# [2022] 16 S.C.R. 543

- **Citation:** [2022] 16 S.C.R. 543
- **Court:** Supreme Court of India
- **Decided:** 2022-09-19
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Sudhanshu Dhulia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2022-16-s-c-r-543-35448
- **Pages:** 22

## Headnote

Code of Criminal Procedure, 1973 - ss. 235, 309 - Whether,
after recording conviction for a capital offence, under law, the court
is obligated to conduct a separate hearing on the issue of sentence
- Held: it is necessary to have clarity in the matter to ensure a
uniform approach on the question of granting real and meaningful
opportunity, as opposed to a formal hearing, to the accused/convict,
on the issue of sentence - Matter referred to a larger bench of five
Hon'ble Judges.
Referring the matter to larger Bench, the Court
HELD : 1. There are two views, one view is that a separate
hearing on the question of sentence should be afforded to the
accused, after recording conviction. The court held that the
hearing should be intended to afford an opportunity to place
materials to show mitigating circumstances - and, for the
prosecution, aggravating circumstances and that "sufficient time
must be given to the accused... on the question of sentence". Another
view is, that same-day sentencing does not necessarily fall foul of
Section 235(2) of the CrPC. The contrary line of cases are based
on the premise that the court may adjourn for a separate hearing,
but the absence of it would not in itself vitiate the sentence. [Paras
11 and 15][558-B-C; 560-E]
2. The common thread that runs through all these decisions
is the express acknowledgment that meaningful, real and effective
hearing must be afforded to the accused, with the opportunity to
adduce material relevant for the question of sentencing. What is
conspicuously absent, is consideration and contemplation about
the time this may require. In cases where it was felt that real and
effective hearing may not have been given (on account of the
[2022] 16 S.C.R. 543
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
same day sentencing), this court was satisfied that the flaw had
been remedied at the appellate (or review stage), by affording
the accused a chance to adduce material, and thus fulfilling the
mandate of Section 235(2). [Para 20][563-C-D]
3. There exists a clear conflict of opinions by two sets of
three judge bench decisions on the subject. As notice, this court
in Bachan Singh had taken into consideration the fairness afforded
to a convict by a separate hearing, as an important safeguard to
uphold imposition of death sentence in the rarest of rare cases,
by relying upon the recommendations of the 48th Law
Commission Report. It is also a fact that in all cases where
imposition of capital punishment is a choice of sentence,
aggravating circumstances would always be on record, and would
be part of the prosecution's evidence, leading to conviction,
whereas the accused can scarcely be expected to place mitigating
circumstances on the record, for the reason that the stage for
doing so is after conviction. This places the convict at a hopeless
disadvantage, tilting the scales heavily against him. This court is
of the opinion that it is necessary to have clarity in the matter to
ensure a uniform approach on the question of granting real and
meaningful opportunity, as opposed to a formal hearing, to the
accused/convict, on the issue of sentence. [Para 23][564-D-G]
Mithu 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 SCC
5 : [1989] 2 SCR 498; Anguswamy v. State of Tamil
Nadu (1989) 3 SCC 33; Bachan Singh v. State of
Punjab [1983] 1 SCR 145; Bhagwani v. State of
Madhya Pradesh AIR 2022 SC 527; Dagdu v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Dattaraya v. State of Maharashtra (2020) 14 SCC 290
: [2019] 11 SCR 295; Malkiat Singh v. State of Punjab
(1991) 4 SCC 341 : [1991] 2 SCR 256; Manoj
Suryavanshi v. State of Chattisgarh (2020) 4 SCC 451
: [2020] 4 SCR 1; Manoj Pratap Singh v. State of
Rajasthan 2022 SCC OnLine SC 768; Muniappan v.
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545
State of Tamil Nadu (1981) 3 SCC 11 : [1981]
3 SCR 270; Ramdeo Chauhan v. State of Ass

## Text

_Characters 0–39,918 of 48,909. This is a partial read: ask again with offset=39918 for what follows._

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 IN RE: FRAMING GUIDELINES REGARDING POTENTIAL
MITIGATING CIRCUMSTANCES TO BE CONSIDERED WHILE
IMPOSING DEATH SENTENCES
(Suo Motu Writ Petition (Crl.) No. 1 of 2022)
SEPTEMBER 19, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND
SUDHANSHU DHULIA, JJ.]
Code of Criminal Procedure, 1973 - ss. 235, 309 - Whether,
after recording conviction for a capital offence, under law, the court
is obligated to conduct a separate hearing on the issue of sentence
- Held: it is necessary to have clarity in the matter to ensure a
uniform approach on the question of granting real and meaningful
opportunity, as opposed to a formal hearing, to the accused/convict,
on the issue of sentence - Matter referred to a larger bench of five
Hon'ble Judges.
Referring the matter to larger Bench, the Court
HELD : 1. There are two views, one view is that a separate
hearing on the question of sentence should be afforded to the
accused, after recording conviction. The court held that the
hearing should be intended to afford an opportunity to place
materials to show mitigating circumstances - and, for the
prosecution, aggravating circumstances and that "sufficient time
must be given to the accused... on the question of sentence". Another
view is, that same-day sentencing does not necessarily fall foul of
Section 235(2) of the CrPC. The contrary line of cases are based
on the premise that the court may adjourn for a separate hearing,
but the absence of it would not in itself vitiate the sentence. [Paras
11 and 15][558-B-C; 560-E]
2. The common thread that runs through all these decisions
is the express acknowledgment that meaningful, real and effective
hearing must be afforded to the accused, with the opportunity to
adduce material relevant for the question of sentencing. What is
conspicuously absent, is consideration and contemplation about
the time this may require. In cases where it was felt that real and
effective hearing may not have been given (on account of the
[2022] 16 S.C.R. 543
543
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
same day sentencing), this court was satisfied that the flaw had
been remedied at the appellate (or review stage), by affording
the accused a chance to adduce material, and thus fulfilling the
mandate of Section 235(2). [Para 20][563-C-D]
3. There exists a clear conflict of opinions by two sets of
three judge bench decisions on the subject. As notice, this court
in Bachan Singh had taken into consideration the fairness afforded
to a convict by a separate hearing, as an important safeguard to
uphold imposition of death sentence in the rarest of rare cases,
by relying upon the recommendations of the 48th Law
Commission Report. It is also a fact that in all cases where
imposition of capital punishment is a choice of sentence,
aggravating circumstances would always be on record, and would
be part of the prosecution's evidence, leading to conviction,
whereas the accused can scarcely be expected to place mitigating
circumstances on the record, for the reason that the stage for
doing so is after conviction. This places the convict at a hopeless
disadvantage, tilting the scales heavily against him. This court is
of the opinion that it is necessary to have clarity in the matter to
ensure a uniform approach on the question of granting real and
meaningful opportunity, as opposed to a formal hearing, to the
accused/convict, on the issue of sentence. [Para 23][564-D-G]
Mithu 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 SCC
5 : [1989] 2 SCR 498; Anguswamy v. State of Tamil
Nadu (1989) 3 SCC 33; Bachan Singh v. State of
Punjab [1983] 1 SCR 145; Bhagwani v. State of
Madhya Pradesh AIR 2022 SC 527; Dagdu v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Dattaraya v. State of Maharashtra (2020) 14 SCC 290
: [2019] 11 SCR 295; Malkiat Singh v. State of Punjab
(1991) 4 SCC 341 : [1991] 2 SCR 256; Manoj
Suryavanshi v. State of Chattisgarh (2020) 4 SCC 451
: [2020] 4 SCR 1; Manoj Pratap Singh v. State of
Rajasthan 2022 SCC OnLine SC 768; Muniappan v.
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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 of
Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229; Tarlok
Singh v. State of Punjab (1977) 3 SCC 218 : [1977]
3 SCR 711 - referred to.
Case Law Reference
[1983] 1 SCR 145
referred to
Para 3
[1977] 1 SCR 229
referred to
Para 7
[1981] 3 SCR 270
referred to
Para 8
[1983] 2 SCR 690
followed
Para 9
[1989] 2 SCR 498
referred to
Para 10
[1991] 2 SCR 256
referred to
Para 11
[2019] 11 SCR 295
referred to
Para 12
[1977] 3 SCR 636
referred to
Para 16
[1977] 3 SCR 711
referred to
Para 16
[2001] 3 SCR 669
referred to
Para 17
[2019] 6 SCR 1
referred to
Para 19
[2020] 4 SCR 1
referred to
Para 19
CRIMINAL ORIGINAL JURISDICTION: Suo Moto Writ
Petition (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, Siddhant
Kohli, Shikhil Suri, Ms. Jemtiben AO, Vidhi Thaker, Prastut Dalvi, Ms.
Aarushi Singh, Madhav Chitale, Ms. A Sregurupriya, Ms. Ankita
Choudhary, Pashupati Nath Razdan, Ms. Rukhmini Bobde, Ms. Mirza
Kayesh Begg, Astik Gupta, Prakhar Srivastav, Ms. Ayushi Mittal, Vipul
Abhishek, Mohd. Irshad Hanif, Rizwan Ahmad, Mujahid Ahmad, Aarif
Ali, Mohd. Aslam, Mohd. Parvez, Ms. Sowjhanya Shankaran, Vishwajeet
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
Singh Bhati, Ms Jasmine Chauhan, Ms. Shreya Rastogi, Ms. Pratiksha
Basarkar, Ms. Shivani Misra, Bhavesh Seth, Gaurav Agrawal, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. This order is necessitated due to a difference of opinion and
approach amongst various judgments, on the question of whether, after
recording conviction for a capital offence, under law, the court is obligated
to conduct a separate hearing on the issue of sentence.
2. Section 235 of the Code of Criminal Procedure, 1973
(hereinafter, "CrPC" or "Code") reads as follows:
"235. Judgment of acquittal or conviction.- (1) After hearing
arguments and points of law (if any), the Judge shall give a
judgment in the case. (2) If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions
of Section 360, hear the accused on the question of sentence,
and then pass sentence on him according to law."
Section 235, as it exists in the statute today, was Section 309 of
the erstwhile Code (of 1898). It was introduced on account of the
recommendations of the 48th Report of the Law Commission of India,
on Some Questions Under the Code of Criminal Procedure Bill, 1970
(dated July 1972).
Additionally, Section 309 of the CrPC is also relevant. It reads as
follows:
"309. Power to postpone or adjourn proceedings.
(1) In every inquiry or trial, the proceedings shall be held as
expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be
continued from day to day until all the witnesses in attendance
have been examined, unless the Court finds the adjournment
of the same beyond the following day to be necessary for
reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or
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trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a warrant
remand the accused if in custody: Provided that no Magistrate
shall remand an accused person to custody under this section
for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in
writing: 1
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him.
Explanation 1.- If sufficient evidence has been obtained to
raise a suspicion that the accused may have committed an
offence, and it appears likely that further evidence may be
obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or
postponement may be granted include, in appropriate cases,
the payment of costs by the prosecution or the accused."
3. In Bachan Singh v. State of Punjab1 this court, in its majority
judgment, upheld the constitutionality of the death sentence, on the
condition that it could be imposed in the "rarest of rare" cases. The
court was conscious of the safeguard of a separate hearing, on the
question of sentence, and articulated such a safeguard as a valuable
right, which insures to a convict, to urge why in the circumstances of his
or her case, the extreme penalty of death ought not to be imposed. This
court, in Bachan Singh, observed as follows:
"151. Section 354 (3) of the CrPC, 1973, marks a significant
shift in the legislative policy underlying the Code of 1898, as
in force immediately before April 1, 1974, according to which
both the alternative sentences of death or imprisonment for
life provided for murder and for certain other capital offences
under the Penal Code, were normal sentences. Now according
to this changed legislative policy which is patent on the face
1 1983 (1) SCR 145
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
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of Section 354 (3), the normal punishment for murder and six
other capital offences under the Penal Code , is imprisonment
for life (or imprisonment for a term of years) and death penalty
is an exception. The Joint Committee of Parliament in its
Report, stated the object and reason of making this change,
as follows:
'A sentence of death is the extreme penalty of law and it is but
fair that when a Court awards that sentence in a case where
the alternative sentence of imprisonment for life is also
available, it should give special reasons in support of the
sentence.
Accordingly, Sub-section (3) of Section 354 of the current
Code provides:
"When the conviction is for an offence punishable with death
or, in the alternative with imprisonment for life or
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence."
152. In the context, we may also notice Section 235 (2) of the
Code of 1973, because it makes not only explicit, what
according to the decision in Jagmohan's case was implicit in
the scheme of the Code, but also bifurcates the trial by
providing for two hearings, one at the pre-conviction stage
and another at the pre-sentence stage. It requires that:
"If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provision of Section 360,
hear the accused on the question of sentence, and then pass
sentence on him according to law."
The Law Commission in its 48th Report had pointed out this
deficiency in the sentencing procedure:
"45. It is now being increasingly recognised that a rational
and consistent sentencing policy requires the removal of
several deficiencies in the present system. One such deficiency
is the lack of comprehensive information as to characteristics
and background at the offender.
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The aims of sentencing:- Themselves obscure become all the
more so in the absence of information on which the
correctional process is to operate. The public as well as the
courts themselves are in the dark about judicial approach in
this regard.
We are of the view that the taking of evidence as to the
circumstances relevant to sentencing should be encouraged
and both the prosecution and the accused should be allowed
to co-operate in the process."
By enacting Section 235 (2) of the new Code, Parliament has
accepted that recommendation of the Law Commission.
Although Sub-section (2) of Section 235 does not contain a
specific provision as to evidence and provides only for hearing
of the accused as to sentence, yet it is implicit in this provision
that if a request is made in that behalf by either the prosecution
or the accused, or by both, the Judge should give the party
or parties concerned an opportunity of producing evidence
or material relating to the various factors bearing on the
question of sentence. "Of course,", as was pointed out by
this Court in Santa Singh v State of Punjab AIR 1976 SC 2386
"care would have to be taken by the Court to see that this
hearing on the question of sentence is not turned into an
instrument for unduly protracting the proceedings. The claim
of due and proper hearing would have to be harmonised with
the requirement of expeditious disposal of proceedings."
153. We may also notice Sections 432, 433 and 433A, as they
throw light as to whether life imprisonment as currently
administered in India, can be considered an adequate
alternative to the capital sentence even in extremely heinous
cases of murder.
154. Sections 432 and 433 of the Code of 1973 continue
Sections 401 and 402 of the Code of 1898, with necessary
modifications which bring them in tune with Articles 72 and
161 of the Constitution. Section 432 invests the "appropriate
Government" as (defined in Sub-section (7) of that section)
with power to suspend or remit sentences. Section 433 confers
on the appropriate Government power to commute sentence,
without the consent of the person sentenced. Under Clause
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
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[2022] 16 S.C.R.
(a) of the section, the appropriate Government may commute
a sentence of death, for any other punishment provided by
the Indian Penal Code.
155. With effect from December 18, 1978, the Cr. PC
(Amendment) Act, 1978, inserted new Section 433A which runs
as under:
"433A. Restriction on power of remission or commutation in
certain cases.- Notwithstanding anything contained in Section
432, where a sentence of imprisonment foe life is imposed on
conviction of a person for an offence for which death is one
of the punishments provided by law, or where a sentence of
death imposed on a person has been commuted under Section
433 into one of imprisonment for life, such person shall not
be released from prison unless he had served at least fourteen
years of imprisonment."
156. It may be recalled that in Jagmohan this Court had
observed that, in practice, life imprisonment amounts to 12
years in prison. Now, Section 433A restricts the power of
remission and commutation conferred on the appropriate
Government under Section 432 and 433, so that a person
who is sentenced to imprisonment for life or whose death
sentence is commuted to imprisonment for life must serve actual
imprisonment for a minimum of 14 years.
157. We may next notice other provisions of the extant Code
(corresponding to Sections 374, 375, 376 and 377 of the
repealed Code) bearing on capital punishment. Section 366
(i) of the Code requires the Court passing a sentence of death
to submit the proceedings to the High Court, and further
mandates that such a sentence shall not be executed unless it
is confirmed by the High Court. On such a reference for
confirmation of death sentence, the High Court is required to
proceed in accordance with Sections 367 and 368. Section
367gives power to the High Court to direct further inquiry to
be made or additional evidence to be taken. Section
368 empowers the High Court to confirm the sentence of death
or pass any other sentence warranted by law; or to annul or
alter the conviction or order a new trial or acquit the
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accused. Section 369 enjoins that in every case so submitted,
the confirmation of the sentence, or any new sentence or order
passed by the High Court, shall, when such court consists of
two or more Judges, be made, passed and signed by at least
two of them. Section 370 provides that where any such case
is heard before a Bench of Judges and such Judges are equally
divided in opinion, the case shall be referred to a third Judge.
158. In this fasciculus of sections relating to confirmation
proceedings in the High Court, the Legislature has provided
valuable safeguards of the life and liberty of the subject in
cases of capital sentences. These provisions seek to ensure
mat where in a capital case, the life of the convicted person if
at stake, the entire evidential material bearing on the
innocence as guilt of the accused and the question of sentence
must be scrutinised with utmost caution and care by a superior
Court."
4. This court then considered the issue before it, from various
perspectives, and observed further as follows:
"163. ...Now, Section 235 (2) provides for a bifurcated trial
and specifically gives the accused person a right of presentence hearing, at which stage, he can bring on record
material or evidence, which may not be strictly relevant to or
connected with the particular crime under inquiry, but
nevertheless, have, consistently with the policy underlined in
Section 354 (3) a bearing on the choice of sentence. The
present legislative policy discernible from Section 235 (2) read
with Section 354 (3) is that in fixing the degree of punishment
or making the choice of sentence for various offences,
including one under Section 302, Penal Code, the Court
should not confine its consideration "principally" or merely
to the circumstances connected with particular crime, but also
give due consideration to the circumstances of the criminal.
***
165. Attuned to the legislative policy delineated in Section
354 (3) and Section 235 (2), propositions (iv) (a) and (v) (b)
in Jagmohan, shall have to be recast and may be stated as
below:
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
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(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such reasons
must be recorded in writing before imposing the death
sentence,
(b) While considering the question of sentence to be imposed
for the offence of murder under Section 302 Penal Code; the
court must have regard to every relevant circumstance relating
to the crime as well as the criminal. If the court finds, but not
otherwise, that the offence is of an exceptionally depraved
and heinous character and constitutes, on account of its
design and the manner of its execution, a source of grave
danger to the society at large, the court may impose the death
sentence."
5. Bhagwati, J. who differed from the majority on the
constitutionality of death sentence, also noticed the need for what in his
opinion was a 'bifurcated hearing' on sentence, after a court recorded
conviction. The minority opinion pertinently observes as follows:2
"80. ...These are undoubtedly some safeguards provided by
the legislature, but in the absence of any standards or
principles provided by the legislature to guide the exercise of
the sentencing discretion and in view of the fragmented Bench
structure of the High Courts and the Supreme Court, these
safeguards cannot be of any
help in eliminating arbitrariness and freakishness in
imposition of death penalty... The first requirement that there
should be a bifurcated proceeding at which the sentencing
authority is apprised of the information relevant to the
imposition of sentence is met by the enactment of Section 235,
sub-section (2), but the second requirement that the sentencing
authority should be provided with standards to guide its use
of the information is not satisfied and the imposition of death
penalty under Section 302 of the Penal Code, 1860 read with
Section 354, sub-section (3) of the Code of Criminal
2 Bhagwati, J.'s dissent in Bachan Singh v State of Punjab, (1982) 3 SCC 24.
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Procedure, 1973 must therefore be held to be arbitrary and
capricious and hence violative of Articles 14 and 21."
(emphasis supplied)
6. Plainly, therefore, the majority in Bachan Singh took note that
convicts would be afforded a separate hearing, to urge why capital
sentence ought not to be resorted to. The judgment noted the Law
Commission's observation that courts should "give the party or parties
concerned an opportunity of producing evidence or material
relating to the various factors bearing on the question of sentence."
The majority concluded:
"157-A. In this fasciculus of sections relating to confirmation
proceedings in the High Court, the legislature has provided
valuable safeguards of the life and liberty of the subject in
cases of capital sentences. These provisions seek to ensure
that where in a capital case, the life of the convicted person
is at stake, the entire evidential material bearing on the
innocence or guilt of the accused and the question of sentence
must be scrutinised with utmost caution and care by a superior
court.
(emphasis supplied)
This aspect - presence of 'valuable safeguards' - therefore, was
an important consideration to uphold the validity of death sentence, in
the rarest of rare cases.
7. In an earlier, two-judge bench decision in Santa Singh v. State
of Punjab3 this court had underlined the importance of a separate hearing
on the issue of sentence:
"3. ...Moreover it was realised that sentencing is an important
stage in the process of administration of criminal justice -
as important as the adjudication of guilt - and it should not
be consigned to a subsidiary position as if it were a matter of
not much consequence. It should be a matter of some anxiety
to the court to impose an appropriate punishment on the
criminal and sentencing should, therefore, receive serious
attention of the court... The reason is that a proper sentence
is the amalgam of many factors such as the nature of the
3 Santa Singh v. State of Punjab, (1976) 4 SCC 190.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
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offence, the circumstances - extenuating or aggravating -
of the offence, the prior criminal record, if any, of the offender,
the age of the offender, the record of the offender as to
employment, the background of the offender with reference
to education, home life, sobriety and social adjustment, the
emotional and mental condition of the offender, the prospects
for the rehabilitation of the offender, the possibility of return
of the offender to a normal life in the community, the possibility
of treatment or training of the offender, the possibility that
the sentence may serve as a deterrent to crime by the offender
or by others and the current community need, if any, for such
a deterrent in respect to the particular type of offence. These
are factors which have to be taken into account by the court
in deciding upon the appropriate sentence, and, therefore,
the legislature felt that, for this purpose, a separate stage
should be provided after conviction when the court can hear
the accused in regard to these factors bearing on sentence
and then pass proper sentence on the accused. Hence the
new provision in Section 235(2).
4. ...We are, therefore, of the view that the hearing
contemplated by Section 235(2) is not confined merely to
hearing oral submissions, but it is also intended to give an
opportunity to the prosecution and the accused to place before
the court facts and material relating to various factors bearing
on the question of sentence and if they are contested by either
side, then to produce evidence for the purpose of establishing
the same. Of course, care would have to be taken by the court
to see that this hearing on the question of sentence is not
abused and turned into an instrument for unduly protracting
the proceedings. The claim of due and proper hearing would
have to be harmonised with the requirement of expeditious
disposal of proceedings."
8. In Muniappan v. State of Tamil Nadu,4 a two-judge bench of
this court held that Section 235(2) was not a formality which could be
dispensed with, and required consideration after conviction was confirmed:
"2. ...The obligation to hear the accused on the question of
sentence which is imposed by Section 235(2) of the Criminal
4 Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11.
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Procedure Code is not discharged by putting a formal question
to the accused as to what he has to say on the question of
sentence. The judge must make a genuine effort to elicit from
the accused all information which will eventually bear on the
question of sentence. All admissible evidence is before the
judge but that evidence itself often furnishes a clue to the
genesis of the crime and the motivation of the criminal. It is
the bounden duty of the judge to cast aside the formalities of
the court scene and approach the question of sentence from
a broad, sociological point of view. The occasion to apply
the provisions of Section 235(2) arises only after the
conviction is recorded. What then remains is the question of
sentence in which not merely the accused but the whole society
has a stake. Questions which the judge can put to the accused
under Section 235(2) and the answers which the accused
makes to those questions are beyond the narrow constraints
of the Evidence Act. The court, while on the question of
sentence, is in an altogether different domain in which facts
and factors which operate are of an entirely different order
than those which come into play on the question of conviction.
The Sessions Judge, in the instant case, complied with the
form and letter of the obligation which Section 235(2) imposes,
forgetting the spirit and substance of that obligation."
9. In Mithu v. State of Punjab5, a five-judge bench of this court
while deliberating on the mandatory imposition of death sentence on a
convict committing murder while undergoing a life sentence under Section
303 of the Indian Penal Code, 1908 held as follows:
"7. ...The majority [in Bachan Singh] concluded that Section
302 of the Penal Code is valid for three main reasons: Firstly,
that the death sentence provided for by Section 302 is an
alternative to the sentence of life imprisonment; secondly, that
special reasons have to be stated if the normal rule is departed
from and the death sentence has to be imposed; and, thirdly,
because the accused is entitled, under Section 235(2) of the
Code of Criminal Procedure, to be heard on the question of
sentence. The last of these three reasons becomes relevant,
only because of the first of these reasons. In other words, it is
5 Mithu v. State of Punjab, (1983) 2 SCC 277.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
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because the court has an option to impose either of the two
alternative sentences, subject to the rule that the normal
punishment for murder is life imprisonment, that it is important
to hear the accused on the question of sentence. If the law
provides a mandatory sentence of death as Section 303 of
the Penal Code does, neither Section 235(2) nor Section
354(3) of the Code of Criminal Procedure can possibly come
into play. If the court has no option save to impose the
sentence of death, it is meaningless to hear the accused on
the question of sentence and it becomes superfluous to state
the reasons for imposing the sentence of death"
(emphasis supplied)
The court thus reiterated that the accused was entitled to be
heard on the question of sentence before its imposition. As Section 303
of the Indian Penal Code, 1908 denied the accused such opportunity, it
was struck down.
10. In another judgment delivered by a two-judge bench i.e.,
Allauddin Mian v. State of Bihar6, this court, noticing earlier decisions,
and Bachan Singh, stated that:
"10. ...The requirement of hearing the accused is intended to
satisfy the rule of natural justice. It is a fundamental
requirement of fair play that the accused who was hitherto
concentrating on the prosecution evidence on the question
of guilt should, on being found
guilty, be asked if he has anything to say or any evidence to
tender on the question of sentence. This is all the more
necessary since the courts are generally required to make the
choice from a wide range of discretion in the matter of
sentencing. To assist the court in determining the correct
sentence to be imposed the legislature introduced sub-section
(2) to Section 235. The said provision therefore satisfies a
dual purpose; it satisfies the rule of natural justice by
according to the accused an opportunity of being heard on
the question of sentence and at the same time helps the court
to choose the sentence to be awarded. Since the provision is
intended to give the accused an opportunity to place before
6 Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.
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the court all the relevant material having a bearing on the
question of sentence there can be no doubt that the provision
is salutary and must be strictly followed. It is clearly
mandatory and should not be treated as a mere formality. Mr
Garg was, therefore, justified in making a grievance that the
trial court actually treated it as a mere formality as is evident
from the fact that it recorded the finding of guilt on 31-31987, on the same day before the accused could absorb and
overcome the shock of conviction they were asked if they had
anything to say on the question of sentence and immediately
thereafter the decision imposing the death penalty on the two
accused was pronounced. In a case of life or death as stated
earlier, the presiding officer must show a high decree of
concern for the statutory right of the accused and should not
treat it as a mere formality to be crossed before making the
choice of sentence. If the choice is made, as in this case,
without giving the accused an effective and real opportunity
to place his antecedents, social and economic background,
mitigating and extenuating circumstances, etc., before the
court, the court's decision on the sentence would be
vulnerable. We need hardly mention that in many cases a
sentencing decision has far more serious consequences on
the offender and his family members than in the case of a
purely administrative decision; a fortiori, therefore, the
principle of fair play must apply with greater vigour in the
case of the former than the latter. An administrative decision
having civil consequences, if taken without giving a hearing
is generally struck down as violative of the rule of natural
justice. Likewise a sentencing decision taken without following
the requirements of sub-section (2) of Section 235 of the Code
in letter and spirit would also meet a similar fate and may
have to be replaced by an appropriate order. The sentencing
court must approach the question seriously and must
endeavour to see that all the relevant facts and circumstances
bearing on the question of sentence are brought on record.
Only after giving due weight to the mitigating as well as the
aggravating circumstances placed before it, it must pronounce
the sentence. We think as a general rule the trial courts should
after recording the conviction adjourn the matter to a future
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING
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date and call upon both the prosecution as well as the defence
to place the relevant material bearing on the question of
sentence before it and thereafter pronounce the sentence to
be imposed on the offender."
(emphasis supplied)
11. In Anguswamy v. State of Tamil Nadu7, a two-judge bench
had also expressed the same view. In Malkiat Singh v. State of Punjab8,
again, three judges endorsed the view that a separate hearing on the
question of sentence should be afforded to the accused, after recording
conviction. The court held that the hearing should be intended to afford
an opportunity to place materials to show mitigating circumstances -
and, for the prosecution, aggravating circumstances and that "sufficient
time must be given to the accused... on the question of sentence".
12. Other more recent three-judge decisions have also ruled that
same day sentencing in capital offences violate the principles of natural
justice, and is opposed to Section 235 (2). In Dattaraya v. State of
Maharashtra9, this court observed, inter alia, that:
"132. For effective hearing under Section 235(2) of the Code
of Criminal Procedure, the suggestion that the court intends
to impose death penalty should specifically be made to the
accused, to enable the accused to make an effective
representation against death sentence, by placing mitigating
circumstances before the Court. This has not been done. The
trial court made no attempt to elicit relevant facts, nor did the
trial court give any opportunity to the petitioner to file an
affidavit placing on record mitigating factors. As such the
petitioner has been denied an effective hearing.
133. Contrary to the dictum of this Court, inter alia, in Dagdu
[Dagdu v. State of Maharashtra, (1977) 3 SCC 68 : 1977
SCC (Cri) 421] and Santa Singh [Santa Singh v. State of
Punjab, (1976) 4 SCC 190 : 1976 SCC (Cri) 546] the
petitioner was not given a real, effective and meaningful
hearing on the question of sentence under Section 235(2)
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.
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CrPC. The death sentence imposed on the petitioner is liable
to be commuted to life imprisonment on this ground."
13. In Bhagwani v. State of Madhya Pradesh10 also iterated
the need to have a separate hearing, on the question of sentence:
"16. A bifurcated hearing for convicting and sentencing is
necessary to provide an effective opportunity to the accused
[Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498]. Adequate opportunity to
produce relevant material on the question of death sentence
shall be provided to the accused by the Trial Court [Rajendra
Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC
460]."
14. In Manoj & Ors. v. State of Madhya Pradesh11 this court
highlighted that in the absence of guidelines or a framework, the scope
of the opportunity afforded to the accused to be heard on sentencing,
was not in keeping with the spirit of the law laid down in Bachan Singh
regarding Section 235(2):
"221. However, despite over four decades since Bachan
Singh there has been little to no policy-driven change, towards
formulating a scheme or system that elaborates how mitigating
circumstances are to be collected, for the court's consideration.
Scarce information about the accused at the time of sentencing,
severely disadvantages the process of considering mitigating
circumstances. It is clarified that mere mention of these
circumstances by counsel, serve no purpose - rather, they must
be connected to the possibility of reformation and assist
principled judicial reasoning (as required under S. 235(2)
CrPC). Constrained by this lack of assistance, this court (as
mentioned above) in Rajesh Kumar [Rajesh Kumar v. State
(2011) 13 SCC 706] has even gone so far as to hold that the
very fact that the state had not given any evidence to show
that the convict was beyond reform and rehabilitation was a
mitigating circumstance, in itself.
***
10 Bhagwani v. State of Madhya Pradesh, 2022 SCC OnLine SC 52 (Criminal Appeal
Nos. 101-102/2022).
11 Manoj & Ors. v. State of Madhya Pradesh, (2022) SCC OnLine SC 677 (Criminal
Appeal Nos. 248-250/2015).
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239. It is unfortunate to note that both the trial Court, and
High Court, failed to provide an effective sentencing hearing
to the accused, at the relevant stage, which is a right under
Section 235(2) CrPC recognised by this court in several
cases. In fact, it was argued by the accused that the trial court
in contravention of this court's judgments, had proceeded to
hear on sentencing almost immediately, depriving the
accused of the opportunity to put forth their case for a less
stringent sentence. The trial court order on sentencing, records
in passing - the plea of 'young age' and 'socio-economic
factors' as mitigating circumstances, but reflects, at best, a
mechanical consideration of the same. Swayed by the
brutality of the crime and "shock of the collective and judicial
conscience", the High Court affirmed imposition of the death
penalty solely on the basis of the aggravating circumstances
of the crime, with negligible consideration of mitigating
circumstances of the criminal. This is in direct contravention
of Bachan Singh."
15. However, this court, also in three-judge combinations, has on
a reading of these very judgments - i.e., Santa Singh, Muniappan,
Allaudin Mian, Anguswamy, Malkiat Singh, etc., arrived at a different
conclusion - that same-day sentencing does not necessarily fall foul of
Section 235(2) of the CrPC. This contrary line of cases are based on the
premise that the court may adjourn for a separate hearing, but the absence
of it would not in itself vitiate the sentence.
16. In Dagdu v. State of Maharashtra12, a three-judge bench of
this court rejected the interpretation of Santa Singh as laying down that
failure on the part of the court to hear a convicted accused, on the
question of sentence, would necessitate remand to the trial court. Instead,
it held that such an omission could be remedied by the higher court by
affording a hearing to the accused on the question of sentence, provided
the hearing was "real and effective" wherein the accused was permitted
to "adduce before the court all the data which he desires to be
adduced on the question of sentence". The court further held that:
"79. The Court may, in appropriate cases, have to adjourn
the matter in order to give to the accused sufficient time to
12 Dagdu v. State of Maharashtra, (1977) 3 SCC 68.
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produce the necessary data and to make his contentions on
the question of sentence. That, perhaps, must inevitably
happen where the conviction is recorded for the first time by
a higher court."
This was in turn, followed by another three-judge bench in Tarlok
Singh v. State of Punjab13.
17. Another case, where a similar conclusion was arrived at, but
on differing reasoning was Ramdeo Chauhan v. State of Assam14,
where in a review petition, a bench of three judges, upheld the death
penalty by a 2:1 majority. In this case, the proviso to Section 309(2) of
CrPC was considered, in relation to Section 235(2). The court observed
that the previous rulings had not taken note of the second proviso15 to
Section 309 of the Code.