LexDraft · Judgments

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

Supreme Court of India · 2022 INSC 987 · 2022

Coram: UDAY UMESH LALIT, S. RAVINDRA BHAT, SUDHANSHU DHULIA

Source: sci_open_data

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)