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

IN RE: FRAMING GUIDELINES REGARDING POTENTIALMITIGATING CIRCUMSTANCES TO BE CONSIDERED WHILEIMPOSING DEATH SENTENCES

(Suo Motu Writ Petition (Crl.) No. 1 of 2022)

SEPTEMBER 19, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT ANDSUDHANSHU DHULIA, JJ.]

Code of Criminal Procedure, 1973 – ss. 235, 309 – Whether,after recording conviction for capital offence, under law, the courtis obligated to conduct separate hearing on the issue of sentence– Held: it is necessary to have clarity in the matter to ensure auniform approach on the question of granting real and meaningfulopportunity, as opposed to formal hearing, to the accused/convict,on the issue of sentence – Matter referred to larger bench of fiveHon’ble Judges.

Referring the matter to larger Bench, the Court

HELD : 1. There are two views, one view is that separatehearing on the question of sentence should be afforded to theaccused, after recording conviction. The court held that thehearing should be intended to afford an opportunity to placematerials to show mitigating circumstances - and, for theprosecution, aggravating circumstances and that “sufficient timemust be given to the accused… on the question of sentence”. Anotherview is, that same-day sentencing does not necessarily fall foul ofSection 235(2) of the CrPC. The contrary line of cases are basedon the premise that the court may adjourn for separate hearing,but the absence of it would not in itself vitiate the sentence. [Paras11 and 15][558-B-C; 560-E]

2. The common thread that runs through all these decisionsis the express acknowledgment that meaningful, real and effectivehearing must be afforded to the accused, with the opportunity toadduce material relevant for the question of sentencing. What isconspicuously absent, is consideration and contemplation aboutthe time this may require. In cases where it was felt that real andeffective hearing may not have been given (on account of the

Asame day sentencing), this court was satisfied that the flaw hadbeen remedied at the appellate (or review stage), by affordingthe accused chance to adduce material, and thus fulfilling themandate of Section 235(2). [Para 20][563-C-D]

3. There exists clear conflict of opinions by two sets ofBthree judge bench decisions on the subject. As notice, this courtin Bachan Singh had taken into consideration the fairness affordedto convict by separate hearing, as an important safeguard touphold imposition of death sentence in the rarest of rare cases,by relying upon the recommendations of the 48th LawCommission Report. It is also fact that in all cases whereCimposition of capital punishment is choice of sentence,aggravating circumstances would always be on record, and wouldbe part of the prosecution’s evidence, leading to conviction,whereas the accused can scarcely be expected to place mitigatingcircumstances on the record, for the reason that the stage forDdoing so is after conviction. This places the convict at hopelessdisadvantage, tilting the scales heavily against him. This court isof the opinion that it is necessary to have clarity in the matter toensure uniform approach on the question of granting real andmeaningful opportunity, as opposed to formal hearing, to theaccused/convict, on the issue of sentence. [Para 23][564-D-G]

EMithu v. State of Punjab (1983) 2 SCC 277 : [1983](2) SCR 690 – followed.

X v. State of Maharashtra (2019) 7 SCC 1 : [2019]6 SCR 1; Allauddin Mian v. State of Bihar (1989) 3 SCCF5 : [1989] 2 SCR 498; Anguswamy v. State of TamilNadu (1989) 3 SCC 33; Bachan Singh v. State ofPunjab [1983] 1 SCR 145; Bhagwani v. State ofMadhya Pradesh AIR 2022 SC 527; Dagdu v. State ofMaharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;Dattaraya v. State of Maharashtra (2020) 14 SCC 290G: [2019] 11 SCR 295; Malkiat Singh v. State of Punjab(1991) 4 SCC 341 : [1991] 2 SCR 256; ManojSuryavanshi v. State of Chattisgarh (2020) 4 SCC 451: [2020] 4 SCR 1; Manoj Pratap Singh v. State ofRajasthan 2022 SCC OnLine SC 768; Muniappan v.

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES

State of Tamil Nadu (1981) 3 SCC 11 : [1981]3 SCR 270; Ramdeo Chauhan v. State of Assam (2001)5 SCC 714 : [2001] 3 SCR 669; Santa Singh v. State ofPunjab (1976) 4 SCC 190 : [1977] 1 SCR 229; TarlokSingh v. State of Punjab (1977) 3 SCC 218 : [1977]3 SCR 711 – referred to.

CRIMINAL ORIGINAL JURISDICTION: Suo Moto WritPetition (Crl.) No. 1 of 2022.

Under Article 32 of The Constitution of India

By Courts Motion,

K.K. Venugopal, AG, Saurabh Mishra, AAG, Sidharth Dave,Sr. Adv (A.C.), Siddharth Agarwal, Sr. Adv., K Parameshwar, (A.C.),Ankur Talwar, Ms. Suhasini Sen, Ms. Chinmayee chandra, SiddhantKohli, Shikhil Suri, Ms. Jemtiben AO, Vidhi Thaker, Prastut Dalvi, Ms.Aarushi Singh, Madhav Chitale, Ms. Sregurupriya, Ms. AnkitaChoudhary, Pashupati Nath Razdan, Ms. Rukhmini Bobde, Ms. MirzaKayesh Begg, Astik Gupta, Prakhar Srivastav, Ms. Ayushi Mittal, VipulAbhishek, Mohd. Irshad Hanif, Rizwan Ahmad, Mujahid Ahmad, AarifAli, Mohd. Aslam, Mohd. Parvez, Ms. Sowjhanya Shankaran, Vishwajeet

ASingh Bhati, Ms Jasmine Chauhan, Ms. Shreya Rastogi, Ms. PratikshaBasarkar, Ms. Shivani Misra, Bhavesh Seth, Gaurav Agrawal, Advs.for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.B

1. This order is necessitated due to difference of opinion andapproach amongst various judgments, on the question of whether, afterrecording conviction for capital offence, under law, the court is obligatedto conduct separate hearing on the issue of sentence.

C2. Section 235 of the Code of Criminal Procedure, 1973(hereinafter, “CrPC” or “Code”) reads as follows:

“235. Judgment of acquittal or conviction.— (1) After hearingarguments and points of law (if any), the Judge shall give ajudgment in the case. (2) If the accused is convicted, the JudgeDshall, unless he proceeds in accordance with the provisionsof 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 ofthe erstwhile Code (of 1898). It was introduced on account of therecommendations of the 48th Report of the Law Commission of India,Eon Some Questions Under the Code of Criminal Procedure Bill, 1970(dated July 1972).

Additionally, Section 309 of the CrPC is also relevant. It reads asfollows:

F“309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial, the proceedings shall be held asexpeditiously as possible, and in particular, when theexamination of witnesses has once begun, the same shall becontinued from day to day until all the witnesses in attendanceGhave been examined, unless the Court finds the adjournmentof the same beyond the following day to be necessary forreasons to be recorded.

(2) If the Court, after taking cognizance of an offence, orcommencement of trial, finds it necessary or advisable toHpostpone the commencement of, or adjourn, any inquiry or

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

trial, it may, from time to time, for reasons to be recorded,postpone or adjourn the same on such terms as it thinks fit,for such time as it considers reasonable, and may by warrantremand the accused if in custody: Provided that no Magistrateshall remand an accused person to custody under this sectionfor term exceeding fifteen days at time:

Provided further that when witnesses are in attendance, noadjournment or postponement shall be granted, withoutexamining them, except for special reasons to be recorded inwriting: 1

Provided also that no adjournment shall be granted for thepurpose only of enabling the accused person to show causeagainst the sentence proposed to be imposed on him.

Explanation 1.- If sufficient evidence has been obtained toraise suspicion that the accused may have committed anoffence, and it appears likely that further evidence may beobtained by remand, this is reasonable cause for remand.

Explanation 2.- The terms on which an adjournment orpostponement may be granted include, in appropriate cases,the payment of costs by the prosecution or the accused.”

3. In Bachan Singh v. State of Punjab[1]this court, in its majorityjudgment, upheld the constitutionality of the death sentence, on thecondition that it could be imposed in the “rarest of rare” cases. Thecourt was conscious of the safeguard of separate hearing, on thequestion of sentence, and articulated such safeguard as valuableright, which insures to convict, to urge why in the circumstances of hisor her case, the extreme penalty of death ought not to be imposed. Thiscourt, in Bachan Singh, observed as follows:

“151. Section 354 (3) of the CrPC, 1973, marks significantshift in the legislative policy underlying the Code of 1898, asin force immediately before April 1, 1974, according to whichboth the alternative sentences of death or imprisonment forlife provided for murder and for certain other capital offencesunder the Penal Code, were normal sentences. Now accordingto this changed legislative policy which is patent on the face

of Section 354 (3), the normal punishment for murder and sixother capital offences under the Penal Code , is imprisonmentfor life (or imprisonment for term of years) and death penaltyis an exception. The Joint Committee of Parliament in itsReport, stated the object and reason of making this change,as follows:

‘A sentence of death is the extreme penalty of law and it is butfair that when Court awards that sentence in case wherethe alternative sentence of imprisonment for life is alsoavailable, it should give special reasons in support of thesentence.

Accordingly, Sub-section (3) of Section 354 of the currentCode provides:

“When the conviction is for an offence punishable with deathor, in the alternative with imprisonment for life orimprisonment for term of years, the judgment shall state thereasons for the sentence awarded, and, in the case of sentenceof death, the special reasons for such sentence.”

152. In the context, we may also notice Section 235 (2) of theCode of 1973, because it makes not only explicit, whataccording to the decision in Jagmohan’s case was implicit inthe scheme of the Code, but also bifurcates the trial byproviding for two hearings, one at the pre-conviction stageand another at the pre-sentence stage. It requires that:

“If the accused is convicted, the Judge shall, unless heproceeds in accordance with the provision of Section 360,hear the accused on the question of sentence, and then passsentence on him according to law.”

The Law Commission in its 48th Report had pointed out thisdeficiency in the sentencing procedure:

“45. It is now being increasingly recognised that rationaland consistent sentencing policy requires the removal ofseveral deficiencies in the present system. One such deficiencyis the lack of comprehensive information as to characteristicsand background at the offender.

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

The aims of sentencing:- Themselves obscure become all themore so in the absence of information on which thecorrectional process is to operate. The public as well as thecourts themselves are in the dark about judicial approach inthis regard.

We are of the view that the taking of evidence as to thecircumstances relevant to sentencing should be encouragedand both the prosecution and the accused should be allowedto co-operate in the process.”

By enacting Section 235 (2) of the new Code, Parliament hasaccepted that recommendation of the Law Commission.Although Sub-section (2) of Section 235 does not contain aspecific provision as to evidence and provides only for hearingof the accused as to sentence, yet it is implicit in this provisionthat if request is made in that behalf by either the prosecutionor the accused, or by both, the Judge should give the partyor parties concerned an opportunity of producing evidenceor material relating to the various factors bearing on thequestion of sentence. “Of course,”, as was pointed out bythis Court in Santa Singh v State of Punjab AIR 1976 SC 2386“care would have to be taken by the Court to see that thishearing on the question of sentence is not turned into aninstrument for unduly protracting the proceedings. The claimof due and proper hearing would have to be harmonised withthe requirement of expeditious disposal of proceedings.”

153. We may also notice Sections 432, 433 and 433A, as theythrow light as to whether life imprisonment as currentlyadministered in India, can be considered an adequatealternative to the capital sentence even in extremely heinouscases of murder.

154. Sections 432 and 433 of the Code of 1973 continueSections 401 and 402 of the Code of 1898, with necessarymodifications which bring them in tune with Articles 72 and161 of the Constitution. Section 432 invests the “appropriateGovernment” as (defined in Sub-section (7) of that section)with power to suspend or remit sentences. Section 433 conferson the appropriate Government power to commute sentence,without the consent of the person sentenced. Under Clause

(a) of the section, the appropriate Government may commutea sentence of death, for any other punishment provided bythe Indian Penal Code.

155. With effect from December 18, 1978, the Cr. PC(Amendment) Act, 1978, inserted new Section 433A which runsas under:

“433A. Restriction on power of remission or commutation incertain cases.- Notwithstanding anything contained in Section432, where sentence of imprisonment foe life is imposed onconviction of person for an offence for which death is oneof the punishments provided by law, or where sentence ofdeath imposed on person has been commuted under Section433 into one of imprisonment for life, such person shall notbe released from prison unless he had served at least fourteenyears of imprisonment.”

156. It may be recalled that in Jagmohan this Court hadobserved that, in practice, life imprisonment amounts to 12years in prison. Now, Section 433A restricts the power ofremission and commutation conferred on the appropriateGovernment under Section 432 and 433, so that personwho is sentenced to imprisonment for life or whose deathsentence is commuted to imprisonment for life must serve actualimprisonment for minimum of 14 years.

157. We may next notice other provisions of the extant Code(corresponding to Sections 374, 375, 376 and 377 of therepealed Code) bearing on capital punishment. Section 366(i) of the Code requires the Court passing sentence of deathto submit the proceedings to the High Court, and furthermandates that such sentence shall not be executed unless itis confirmed by the High Court. On such reference forconfirmation of death sentence, the High Court is required toproceed in accordance with Sections 367 and 368. Section367gives power to the High Court to direct further inquiry tobe made or additional evidence to be taken. Section368 empowers the High Court to confirm the sentence of deathor pass any other sentence warranted by law; or to annul oralter the conviction or order new trial or acquit the

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

accused. Section 369 enjoins that in every case so submitted,the confirmation of the sentence, or any new sentence or orderpassed by the High Court, shall, when such court consists oftwo or more Judges, be made, passed and signed by at leasttwo of them. Section 370 provides that where any such caseis heard before Bench of Judges and such Judges are equallydivided in opinion, the case shall be referred to third Judge.

158. In this fasciculus of sections relating to confirmationproceedings in the High Court, the Legislature has providedvaluable safeguards of the life and liberty of the subject incases of capital sentences. These provisions seek to ensuremat where in capital case, the life of the convicted person ifat stake, the entire evidential material bearing on theinnocence as guilt of the accused and the question of sentencemust be scrutinised with utmost caution and care by superiorCourt.”

4. This court then considered the issue before it, from variousperspectives, and observed further as follows:

“163. …Now, Section 235 (2) provides for bifurcated trialand specifically gives the accused person right of pre-sentence hearing, at which stage, he can bring on recordmaterial or evidence, which may not be strictly relevant to orconnected with the particular crime under inquiry, butnevertheless, have, consistently with the policy underlined inSection 354 (3) bearing on the choice of sentence. Thepresent legislative policy discernible from Section 235 (2) readwith Section 354 (3) is that in fixing the degree of punishmentor making the choice of sentence for various offences,including one under Section 302, Penal Code, the Courtshould not confine its consideration “principally” or merelyto the circumstances connected with particular crime, but alsogive due consideration to the circumstances of the criminal.

165. Attuned to the legislative policy delineated in Section354 (3) and Section 235 (2), propositions (iv) (a) and (v) (b)in Jagmohan, shall have to be recast and may be stated asbelow:

A(a) The normal rule is that the offence of murder shall bepunished with the sentence of life imprisonment. The courtcan depart from that rule and impose the sentence of deathonly if there are special reasons for doing so. Such reasonsmust be recorded in writing before imposing the deathsentence,B

(b) While considering the question of sentence to be imposedfor the offence of murder under Section 302 Penal Code; thecourt must have regard to every relevant circumstance relatingto the crime as well as the criminal. If the court finds, but nototherwise, that the offence is of an exceptionally depravedCand heinous character and constitutes, on account of itsdesign and the manner of its execution, source of gravedanger to the society at large, the court may impose the deathsentence.”

5. Bhagwati, J. who differed from the majority on theDconstitutionality of death sentence, also noticed the need for what in hisopinion was ‘bifurcated hearing’ on sentence, after court recordedconviction. The minority opinion pertinently observes as follows:[2]

“80. …These are undoubtedly some safeguards provided bythe legislature, but in the absence of any standards orEprinciples provided by the legislature to guide the exercise ofthe sentencing discretion and in view of the fragmented Benchstructure of the High Courts and the Supreme Court, thesesafeguards cannot be of any

help in eliminating arbitrariness and freakishness inFimposition of death penalty… The first requirement that thereshould be bifurcated proceeding at which the sentencingauthority is apprised of the information relevant to theimposition of sentence is met by the enactment of Section 235,sub-section (2), but the second requirement that the sentencingGauthority should be provided with standards to guide its useof the information is not satisfied and the imposition of deathpenalty under Section 302 of the Penal Code, 1860 read withSection 354, sub-section (3) of the Code of Criminal

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

Procedure, 1973 must therefore be held to be arbitrary andcapricious and hence violative of Articles 14 and 21.”

(emphasis supplied)

6. Plainly, therefore, the majority in Bachan Singh took note thatconvicts would be afforded separate hearing, to urge why capitalsentence ought not to be resorted to. The judgment noted the LawCommission’s observation that courts should “give the party or partiesconcerned an opportunity of producing evidence or materialrelating to the various factors bearing on the question of sentence.”The majority concluded:

“157-A. In this fasciculus of sections relating to confirmationproceedings in the High Court, the legislature has providedvaluable safeguards of the life and liberty of the subject incases of capital sentences.These provisions seek to ensurethat where in capital case, the life of the convicted personis at stake, the entire evidential material bearing on theinnocence or guilt of the accused and the question of sentencemust be scrutinised with utmost caution and care by superiorcourt.

(emphasis supplied)

This aspect – presence of ‘valuable safeguards’ - therefore, wasan important consideration to uphold the validity of death sentence, inthe rarest of rare cases.

7. In an earlier, two-judge bench decision in Santa Singh v. Stateof Punjab[3]this court had underlined the importance of separate hearingon the issue of sentence:

“3. …Moreover it was realised that sentencing is an importantstage in the process of administration of criminal justice —as important as the adjudication of guilt — and it should notbe consigned to subsidiary position as if it were matter ofnot much consequence. It should be matter of some anxietyto the court to impose an appropriate punishment on thecriminal and sentencing should, therefore, receive seriousattention of the court… The reason is that proper sentenceis the amalgam of many factors such as the nature of the

3 Santa Singh v. State of Punjab, (1976) 4 SCC 190.

Aoffence, the circumstances — extenuating or aggravating —of the offence, the prior criminal record, if any, of the offender,the age of the offender, the record of the offender as toemployment, the background of the offender with referenceto education, home life, sobriety and social adjustment, theemotional and mental condition of the offender, the prospectsBfor the rehabilitation of the offender, the possibility of returnof the offender to normal life in the community, the possibilityof treatment or training of the offender, the possibility thatthe sentence may serve as deterrent to crime by the offenderor by others and the current community need, if any, for suchCa deterrent in respect to the particular type of offence. Theseare factors which have to be taken into account by the courtin deciding upon the appropriate sentence, and, therefore,the legislature felt that, for this purpose, separate stageshould be provided after conviction when the court can hearthe accused in regard to these factors bearing on sentenceDand then pass proper sentence on the accused. Hence thenew provision in Section 235(2).

4. …We are, therefore, of the view that the hearingcontemplated by Section 235(2) is not confined merely tohearing oral submissions, but it is also intended to give anEopportunity to the prosecution and the accused to place beforethe court facts and material relating to various factors bearingon the question of sentence and if they are contested by eitherside, then to produce evidence for the purpose of establishingthe same. Of course, care would have to be taken by the courtFto see that this hearing on the question of sentence is notabused and turned into an instrument for unduly protractingthe proceedings. The claim of due and proper hearing wouldhave to be harmonised with the requirement of expeditiousdisposal of proceedings.”

G8. In Muniappan v. State of Tamil Nadu,[4] two-judge bench ofthis court held that Section 235(2) was not formality which could bedispensed with, and required consideration after conviction was confirmed:

“2. …The obligation to hear the accused on the question ofsentence which is imposed by Section 235(2) of the CriminalH4 Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11.

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

Procedure Code is not discharged by putting formal questionto the accused as to what he has to say on the question ofsentence. The judge must make genuine effort to elicit fromthe accused all information which will eventually bear on thequestion of sentence. All admissible evidence is before thejudge but that evidence itself often furnishes clue to thegenesis of the crime and the motivation of the criminal. It isthe bounden duty of the judge to cast aside the formalities ofthe court scene and approach the question of sentence froma broad, sociological point of view. The occasion to applythe provisions of Section 235(2) arises only after theconviction is recorded. What then remains is the question ofsentence in which not merely the accused but the whole societyhas stake. Questions which the judge can put to the accusedunder Section 235(2) and the answers which the accusedmakes to those questions are beyond the narrow constraintsof the Evidence Act. The court, while on the question ofsentence, is in an altogether different domain in which factsand factors which operate are of an entirely different orderthan those which come into play on the question of conviction.The Sessions Judge, in the instant case, complied with theform and letter of the obligation which Section 235(2) imposes,forgetting the spirit and substance of that obligation.”

9. In Mithu v. State of Punjab[5], five-judge bench of this courtwhile deliberating on the mandatory imposition of death sentence on aconvict committing murder while undergoing life sentence under Section303 of the Indian Penal Code, 1908 held as follows:

“7. …The majority [in Bachan Singh] concluded that Section302 of the Penal Code is valid for three main reasons: Firstly,that the death sentence provided for by Section 302 is analternative to the sentence of life imprisonment; secondly, thatspecial reasons have to be stated if the normal rule is departedfrom and the death sentence has to be imposed; and, thirdly,because the accused is entitled, under Section 235(2) of theCode of Criminal Procedure, to be heard on the question ofsentence. The last of these three reasons becomes relevant,only because of the first of these reasons. In other words, it is

5 Mithu v. State of Punjab, (1983) 2 SCC 277.

ABC

Abecause the court has an option to impose either of the twoalternative sentences, subject to the rule that the normalpunishment for murder is life imprisonment, that it is importantto hear the accused on the question of sentence. If the lawprovides mandatory sentence of death as Section 303 ofthe Penal Code does, neither Section 235(2) nor SectionB354(3) of the Code of Criminal Procedure can possibly comeinto play. If the court has no option save to impose thesentence of death, it is meaningless to hear the accused onthe question of sentence and it becomes superfluous to statethe reasons for imposing the sentence of death”C

(emphasis supplied)

The court thus reiterated that the accused was entitled to beheard on the question of sentence before its imposition. As Section 303of the Indian Penal Code, 1908 denied the accused such opportunity, itwas struck down.D10. In another judgment delivered by two-judge bench i.e.,Allauddin Mian v. State of Bihar[6], this court, noticing earlier decisions,and Bachan Singh, stated that:

“10. …The requirement of hearing the accused is intended toEsatisfy the rule of natural justice. It is fundamentalrequirement of fair play that the accused who was hithertoconcentrating on the prosecution evidence on the questionof guilt should, on being found

guilty, be asked if he has anything to say or any evidence toFtender on the question of sentence. This is all the morenecessary since the courts are generally required to make thechoice from wide range of discretion in the matter ofsentencing. To assist the court in determining the correctsentence to be imposed the legislature introduced sub-section(2) to Section 235. The said provision therefore satisfies aGdual purpose; it satisfies the rule of natural justice byaccording to the accused an opportunity of being heard onthe question of sentence and at the same time helps the courtto choose the sentence to be awarded. Since the provision isintended to give the accused an opportunity to place before

H6 Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

the court all the relevant material having bearing on thequestion of sentence there can be no doubt that the provisionis salutary and must be strictly followed. It is clearlymandatory and should not be treated as mere formality. MrGarg was, therefore, justified in making grievance that thetrial court actually treated it as mere formality as is evidentfrom the fact that it recorded the finding of guilt on 31-3-1987, on the same day before the accused could absorb andovercome the shock of conviction they were asked if they hadanything to say on the question of sentence and immediatelythereafter the decision imposing the death penalty on the twoaccused was pronounced. In case of life or death as statedearlier, the presiding officer must show high decree ofconcern for the statutory right of the accused and should nottreat it as mere formality to be crossed before making thechoice of sentence. If the choice is made, as in this case,without giving the accused an effective and real opportunityto place his antecedents, social and economic background,mitigating and extenuating circumstances, etc., before thecourt, the court’s decision on the sentence would bevulnerable. We need hardly mention that in many cases asentencing decision has far more serious consequences onthe offender and his family members than in the case of apurely administrative decision; fortiori, therefore, theprinciple of fair play must apply with greater vigour in thecase of the former than the latter. An administrative decisionhaving civil consequences, if taken without giving hearingis generally struck down as violative of the rule of naturaljustice. Likewise sentencing decision taken without followingthe requirements of sub-section (2) of Section 235 of the Codein letter and spirit would also meet similar fate and mayhave to be replaced by an appropriate order. The sentencingcourt must approach the question seriously and mustendeavour to see that all the relevant facts and circumstancesbearing on the question of sentence are brought on record.Only after giving due weight to the mitigating as well as theaggravating circumstances placed before it, it must pronouncethe sentence. We think as general rule the trial courts shouldafter recording the conviction adjourn the matter to future

DEF

date and call upon both the prosecution as well as the defenceto place the relevant material bearing on the question ofsentence before it and thereafter pronounce the sentence tobe imposed on the offender.”

(emphasis supplied)

11. In Anguswamy v. State of Tamil Nadu[7], two-judge benchhad also expressed the same view. In Malkiat Singh v. State of Punjab[8],again, three judges endorsed the view that separate hearing on thequestion of sentence should be afforded to the accused, after recordingconviction. The court held that the hearing should be intended to affordCan opportunity to place materials to show mitigating circumstances -and, for the prosecution, aggravating circumstances and that “sufficienttime must be given to the accused… on the question of sentence”.

12. Other more recent three-judge decisions have also ruled thatsame day sentencing in capital offences violate the principles of naturalDjustice, and is opposed to Section 235 (2). In Dattaraya v. State ofMaharashtra[9], this court observed, inter alia, that:

“132. For effective hearing under Section 235(2) of the Codeof Criminal Procedure, the suggestion that the court intendsto impose death penalty should specifically be made to theEaccused, to enable the accused to make an effectiverepresentation against death sentence, by placing mitigatingcircumstances before the Court. This has not been done. Thetrial court made no attempt to elicit relevant facts, nor did thetrial court give any opportunity to the petitioner to file anaffidavit placing on record mitigating factors. As such theFpetitioner has been denied an effective hearing.

133. Contrary to the dictum of this Court, inter alia, in Dagdu[Dagdu v. State of Maharashtra, (1977) 3 SCC 68 : 1977SCC (Cri) 421] and Santa Singh [Santa Singh v. State ofPunjab, (1976) 4 SCC 190 : 1976 SCC (Cri) 546] theGpetitioner was not given real, effective and meaningfulhearing on the question of sentence under Section 235(2)

7 Anguswamy v. State of Tamil Nadu, (1989) 3 SCC 33.

8 Malkiat Singh v. State of Punjab, (1991) 4 SCC 341.

9 Dattaraya v. State of Maharashtra, (2020) 14 SCC 290.

CrPC. The death sentence imposed on the petitioner is liableto be commuted to life imprisonment on this ground.”

13. In Bhagwani v. State of Madhya Pradesh[10] also iteratedthe need to have separate hearing, on the question of sentence:

“16. bifurcated hearing for convicting and sentencing isnecessary to provide an effective opportunity to the accused[Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra, (2009) 6 SCC 498]. Adequate opportunity toproduce relevant material on the question of death sentenceshall be provided to the accused by the Trial Court [RajendraPralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC460].”

14. In Manoj & Ors. v. State of Madhya Pradesh[11]this courthighlighted that in the absence of guidelines or framework, the scopeof the opportunity afforded to the accused to be heard on sentencing,was not in keeping with the spirit of the law laid down in Bachan Singhregarding Section 235(2):

“221. However, despite over four decades since BachanSingh there has been little to no policy-driven change, towardsformulating scheme or system that elaborates how mitigatingcircumstances 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 mitigatingcircumstances. It is clarified that mere mention of thesecircumstances by counsel, serve no purpose - rather, they mustbe connected to the possibility of reformation and assistprincipled judicial reasoning (as required under S. 235(2)CrPC). Constrained by this lack of assistance, this court (asmentioned above) in Rajesh Kumar [Rajesh Kumar v. State(2011) 13 SCC 706] has even gone so far as to hold that thevery fact that the state had not given any evidence to showthat the convict was beyond reform and rehabilitation was amitigating circumstance, in itself.

10 Bhagwani v. State of Madhya Pradesh, 2022 SCC OnLine SC 52 (Criminal AppealNos. 101-102/2022).

11 Manoj & Ors. v. State of Madhya Pradesh, (2022) SCC OnLine SC 677 (CriminalAppeal Nos. 248-250/2015).

A239. It is unfortunate to note that both the trial Court, andHigh Court, failed to provide an effective sentencing hearingto the accused, at the relevant stage, which is right underSection 235(2) CrPC recognised by this court in severalcases. In fact, it was argued by the accused that the trial courtin contravention of this court’s judgments, had proceeded toBhear on sentencing almost immediately, depriving theaccused of the opportunity to put forth their case for lessstringent sentence. The trial court order on sentencing, recordsin passing - the plea of ‘young age’ and ‘socio-economicfactors’ as mitigating circumstances, but reflects, at best, aCmechanical consideration of the same. Swayed by thebrutality of the crime and “shock of the collective and judicialconscience”, the High Court affirmed imposition of the deathpenalty solely on the basis of the aggravating circumstancesof the crime, with negligible consideration of mitigatingcircumstances of the criminal. This is in direct contraventionDof Bachan Singh.”

15. However, this court, also in three-judge combinations, has ona reading of these very judgments – i.e., Santa Singh, Muniappan,Allaudin Mian, Anguswamy, Malkiat Singh, etc., arrived at differentconclusion - that same-day sentencing does not necessarily fall foul ofESection 235(2) of the CrPC. This contrary line of cases are based on thepremise that the court may adjourn for separate hearing, but the absenceof it would not in itself vitiate the sentence.

16. In Dagdu v. State of Maharashtra[12], three-judge bench ofthis court rejected the interpretation of Santa Singh as laying down thatFfailure on the part of the court to hear convicted accused, on thequestion of sentence, would necessitate remand to the trial court. Instead,it held that such an omission could be remedied by the higher court byaffording hearing to the accused on the question of sentence, providedthe hearing was “real and effective” wherein the accused was permittedGto “adduce before the court all the data which he desires to beadduced on the question of sentence”. The court further held that:

“79. The Court may, in appropriate cases, have to adjournthe matter in order to give to the accused sufficient time to

H12 Dagdu v. State of Maharashtra, (1977) 3 SCC 68.

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

produce the necessary data and to make his contentions onthe question of sentence. That, perhaps, must inevitablyhappen where the conviction is recorded for the first time bya higher court.”

This was in turn, followed by another three-judge bench in TarlokSingh v. State of Punjab[13].

17. Another case, where similar conclusion was arrived at, buton differing reasoning was Ramdeo Chauhan v. State of Assam[14],where in review petition, bench of three judges, upheld the deathpenalty by 2:1 majority. In this case, the proviso to Section 309(2) ofCrPC was considered, in relation to Section 235(2). The court observedthat the previous rulings had not taken note of the second proviso[15] toSection 309 of the Code. The court held that the mandate of the provisounder Section 309 was not to adjourn the hearing for affording separateproceeding on sentence, however in cases where death sentence wasone of the choices of punishment, the court had discretion to adjourn thehearing for separate proceeding on sentence:“28. In case punishable with death or imprisonment forlife, there is no difficulty for the court where the sentenceproposed to be imposed is an alternative sentence of lifeimprisonment but if it proposes to award the death sentence,it has discretion to adjourn the case in the interests of justiceas held in Sukhdev Singh case [(1992) 3 SCC 700 : 1992SCC (Cri) 705] . I have no doubt in holding that despite thebar of third proviso to sub-section (2) of Section 309, thecourt, in appropriate cases, can grant adjournment forenabling the accused persons to show cause against thesentence proposed on them particularly if such proposedsentence is sentence of death.”

Thus, it was held that while the accused facing the possibility ofdeath sentence was not entitled to an adjournment, nothing barred thecourt from granting the same.

18. Several decisions have since relied on Dagdu, and concludedthat the action of the court sentencing an accused on the same day as

13 Tarlok Singh v. State of Punjab, (1977) 3 SCC 218.

14 Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.

15 Inserted by Criminal Procedure Code Amendment Act, 1978.

Aconviction in itself would not vitiate the sentence. These cases (in three-judge combination) include: B.A. Umesh v. High Court of Karnataka[16];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].B19. This court in X v. State of Maharashtra[21] (three-judge bench),extensively considered the precedents on the question of sentencing,and concluded the position of law as follows:

“40. As noted above, many cases have grappled with thequestion as to the choice between the two. The approach ofCthis Court needs to be rationalised and understood in thelight of cautionary approach discussed above. From theaforesaid 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 beDgiven meaningful opportunity.40.2. Meaningful hearing under Section 235(2) CrPC, in theusual course, is not conditional upon time or number of daysgranted for the same. It is to be measured qualitatively andnot quantitatively.

E40.3. The trial court needs to comply with the mandate ofSection 235(2) CrPC with best efforts.

40.4. Non-compliance can be rectified at the appellate stageas well, by providing meaningful opportunity.

40.5. If such an opportunity is not provided by the trial court,Fthe appellate court needs to balance various considerationsand either afford an opportunity before itself or remand backto the trial court, in appropriate case, for fresh consideration.

40.6. However, the accused need to satisfy the appellatecourts, inter alia by pleading on the grounds as to existenceGof mitigating circumstances, for its further consideration.

16 B.A. Umesh v. High Court of Karnataka, (2017) 4 SCC 124.

17 Vasanta Sampatha Dupare v. State of Maharashtra, (2018) 6 SCC 631.

18 Mukesh v. State of NCT, (2017) 6 SCC 1.

19 Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584.

20 Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596.

H21 X v. State of Maharashtra, (2019) 7 SCC 1.

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATINGCIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATHSENTENCES [S. RAVINDRA BHAT, J.]

40.7. Being aware of certain harsh realities such as longprotracted delays or jail appeals through legal aid, etc.,wherein the appellate court, in appropriate cases, may takerecourse of independent enquiries on relevant facts orderedby the court itself.

40.8. If no such grounds are brought by the accused beforethe appellate courts, then it is not obligated to take recourseunder Section 235(2) CrPC.”

This reasoning was further relied on in many decisions, morerecently by this court in Manoj Suryavanshi v. State of Chattisgarh[22].

20. The common thread that runs through all these decisions isthe express acknowledgment that meaningful, real and effective hearingmust be afforded to the accused, with the opportunity to adduce materialrelevant for the question of sentencing. What is conspicuously absent, isconsideration and contemplation about the time this may require. In caseswhere it was felt that real and effective hearing may not have beengiven (on account of the same day sentencing), this court was satisfiedthat the flaw had been remedied at the appellate (or review stage), byaffording the accused chance to adduce material, and thus fulfillingthe mandate of Section 235(2).

21. The question of what constitutes ‘sufficient time’ at the trialcourt stage, in this manner appears not to have been addressed in thelight of the express holding in Bachan Singh. This, in the court’sconsidered opinion, requires consideration and clarity. This court’s decisionin Manoj Pratap Singh v. State of Rajasthan[23]is an example, where‘sufficient time’ for compliance with Section 235(2) CrPC wasconsidered; it was concluded that the trial court had “scrupulouslycarried out its duty in terms of Section 235(2)” since the sentencewas awarded 3 days after the conviction, after considering both theaggravating 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 matterfor submissions on sentencing, with directions[24] eliciting reports from

22 Manoj Suryavanshi v. State of Chattisgarh, (2020) 4 SCC 451.

23 Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768 (Crl.A. Nos.

910 – 911/2022).

24 By order dated 29.09.2021. Reference was also made to orders dated 05.08.2021 and08.09.2021 passed by this Court in Diary No. 5964/2019.

Athe probation officer, jail authorities, trained psychiatrist andpsychologist, etc., to assist the accused in presenting mitigatingcircumstances. Noticing the lack of uniform framework in this regard,the present Suo Motu W.P. (Crl.) No. 1/2022 was initiated whereinthis court has indicated by its orders the necessity of working out themodalities of psychological evaluation, the stage of adducing evidence inBorder to highlight mitigating circumstances, and the need to buildinstitutional capacity in this regard. The apprehensions relating to theabsence of such framework was also recorded in the final judgment ofManoj & Ors. v. State of Madhya Pradesh, wherein the importanceof separate hearing and the necessity of background analysis of theCaccused, was highlighted. It was suggested that the social milieu, theage, educational levels, whether the convict had faced trauma earlier inlife, family circumstances, psychological evaluation of convict and post-conviction conduct, were relevant factors at the time of consideringwhether the death penalty ought to be imposed upon the accused.D23. In light of the above, there exists clear conflict of opinionsby two sets of three judge bench decisions on the subject. As noticedbefore, this court in Bachan Singh had taken into consideration thefairness afforded to convict by separate hearing, as an importantsafeguard to uphold imposition of death sentence in the rarest of rarecases, by relying upon the recommendations of the 48[th] Law CommissionEReport. It is also fact that in all cases where imposition of capitalpunishment is choice of sentence, aggravating circumstances wouldalways be on record, and would be part of the prosecution’s evidence,leading to conviction, whereas the accused can scarcely be expected toplace mitigating circumstances on the record, for the reason that theFstage for doing so is after conviction. This places the convict at hopelessdisadvantage, tilting the scales heavily against him. This court is of theopinion that it is necessary to have clarity in the matter to ensure auniform approach on the question of granting real and meaningfulopportunity, as opposed to formal hearing, to the accused/convict, onthe issue of sentence.G24. Consequently, this court is of the view that reference to alarger bench of five Hon’ble Judges is necessary for this purpose. Letthis matter be placed before the Hon’ble Chief Justice of India forappropriate orders in this regard.

HAnkit Gyan and Anurag Bhaskar(Assisted by : Priyanshu Agarwal, LCRA)

Matter referred to larger Bench.