In Re: Framing Guidelines Regarding Potential Mitigating Circumstances to Be Considered While Imposing Death Sentences v. in Re: Framing Guidelines Regarding Potential Mitigating Circumstances to Be Considered While Imposing Death Sentences
S. RAVINDRA BHAT, J.
1. This order is necessitated due to a difference of opini on 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, 1 973
(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 g ive a
judgment in the case. (2) If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the prov isions
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 acc ount of the
recommendations of the 48th Report of the Law Commission of India,
on Some Questions Under the Code of Criminal Procedure Bill, 19 70
(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 hel d as
expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same s hall be
continued from day to day until all the witnesses in attendance
have been examined, unless the Court finds the adjournmen t
of the same beyond the following day to be necessar y for
reasons to be recorded.
(2) If the Court, after taking cognizance of an off ence, or
commencement of trial, finds it necessary or advisa ble to
postpone the commencement of, or adjourn, any inqui ry or
547
trial, it may, from time to time, for reasons to be r ecorded,
postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a war rant
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 attenda nce, no
adjournment or postponement shall be granted, witho ut
examining them, except for special reasons to be recorded in
writing: 1
Provided also that no adjournment shall be granted fo r the
purpose only of enabling the accused person to show c ause
against the sentence proposed to be imposed on him.
Explanation 1.- If sufficient evidence has been obt ained to
raise a suspicion that the accused may have committ ed an
offence, and it appears likely that further evidence may be
obtained by a remand, this is a reasonable cause for a reman d.
Explanation 2.- The terms on which an adjournment o r
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 sentenc e, 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 imprisonm ent 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 f ace
1 1983 (1) SCR 145
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
of Section 354 (3), the normal punishment for murder and six
other capital 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 c hange,
as follows:
‘A sentence of death is the extreme penalty of law and it is b ut
fair that when a Court awards that sentence in a case where
the alternative sentence of imprisonment for life i s also
available, it should give special reasons in suppor t 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 o r
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentenc e
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, w hat
according to the decision in Jagmohan’s case was implicit i n
the scheme of the Code, but also bifurcates the tri al by
providing for two hearings, one at the pre-convicti on stage
and another at the pre-sentence stage. It requires that:
“If the accused is convicted, the Judge shall, unle ss he
proceeds in accordance with the provision of Sectio n 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 rat ional
and consistent sentencing policy requires the remov al of
several deficiencies in the present system. One such defic iency
is the lack of comprehensive information as to characteristic s
and background at the offender.
549
The aims of sentencing:- Themselves obscure become all th e
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 t o the
circumstances relevant to sentencing should be encou raged
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 con tain 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 ev idence
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 th at this
hearing on the question of sentence is not turned i nto an
instrument for unduly protracting the proceedings. The cl aim
of due and proper hearing would have to be harmonised with
the requirement of expeditious disposal of proceedin gs.”
153. We may also notice Sections 432, 433 and 433A, as they
throw light as to whether life imprisonment as curr ently
administered in India, can be considered an adequat e
alternative to the capital sentence even in extremely he inous
cases of murder.
154. Sections 432 and 433 of the Code of 1973 conti nue
Sections 401 and 402 of the Code of 1898, with nece ssary
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 s ection)
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
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
(a) of the section, the appropriate Government may comm ute
a sentence of death, for any other punishment provi ded 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 senten ce of
death imposed on a person has been commuted under Section
433 into one of imprisonment for life, such person sha ll 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 amount s to 12
years in prison. Now, Section 433A restricts the po wer of
remission and commutation conferred on the appropri ate
Government under Section 432 and 433, so that a per son
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 o f death
to submit the proceedings to the High Court, and fu rther
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. Se ction
367gives power to the High Court to direct further inqui ry 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
551
accused. Section 369 enjoins that in every case so submitt ed,
the confirmation of the sentence, or any new sentence or o rder
passed by the High Court, shall, when such court consists of
two or more Judges, be made, passed and signed by at lea st
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 con firmation
proceedings in the High Court, the Legislature has pro vided
valuable safeguards of the life and liberty of the sub ject in
cases of capital sentences. These provisions seek t o 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 sentenc e
must be scrutinised with utmost caution and care by a superior
Court.”
4. This court then considered the issue before it, from vario us
perspectives, and observed further as follows:
“163. …Now, Section 235 (2) provides for a bifurcated trial
and specifically gives the accused person a right o f pre-
sentence hearing, at which stage, he can bring on r ecord
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 underl ined 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 offenc es,
including one under Section 302, Penal Code, the Co urt
should not confine its consideration “principally” or m erely
to the circumstances connected with particular crime, but also
give due consideration to the circumstances of the cr iminal.
***
165. Attuned to the legislative policy delineated i n 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:
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
(a) The normal rule is that the offence of murder s hall be
punished with the sentence of life imprisonment. Th e court
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such r easons
must be recorded in writing before imposing the dea th
sentence,
(b) While considering the question of sentence to be impos ed
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 o f 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.”
5. Bhagwati, J. who differed from the majority on t he
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 standard s or
principles provided by the legislature to guide the exercis e of
the sentencing discretion and in view of the fragmented Benc h
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 ther e
should be a bifurcated proceeding at which the sent encing
authority is apprised of the information relevant t o the
imposition of sentence is met by the enactment of Sectio n 235,
sub-section (2), but the second requirement that the sentencin g
authority should be provided with standards to guide its u se
of the information is not satisfied and the imposition of de ath
penalty under Section 302 of the Penal Code, 1860 read with
Section 354, sub-section (3) of the Code of Crimina l
2 Bhagwati, J.’s dissent in Bachan Singh v State of Punjab, (1982) 3 SCC 24.
553
Procedure, 1973 must therefore be held to be arbitra ry 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 c apital
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 m aterial
relating to the various factors bearing on the question of se ntence.”
The majority concluded:
“157-A. In this fasciculus of sections relating to confir mation
proceedings in the High Court, the legislature has provided
valuable safeguards of the life and liberty of the sub ject in
cases of capital sentences. These provisions seek to ensure
that where in a capital case, the life of the convic ted 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)
This aspect – presence of ‘valuable safeguards’ - therefore, was
an important consideration to uphold the validity of death sentence, i n
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 j ustice —
as important as the adjudication of guilt — and it should not
be consigned to a subsidiary position as if it were a mat ter 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 sentenc e
is the amalgam of many factors such as the nature o f the
3 Santa Singh v. State of Punjab, (1976) 4 SCC 190.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
offence, the circumstances — extenuating or aggravatin g —
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 ref erence
to education, home life, sobriety and social adjustme nt, the
emotional and mental condition of the offender, the prospects
for the rehabilitation of the offender, the possibility o f return
of the offender to a normal life in the community, the possibility
of treatment or training of the offender, the possi bility that
the sentence may serve as a deterrent to crime by the off ender
or by others and the current community need, if any, for su ch
a deterrent in respect to the particular type of offenc e. These
are factors which have to be taken into account by the court
in deciding upon the appropriate sentence, and, the refore,
the legislature felt that, for this purpose, a sepa rate stage
should be provided after conviction when the court can hear
the accused in regard to these factors bearing on se ntence
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 mere ly 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 sentenc e is not
abused and turned into an instrument for unduly protracting
the proceedings. The claim of due and proper hearing would
have to be harmonised with the requirement of expedit ious
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
4Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11.
555
Procedure Code is not discharged by putting a formal question
to the accused as to what he has to say on the questi on 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 be fore the
judge but that evidence itself often furnishes a cl ue to the
genesis of the crime and the motivation of the criminal. I t is
the bounden duty of the judge to cast aside the formalities of
the court scene and approach the question of sentence f rom
a broad, sociological point of view. The occasion t o apply
the provisions of Section 235(2) arises only after the
conviction is recorded. What then remains is the questio n 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 accu sed
makes to those questions are beyond the narrow constrain ts
of the Evidence Act. The court, while on the questi on of
sentence, is in an altogether different domain in which f acts
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 w ith 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: Firs tly,
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 r elevant,
only because of the first of these reasons. In other word s, it is
5Mithu v. State of Punjab, (1983) 2 SCC 277.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
because the court has an option to impose either of t he 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 3 03 of
the Penal Code does, neither Section 235(2) nor Sec tion
354(3) of the Code of Criminal Procedure can possibly come
into play. If the court has no option save to impos e the
sentence of death, it is meaningless to hear the acc used on
the question of sentence and it becomes superfluous t o 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 fundam ental
requirement of fair play that the accused who was hit herto
concentrating on the prosecution evidence on the qu estion
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 t he
choice from a wide range of discretion in the matte r of
sentencing. To assist the court in determining the correct
sentence to be imposed the legislature introduced sub-secti on
(2) to Section 235. The said provision therefore sa tisfies a
dual purpose; it satisfies the rule of natural just ice by
according to the accused an opportunity of being hea rd 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 be fore
6Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.
557
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 cl early
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 immediate ly
thereafter the decision imposing the death penalty on the two
accused was pronounced. In a case of life or death as stated
earlier, the presiding officer must show a high dec ree of
concern for the statutory right of the accused and should not
treat it as a mere formality to be crossed before makin g the
choice of sentence. If the choice is made, as in th is case,
without giving the accused an effective and real opportu nity
to place his antecedents, social and economic backgro und,
mitigating and extenuating circumstances, etc., bef ore the
court, the court’s decision on the sentence would b e
vulnerable. We need hardly mention that in many cas es a
sentencing decision has far more serious consequenc es on
the offender and his family members than in the cas e of a
purely administrative decision; a fortiori, therefo re, 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 h earing
is generally struck down as violative of the rule of natural
justice. Likewise a sentencing decision taken without follo wing
the requirements of sub-section (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 sentenci ng
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 a s the
aggravating circumstances placed before it, it must pronounce
the sentence. We think as a general rule the trial courts s hould
after recording the conviction adjourn the matter to a fut ure
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
date and call upon both the prosecution as well as the defe nce
to place the relevant material bearing on the quest ion of
sentence before it and thereafter pronounce the sent ence to
be imposed on the offender.”
(emphasis supplied)
11. In Anguswamy v. State of Tamil Nadu 7, 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 ci rcumstances -
and, for the prosecution, aggravating circumstances and that “sufficient
time must be given to the accused… on the question of sent ence”.
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 in tends
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 mi tigating
circumstances before the Court. This has not been done. The
trial court made no attempt to elicit relevant facts, nor di d 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 Da gdu
[Dagdu v. State of Maharashtra, (1977) 3 SCC 68 : 19 77
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 mean ingful
hearing on the question of sentence under Section 2 35(2)
7Anguswamy v. State of Tamil Nadu, (1989) 3 SCC 33.
8Malkiat Singh v. State of Punjab, (1991) 4 SCC 341.
9Dattaraya v. State of Maharashtra, (2020) 14 SCC 290.
559
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 Pradesh 10 also iterated
the need to have a separate hearing, on the question of sentence:
“16. A bifurcated hearing for convicting and senten cing 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 sent ence
shall be provided to the accused by the Trial Court [Rajendr a
Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 S CC
460].”
14. In Manoj & Ors. v. State of Madhya Pradesh 11 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 sentenci ng,
was not in keeping with the spirit of the law laid down in Bachan Singh
regarding Section 235(2):
“221. However, despite over four decades since Bach an
Singh there has been little to no policy-driven change, towar ds
formulating a scheme or system that elaborates how mitigati ng
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 mi tigating
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. St ate
(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.
***
10 Bhagwani v. State of Madhya Pradesh, 2022 SCC OnLine SC 52 (Criminal Appeal
Nos. 101-102/2022).
11Manoj & Ors. v. State of Madhya Pradesh, (2022) SCC OnLine SC 677 (Criminal
Appeal Nos. 248-250/2015).
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
239. It is unfortunate to note that both the trial C ourt, and
High Court, failed to provide an effective sentencing hearin g
to the accused, at the relevant stage, which is a rig ht under
Section 235(2) CrPC recognised by this court in sev eral
cases. In fact, it was argued by the accused that the tri al court
in contravention of this court’s judgments, had proce eded to
hear on sentencing almost immediately, depriving th e
accused of the opportunity to put forth their case fo r a less
stringent sentence. The trial court order on sentencing, records
in passing - the plea of ‘young age’ and ‘socio-eco nomic
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 judici al
conscience”, the High Court affirmed imposition of the d eath
penalty solely on the basis of the aggravating circumstan ces
of the crime, with negligible consideration of miti gating
circumstances of the criminal. This is in direct contrave ntion
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 Maharashtra 12, a three-judge bench of
this court rejected the interpretation of Santa Singh as laying down that
failure on the part of the court to hear a convicted accuse d, 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 desir es to be
adduced on the question of sentence ”. The court further held that:
“79. The Court may, in appropriate cases, have to a djourn
the matter in order to give to the accused sufficient tim e to
12Dagdu v. State of Maharashtra, (1977) 3 SCC 68.
561
produce the necessary data and to make his contention s on
the question of sentence. That, perhaps, must inevi tably
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 Punjab 13.
17. Another case, where a similar conclusion was arrived at, but
on differing reasoning was Ramdeo Chauhan v. State of Assam 14,
where in a review petition, a bench of three judges, uphel d 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 provis o15 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 sente nce 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 imprisonmen t for
life, there is no difficulty for the court where th e sentence
proposed to be imposed is an alternative sentence o f 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 : 1 992
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
sentence proposed on them particularly if such prop osed
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 sa me day as
13Tarlok Singh v. State of Punjab, (1977) 3 SCC 218.
14Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.
15 Inserted by Criminal Procedure Code Amendment Act, 1978.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
conviction initself 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 Maharashtra 17; Mukesh v.
State of NCT 18; Mohd. Mannan v. State of Bihar 19; and most recently,
Shatrughna Baban Meshram v. State of Maharashtra 20.
19. This court in X v. State of Maharashtra21 (three-judge bench),
extensively considered the precedents on the question of s entencing,
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 approa ch 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 mand ate of
Section 235(2) CrPC with best efforts.
40.4. Non-compliance can be rectified at the appellate st age
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 consider ations
and either afford an opportunity before itself or remand bac k
to the trial court, in appropriate case, for fresh considera tion.
40.6. However, the accused need to satisfy the appe llate
courts, inter alia by pleading on the grounds as to existe nce
of mitigating circumstances, for its further consid eration.
16B.A. Umesh v. High Court of Karnataka, (2017) 4 SCC 124.
17Vasanta Sampatha Dupare v. State of Maharashtra, (2018) 6 SCC 631.
18Mukesh v. State of NCT, (2017) 6 SCC 1.
19Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584.
20Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596.
21X v. State of Maharashtra, (2019) 7 SCC 1.
563
40.7. Being aware of certain harsh realities such a s long
protracted delays or jail appeals through legal aid , etc.,
wherein the appellate court, in appropriate cases, m ay take
recourse of independent enquiries on relevant facts o rdered
by the court itself.
40.8. If no such grounds are brought by the accused be fore
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, mo re
recently by this court in Manoj Suryavanshi v. State of Chattisgarh 22.
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 revie w stage), by
affording the accused a chance to adduce material, and thus f ulfilling
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 address ed 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 Rajasthan 23 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 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 directions 24 eliciting reports from
22Manoj Suryavanshi v. State of Chattisgarh, (2020) 4 SCC 451.
23Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768 (Crl.A. Nos.
910 – 911/2022).
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. 5964/2 019.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGA TING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEA TH
SENTENCES [S. RA VINDRA BHA T, J.]
the probation officer, jail authorities, a trained psychiatrist and
psychologist, etc., to assist the accused in presen ting 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 w orking out the
modalities of psychological evaluation, the stage of adducing evidence in
order to highlight mitigating circumstances, and the nee d to build
institutional capacity in this regard. The apprehensions relat ing 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 anal ysis 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 impos ition of capital
punishment is a choice of sentence, aggravating circumsta nces would
always be on record, and would be part of the prosecution’s evid ence,
leading to conviction, whereas the accused can scarcely be expected to
place mitigating circumstances on the record, for the re ason 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 matt er to ensure a
uniform approach on the question of granting real and m eaningful
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 o f India for
appropriate orders in this regard.
Ankit Gyan and Anurag Bhaskar Matter referred to lar ger Bench.
(Assisted by : Priyanshu Agarwal, LCRA)