Supreme Court: In a suo motu case initiated to address the question as to whether the provision of pre-sentence hearing in capital punishment cases is mandatory or discretionary, the 3-judges Bench of Uday Umesh Lalit, CJ., and S. Ravindra Bhat*, Sudhanshu Dhulia, JJ., suggested that the matter be referred to a constitution Bench. Highlighting the apparent flaw of depriving the capital punishment convict of pre-sentence hearing, the Court held,
“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.”
Question of Law
Due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, the court is obligated under law to conduct a separate hearing on the issue of the sentence, the Bench had assembled to adjudicate the issue.
Validity of Capital Punishment and Valuable Safeguards
In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the majority upheld the constitutionality of the death sentence, on the condition that it could be imposed in the “rarest of rare” cases. The Court, being conscious of the safeguard of a separate hearing on the question of sentence, articulated it as a valuable right, which ensures to a convict, to urge why in the circumstances of his or her case, the extreme penalty of death ought not to be imposed. The Court noted,
“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 the Court should not confine its consideration “principally” or merely to the circumstances connected with a particular crime, but also give due consideration to the circumstances of the criminal.”
Bifurcated Hearing: Inconsistent Precedents
Section 235 of the CrPC, 1973 which deals with judgment of acquittal or conviction, reads as follows: “235.’(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.”
Hence, Section 235 (2) provides for a bifurcated trial and specifically gives the accused person a right of a pre-sentence 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.
Precedents holding Bifurcated Hearing is of mandatory nature
In Santa Singh v. State of Punjab, (1976) 4 SCC 190, the Court had held that a separate stage should be provided after conviction when the court can hear the accused in regard to the factors bearing on sentence and then pass proper sentence on the accused—the nature of the offence, the circumstances of the offence (extenuating or aggravating), the prior criminal record 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. In the aforesaid case, the Court had also noted,
“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 8 would have to be harmonized with the requirement of expeditious disposal of proceedings.”
In Mithu v. State of Punjab, (1983) 2 SCC 277, the Court held that it is 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. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, the Court observed,
“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 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.”
Similarly, 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).
Precedents Stating Bifurcated Hearing is merely discretionary
However, some the three-judge Benches have 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. In Dagdu v. State of Maharashtra, (1977) 3 SCC 68, a three-judge bench rejected the interpretation of Santa Singh case (supra) 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”.
Several decisions have since relied on Dagdu (supra), and concluded that the action of the court sentencing an accused on the same day as conviction in itself would not vitiate the sentence. The decision in Dagdu (supra) was in turn, followed by another three-judge bench in Tarlok Singh v. State of Punjab, (1977) 3 SCC 218. Similarly, in Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714, a similar conclusion was arrived at, but on differing reasoning. The Court held,
“While the accused facing the possibility of death sentence was not entitled to an adjournment, nothing barred the court from granting the same.”
Judicial Interpretation of “Sufficient Time”
The Court through its various judgments had held that “sufficient time must be given to the accused on the question of sentence”. 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. However, the Court noted,
“What is conspicuously absent, is consideration and contemplation about the time this may require.”
In Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, where ‘sufficient time’ for compliance with Section 235(2) CrPC was considered; it was concluded that the trial court had “scrupulously carried out its duty in terms of Section 235(2)” since the sentence was awarded 3 days after the conviction, after considering both the aggravating and mitigating circumstances. After hearing the parties on the question of conviction in Manoj v. State of M.P., 2021 SCC OnLine SC 3219, the Court had adjourned the matter for submissions on sentencing, with directions eliciting reports from the probation officer, jail authorities, a trained psychiatrist and psychologist, etc., to assist the accused in presenting mitigating circumstances. Noticing the lack of a uniform framework in this regard, the Court had initiated the present Suo Motu W.P. (Crl.) No. 1/2022 to address the necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard.
The Court, after observing that the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, are relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused, opined 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.
Consequently, the Court held that a reference to a larger bench of five Judges is necessary for this purpose and directed the matter to be placed before the Chief Justice of India for appropriate orders in this regard.
[Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences: In re, 2022 SCC OnLine SC 1246, decided on 19-09-2022]
*Judgment by: Justice S. Ravindra Bhat
*Kamini Sharma, Editorial Assistant has put this report together.