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,

5

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.”

6

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.