367gives power to the
High Court to direct further inquiry to be made or additional evidence to
be taken. Section 368 empowers the High Court to confirm the sentence of
death or pass any other sentence warranted by law; or to annul or alter
the conviction or order a new trial or acquit the accused. Section
369 enjoins that in every case so submitted, the confirmation of the
sentence, or any new sentence or order passed by the High Court, shall,
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when such court consists of two or more Judges, be made, passed and
signed by at least two of them. Section 370 provides that where any such
case is heard before a Bench of Judges and such Judges are equally
divided in opinion, the case shall be referred to a third Judge.
158. In this fasciculus of sections relating to confirmation proceedings in
the High Court, the Legislature has provided valuable safeguards of the
life and liberty of the subject in cases of capital sentences. These
provisions seek to ensure mat where in a capital case, the life of the
convicted person if at stake, the entire evidential material bearing on the
innocence as guilt of the accused and the question of sentence must be
scrutinised with utmost caution and care by a superior Court.”
4. This court then considered the issue before it, from various perspectives,
and observed further as follows:
“163. …Now, Section 235 (2) provides for a bifurcated trial and
specifically gives the accused person a right of pre-sentence hearing, at
which stage, he can bring on record material or evidence, which may not
be strictly relevant to or connected with the particular crime under inquiry,
but nevertheless, have, consistently with the policy underlined in Section
354 (3) a bearing on the choice of sentence. The present legislative policy
discernible from Section 235 (2) read with Section 354 (3) is that in fixing
the degree of punishment or making the choice of sentence for various
offences, including one under Section 302, Penal Code, the Court should
not confine its consideration "principally" or merely to the circumstances
connected with particular crime, but also give due consideration to the
circumstances of the criminal.
***
165. Attuned to the legislative policy delineated in Section 354
(3) and Section 235 (2), propositions (iv) (a) and (v) (b) in Jagmohan,
shall have to be recast and may be stated as below:
(a) The normal rule is that the offence of murder shall be punished with
the sentence of life imprisonment. The court can depart from that rule and
impose the sentence of death only if there are special reasons for doing so.
Such reasons must be recorded in writing before imposing the death
sentence,
(b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 Penal Code; the court must have
regard to every relevant circumstance relating to the crime as well as the
criminal. If the court finds, but not otherwise, that the offence is of an
exceptionally depraved and heinous character and constitutes, on account
of its design and the manner of its execution, a source of grave danger to
the society at large, the court may impose the death sentence.”
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5. Bhagwati, J. who differed from the majority on the constitutionality of
death sentence, also noticed the need for what in his opinion was a ‘bifurcated
hearing’ on sentence, after a court recorded conviction. The minority opinion
pertinently observes as follows:2
“80. …These are undoubtedly some safeguards provided by the
legislature, but in the absence of any standards or principles provided by
the legislature to guide the exercise of the sentencing discretion and in
view of the fragmented Bench structure of the High Courts and the
Supreme Court, these safeguards cannot be of any
help in eliminating arbitrariness and freakishness in imposition of death
penalty… The first requirement that there should be a bifurcated
proceeding at which the sentencing authority is apprised of the
information relevant to the imposition of sentence is met by the enactment
of Section 235, sub-section (2), but the second requirement that the
sentencing authority should be provided with standards to guide its use of
the information is not satisfied and the imposition of death penalty under
Section 302 of the Penal Code, 1860 read with Section 354, sub-section
(3) of the Code of Criminal Procedure, 1973 must therefore be held to be
arbitrary and capricious and hence violative of Articles 14 and 21.”
 (emphasis supplied)
6. Plainly, therefore, the majority in Bachan Singh took note that convicts
would be afforded a separate hearing, to urge why capital sentence ought not to
be resorted to. The judgment noted the Law Commission’s observation that courts
should “give the party or parties concerned an opportunity of producing evidence
or material relating to the various factors bearing on the question of sentence.”
The majority concluded:
“157-A. In this fasciculus of sections relating to confirmation proceedings
in the High Court, the legislature has provided valuable safeguards of the
life and liberty of the subject in cases of capital sentences. These
provisions seek to ensure that where in a capital case, the life of the
convicted person is at stake, the entire evidential material bearing on the
innocence or guilt of the accused and the question of sentence must be
scrutinised with utmost caution and care by a superior court.
(emphasis supplied)
2 Bhagwati, J.’s dissent in Bachan Singh v State of Punjab, (1982) 3 SCC 24.
7
This aspect – presence of ‘valuable safeguards’ - therefore, was an important
consideration to uphold the validity of death sentence, in the rarest of rare
cases.
7. In an earlier, two-judge bench decision in Santa Singh v. State of Punjab3
this court had underlined the importance of a separate hearing on the issue of
sentence:
“3. …Moreover it was realised that sentencing is an important stage in the
process of administration of criminal justice — as important as the
adjudication of guilt — and it should not be consigned to a subsidiary
position as if it were a matter of not much consequence. It should be a
matter of some anxiety to the court to impose an appropriate punishment
on the criminal and sentencing should, therefore, receive serious attention
of the court… The reason is that a proper sentence is the amalgam of many
factors such as the nature of the offence, the circumstances — extenuating
or aggravating — of the offence, the prior criminal record, if any, of the
offender, the age of the offender, the record of the offender as to
employment, the background of the offender with reference to education,
home life, sobriety and social adjustment, the emotional and mental
condition of the offender, the prospects for the rehabilitation of the
offender, the possibility of return of the offender to a normal life in the
community, the possibility of treatment or training of the offender, the
possibility that the sentence may serve as a deterrent to crime by the
offender or by others and the current community need, if any, for such a
deterrent in respect to the particular type of offence. These are factors
which have to be taken into account by the court in deciding upon the
appropriate sentence, and, therefore, the legislature felt that, for this
purpose, a separate stage should be provided after conviction when the
court can hear the accused in regard to these factors bearing on sentence
and then pass proper sentence on the accused. Hence the new provision in
Section 235(2).
4. …We are, therefore, of the view that the hearing contemplated by
Section 235(2) is not confined merely to hearing oral submissions, but it
is also intended to give an opportunity to the prosecution and the accused
to place before the court facts and material relating to various factors
bearing on the question of sentence and if they are contested by either side,
then to produce evidence for the purpose of establishing the same. Of
course, care would have to be taken by the court to see that this hearing
on the question of sentence is not abused and turned into an instrument for
unduly protracting the proceedings. The claim of due and proper hearing
3 Santa Singh v. State of Punjab, (1976) 4 SCC 190.
8
would have to be harmonised with the requirement of expeditious disposal
of proceedings.”
8. In Muniappan v. State of Tamil Nadu,4 a two-judge bench of this court held
that Section 235(2) was not a formality which could be dispensed with, and
required consideration after conviction was confirmed:
“2. …The obligation to hear the accused on the question of sentence which
is imposed by Section 235(2) of the Criminal Procedure Code is not
discharged by putting a formal question to the accused as to what he has
to say on the question of sentence. The judge must make a genuine effort
to elicit from the accused all information which will eventually bear on the
question of sentence. All admissible evidence is before the judge but that
evidence itself often furnishes a clue to the genesis of the crime and the
motivation of the criminal. It is the bounden duty of the judge to cast aside
the formalities of the court scene and approach the question of sentence
from a broad, sociological point of view. The occasion to apply the
provisions of Section 235(2) arises only after the conviction is recorded.
What then remains is the question of sentence in which not merely the
accused but the whole society has a stake. Questions which the judge can
put to the accused under Section 235(2) and the answers which the
accused makes to those questions are beyond the narrow constraints of the
Evidence Act. The court, while on the question of sentence, is in an
altogether different domain in which facts and factors which operate are
of an entirely different order than those which come into play on the
question of conviction. The Sessions Judge, in the instant case, complied
with the form and letter of the obligation which Section 235(2) imposes,
forgetting the spirit and substance of that obligation.”
9. In Mithu v. State of Punjab5
, a five-judge bench of this court while
deliberating on the mandatory imposition of death sentence on a convict
committing murder while undergoing a life sentence under Section 303 of the
Indian Penal Code, 1908 held as follows:
“7. …The majority [in Bachan Singh] concluded that Section 302 of the
Penal Code is valid for three main reasons: Firstly, that the death sentence
provided for by Section 302 is an alternative to the sentence of life
imprisonment; secondly, that special reasons have to be stated if the
normal rule is departed from and the death sentence has to be imposed;
and, thirdly, because the accused is entitled, under Section 235(2) of the
Code of Criminal Procedure, to be heard on the question of sentence. The
last of these three reasons becomes relevant, only because of the first of
4 Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11.
5 Mithu v. State of Punjab, (1983) 2 SCC 277.
9
these reasons. In other words, it is because the court has an option to
impose either of the two alternative sentences, subject to the rule that the
normal punishment for murder is life imprisonment, that it is important to
hear the accused on the question of sentence. If the law provides a
mandatory sentence of death as Section 303 of the Penal Code does,
neither Section 235(2) nor Section 354(3) of the Code of Criminal
Procedure can possibly come into play. If the court has no option save to
impose the sentence of death, it is meaningless to hear the accused on the
question of sentence and it becomes superfluous to state the reasons for
imposing the sentence of death”
 (emphasis supplied)
The court thus reiterated that the accused was entitled to be heard on the question
of sentence before its imposition. As Section 303 of the Indian Penal Code, 1908
denied the accused such opportunity, it was struck down.
10. In another judgment delivered by a two-judge bench i.e., Allauddin Mian
v. State of Bihar6
, this court, noticing earlier decisions, and Bachan Singh, stated
that:
“10. …The requirement of hearing the accused is intended to satisfy the
rule of natural justice. It is a fundamental requirement of fair play that the
accused who was hitherto concentrating on the prosecution evidence on
the question of guilt should, on being found
guilty, be asked if he has anything to say or any evidence to tender on the
question of sentence. This is all the more necessary since the courts are
generally required to make the choice from a wide range of discretion in
the matter of sentencing. To assist the court in determining the correct
sentence to be imposed the legislature introduced sub-section (2) to
Section 235. The said provision therefore satisfies a dual purpose; it
satisfies the rule of natural justice by according to the accused an
opportunity of being heard on the question of sentence and at the same
time helps the court to choose the sentence to be awarded. Since the
provision is intended to give the accused an opportunity to place before
the court all the relevant material having a bearing on the question of
sentence there can be no doubt that the provision is salutary and must be
strictly followed. It is clearly mandatory and should not be treated as a
mere formality. Mr Garg was, therefore, justified in making a grievance
that the trial court actually treated it as a mere formality as is evident from
the fact that it recorded the finding of guilt on 31-3-1987, on the same day
before the accused could absorb and overcome the shock of conviction
they were asked if they had anything to say on the question of sentence and
immediately thereafter the decision imposing the death penalty on the two
6 Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.
10
accused was pronounced. In a case of life or death as stated earlier, the
presiding officer must show a high decree of concern for the statutory right
of the accused and should not treat it as a mere formality to be crossed
before making the choice of sentence. If the choice is made, as in this case,
without giving the accused an effective and real opportunity to place his
antecedents, social and economic background, mitigating and extenuating
circumstances, etc., before the court, the court's decision on the sentence
would be vulnerable. We need hardly mention that in many cases a
sentencing decision has far more serious consequences on the offender
and his family members than in the case of a purely administrative
decision; a fortiori, therefore, the principle of fair play must apply with
greater vigour in the case of the former than the latter. An administrative
decision having civil consequences, if taken without giving a hearing is
generally struck down as violative of the rule of natural justice. Likewise
a sentencing decision taken without following the requirements of subsection (2) of Section 235 of the Code in letter and spirit would also meet
a similar fate and may have to be replaced by an appropriate order. The
sentencing court must approach the question seriously and must
endeavour to see that all the relevant facts and circumstances bearing on
the question of sentence are brought on record. Only after giving due
weight to the mitigating as well as the aggravating circumstances placed
before it, it must pronounce the sentence. We think as a general rule the
trial courts should after recording the conviction adjourn the matter to a
future date and call upon both the prosecution as well as the defence to
place the relevant material bearing on the question of sentence before it
and thereafter pronounce the sentence to be imposed on the offender.”
 (emphasis supplied)
11. In Anguswamy v. State of Tamil Nadu7
, a two-judge bench had also
expressed the same view. In Malkiat Singh v. State of Punjab8
, again, three judges
endorsed the view that a separate hearing on the question of sentence should be
afforded to the accused, after recording conviction. The court held that the
hearing should be intended to afford an opportunity to place materials to show
mitigating circumstances - and, for the prosecution, aggravating circumstances
and that “sufficient time must be given to the accused… on the question of
sentence”.
7 Anguswamy v. State of Tamil Nadu, (1989) 3 SCC 33.
8 Malkiat Singh v. State of Punjab, (1991) 4 SCC 341.
11
12. Other more recent three-judge decisions have also ruled that same day
sentencing in capital offences violate the principles of natural justice, and is
opposed to Section 235 (2). In Dattaraya v. State of Maharashtra9
, this court
observed, inter alia, that:
“132. For effective hearing under Section 235(2) of the Code of Criminal
Procedure, the suggestion that the court intends to impose death penalty
should specifically be made to the accused, to enable the accused to make
an effective representation against death sentence, by placing mitigating
circumstances before the Court. This has not been done. The trial court
made no attempt to elicit relevant facts, nor did the trial court give any
opportunity to the petitioner to file an affidavit placing on record
mitigating factors. As such the petitioner has been denied an effective
hearing.
133. Contrary to the dictum of this Court, inter alia, in Dagdu [Dagdu v.
State of Maharashtra, (1977) 3 SCC 68 : 1977 SCC (Cri) 421] and Santa
Singh [Santa Singh v. State of Punjab, (1976) 4 SCC 190 : 1976 SCC (Cri)
546] the petitioner was not given a real, effective and meaningful hearing
on the question of sentence under Section 235(2) CrPC. The death
sentence imposed on the petitioner is liable to be commuted to life
imprisonment on this ground.”
13. In Bhagwani v. State of Madhya Pradesh10 also iterated the need to have a
separate hearing, on the question of sentence:
“16. A bifurcated hearing for convicting and sentencing is necessary to
provide an effective opportunity to the accused [Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498].
Adequate opportunity to produce relevant material on the question of
death sentence shall be provided to the accused by the Trial Court
[Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC
460].”
14. In Manoj & Ors. v. State of Madhya Pradesh11 this court highlighted that
in the absence of guidelines or a framework, the scope of the opportunity afforded
to the accused to be heard on sentencing, was not in keeping with the spirit of the
law laid down in Bachan Singh regarding Section 235(2):
9 Dattaraya v. State of Maharashtra, (2020) 14 SCC 290.
10 Bhagwani v. State of Madhya Pradesh, 2022 SCC OnLine SC 52 (Criminal Appeal Nos. 101-102/2022).
11 Manoj & Ors. v. State of Madhya Pradesh, (2022) SCC OnLine SC 677 (Criminal Appeal Nos. 248-
250/2015).
12
“221. However, despite over four decades since Bachan Singh there has
been little to no policy-driven change, towards formulating a scheme or
system that elaborates how mitigating circumstances are to be collected,
for the court's consideration. Scarce information about the accused at the
time of sentencing, severely disadvantages the process of considering
mitigating circumstances. It is clarified that mere mention of these
circumstances by counsel, serve no purpose - rather, they must be
connected to the possibility of reformation and assist principled judicial
reasoning (as required under S. 235(2) CrPC). Constrained by this
lack of assistance, this court (as mentioned above) in Rajesh
Kumar [Rajesh Kumar v. State (2011) 13 SCC 706] has even gone
so far as to hold that the very fact that the state had not given any evidence
to show that the convict was beyond reform and rehabilitation was a
mitigating circumstance, in itself.
***
239. It is unfortunate to note that both the trial Court, and High Court,
failed to provide an effective sentencing hearing to the accused, at the
relevant stage, which is a right under Section 235(2) CrPC recognised by
this court in several cases. In fact, it was argued by the accused that the
trial court in contravention of this court's judgments, had proceeded to
hear on sentencing almost immediately, depriving the accused of the
opportunity to put forth their case for a less stringent sentence. The trial
court order on sentencing, records in passing - the plea of ‘young age’
and ‘socio-economic factors’ as mitigating circumstances, but reflects, at
best, a mechanical consideration of the same. Swayed by the
brutality of the crime and “shock of the collective and judicial
conscience”, the High Court affirmed imposition of the death penalty
solely on the basis of the aggravating circumstances of the crime, with
negligible consideration of mitigating circumstances of the criminal. This
is in direct contravention of Bachan Singh.”
15. However, this court, also in three-judge combinations, has on a reading of
these very judgments – i.e., Santa Singh, Muniappan, Allaudin Mian,
Anguswamy, Malkiat Singh, etc., arrived at a different conclusion - that same-day
sentencing does not necessarily fall foul of Section 235(2) of the CrPC. This
contrary line of cases are based on the premise that the court may adjourn for a
separate hearing, but the absence of it would not in itself vitiate the sentence.
16. In Dagdu v. State of Maharashtra12
, a three-judge bench of this court
rejected the interpretation of Santa Singh as laying down that failure on the part
12 Dagdu v. State of Maharashtra, (1977) 3 SCC 68.
13
of the court to hear a convicted accused, on the question of sentence, would
necessitate remand to the trial court. Instead, it held that such an omission could
be remedied by the higher court by affording a hearing to the accused on the
question of sentence, provided the hearing was “real and effective” wherein the
accused was permitted to “adduce before the court all the data which he desires
to be adduced on the question of sentence”. The court further held that:
“79. The Court may, in appropriate cases, have to adjourn the matter in
order to give to the accused sufficient time to produce the necessary data
and to make his contentions on the question of sentence. That, perhaps,
must inevitably happen where the conviction is recorded for the first time
by a higher court.”
This was in turn, followed by another three-judge bench in Tarlok Singh v. State
of Punjab13
.
17. Another case, where a similar conclusion was arrived at, but on differing
reasoning was Ramdeo Chauhan v. State of Assam14
, where in a review petition,
a bench of three judges, upheld the death penalty by a 2:1 majority. In this case,
the proviso to Section 309(2) of CrPC was considered, in relation to Section
235(2). The court observed that the previous rulings had not taken note of the
second proviso15 to Section 309 of the Code. The court held that the mandate of
the proviso under Section 309 was not to adjourn the hearing for affording a
separate proceeding on sentence, however in cases where death sentence was one
of the choices of punishment, the court had discretion to adjourn the hearing for
a separate proceeding on sentence:
“28. In a case punishable with death or imprisonment for life, there is no
difficulty for the court where the sentence proposed to be imposed is an
alternative sentence of life imprisonment but if it proposes to award the
death sentence, it has discretion to adjourn the case in the interests of
justice as held in Sukhdev Singh case [(1992) 3 SCC 700 : 1992 SCC (Cri)
705] . I have no doubt in holding that despite the bar of third proviso to
sub-section (2) of Section 309, the court, in appropriate cases, can grant
adjournment for enabling the accused persons to show cause against the
13 Tarlok Singh v. State of Punjab, (1977) 3 SCC 218.
14 Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.
15 Inserted by Criminal Procedure Code Amendment Act, 1978.
14
sentence proposed on them particularly if such proposed sentence is a
sentence of death.”
Thus, it was held that while the accused facing the possibility of death sentence
was not entitled to an adjournment, nothing barred the court from granting the
same.
18. Several decisions have since relied on Dagdu, and concluded that the
action of the court sentencing an accused on the same day as conviction in itself
would not vitiate the sentence. These cases (in three-judge combination) include:
B.A. Umesh v. High Court of Karnataka16; Vasanta Sampatha Dupare v. State of
Maharashtra17; Mukesh v. State of NCT18; Mohd. Mannan v. State of Bihar19; and
most recently, Shatrughna Baban Meshram v. State of Maharashtra20
.
19. This court in X v. State of Maharashtra21 (three-judge bench), extensively
considered the precedents on the question of sentencing, and concluded the
position of law as follows:
“40. As noted above, many cases have grappled with the question as to the
choice between the two. The approach of this Court needs to be
rationalised and understood in the light of cautionary approach discussed
above. From the aforesaid discussion, the following dicta emerge:
40.1. That the term “hearing” occurring under Section 235(2) requires
the accused and prosecution at their option, to be given a meaningful
opportunity.
40.2. Meaningful hearing under Section 235(2) CrPC, in the usual course,
is not conditional upon time or number of days granted for the same. It is
to be measured qualitatively and not quantitatively.
40.3. The trial court needs to comply with the mandate of Section 235(2)
CrPC with best efforts.
40.4. Non-compliance can be rectified at the appellate stage as well, by
providing meaningful opportunity.
40.5. If such an opportunity is not provided by the trial court, the appellate
court needs to balance various considerations and either afford an
opportunity before itself or remand back to the trial court, in appropriate
case, for fresh consideration.
16 B.A. Umesh v. High Court of Karnataka, (2017) 4 SCC 124.
17 Vasanta Sampatha Dupare v. State of Maharashtra, (2018) 6 SCC 631.
18 Mukesh v. State of NCT, (2017) 6 SCC 1.
19 Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584.
20 Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596.
21 X v. State of Maharashtra, (2019) 7 SCC 1.
15
40.6. However, the accused need to satisfy the appellate courts, inter alia
by pleading on the grounds as to existence of mitigating circumstances,
for its further consideration.
40.7. Being aware of certain harsh realities such as long protracted delays
or jail appeals through legal aid, etc., wherein the appellate court, in
appropriate cases, may take recourse of independent enquiries on relevant
facts ordered by the court itself.
40.8. If no such grounds are brought by the accused before the appellate
courts, then it is not obligated to take recourse under Section 235(2)
CrPC.”
This reasoning was further relied on in many decisions, more recently by this
court in Manoj Suryavanshi v. State of Chattisgarh22
.
20. The common thread that runs through all these decisions is the express
acknowledgment that meaningful, real and effective hearing must be afforded to
the accused, with the opportunity to adduce material relevant for the question of
sentencing. What is conspicuously absent, is consideration and contemplation
about the time this may require. In cases where it was felt that real and effective
hearing may not have been given (on account of the same day sentencing), this
court was satisfied that the flaw had been remedied at the appellate (or review
stage), by affording the accused a chance to adduce material, and thus fulfilling
the mandate of Section 235(2).
21. The question of what constitutes ‘sufficient time’ at the trial court stage, in
this manner appears not to have been addressed in the light of the express holding
in Bachan Singh. This, in the court’s considered opinion, requires consideration
and clarity. This court’s decision in Manoj Pratap Singh v. State of Rajasthan23 is
an example, where ‘sufficient time’ for compliance with Section 235(2) CrPC
was considered; it was concluded that the trial court had “scrupulously carried
out its duty in terms of Section 235(2)” since the sentence was awarded 3 days
22 Manoj Suryavanshi v. State of Chattisgarh, (2020) 4 SCC 451.
23 Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768 (Crl.A. Nos. 910 – 911/2022).
16
after the conviction, after considering both the aggravating and mitigating
circumstances.
22. After hearing the parties on the question of conviction in Manoj & Ors. v.
State of Madhya Pradesh, this court had adjourned the matter for submissions on
sentencing, with directions24 eliciting reports from the probation officer, jail
authorities, a trained psychiatrist and psychologist, etc., to assist the accused in
presenting mitigating circumstances. Noticing the lack of a uniform framework
in this regard, the present Suo Motu W.P. (Crl.) No. 1/2022 was initiated wherein
this court has indicated by its orders the necessity of working out the modalities
of psychological evaluation, the stage of adducing evidence in order to highlight
mitigating circumstances, and the need to build institutional capacity in this
regard. The apprehensions relating to the absence of such a framework was also
recorded in the final judgment of Manoj & Ors. v. State of Madhya Pradesh,
wherein the importance of a separate hearing and the necessity of background
analysis of the accused, was highlighted. It was suggested that the social milieu,
the age, educational levels, whether the convict had faced trauma earlier in life,
family circumstances, psychological evaluation of a convict and post-conviction
conduct, were relevant factors at the time of considering whether the death
penalty ought to be imposed upon the accused.
23. In light of the above, there exists a clear conflict of opinions by two sets of
three judge bench decisions on the subject. As noticed before, this court in
Bachan Singh had taken into consideration the fairness afforded to a convict by a
separate hearing, as an important safeguard to uphold imposition of death
sentence in the rarest of rare cases, by relying upon the recommendations of the
48th Law Commission Report. It is also a fact that in all cases where imposition
of capital punishment is a choice of sentence, aggravating circumstances would
always be on record, and would be part of the prosecution’s evidence, leading to
24 By order dated 29.09.2021. Reference was also made to orders dated 05.08.2021 and 08.09.2021 passed by
this Court in Diary No. 5964/2019.
17
conviction, whereas the accused can scarcely be expected to place mitigating
circumstances on the record, for the reason that the stage for doing so is after
conviction. This places the convict at a hopeless disadvantage, tilting the scales
heavily against him. This court is of the opinion that it is necessary to have clarity
in the matter to ensure a uniform approach on the question of granting real and
meaningful opportunity, as opposed to a formal hearing, to the accused/convict,
on the issue of sentence.
24. Consequently, this court is of the view that a reference to a larger bench of
five Hon’ble Judges is necessary for this purpose. Let this matter be placed before
the Hon’ble Chief Justice of India for appropriate orders in this regard.
 ..................................................CJI.
 [UDAY UMESH LALIT]
.....................................................J.
 [S. RAVINDRA BHAT]
....................................................J.
 [SUDHANSHU DHULIA]

New Delhi,
September 19, 2022.

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