ACCUSED 'X' versus STATE OF MAHARASHTRA

[2019] 6 S.C.R. 1

ACCUSED ‘X’

STATE OF MAHARASHTRA

(Review Petition (Criminal) No. 301 of 2008)

(Criminal Appeal No. 680 of 2007)

APRIL 12, 2019

[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR ANDINDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973 :

ss. 235(2) and 465 – Pre-sentence hearing – Object andpurpose of – Whether pre-sentencing hearing, if conducted on thedate of conviction, is in contravention of s. 235(2) – Held: Objectof s. 235(2) is to provide an opportunity for accused to adducemitigating circumstances – As long purpose of s. 235(2) is met,inasmuch as the accused is afforded real and effective opportunityto plead his case in respect of sentencing, there is no bar on pre-sentencing hearing taking place on the same day as of conviction –Even assuming that procedural irregularity is committed by trialcourt to certain extent on the question of hearing on sentence,the violation can be remedial by appellate court – However, in viewof s.465 the appellate Court can reverse or alter order of competentjurisdiction on account of any error or irregularity only when sucherror/irregularity results in failure of justice – In the facts ofthe present case it cannot be said that the procedure envisagedu/s. 235(2) was not complied with.

Sentence / Sentencing

Imposition of sentence – Need to give reasons – Held: Trialcourt is obliged to give reasons for imposition of sentence – Anyincrease or decrease in the quantum of punishment than the usuallevels need to be reasoned – The principle is fortified by the statuteu/s. 235(2) Cr. P.C. as also by judicial interpretation – However,any reasoning dependent on moral and personal opinion/notion ofa judge about an offence needs to be avoided.

ASentencing discretion – Exercise of – Held: Power to exercisediscretion in giving punishment, should be exercised by Judges in aprincipled manner – strict fixed punishment approach insentencing cannot be accepted.

Death sentence – Post-conviction mental illness – Whether aBmitigating factor for converting death sentence to lifeimprisonment – Held:Post-conviction mental illness is based onappreciation of punishment and right to dignity – The Constitutionembodies broad and idealistic concepts of dignity, civilized standards,humanity and decency against which penal measures have to beevaluated – There is strong international consensus against theCexecution of individuals with mental illness – Various Prison Rulesalso recognise post-conviction mental illness as relevant factorfor Government to consider under its clemency jurisdiction – In thepresent case, since the mitigating factors were not present at thetime of commission of crime, this ground needs to be utilized only inDextreme cases of illness – There is no set disorders/disabilities forevaluating ‘severe mental illness’ - However, ‘test of severity’ canbe guiding factor for recognizing those mental illnesses whichqualify for an exemption – Post-conviction severe mental illnesswill be mitigating factor that the appellate court, in appropriatecases needs to consider while sentencing an accused to death penaltyE– Assessment of such disability is to be conducted by multi-disciplinary team of qualified professionals – Burden to prove severemental illness is on the accused – In the present case assessment bythe Psychiatrist with regard to mental illness of the accused is withoutany objective factor for such assessment and seems to be incomplete

F– However, in the facts of the case, it is not appropriate to constitutea panel for reassessment of the mental health of the accused – Inview of fact situation of the case, life imprisonment simplicitor wouldbe inadequate – Therefore, death sentence is commuted toimprisonment for remainder of his life sans any right to remission –Constitution of India – Arts. 20(1) and 21 – Mental Healthcare Act,G2017 – ss. 3 and 20(1) – Penal Code, 1860 – s. 84.

Mental Healthcare Act, 2017:

s.103 – Prisoners in jail – Cannot be ignored and left to rotaway – State is obliged to act as parens patriae – The Act aspiresHto provide mental health care to those who are in need, including

the prisoners – State is obliged to set up mental health establishmentin the medical wing of at least one prison in each State/UnionTerritory – State directed to consider the case of the accused underthe appropriate provisions of the Act.

Partly allowing the Review Petition, the Court

HELD: 1.1 Section 235(2) of CrPC implies that once thejudgment of conviction is pronounced, the Court will hear theaccused on the question of sentence and at that stage, it is opento the accused to produce such material on record as is availableto show the mitigating circumstances in his favour. In other words,the accused at this stage argues for imposition of lesser sentencebased on such mitigating circumstances as brought to the noticeof the Court by him. Section 235(2) of CrPC mandates Pre-Sentence Hearing for the accused and imbibes cardinal principlethat the sentence should be based on ‘reliable, comprehensiveinformation relevant to what the Court seeks to do’. In case theminimum sentence is proposed to be imposed upon the accused,the question of providing an opportunity under Section 235(2)would not arise. [Paras 15, 16 and 32][19-B-D; 25-C-D]

Bachan Singh v. State of Punjab (1980) 2 SCC684 – followed.

Sevaka Perumal v. State of Tamil Nadu AIR 1991 SC1463 : [1991] 2 SCR 711 ; State of Maharashtra v.Sukhdev Singh (1992) 3 SCC 700 : [1992] 3 SCR 480 ; Jai Kumar v. State of Madhya Pradesh AIR 1999SC 1860 ; Anshad v. State of Karnataka (1994) 4 SCC381 ; B.A. Umesh v. Registrar General, High Court ofKarnataka (2017) 4 SCC 124 : [2016] 5 SCR 438 ;Mukesh v. State (NCT of Delhi) (2017) 3 SCC 717 ;Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017]6 SCR 1 ; Chhannu Lal Verma v. State of Chhattisgarh2019 AIR 243 ; Santosh Kumar Satishbhushan Bariyar(2009) 6 SCC 498 : [2009] 9 SCR 90 ; RajendraPrahladrao Wasnik v. State of Maharashtra2019 AIR 1 ; Tarlok Singh v. State of Punjab (1977) 3SCC 218 : [1977] 3 SCR 711 ; Ramdeo Chauhan v.State of Assam (2001) 5 SCC 714 : [2001] 3 SCR669 – relied on.

[2019] 6 S.C.R.

ASanta Singh v. The State of Punjab (1976) 4 SCC190 : [1977] 1 SCR 229 ; Dagdu and others v. State ofMaharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636 ;Rajendra Prasad v. State of Uttar Pradesh AIR 1979SC 916 : [1979] 3 SCR 78 ; Muniappan v. State ofTamil Nadu (1981) 3 SCC 11 : [1981] 3 SCR 270 ;BAllauddin Mian v. State of Bihar (1989) 3 SCC 5 :[1989] 2 SCR 498 ; Malkiat Singh v. State of Punjab(1991) 4 SCC 341 : [1991] 2 SCR 256 ; Anguswamy v.State of Tamil Nadu (1989) 3 SCC 33 – referred to.

1.2 The object of Section 235(2) of Cr.P.C is to provide anCopportunity for accused to adduce mitigating circumstances. Thisdoes not mean, however, that the Trial Court can fulfil therequirements of Section 235(2) of Cr.P.C. only by adjourning thematter for one or two days to hear the parties on sentence. If theaccused is ready to submit his arguments on this aspect on theDvery day of pronouncement of the judgment of conviction, it isopen for the Trial Court to hear the parties on sentence on thesame day after passing the judgment of conviction. In givencase, based on facts and circumstances, the Trial Court maychoose to hear the parties on the next day or after two days aswell. [Para 33][25-E-G]E1.3 As long as the spirit and purpose of Section 235(2) ismet, inasmuch as the accused is afforded real and effectiveopportunity to plead his case with respect to sentencing, whethersimply by way of oral submissions or by also bringing pertinentmaterial on record, there is no bar on the pre-sentencing hearingFtaking place on the same day as the pre-conviction hearing.Depending on the facts and circumstances, separate date maybe required for hearing on sentence, but it is equally permissibleto argue on the question of sentence on the same day if the partieswish to do so. [Para 34][25-G-H; 26-A-B]G

1.4 Even assuming that procedural irregularity iscommitted by the trial court to certain extent on the questionof hearing on sentence, the violation can be remedied by theappellate Court by providing sufficient opportunity of being heardon sentence. Section 465 of CrPC mandates that no finding,

sentence or order passed by the Court of competent jurisdictionshall be reversed or altered by the Court of appeal on account ofany error, omission or irregularity in the order, judgment andother proceedings before or during trial unless such error,omission or irregularity results in failure of justice. Such non-compliance can be remedied by the appellate Court by eitherremanding the matter in appropriate cases or by itself giving aneffective opportunity to the accused. [Para 35][26-B-D]

1.5 There is no dispute that under Criminal Justice Systemin India, the highest discretion is provided to trial courts.Sometimes appellate courts, in order to preserve the competingfactors in play, provides discretion for the trial court to operate.However, appellate court must adopt ‘cautionary approach’ whenproviding such indulgence, which must be restricted and balancedagainst competing interests. The approach of Supreme Courtneeds to be rationalized and understood in the light of cautionaryapproach. Thus, the term ‘hearing’ occurring under Section 235(2)requires the accused and prosecution at their option, to be givena meaningful opportunity. Meaningful hearing under Section235(2) of CrPC, in the usual course, is not conditional upon timeor number of days granted for the same. It is to be measuredqualitatively and not quantitatively. The trial court need to complywith the mandate of Section 235(2) of CrPC with best efforts.Non-compliance can be rectified at the appellate stage as well,by providing meaningful opportunity. If such an opportunity isnot provided by the trial court, the appellate court needs tobalance various considerations and either afford an opportunitybefore itself or remand back to trial court, in appropriate case,for fresh consideration. However, the accused need to satisfythe appellate courts, inter alia by pleading on the grounds as toexistence of mitigating circumstances, for its furtherconsideration. Being aware of certain harsh realities such as longprotracted delays or jail appeals through legal aid etc., whereinthe appellate court, in appropriate cases, may take recourse ofindependent enquiries on relevant facts ordered by the courtitself. If no such grounds are brought by the accused before theappellate courts, then it is not obligated to take recourse underSection 235 (2) of CrPC. [Paras 37 and 38][26-F-G; 27-B-G]

A1.6 The record in the instant matter clearly shows that theaccused was accorded real and effective opportunity at the trialstage itself. Further, the opportunity granted to the petitionerby the High Court to adduce further material on this aspect wasabove and beyond the requirement of Section 235(2). The Courtshad taken all the attendant circumstances into account beforeBreaching the conclusion of awarding the death penalty. It is alsonot the case that the accused made request for hearing onsentencing on separate date and the same was refused. In suchcircumstances, it cannot be said that the procedure envisaged inSection 235(2) of CrPC was not complied with in the presentCcase. [Para 43][29-B-C]2.1 The World Health Organisation and the InternationalRed Cross, identify multiple circumstances such as overcrowding,various forms of violence, enforced solitude, lack of privacy,inadequate health care facilities, concerns about family etc, canDtake toll on the mental health of the prisoners. Due to theprevailing lack of awareness about such issues, the prisonershave no recourse and their mental health keeps on degradingday by day. [Para 45][29-E-F]

2.2 This Court may not laydown ‘definitive sentencingEpolicy’, which is rather legislative function, however, the Courtsin India have addressed this problem in principled manner havingregard to judicial standards and principles. These judicially set-principles not only serve as instructive guidelines, but alsopreserve the required discretion of the trial judges whilesentencing. However, achieving sentencing uniformity may notFonly require judicial efforts, but even the legislature may berequired to step in. [Para 50][31-A-C]

Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi)(2014) 4 SCC 375 : [2013] 9 SCR 1000 – relied on.

GMalimath Committee Report on Reforms in theCriminal Justice System – referred to.

2.3 Sentencing is appropriate allocation of criminalsanctions, which is mostly given by the judicial branch. Thisprocess occurring at the end of trial still has large impact on

the efficacy of Criminal Justice System. It is established thatsentencing is socio-legal process, wherein judge finds anappropriate punishment for the accused considering factualcircumstances and equities. In the light of the fact that thelegislature provided for discretion to the judges to givepunishment, it becomes important to exercise the same in aprincipled manner. strict fixed punishment approach insentencing cannot be acceptable, as the judge needs to havesufficient discretion as well. [Para 47][30-B-C]

2.4 Considering that large part of the exercise ofsentencing discretion is principled, Judge in India needs tokeep in mind broad purposes of punishment, which aredeterrence, incapacitation, rehabilitation, retribution andreparation (wherever applicable), unless particularly specified bythe legislature as to the choice. The purposes identified above,marks shift in law from crime-oriented sentencing to holisticapproach wherein the crime, criminal and victim have to be takeninto consideration collectively. [Para 52][31-E-G]

Rajendra Prasad v. State of Uttar Pradesh (1979) 3SCC 646 : [1979] 3 SCR 78 ; Piare Dusadh v. King

Emperor AIR 1944 FC 1 – referred to.

2.5 The reasoning of the trial court acts as link betweenthe general level of sentence for the offence committed and tothe facts and circumstances. The trial court is obligated to givereasons for the imposition of sentence, as firstly, it is afundamental principle of natural justice that the adjudicators mustprovide reasons for reaching the decision and secondly, thereasons assume more importance as the liberty of the accused issubject to the aforesaid reasoning. Further, the appellate courtis better enabled to assess the correctness of the quantum ofpunishment challenged, if the trial court has justified the samewith reasons. The aforesaid principle is fortified not only by thestatute under Section 235 (2) of CrPC but also by judicialinterpretation. Any increase or decrease in the quantum ofpunishment than the usual levels need to be reasoned by thetrial court. However, any reasoning dependent on moral andpersonal opinion/notion of Judge about an offence needs to beavoided at all costs. [Para 48][30-D-F]

[2019] 6 S.C.R.

A3.1 Sentencing generally involves curtailment of liberty andfreedom for the accused. Under Article 21 of the Constitution,right to life and liberty cannot be impaired unless taken by juslaws. [Para 56][33-D]

3.2 Usually, mitigating factors are associated with theBcriminal and aggravating factors are relatable to commission ofthe crime. These mitigating factors include considerations suchas the accused’s age, socio-economic condition etc. [Para 55][33-B]

3.3 The present case pertains to death penalty, whichCinevitably affects right to life, and is subjected to varioussubstantive and procedural protections under criminal justicesystem. An irreducible core of right to life is ‘dignity’. The dignityof human being inheres capacity for understanding, rationalchoice, and free will inherent in human nature, etc. The right todignity of an accused does not dry out with the judges’ ink, rather,Dit subsists well beyond the prison gates and operates until hislast breath. [Para 56][33-B]

Navtej Singh Johar v. Union of India AIR 2018 SC4321 : [2018] 7 SCR 379 ; Common Cause v. Union ofIndia AIR 2018 SC 1665 : [2018] 6 SCR 1 – referredEto.

3.4 In the context of mentally ill prisoners it is pertinent tomention that Section 20 (1) of the Mental Health Care Act, 2017,Act No. 10 of 2017, explicitly provides that ‘every person withmental illness shall have right to live with dignity’. [Para 56]F[33-G]

3.5 All human beings possess the capacities inherent intheir nature even though, because of infancy, disability, or senility,they may not yet, not now, or no longer have the ability to exercisethem. When such disability occurs, person may not be in aGposition to understand the implications of his actions and theconsequence it entails. In this situation, the execution of such aperson would lower the majesty of law. [Para 57][33-G-H; 34-A]

3.6 Article 20(1) of the Indian Constitution imbibes the ideacommunication/knowledge for the accused about the crime andHits punishment. It is this communicative element, which is

ingrained in the sentence (death penalty), that gives meaning tothe punishments in criminal proceeding. The notion of deathpenalty and the sufferance it brings along, causes incapacitationand is idealized to invoke sense of deterrence. If the accused isnot able to understand the impact and purpose of his execution,because of his disability, then the raison d’être for the executionitself collapses. [Para 58][34-A-C]

Atkins v. Virginia 536 U.S. 304 (2002) – referred to.

3.7 Moreover, Article 20 of the Constitution guaranteesindividuals the right not to be subjected to excessive criminalpenalty. The right flows from the basic tenet of proportionality.By protecting even those convicted of heinous crimes, this rightreaffirm the duty to respect the dignity of all persons. Therefore,Constitution embodies broad and idealistic concepts of dignity,civilized standards, humanity, and decency against which penalmeasures have to be evaluated. India is signatory to theConvention on Rights of Persons with Disabilities, which endorse‘prohibition of cruel, inhuman or degrading punishments’ withrespect to disabled persons. Additionally, there is stronginternational consensus against the execution of individuals withmental illness. [Para 60][34-E-G]

3.8 Various prison rules in India also recognizes thatgenerally the Government has the duty to pass appropriate orderson execution, if person is found to be lunatic. Thus, the PrisonRules have already recognized post-conviction mental illness asa relevant factor for Government to consider under its clemencyjurisdiction. [Para 61][35-A; C]

3.9 It must be recognized that insanity recognized underIPC and the mental illness in the present case arise at differentstage and time. Under IPC, Section 84 recognizes the plea oflegal insanity as defence against criminal prosecution. Thisdefence is restricted in its application and is made relatable tothe moment when the crime is committed. Therefore, Section 84of IPC relates to the mens rea at the time of commission of thecrime, whereas the plea of post-conviction mental illness is basedon appreciation of punishment and right to dignity. The differentnormative standards underpinning the above consequently meandifferent threshold standards as well. [Para 63][35-F-H]

10SUPREME COURT REPORTS

ASurendra Mishra v. State of Jharkhand (2011) 3 SCC(Cri.) 232 ; Amrit Bhushan Gupta v. Union of IndiaAIR 1977 SC 608 : [1977] 2 SCR 240 – relied on.

3.10 Considering the fact that the case is at the fag end ofthe process and the mitigating factors were not emergent at theBtime of commission of the crime, therefore this ground needs tobe utilized only in extreme cases of mental illness consideringthe element of marginal retribution which survives. In any case,considering that India has taken an obligation at an internationalforum to not punish mental patients with cruel and unusualpunishments, it would be necessary for this Court to provide forCa test wherein only extreme cases of convicts being mentally illare not executed. Moreover, this Court cautions againstutilization of this dicta as ruse to escape the gallows by pleadingsuch defense even if such ailment is not of grave severity.[Para 64][36-A-C]

3.11 ‘Severe Mental Illness’ under the ‘InternationalClassification of Diseases (ICD)’, which is accepted under Section3 of the Mental Health Care Act, 2017, generally include-schizophrenic and delusional disorders, mood (affective)disorders, including depressive, manic and bipolar forms,Eneuroses, including phobic, panic and obsessive–compulsivedisorders, behavioural disorders, including eating, sleep andstress disorders, personality disorders of different kinds.[Para 66][36-G-H; 37-A-B]

3.12 There is no set disorders/disabilities for evaluatingFthe ‘severe mental illness’, however ‘test of severity’ can be aguiding factor for recognizing those mental illness which qualifyfor an exemption. Therefore, the test envisaged herein predicatesthat the offender needs to have severe mental illness ordisability, which simply means that medical professional wouldobjectively consider the illness to be most serious so that heGcannot understand or comprehend the nature and purpose behindthe imposition of such punishment. These disorders generallyinclude schizophrenia, other serious psychotic disorders, anddissociative disorders-with schizophrenia. [Para 68][37-E-F]

3.13 Following directions need to be followed in the futurecases : That the post-conviction severe mental illness will be amitigating factor that the appellate Court, in appropriate cases,needs to consider while sentencing an accused to death penalty.The assessment of such disability should be conducted by multi-disciplinary team of qualified professionals (experienced medicalpractitioners, criminologists etc), including professional withexpertise in accused’s particular mental illness. The burden ison the accused to prove by preponderance of clear evidencethat he is suffering with severe mental illness. The accused hasto demonstrate active, residual or prodromal symptoms, that thesevere mental disability was manifesting. The State may offerevidence to rebut such claim. Court in appropriate cases couldsetup panel to submit an expert report. ‘Test of severity’envisaged herein predicates that the offender needs to have asevere mental illness or disability, which simply means thatobjectively the illness needs to be most serious that the accusedcannot understand or comprehend the nature and purpose behindthe imposition of such punishment. [Para 69][37-G-H; 38-A-D]

3.14 In the present case, the accused has submitted reportof the Class-I Psychiatrist, indicating that he was suffering fromsome sort of mental illness without providing any objective factorsfor such assessment. Moreover, the expert opinion offered by aPsychiatrist registered with the Maharashtra Medical Councilworking as co-ordinator of the Centre for Mental Health Lawand Policy, Indian Law Society, Pune, does not provide any furtherclarity. The Court is not satisfied with such statements made by

the doctors as the assessment seems to be incomplete. However,the present accused has been reeling under bouts of some formof mental irritability since 1994, as apparent from the records.Moreover, he has suffered long incarceration as well as deathrow convict. In the totality of circumstances, it is not appropriateto constitute panel for re-assessment of his mental condition,in the facts and circumstances of the case. [Paras 70, 71 and72][38-E; H; 39-C-D]

3.15 At the same time, sentence of life imprisonmentsimpliciter would be grossly inadequate in the instant case. Giventhe barbaric and brutal manner of commission of the crime, the

[2019] 6 S.C.R.

Agravity of the offence itself, the abuse of the victims’ trust by thePetitioner, and his tendency to commit such offences as is evidentfrom his past conduct, it is extremely clear that the Petitionerposes such grave threat to society that he cannot be allowed toroam free at any point whatsoever. In this view of the matter, it isfit to direct that the Petitioner shall remain in prison for theBremainder of his life. It is useful via media between theimposition of the death penalty and life imprisonment simpliciter(which usually works out to 14 years in prison upon remission).The petition is allowed to the extent that the sentenceof death awarded to the Petitioner is commuted to imprisonmentCfor the remainder of his life sans any right to remission.[Paras 73 and 74]39-E-H; 40-A-B]

Swamy Shraddananda (2) v. State of Karnataka (2008)13 SCC 767 : [2008] 11 SCR 93 ; Union of India v. V.Sriharan (2016) 7 SCC 1 : [2015] 14 SCR 613 ; TattuDLodhi v. State of Madhya Pradesh (2016) 9 SCC 675:[2016] 3 SCR 561 – relied on.

Shatrughan Chauhan v. Union of India (2014) 3 SCC1 : [2014] 1 SCR 609 ; Navneet Kaur v. State (NCT ofDelhi) (2014) 7 SCC 264 : [2014] 4 SCR 1138 ; VasantaESampat Dupare v. State of Maharashtra (2017) 6 SCC631 : [2017] 3 SCR 850 – referred to.

4.1 It is this state of ‘accused x’ that obliges the State toact as parens patriae. In this state ‘accused x’ cannot be ignoredand left to rot away, rather, he requires care and treatment.FGenerally, it needs to be understood that prisoners tend to haveincreased affinity to mental illness. Moreover, due to legalconstraints on the recognition of broad-spectrum mental illnesswithin the Criminal Justice System, prisons inevitably becomehome for greater number of mentally-ill prisoners of variousdegrees. There is no overlooking of the fact that the realitiesGwithin the prison walls may well compound and complicate theseproblems. [Para 75][40-B-C]

4.2 In order to address the same, the Mental HealthcareAct, 2017 was brought into force. The aspiration of the Act was

to provide mental health care facility for those who are in needincluding prisoners. The State Governments are obliged underSection 103 of the Act to setup mental health establishment inthe medical wing of at least one prison in each State and UnionTerritory, and prisoners with mental illness may ordinarily bereferred to and cared for in the said mental health establishment.Therefore, the State Government is directed to consider the caseof ‘accused x’ under the appropriate provisions of the MentalHealthcare Act, 2017 and if found entitled, provide for his rightsunder that enactment. [Paras 76 and 77][40-E-F]

Liebling, Maruna and McAra et al., The OxfordHandbook of Criminology (6[th] Ed. (2017)) – referred

Mohd. Arif @ Ashfaq v. The Registrar, SupremeCourt of India (2014) 9 SCC 737 : [2014] 11 SCR 1009– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Review Petition(Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007.

From the Judgment and Order dated 16.05.2008 of the SupremeCourt of India in Criminal Appeal No. 680 of 2007.G

Ms. Nitya Ramakrishnan, Shadan Farasat, Saaduzzaman, YashS. Vijay, Ms. Ninni Susan Thomas, Ms. Shruti Narayan, Ms. JahnaviSindhu, Advs. for the Petitioner.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. forthe Respondent.H

The Judgment of the Court was delivered by

N. V. RAMANA, J.

1. The instant proceedings pertain to the reopening of ReviewPetition (Crl.) No. 301 of 2008 to review the final Judgment and Orderdated 16.05.2008 passed by this Court in Criminal Appeal No. 680 of2007 dismissing the appeal filed by the Review Petitioner (hereinafter“the Petitioner”) and confirming his conviction under Sections 201, 363,376 and 302 of the Indian Penal Code (in short, “the IPC”). Vide theimpugned judgment, this Court upheld the sentence of 2 years’ rigorousimprisonment each under Sections 201 and 363, 10 years’ rigorousimprisonment under Section 376 and the death sentence under Section302, IPC imposed upon the Petitioner.

2. This petition raises complex questions concerning the relationshipbetween mental illness and crime. How can culpability be assessed forsentencing those with mental illness? Is treatment better suited thanpunishment? These are some of the questions we need to reflect upon inthis case at hand.

3. In line with Section 23 (1) of the Mental Healthcare Act, 2017,(Act 10 of 2017) and the right to privacy of the accused herein, whiletaking further action on this judgment, we direct the Registry to notdisclose the actual name of the accused and other pertinent informationwhich could lead to his identification as it concerns confidentialinformation. In this context we shall address the accused herein as‘accused x’.

4. Brief facts giving rise to the present petition are as follows; thetwo deceased, viz. victim-1 (studying in the 4[th] standard) and victim-2(studying in the 1[st] standard) were cousins staying at Gulumb,Maharashtra, in locality of homeless people (Beghar Vasti) at the houseof Ramdas Jadhav (PW-13, victim-1’s father). The Petitioner lived inthe adjacent house with his family. On 13.12.1999, at about 6 p.m., thePetitioner had gone to the grocery shop run by Sunil (PW-6), with hisdaughter, Reshma (PW-8), where he met the two deceased girls, and onthe pretext of offering sweets, he led the girls to accompany him.Thereafter, he committed the rape and murder of both girls, and threwvictim-2’s body in well situated in the field of the father of SakharamBhiku Yadav (PW-11), and concealed the body of victim-1 in “kalkachebet” (place where bamboo trees and shrubs grow together thickly).

A5. The Petitioner was apprehended by the villagers on the nextday, i.e. 14.12.1999, before whom he made an extra judicial confessionabout the murder of victim-2. The same day, he also led the police to therecovery of the bodies of the deceased as well as the discovery of thespot of commission of rape, from where bloodstained earth and plants,half-burnt bidis and broken bangles were recovered. The blood-stainedBclothes worn by the Petitioner at the time of arrest were also seized.The clothes of the deceased were recovered at his instance on25.12.1999. The FIR came to be lodged by Jaysing Dinkar Jadhav, PW10,the brother of the grandfather of the deceased.

6. The Trial Court in Sessions Case No. 142 of 2000 convictedCthe Petitioner for the offences stated supra on the basis of the ‘lastseen’ evidence; motive of the accused; seizure of blood-stained clothesworn by the accused; the Chemical Analysis Report showing that “A”group blood was found on the shirt and pant of the Petitioner as well asin his nail clippings, which was the blood group of both the deceased;Drecovery of the bodies of the deceased at the instance of the accused;discovery of the spot of commission of rape of the two deceasedwherefrom blood-stained earth and other incriminating articles wereseized; extra-judicial confession of the Petitioner; recovery of frocks athis instance; and the false explanation given by the Petitioner. The TrialCourt found that all these circumstances formed complete chain pointingEto the guilt of the Petitioner.

7. The High Court in Criminal Appeal No. 652 of 2001 andConfirmation Case No.3 of 2001, confirmed the conviction and sentenceas awarded by the Trial Court, including the sentence of death, relyingupon all the aforementioned circumstances except for the alleged extra-Fjudicial confession. This Court, in appeal, being Criminal Appeal No. 680of 2007, confirmed the same, holding that the case at hand falls into thecategory of the rarest of rare cases warranting punishment with death.Review Petition (Crl.) No. 301 of 2008 filed by the Petitioner against theabove Judgment and Order of this Court was dismissed vide order datedG19.11.2008 by the same three-Judge Bench which had rendered theJudgment in appeal, who after considering the matter by way of circulationheld that there was no merit in the petition.

8. criminal miscellaneous petition being Crl. M.P. No. 5584 of2015 was filed by the Petitioner seeking reopening of this review petition,Hplacing reliance on the decision of this Court dated 02.09.2014 in W.P.

(Crl.) No. 77 of 2014 in Mohd. Arif @ Ashfaq v. The Registrar,Supreme Court of India, (2014) 9 SCC 737, which held that in lightof Article 21 of the Indian Constitution, review petitions in death sentencecases were required to be heard orally by three-Judge Bench, andspecifically permitted the reopening of review petitions in all cases wherereview petitions had been dismissed by circulation.

9. In light of the above decision, this Court has heard the reviewpetition filed by the Petitioner orally in the open Court.

10. Learned counsel for the Petitioner, Ms. Nitya Ramakrishnan,did not raise any argument concerning the merits of the case, howeverraised only the following two arguments:- firstly, that the Trial Court hadnot given the Petitioner separate hearing while awarding the sentence,in direct contravention of Section 235(2) of the Code of CriminalProcedure (in short, “CrPC”), which provides for the right of pre-sentencing hearing as affirmed by this Court in Bachan Singh v. Stateof Punjab, (1980) 2 SCC 684 and plethora of other decisions; andsecondly, that the award of the death sentence to the Petitioner is contraryto the ratio of the three-Judge Bench decision of this Court in ShatrughanChauhan v. Union of India, (2014) 3 SCC 1, followed in four-JudgeBench decision of this Court in Navneet Kaur v. State (NCT of Delhi),(2014) 7 SCC 264, which held that the execution of persons sufferingfrom mental illness or insanity violates Article 21 of the Indian Constitutionand that such mental illness or insanity would be superveningcircumstance meriting commutation of the death sentence to lifeimprisonment.

11. Learned counsel for the Respondent, i.e. the State ofMaharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the otherhand, highlighted that the pre-sentencing hearing as envisaged underSection 235(2) of the Cr.P.C need not be conducted on separate date,and the sentence awarded by the Trial Court does not stand vitiatedmerely because the sentence with respect to hearing was not conductedon separate date. To that end, the counsel relied on the three-JudgeBench decision of this Court in Vasanta Sampat Dupare v. State ofMaharashtra, (2017) 6 SCC 631. He also submitted that the Petitioneris not suffering from any mental illness so as to warrant commutation ofthe death sentence, and to that effect submitted certain medical reports.

12. On hearing this petition, this Court was of the opinion thatthere was no merit in the Petitioner’s submissions against the order of

Aconviction, and it was therefore decided that this Court would hear onlyon the aspects of sentencing pertaining to two issues.

13.The first relates to the implications of non-compliance of Section235 (2) of CrPC during the sentencing process before the Trial Court.The second issue concerns the mental illness of ‘accused x’, which wasBraised for the first time in this Review Petition, after the judgment of thisCourt in the earlier round.

14. On the first issue, the learned counsel on behalf of the Petitionercontended that considering the fact that the procedural right of Pre-Sentence Hearing, as envisaged under Section 235 (2) of CrPC, wasCnever provided to the accused, this mandated fresh hearing before thetrial court on the sentencing aspect. In the instant case before us, theprinciple argument advanced by the counsel for the Petitioner was that,since the order of conviction and the order of sentence in the presentcase were passed on the same day, no opportunity was awarded to thePetitioner with regard to the sentence imposed upon him. Therefore, theDcounsel contended that the order of sentence passed in the present caseis in violation of Section 235 (2) of the CrPC, which is an illegality vitiatingthe entire sentence. The counsel vehemently argued that holistic readingof Section 235 (2) of the CrPC would indicate that the accused shouldbe given ample opportunity to produce materials in his favour so as toEplace on record the mitigating circumstances which mandate theimposition of lesser penalty.

15. It is pertinent at this point of time to note that countries followingthe common law tradition, prosecution historically did not play any partin the sentencing process and that it was mostly left for the judge toFdecide. In India, under the old Code, no opportunity was provided, post-conviction, for the accused to place relevant facts before the court. Itwas only after the introduction of the present Code in 1973 that such ahearing was provided for in accordance with modern penologicalpractices. At this stage it may be necessary to quote Section 235 ofCrPC, which provides for Pre-Sentence Hearing, among other things.

G235. Judgment of acquittal or conviction.

(2) If the accused is convicted, the Judge shall, unless he proceedsin accordance with the provisions of section 360, hear the accused

on the question of sentence, and then pass sentence on himaccording to law.

Section 235 (2) of CrPC implies that once the judgment ofconviction is pronounced, the Court will hear the accused on the questionof sentence and at that stage, it is open to the accused to produce suchmaterial on record as is available to show the mitigating circumstancesin his favor. In other words, the accused at this stage argues for impositionof lesser sentence based on such mitigating circumstances as brought tothe notice of the Court by him.

16. Section 235 (2) of CrPC mandates Pre-Sentence Hearing forthe accused and imbibes cardinal principle that the sentence should bebased on ‘reliable, comprehensive information relevant to what the Courtseeks to do’. In the case at hand, the accused argues that his right to fairtrial stands extinguished as he was not provided separate hearing forsentencing. This issue can be resolved directly by relying on theinterpretation of Section 235 (2) of CrPC and this Court’s jurisprudencebuilt around Pre-Sentence Hearing.

17. As also highlighted by the Petitioner, this requirement has alsobeen affirmed by the five-Judge Bench of this Court in Bachan Singhv. State of Punjab (supra), wherein it was also held that at the stage ofPre-Sentence Hearing, the accused can bring on record material orevidence, which may not be strictly relevant to or connected with theparticular crime under inquiry, but nevertheless, may have bearing onthe choice of sentence.

18. The first case on this point is Santa Singh v. The State ofPunjab, (1976) 4 SCC 190, which was decided by Division Bench ofthis Court presided by Justice Bhagwati (as His Lordship then was) andJustice Fazal Ali. This case revolved on the fact that an accused in adouble murder case was sentenced to death without providing anopportunity of ‘hearing’ under Section 235 (2) of CrPC, which was theonly ground of appeal before the Supreme Court. This Court, by twoconcurrent opinions, remanded the matter back to the trial court forfresh consideration on sentencing after giving an opportunity of ‘hearing’to the accused. Justice Bhagwati interpreted Section 235 (2) of CrPC inthe following manner-

“This material may be placed before the court by means ofaffidavits, but if either party disputes the correctness or veracity

of the material sought to be produced by the other, an opportunitywould have to be given to the party concerned to lead evidencefor the purpose of bringing such material on record.The hearingon the question of sentence, would be rendered devoid ofall meaning and content and it would become an idleformality, if it were confined merely to hearing oralsubmissions without any opportunity being given to thepartiesand particularly to the accused, to produce material inregard to various factors bearing on the question of sentence, andif necessary, to lead evidence for the purpose of placing suchmaterial before the court.

We are therefore of the view that the hearing contemplatedby section 235 (2) is not confined merely to hearing oralsubmissions, but it is also intended to give an opportunity to theprosecution and the accused to place before the court facts andmaterial relating to various factors bearing on the question ofsentence and if they are contested by either side, then to produceevidence for the purpose of establishing the same. Of course,

care would have to be taken by the court to see that thishearing on the question of sentence is not abused and turnedinto an instrument for unduly protracting the proceedings.”

(emphasis supplied)

Justice Fazal Ali, agreed with the aforesaid conclusion, and madeobservations along the same lines.

19. The aforesaid ruling came to be questioned in Dagdu andothers v. State of Maharashtra, (1977) 3 SCC 68, wherein similarquestion came before this Court. This Court, while repelling the submissionof the counsel for the accused therein, who argued that the ratio inSanta Singh Case (supra) mandated compulsory remand of the case tothe trial court, held as under-

“But we are unable to read the judgment in Santa Singh(supra) as laying down that the failure on the part of theCourt, which convicts an accused, to ‘hear him on thequestion of sentence must necessarily entail remand tothat Court in order to afford to the accused an opportunity

to. be heard on the question of sentence.The Court, onconvicting an accused, must unquestionably hear him on thequestion of sentence. But if, for any reason, it omits to do so andthe accused makes grievance of it in the higher court, it wouldbe open to that Court to remedy the breach by giving hearing tothe accused on the question of sentence. That opportunity has tobe real and effective, which means that the accused must bepermitted to adduce before the Court all the data which he desiresto adduce on the question of sentence. The accused may exercisethat right either by instructing his counsel to make oral submissionsto the Court or he may, on affidavit or otherwise, place in writingbefore the Court whatever he desires to place before it on thequestion of sentence. The Court may, in appropriate cases,have to adjourn the matter in order to give to the accusedsufficient time to produce the necessary data and to makehis contentions on the question of sentence.That, perhaps,must inevitably happen where the conviction is recorded for thefirst time by higher court.

Bhagwati J. has observed in his judgment that care ought to betaken to ensure that the opportunity of hearing on the questionof sentence is not abused and turned into an instrument for undulyprotracting the proceedings.”

(emphasis supplied)

20. In Rajendra Prasad v. State of Uttar Pradesh, AIR 1979SC 916, the Supreme Court expressed its concern that the mandatoryPre-Sentence Hearing had become nothing more than repetition of thefacts of the case. The Bench hoped that “the Bar will assist the Benchin fully using the resources of the new provision to ensure socio-personal justice, instead of ritualising the submissions on sentencingby reference only to materials brought on record for proof ordisproof of guilt”.

21. In the case of Muniappan v. State of Tamil Nadu, (1981) 3SCC 11, the Supreme Court noted that the trial court had sentenced theaccused to death stating that when the accused was asked to speak onthe question of sentence, he did not say anything. In such case theSupreme Court noted that the requirement of Section 235(2) was notdischarged by merely putting formal question to the accused, and the

Acourt should undertake genuine efforts. The Court observed therein that,“it is the bounden duty of the judge to cast aside the formalities ofthe court scene and approach the question of sentence from broad,sociological point of view”.

22. The question of providing sufficient time for Pre-SentenceBHearing was dealt with by the Court in Allauddin Mian v. State ofBihar, (1989) 3 SCC 5. The Supreme Court observed that the trial courthad not provided sufficient time to the accused for hearing on sentencing.Relevant factors, such as, the antecedents of the accused, their socio-economic conditions, and the impact of their crime on the communityhad not come on record, and in the absence of such information decidingCon punishment was difficult. The Supreme Court therefore recommendedthat, “as general rule the trial courts should after recording theconviction adjourn the matter to future date and call upon boththe prosecution as well as the defence to place the relevant materialbearing on the question of sentence before it and thereafterDpronounce the sentence to be imposed on the offender”. The aforesaidproposition was also reiterated in Malkiat Singh v. State of Punjab,(1991) 4 SCC 341.23. On the other hand, in Sevaka Perumal v. State of TamilNadu, AIR 1991 SC 1463, this Court upheld the death sentence evenEthough it was argued that no time had been given to raise grounds onsentencing by the trial court. This Court observed that, during the appeal,the defence counsel had been unable to provide any additional groundson sentence and therefore no prejudice had been caused to the accused.

24. In State of Maharashtra v. Sukhdev Singh, (1992) 3 SCCF700, the Supreme Court clarified that while Section 309 of the CrPCprescribed no power for adjournment of sentencing hearings, these shouldbe provided where the accused sought to produce materials in capitalcases. In Jai Kumar v. State of Madhya Pradesh, AIR 1999 SC 1860,this Court observed that the trial court had given an opportunity to thedefence to produce materials, which they chose not to do, and hadGconsidered the mitigating circumstances raised by them. This Court opinedthat, in such circumstances, it was not miscarriage of justice that thejudge did not adjourn the hearing.

25. In Anshad v. State of Karnataka, (1994) 4 SCC 381, thisCourt disapprovingly noted that the trial judge had dealt with sentencingH

cryptically in one paragraph and this defeated the very object of Section235(2) of CrPC, exposing “lack of sensitiveness on his part whiledealing with the question of sentence”. Commuting the sentences ofthe appellants, the Supreme Court observed that both the lower courtsdid not appreciate the aggravating and mitigating circumstances andtherefore their entire approach to sentencing was incorrect.

26. The aforesaid principle was further elucidated in the case ofB.A. Umesh v. Registrar General, High Court of Karnataka, (2017)4 SCC 124, wherein it was held that review petition cannot be allowedmerely because no separate date was given for hearing on the sentence.This Court held that Section 235(2) of CrPC does not mandate separatedate for the hearing of the sentence, rather, it is dependent on the factsand circumstances of the case, for instance, if parties insist to be heardon separate dates.

27. As per the order dated 03.02.2017 in Mukesh v. State (NCTof Delhi), (2017) 3 SCC 717, this Court, having found that there was nocompliance of Section 235 (2) of CrPC by the court’s below, observedas under-

“Having considered all the authorities, we find that thereare two modes, one is to remand the matter or to direct theaccused persons to produce necessary data and advancethe contention on the question of sentence. Regard beinghad to the nature of the case, we think it appropriate toadopt the second mode.To elaborate, we would like to giveopportunity before conclusion of the hearing to the accused personsto file affidavits along with documents stating about the mitigatingcircumstances. Needless to say, for the said purpose, it is necessarythat the learned Counsel, Mr. M.L. Sharma and his associate Ms.Suman and Mr. A.P. Singh and his associate Mr. V.P. Singh shouldbe allowed to visit the jail and communicate with the accusedpersons and file the requisite affidavits and materials.”

(emphasis supplied)

28. In the final order of Mukesh v. State (NCT of Delhi), (2017)6 SCC 1, this Court held that in the event the procedural requirementsunder Section 235 (2) of the CrPC are not met, the appellate court caneither remit the case back to the trial court or adjourn the matter before

Athe appellate forum for hearing on sentence after giving an opportunityto adduce evidence. On the other hand, the court also noted that anydeficiency in non-compliance of Section 235 (2) of CrPC can be curedby providing the opportunity at the appellate stage itself so as to curtailthe delay in the proceedings. In that case, this Court had allowed theaccused to file an affidavit listing the mitigating circumstance, noticingBthat no pre-hearing on sentence was ever carried out.

29. Two recent three-Judge Bench decisions of this Court on thisaspect merit our consideration. Firstly, in the decision dated 28.11.2018in Chhannu Lal Verma v. State of Chhattisgarh (Criminal Appeal Nos.1482-1483 of 2018), this Court observed that not having separate hearingCat the stage of trial was procedural impropriety. Noting that bifurcatedhearing for conviction and sentencing was necessary condition laiddown in Santosh Kumar Satishbhushan Bariyar, (2009) 6 SCC 498,the Court held that by conducting the hearing for sentencing on the sameday, the Trial Court failed to provide necessary time to the appellantDtherein to furnish evidence relevant to sentencing and mitigation. Wefind that this cannot be taken to mean that this Court intended to laydown, as proposition of law, that hearing the accused for sentencingon the same day as for conviction would vitiate the trial. On the contrary,in the said case, it was found on facts that the same was proceduralimpropriety because the accused was not given sufficient time to furnishEevidence relevant to sentencing and mitigation.

30. Secondly, in the decision dated 12.12.2018 in RajendraPrahladrao Wasnik v. State of Maharashtra, (Review Petition (Crl.)Nos. 306-307 of 2013), this Court made general observation that incases where the death penalty may be awarded, the Trial Court shouldFgive an opportunity to the accused after conviction which is adequatefor the production of relevant material on the question of the propriety ofthe death sentence. This is evidently at best directory in nature andcannot be taken to mean that pre-sentence hearing on separate dateis mandatory.

31. It may also be noted that in the older three-Judge Benchdecision of this Court in Malkiat Singh Case (supra), the Court observedthat keeping in mind the two-Judge Bench decisions in Allauddin MianCase (supra) and Anguswamy v. State of Tamil Nadu, (1989) 3 SCC33, wherein it had been laid down that sentence awarded on the sameHday as the finding of guilt is not in accordance with law, the normal

course of action in case of violation of such procedure would be remandfor further evidence. However, on perusal of these two decisions wefind that their import has not been correctly appreciated in Malkiat SinghCase (supra), since the observations in Allauddin Mian Case (supra),as relied upon in Anguswamy Case (supra), regarding conduct ofhearings on separate dates, were only directory. Be that as it may, itmust be noted that the effect of Malkiat Singh Case (supra) has alreadybeen considered by this Court in Vasanta Sampat Dupare Case (supra),wherein it was already noted that the mere non-conduct of the pre-sentence hearing on separate date would not per se vitiate the trial ifthe accused has been afforded sufficient time to place relevant materialon record.

32. It may not be out of context to note that in case the minimumsentence is proposed to be imposed upon the accused, the question ofproviding an opportunity under Section 235(2) would not arise. (SeeTarlok Singh v. State of Punjab, (1977) 3 SCC 218; Ramdeo Chauhanv. State of Assam, (2001) 5 SCC 714).

33. There cannot be any doubt that at the stage of hearing onsentence, generally, the accused argues based on the mitigatingcircumstances in his favour for imposition of lesser sentence. On theother hand, the State/the complainant would argue based on theaggravating circumstances against the accused to support the contentionrelating to imposition of higher sentence. The object of Section 235 (2)of the Cr.P.C is to provide an opportunity for accused to adduce mitigatingcircumstances. This does not mean, however, that the Trial Court canfulfil the requirements of Section 235(2) of the Cr.P.C. only by adjourningthe matter for one or two days to hear the parties on sentence. If theaccused is ready to submit his arguments on this aspect on the very dayof pronouncement of the judgment of conviction, it is open for the TrialCourt to hear the parties on sentence on the same day after passing thejudgment of conviction. In given case, based on facts and circumstances,the Trial Court may choose to hear the parties on the next day or aftertwo days as well.

34. In light of the above discussion, we are of the opinion that aslong as the spirit and purpose of Section 235(2) is met, inasmuch as theaccused is afforded real and effective opportunity to plead his casewith respect to sentencing, whether simply by way of oral submissionsor by also bringing pertinent material on record, there is no bar on the

Apre-sentencing hearing taking place on the same day as the pre-convictionhearing. Depending on the facts and circumstances, separate datemay be required for hearing on sentence, but it is equally permissible toargue on the question of sentence on the same day if the parties wish todo so.

B35. Now we need to consider the impact of non-compliance ofprocedure provided under Section 235 (2) of CrPC by the trial court.Even assuming that procedural irregularity is committed by the trialcourt to certain extent on the question of hearing on sentence, theviolation can be remedied by the appellate Court by providing sufficientopportunity of being heard on sentence. It must be kept in mind thatCSection 465 of the CrPC mandates that no finding, sentence or orderpassed by the Court of competent jurisdiction shall be reversed or alteredby the Court of appeal on account of any error, omission or irregularityin the order, judgment and other proceedings before or during trial unlesssuch error, omission or irregularity results in failure of justice. SuchDnon-compliance can be remedied by the appellate Court by eitherremanding the matter in appropriate cases or by itself giving an effectiveopportunity to the accused.

36. The narrative provided by numerous cases on this aspectportrays picture of the appellate Court trying to balance two importantErights, viz., right to fair trial and right to speedy trial. On one side, is theprocedural right granted to the accused under Section 235 (2) of CrPC,and on the other side is the possibility of misuse to delay the trial. Theexperienced judges in India have enough expertise to distinguish, betweenthe schemes for protracting trials from that of genuine causes in order toprotect rights of the accused.F37. This brings us to the role of appellate courts under our CriminalJustice System. There is no dispute that under our chosen system, thatthe highest discretion is provided to trial courts. Sometimes appellatecourts, in order to preserve the competing factors in play, providesdiscretion for the trial court to operate. However, appellate court mustGadopt ‘cautionary approach’ when providing such indulgence, whichmust be restricted and balanced against competing interests.[1] Thenarration of various court dicta, which are cited above, provide for acautionary tale right from Santa Singh Case onwards, as the choice of

1 Dame Sian Elias, Fairness in Criminal Justice (golden threads and pragmatic patches),HHamlyn Lectures (2018)

solution for remedying non-compliance of Section 235 (2) of CrPCprovides for selection of at least two different modes.

38. As noted above, many cases have grappled with the questionas to the choice between the two. The approach of this Court needs tobe rationalized and understood in the light of cautionary approachdiscussed above. From the aforesaid discussion, following dicta emerge-

i.That the term ‘hearing’ occurring under Section 235 (2)requires the accused and prosecution at their option, to begiven meaningful opportunity.

ii.Meaningful hearing under Section 235 (2) of CrPC, in theCusual course, is not conditional upon time or number of daysgranted for the same. It is to be measured qualitatively andnot quantitatively.

iii.The trial court need to comply with the mandate of Section235 (2) of CrPC with best efforts.

iv.Non-compliance can be rectified at the appellate stage aswell, by providing meaningful opportunity.

v.If such an opportunity is not provided by the trial court, theappellate court needs to balance various considerations andeither afford an opportunity before itself or remand back totrial court, in appropriate case, for fresh consideration.

vi.However, the accused need to satisfy the appellate courts,inter alia by pleading on the grounds as to existence ofmitigating circumstances, for its further consideration.

vii.Being aware of certain harsh realities such as long protracteddelays or jail appeals through legal aid etc., wherein theappellate court, in appropriate cases, may take recourse ofindependent enquiries on relevant facts ordered by the courtitself.

viii.If no such grounds are brought by the accused before theappellate courts, then it is not obligated to take recourseunder Section 235 (2) of CrPC.

39. Having discussed the law on pre-sentence hearing, it wouldbe appropriate at this juncture to revisit the decisions of the Courts,leading to this review in order to ascertain whether the Petitioner was

Agiven an effective opportunity to place material on record relevant to thequantum of sentence, in this instant case.

40. The Trial Court heard the Petitioner on the aspect of impositionof sentence separately, which is amply clear from paragraphs 79-87 ofthe judgment of the Trial Court. Hence, based on the material on recordBwe are satisfied that the Trial Court has fully complied with therequirement of Section 235(2) of the CrPC, While coming to itsconclusion, the Court held that the aggravating circumstances of thecrime, i.e. the magnitude and manner of commission of the crime in theform of the kidnapping, rape and murder of two minor girls, outweighedthe mitigating circumstances of the accused, i.e. the dependency of hisCaged mother on him, and his young age. The Court also gave weightageto the prior convictions of the accused for the same kind of offence, i.e.for the offence of rape of nine-year-old girl child under Sections 376and 506 of the IPC and Section 57 of the Bombay Children Act, as wellas for the kidnapping and rape of seven-year-old girl child under SectionsD363 and 366 of the IPC. It may be noted here itself that in light of his twoprior convictions, the Trial Court also gave him an opportunity to beheard on the question of Section 75 of the IPC, which pertains to enhancepunishment for certain offences under Chapter XII or XVII of the IPCafter previous conviction, but the factum of these convictions was alsonot contested by the Petitioner.E

41. Before the High Court as well, further material was broughton record by the Petitioner regarding his discharge in one case related tooffences of the same nature, which the Court found to not be in thenature of mitigating circumstance. The High Court was of the opinionthat the dependency of aged parents could also not be considered as aFmitigating circumstance to begin with, and that the accused was notyoung enough for his age to be considered as mitigating circumstance.The High Court noted the absence of any extreme mental or emotionaldisturbance leading to the commission of the offence, and observed thatgiven the past offending history of the accused, there was no hope of hisGreform or rehabilitation. The Court also noted the barbaric nature of theoffence, inasmuch as the Petitioner had cold-bloodedly raped andmurdered two innocent and defenceless girls by abusing the faith thatthey had reposed in him as their neighbour, and concluded that he wouldpose threat to society even if released for the smallest period of time,and might commit similar acts in the future. On this basis, the HighHCourt affirmed the death penalty awarded to the accused.

42. The Supreme Court, in appeal, being Criminal Appeal No. 680of 2007, also determined the case to fall into the category of the rarestof rare cases.

43. The record in the instant matter therefore clearly shows thatthe accused was accorded real and effective opportunity at the trialstage itself. It may further be stated that the opportunity granted to thePetitioner by the High Court to adduce further material on this aspectwas above and beyond the requirement of Section 235(2). The Courtshad taken all the attendant circumstances into account before reachingthe conclusion of awarding the death penalty. It is also not the case thatthe accused made request for hearing on sentencing on separatedate and the same was refused. In such circumstances, we reject thecontention that the procedure envisaged in Section 235(2) of the CrPCwas not complied with in the present case.

44. Now we need to consider the second issue concerning post-conviction mental illness as mitigating factor for converting deathsentence to life imprisonment.

45. It is pertinent for us to understand the phenomenon of post-conviction mental illness. As the phrase itself suggests, it is only afterbeing proven guilty, that the convict has developed such illness. It is wellacknowledged fact throughout the world that, prisons are difficult placesto be in. The World Health Organisation and the International Red Cross,identify multiple circumstances such as overcrowding, various forms ofviolence, enforced solitude, lack of privacy, inadequate health carefacilities, concerns about family etc, can take toll on the mental healthof the prisoners. Due to the prevailing lack of awareness about suchissues, the prisoners have no recourse and their mental healthkeeps on degrading day by day. The prevailing argument in favour ofsuch prisoners is that; whether the imposition of death penalty uponsuch prisoners is justified, who have clearly impaired their abilities toeven understand the nature and purpose of such punishment and thereasons for such imposition? The aforesaid issues will be dealt at lengthat the later stage.

46. The accused has now pleaded an entirely new ground of post-conviction mental illness for the first time herein, which obliges us to gointo the aspect of sentencing afresh. It is also brought to our notice thatthe appellant has been death row convict for almost 17 years, mandatingus to resolve the issue of sentencing herein. Before we consider the

Aappropriate punishment for the accused herein, reference needs to bemade to the background principles concerning sentencing policyconsidering that the present Petitioner is pleading mitigating factorwhich has arisen post-conviction.

47.Sentencing is appropriate allocation of criminal sanctions, whichBis mostly given by the judicial branch.[2] This process occurring at the endof trial still has large impact on the efficacy of Criminal JusticeSystem. It is established that sentencing is socio-legal process, whereina judge finds an appropriate punishment for the accused consideringfactual circumstances and equities. In light of the fact that the legislatureprovided for discretion to the judges to give punishment, it becomesCimportant to exercise the same in principled manner. We need toappreciate that strict fixed punishment approach in sentencing cannotbe acceptable, as the judge needs to have sufficient discretion as well.

48. Before analyzing this case, we need to address the issue ofthe impact of reasoning in the sentencing process. The reasoning of theDtrial court acts as link between the general level of sentence for theoffence committed and to the facts and circumstances. The trial court isobligated to give reasons for the imposition of sentence, as firstly, it is afundamental principle of natural justice that the adjudicators must providereasons for reaching the decision and secondly, the reasons assume moreEimportance as the liberty of the accused is subject to the aforesaidreasoning. Further, the appellate court is better enabled to assess thecorrectness of the quantum of punishment challenged, if the trial courthas justified the same with reasons. The aforesaid principle is fortifiednot only by the statute under Section 235 (2) of CrPC but also by judicialinterpretation. Any increase or decrease in the quantum of punishmentFthan the usual levels need to be reasoned by the trial court. However,any reasoning dependent on moral and personal opinion/notion of Judgeabout an offence needs to be avoided at all costs.

49. Sentencing in India, is midway between judicial intuition andstrict application of rule of law. As much as we value the rule of law, theGprocess of sentencing needs to preserve principled discretion for judge.In India, sentencing is mostly led by ‘guideline judgments’ in the deathpenalty context, while many other countries like United Kingdom and

2 Nicola Padfield, Rod Morgan and Mike Maguire, ‘Out of Court, out of sight? Criminalsanctions and no-judicial decision making’, The Oxford Handbook of CriminologyH(5[th] Ed.).

United States of America, provide basic framework in sentencingguidelines.

50. Although at the outset, it is clarified that this Court may notlaydown ‘definitive sentencing policy’, which is rather legislativefunction, however, the Courts in India have addressed this problem in aprincipled manner having regards to judicial standards and principles.These judicially set-principles not only serve as instructive guidelines,but also preserve the required discretion of the trial judges whilesentencing. Such an effort has already been initiated by the SupremeCourt, in Sunil Dutt Sharma Case, (2014) 4 SCC 375, when thesentencing guidelines evolved in the context of death penalty were appliedto lesser sentence as well. However, achieving sentencing uniformitymay not only require judicial efforts, but even the legislature may berequired to step in.51. Moreover, our attention is also drawn to the MalimathCommittee Report on Reforms in the Criminal Justice System, whichrecommended creation of statutory body for prescribing sentencingguidelines. Before concluding the aforementioned observations highlightingthe dangers of sentencing discretion, we are reminded of the words ofJustice Krishna Iyer, who held that “Guided missiles with lethalpotential, in unguided hands, even judicial, is grave risk wherethe peril is mortal though tempered by the appellate process.” [referRajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC 646]

52. In any case, considering that large part of the exercise ofsentencing discretion is principled, Judge in India needs to keep inmind broad purposes of punishment, which are deterrence, incapacitation,rehabilitation, retribution and reparation (wherever applicable), unlessparticularly specified by the legislature as to the choice. The purposesidentified above, marks shift in law from crime-oriented sentencing toa holistic approach wherein the crime, criminal and victim have to betaken into consideration collectively.

53. Having observed some of the general aspects of sentencing,it is necessary to consider the aspect of post-conviction mental illness asmitigating factor in the analysis of ‘rarest of the rare’ doctrine which hascome into force post Bachan Singh Case (supra).

54. As starting point we need to refer to Piare Dusadh v. KingEmperor, AIR 1944 FC 1, has already recognized post-conviction mentalillness as mitigating factor in the following manner-

Case No. 47-The appellant in this case was convicted by SpecialJudge of the offence of murder and was sentenced to death on30th September 1942. His appeal to the Allahabad High Courtwas dismissed and the sentence of death was confirmed. Theappellant is young man of 25 who has been twice widowed. Hisvictim was his aunt, 30 years of age, whose husband (Kanchan)had about six years previously murdered his own brother, appellant’sfather. Kanchan was sentenced to death for the murder, but losthis reason while awaiting the execution of the death sentence,and is now detained as lunatic. The evidence in this case leavesno room for doubt that the appellant was rightly convicted ofmurder. There is some confusion as to the exact motive for theundoubtedly brutal assault of which the appellant made his auntthe victim. The prosecution alleged that the appellant being awidower was chagrined by the refusal of his aunt to become hismistress. In his statement before, the Special Judge he said thatanother uncle (P.W. 7) who according to the appellant was behindthe prosecution was on terms of improper intimacy with thedeceased and resented even small acts of kindness on the part ofthe deceased towards the appellant. In the appeal preferred byhim through the jail authorities to the High Court, the appellantstated that his aunt was woman of loose character and waspursuing him with unwelcome attentions. The previous history ofthis family indicates that the appellant probably suffers from anunbalanced mind. The nature and ferocity of the assault upon hisaunt appear to confirm this.

In committing the offence the appellant must have beenactuated by jealousy or by indignation either of which wouldtend further to disturb the balance of his mind. He hasbesides been awaiting the execution of his death sentencefor over year. We think that in this case sentence oftransportation for life would be more appropriate than thesentence of death.

We accordingly reduce the sentence of death to one oftransportation for life and subject to this modification dismissthe appeal.

(emphasis supplied)

However, this case does not provide any guidelines or the thresholdfor evaluating what kind of mental illness needs to be taken intoconsideration by the Courts.

55. We note that, usually, mitigating factors are associated withthe criminal and aggravating factors are relatable to commission of thecrime. These mitigating factors include considerations such as theaccused’s age, socio-economic condition etc. We note that the groundclaimed by ‘accused x’ is arising after long-time gap after crime andconviction. Therefore, the justification to include the same as mitigatingfactor does not tie in with the equities of the case, rather the normativejustification is founded in the Constitution as well as the jurisprudence ofthe ‘rarest of the rare’ doctrine. It is now settled that the death penaltycan only be imposed in the rarest of the rare case which requires aconsideration of the totality of circumstances. In this light, we have toassess the inclusion of post-conviction mental illness as determiningfactor to disqualify as ‘rarest of the rare’ case.

56. Sentencing generally involves curtailment of liberty andfreedom for the accused. Under Article 21 of the Constitution, right tolife and liberty cannot be impaired unless taken by jus laws. In this casewe are concerned with the death penalty, which inevitably affects rightto life, and is subjected to various substantive and procedural protectionsunder our criminal justice system. An irreducible core of right to life is‘dignity’. [refer Navtej Singh Johar v. Union of India, AIR 2018 SC4321]. Right to human dignity comes in different shades and colours.[refer Common Cause v. Union of India, AIR 2018 SC 1665]. For ourpurposes, the dignity of human being inheres capacity for understanding,rational choice, and free will inherent in human nature, etc. The right todignity of an accused does not dry out with the judges’ ink, rather, itsubsists well beyond the prison gates and operates until his last breath.In the context of mentally ill prisoners it is pertinent to mention thatSection 20 (1) of the Mental Health Care Act, 2017, Act No. 10 of 2017,explicitly provides that ‘every person with mental illness shall have aright to live with dignity’.

57. All human beings possess the capacities inherent in their natureeven though, because of infancy, disability, or senility, they may not yet,not now, or no longer have the ability to exercise them. When suchdisability occurs, person may not be in position to understand the

Aimplications of his actions and the consequence it entails. In this situation,the execution of such person would lower the majesty of law.

58. Article 20 (1) of the Indian Constitution imbibes the ideacommunication/knowledge for the accused about the crime and itspunishment. It is this communicative element, which is ingrained in theBsentence (death penalty), that gives meaning to the punishments in acriminal proceeding. The notion of death penalty and the sufferance itbrings along, causes incapacitation and is idealized to invoke sense ofdeterrence. If the accused is not able to understand the impact andpurpose of his execution, because of his disability, then the raison d’êtrefor the execution itself collapses.C

59. It may not be out of context to refer Atkins v. Virginia, 536U.S. 304 (2002), wherein the United States Supreme Court, while dealingwith the question ‘whether the execution of mentally retarded persons“cruel and unusual punishment” prohibited by the Eighth Amendment?’The Court noted that hanging mentally disabled or retarded neitherDincreases the deterrence effect of death penalty nor does the non-execution of the mentally disabled will measurably impede the goal ofdeterrence.

60. Moreover, Article 20 of the Constitution guarantees individualsthe right not to be subjected to excessive criminal penalty. The rightEflows from the basic tenet of proportionality. By protecting even thoseconvicted of heinous crimes, this right reaffirm the duty to respect thedignity of all persons. Therefore, our Constitution embodies broad andidealistic concepts of dignity, civilized standards, humanity, and decencyagainst which penal measures have to be evaluated. In recognizing theseFcivilized standards, we may refer to the aspirations of India in being asignatory to the Convention on Rights of Persons with Disabilities, whichendorse ‘prohibition of cruel, inhuman or degrading punishments’ withrespect to disabled persons. Additionally, when the death penalty existedin England, there was common law right barring execution of lunaticprisoners.[3] Additionally, there is strong international consensus againstGthe execution of individuals with mental illness.[4]

3 Hale’s Pleas of the Crown Vol. I - p. 33; Coke’s Institutes, Vol. III, pg. 6; Black-stone’sCommentaries on the Laws of England Vol. IV, pages 18 and 19; , “An Introduction toCriminal Law”, by Rupert Cross, (1959), p. 67.

4 Commission on Human Rights Resolution 2000/65 The question of the death penalty,UN Commission on Human Rights (Apr. 27, 2000); G.A. Res. 69/186, ¶ 5(d) (Feb. 4,H2015);

61. We may note that various prison rules in India also recognizesthat generally the Government has the duty to pass appropriate orderson execution, if person is found to be lunatic. Andhra Pradesh PrisonRules, 1979, Rule 796; Gujarat Prisons (Lunatics) Rules, 1983; DelhiPrison Rules, 2018, Rule 824; Tamil Nadu Prison Rules, 1983, Rule 923;Maharashtra Prison Manual, 1979, Chapter XLII (GovernmentNotification, Home department, No. RJM-1058 (XLVI)/12,495-XVI,dated 18.01.1971); Model Prison Manual by Ministry of Home Affairs(2016), Rule 12.36 are some of the examples of legal instruments inIndia which have already recognized post-conviction mental illness as arelevant factor for Government to consider under its clemency jurisdiction.

62. Having understood the normative basis for recognition of post-conviction mental illness as mitigating factor in death penalty case,we must mention that Shatrughan Chauhan Case (supra) had identifiedthe same and holds as under:

“86. The above materials, particularly, the directions of the UnitedNations international conventions, of which India is party, clearlyshow that insanity/mental illness/schizophrenia is crucialsupervening circumstance, which should be considered by thisCourt in deciding whether in the facts and circumstances of thecase death sentence could be commuted to life imprisonment. Toput it clear, “insanity” is relevant supervening factor forconsideration by this Court.”

63. Now we need to consider the test for recognizing an accusedeligible for such mitigating factor. It must be recognized that insanityrecognized under IPC and the mental illness we are considering in thepresent case arise at different stage and time. Under IPC, Section 84recognizes the plea of legal insanity as defence against criminalprosecution. [refer Surendra Mishra v. State of Jharkhand, (2011) 3SCC (Cri.) 232]. This defence is restricted in its application and is maderelatable to the moment when the crime is committed. Therefore, Section84 of IPC relates to the mens rea at the time of commission of thecrime, whereas the plea of post-conviction mental illness is based onappreciation of punishment and right to dignity. [refer Amrit BhushanGupta v. Union of India, AIR 1977 SC 608] The different normativestandards underpinning the above consequently mean different thresholdstandards as well.

A64. On the other hand, considering the fact that the case is at thefag end of the process and the mitigating factors so discussed abovewere not emergent at the time of commission of the crime, thereforethis ground needs to be utilized only in extreme cases of mental illnessconsidering the element of marginal retribution which survives. In anycase, considering that India has taken an obligation at an internationalBforum to not punish mental patients with cruel and unusual punishments,it would be necessary for this Court to provide for test wherein onlyextreme cases of convicts being mentally ill are not executed. Moreover,this Court cautions against utilization of this dicta as ruse to escapethe gallows by pleading such defense even if such aliment is not ofCgrave severity.

65. Before we analyse this case at hand, brief survey ofclassification of mental illness and its impact on death penalty needs tobe considered. The Diagnostic and Statistical Manual of MentalDisorders (DSM), is one of the most well-known classification andDdiagnostic guides for mental disorders in America. Its fifth edition (DSM-5), published in 2013, defines mental disorder as follows: -

mental disorder is syndrome characterized by clinicallysignificant disturbance in an individual’s cognition, emotionregulation, or behaviour that reflects dysfunction in theEpsychological, biological, or developmental processesunderlying mental functioning. Mental disorders are usuallyassociated with significant distress in social, occupational,

or other important activities.An expectable or culturallyapproved response to common stressor or loss, such as thedeath of loved one, is not mental disorder. Socially deviantFbehavior (e.g., political, religious, or sexual) and conflicts that areprimarily between the individual and society are not mentaldisorders unless the deviance or conflict results from dysfunctionin the individual, as described above.

66. ‘Severe Mental Illness’ under the ‘International ClassificationGof Diseases (ICD)’, which is accepted under Section 3 of the MentalHealth Care Act, 2017, generally include-

1.schizophrenic and delusional disorders

2.mood (affective) disorders, including depressive, manic andbipolar formsH

3.neuroses, including phobic, panic and obsessive–compulsiveAdisorders

4.behavioural disorders, including eating, sleep and stressdisorders

5.personality disorders of different kinds.

67. American Bar Association, by its Resolution 122A passed onAugust 2006, notes as under-

(a) Grounds for Precluding Execution. sentence of death shouldnot be carried out if the prisoner has mental disorder or disabilitythat significantly impairs his or her capacity (i) to make rationaldecision to forgo or terminate post-conviction proceedings availableto challenge the validity of the conviction or sentence; (ii) tounderstand or communicate pertinent information, or otherwiseassist counsel, in relation to specific claims bearing on the validityof the conviction or sentence that cannot be fairly resolved withoutthe prisoner’s participation; or (iii) to understand the nature andpurpose of the punishment, or to appreciate the reason for itsimposition in the prisoner’s own case.

68. In line with the above discussion, we note that there appear tobe no set disorders/disabilities for evaluating the ‘severe mental illness’,however ‘test of severity’ can be guiding factor for recognizingthose mental illness which qualify for an exemption. Therefore, the testenvisaged herein predicates that the offender needs to have severemental illness or disability, which simply means that medical professionalwould objectively consider the illness to be most serious so that he cannotunderstand or comprehend the nature and purpose behind the impositionof such punishment. These disorders generally include schizophrenia,other serious psychotic disorders, and dissociative disorders-withschizophrenia.

69. Following directions need to be followed in the future cases inlight of the above discussion-

a.That the post-conviction severe mental illness will be amitigating factor that the appellate Court, in appropriate cases,needs to consider while sentencing an accused to deathpenalty.

Ab.The assessment of such disability should be conducted by amulti-disciplinary team of qualified professionals (experiencedmedical practitioners, criminologists etc), includingprofessional with expertise in accused’s particular mentalillness.

Bc.The burden is on the accused to prove by preponderanceof clear evidence that he is suffering with severe mentalillness. The accused has to demonstrate active, residual orprodromal symptoms, that the severe mental disability wasmanifesting.

Cd.The State may offer evidence to rebut such claim.

e.Court in appropriate cases could setup panel to submit anexpert report.

f.‘Test of severity’ envisaged herein predicates that the offenderneeds to have severe mental illness or disability, which simplyDmeans that objectively the illness needs to be most seriousthat the accused cannot understand or comprehend the natureand purpose behind the imposition of such punishment.

70. Having said so, it needs to be considered that the accused hassubmitted report of the Class-I Psychiatrist, Yerawada Central Prison,Eindicating that he was suffering from some sort of mental illness withoutproviding any objective factors for such assessment. We may reproducethe aforesaid report dated 25.09.2014, in the following manner-

Clinical impression:- no delusions, no hallucinations, sleep andappetite are normal.F

Remark:-Taking regular medication and maintaining improvement.He is under OPD under Psychiatric treatment since 21.12.1994and since then taking regular treatment. Currently he is on anti-psychotic drugs…

The doctor further opined that ‘he is maintaining good improvementGon medication, good diet. He is having psychological disturbanceand symptoms like irritability emerges when the dosage isdecreased.

71. Moreover, the expert opinion offered by Psychiatrist registeredwith the Maharashtra Medical Council working as coordinator of theH

Centre for Mental Health Law and Policy, Indian Law Society, Pune,does not provide any further clarity. We may extract the conclusionreached by the aforesaid report as well-

While no definite opinion can be given relating to the mentalhealth condition of Accused ‘X’and the treatment beingadministered to him, considering that he appears to be undertreatment for severe mental illness such as schizophrenia or

some type of psychosis, there appears to be need to reviewAccused x’s medical records and to clinically examine himto assess his current psychiatric status.

(emphasis supplied).

72. Even though we are not satisfied with such statements madeby the doctors as the assessment seems to be incomplete. However, it isto be noted that the present accused has been reeling under bouts ofsome form of mental irritability since 1994, as apparent from the recordsplaced before us. Moreover, he has suffered long incarceration as wellas death row convict. In the totality of circumstances, we do notconsider it be appropriate to constitute panel for re-assessment of hismental condition, in the facts and circumstances of this case.

73. At the same time, we cannot lose sight of the fact that asentence of life imprisonment simpliciter would be grossly inadequatein the instant case. Given the barbaric and brutal manner of commissionof the crime, the gravity of the offence itself, the abuse of the victims’trust by the Petitioner, and his tendency to commit such offences as isevident from his past conduct, it is extremely clear that the Petitionerposes such grave threat to society that he cannot be allowed to roamfree at any point whatsoever. In this view of the matter, we deem it fit todirect that the Petitioner shall remain in prison for the remainder of hislife. It need not be stated that this Court has in plethora of decisionsheld such an approach to be perfectly within its power to adopt, and thatit acts as useful via media between the imposition of the death penaltyand life imprisonment simpliciter (which usually works out to 14 yearsin prison upon remission). (See for instance Swamy Shraddananda(2) v. State of Karnataka, (2008) 13 SCC 767; Union of India v. V.Sriharan, (2016) 7 SCC 1; Tattu Lodhi v. State of Madhya Pradesh,(2016) 9 SCC 675).

A74. In light of the above discussion, the petition is allowed to theextent that the sentence of death awarded to the Petitioner is commutedto imprisonment for the remainder of his life sans any right to remission.

75. Further, it is this state of ‘accused x’ that obliges the State toact as parens patriae. In this state ‘accused x’ cannot be ignored andBleft to rot away, rather, he requires care and treatment. Generally, itneeds to be understood that prisoners tend to have increased affinity tomental illness.[5] Moreover, due to legal constraints on the recognition ofbroad-spectrum mental illness within the Criminal Justice System, prisonsinevitably become home for greater number of mentally-ill prisonersof various degrees. There is no overlooking of the fact that the realitiesCwithin the prison walls may well compound and complicate theseproblems.[6]76. In order to address the same, the Mental Healthcare Act,2017 was brought into force. The aspiration of the Act was to providemental health care facility for those who are in need including prisoners.DThe State Governments are obliged under Section 103 of the Act tosetup mental health establishment in the medical wing of at least oneprison in each State and Union Territory, and prisoners with mental illnessmay ordinarily be referred to and cared for in the said mental healthestablishment.E77. Therefore, we direct the State Government to consider thecase of ‘accused x’ under the appropriate provisions of the MentalHealthcare Act, 2017 and if found entitled, provide for his rights underthat enactment.

78. In light of the above discussion, this review petition standsFpartly allowed in the aforesaid terms and pending applications, if any,shall also stand disposed of.

Kalpana K. Tripathy

Review Petition partly allowed.

5 Although statistics on the same are not available for all of Indian prisons, but we wereable to compare sample studies within some Indian prisons and literature on psychiatricmorbidity concurs as well.

6 Liebling, Maruna and McAra et al., The Oxford Handbook of Criminology (6th Ed.H(2017)).