Accused ‘x’ vs State of Maharashtra

Death sentence – Post-conviction mental illness – Whether a mitigating factor for converting a death sentence to life imprisonment – Held:Post-conviction mental illness is based on appreciation of punishment and right to dignity – The Constitution embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency against which penal measures have to be evaluated – There is strong international consensus against the execution of individuals with mental illness – Various Prison Rules also recognise post-conviction mental illness as a relevant factor for Government to consider under its clemency jurisdiction – In the present case, since the mitigating factors were not present at the time of commission of crime, this ground needs to be utilized only in extreme cases of illness – There is no set disorders/disabilities for evaluating ‘severe mental illness’ - However, a ‘test of severity’ can be a guiding factor for recognizing those mental illnesses which qualify for an exemption – Post-conviction severe mental illness will be a mitigating factor that the appellate court, in appropriate cases needs to consider while sentencing an accused to death penalty – Assessment of such disability is to be conducted by a multidisciplinary team of qualified professionals – Burden to prove severe mental illness is on the accused – In the present case assessment by the Psychiatrist with regard to mental illness of the accused is without any objective factor for such assessment and seems to be incomplete – However, in the facts of the case, it is not appropriate to constitute a panel for reassessment of the mental health of the accused – In view of fact situation of the case, life imprisonment simplicitor would be inadequate – Therefore, death sentence is commuted to imprisonment for remainder of his life sans any right to remission – Constitution of India – Arts. 20(1) and 21 – Mental Healthcare Act, 2017 – ss. 3 and 20(1) – Penal Code, 1860 – s. 84. Mental Healthcare Act, 2017:

s.103 – Prisoners in jail – Cannot be ignored and left to rot away – State is obliged to act as a parens patriae – The Act aspires to provide mental health care to those who are in need, including the prisoners – State is obliged to set up mental health establishment in the medical wing of at least one prison in each State/Union Territory – State directed to consider the case of the accused under the appropriate provisions of the Act.

Partly allowing the Review Petition, the Court HELD: 1.1 Section 235(2) of CrPC implies that once the judgment of conviction is pronounced, the Court will hear the accused on the question of sentence and at that stage, it is open to the accused to produce such material on record as is available to show the mitigating circumstances in his favour. In other words, the accused at this stage argues for imposition of lesser sentence based on such mitigating circumstances as brought to the notice of the Court by him. Section 235(2) of CrPC mandates PreSentence Hearing for the accused and imbibes a cardinal principle that the sentence should be based on ‘reliable, comprehensive information relevant to what the Court seeks to do’. In case the minimum sentence is proposed to be imposed upon the accused, the question of providing an opportunity under Section 235(2) would not arise. [Paras 15, 16 and 32][19-B-D; 25-C-D] Bachan Singh v. State of Punjab (1980) 2 SCC

684 – followed.

Sevaka Perumal v. State of Tamil Nadu AIR 1991 SC 1463 : [1991] 2 SCR 711 ; State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700 : [1992] 3 SCR

480 ; Jai Kumar v. State of Madhya Pradesh AIR 1999 SC 1860 ; Anshad v. State of Karnataka (1994) 4 SCC

381 ; B.A. Umesh v. Registrar General, High Court of Karnataka (2017) 4 SCC 124 : [2016] 5 SCR 438 ; Mukesh v. State (NCT of Delhi) (2017) 3 SCC 717 ; Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017]

6 SCR 1 ; Chhannu Lal Verma v. State of Chhattisgarh 2019 AIR 243 ; Santosh Kumar Satishbhushan Bariyar (2009) 6 SCC 498 : [2009] 9 SCR 90 ; Rajendra Prahladrao Wasnik v. State of Maharashtra

2019 AIR 1 ; Tarlok Singh v. State of Punjab (1977) 3 SCC 218 : [1977] 3 SCR 711 ; Ramdeo Chauhan v. State of Assam (2001) 5 SCC 714 : [2001] 3 SCR

669 – relied on.

Santa Singh v. The State of Punjab (1976) 4 SCC

190 : [1977] 1 SCR 229 ; Dagdu and others v. State of Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636 ; Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916 : [1979] 3 SCR 78 ; Muniappan v. State of Tamil Nadu (1981) 3 SCC 11 : [1981] 3 SCR 270 ; Allauddin Mian v. State of Bihar (1989) 3 SCC 5 : [1989] 2 SCR 498 ; Malkiat Singh v. State of Punjab (1991) 4 SCC 341 : [1991] 2 SCR 256 ; Anguswamy v. State of Tamil Nadu (1989) 3 SCC 33 – referred to.

1.2 The object of Section 235(2) of Cr.P.C is to provide an opportunity for accused to adduce mitigating circumstances. This does not mean, however, that the Trial Court can fulfil the requirements of Section 235(2) of Cr.P.C. only by adjourning the matter for one or two days to hear the parties on sentence. If the accused is ready to submit his arguments on this aspect on the very day of pronouncement of the judgment of conviction, it is open for the Trial Court to hear the parties on sentence on the same day after passing the judgment of conviction. In a given case, based on facts and circumstances, the Trial Court may choose to hear the parties on the next day or after two days as well. [Para 33][25-E-G]

1.3 As long as the spirit and purpose of Section 235(2) is met, inasmuch as the accused is afforded a real and effective opportunity to plead his case with respect to sentencing, whether simply by way of oral submissions or by also bringing pertinent material on record, there is no bar on the pre-sentencing hearing taking place on the same day as the pre-conviction hearing. Depending on the facts and circumstances, a separate date may be required for hearing on sentence, but it is equally permissible to argue on the question of sentence on the same day if the parties wish to do so. [Para 34][25-G-H; 26-A-B]

1.4 Even assuming that a procedural irregularity is committed by the trial court to a certain extent on the question of hearing on sentence, the violation can be remedied by the appellate Court by providing sufficient opportunity of being heard on sentence. Section 465 of CrPC mandates that no finding, sentence or order passed by the Court of competent jurisdiction shall be reversed or altered by the Court of appeal on account of any error, omission or irregularity in the order, judgment and other proceedings before or during trial unless such error, omission or irregularity results in a failure of justice. Such noncompliance can be remedied by the appellate Court by either remanding the matter in appropriate cases or by itself giving an effective opportunity to the accused. [Para 35][26-B-D]

1.5 There is no dispute that under Criminal Justice System in India, the highest discretion is provided to trial courts. Sometimes appellate courts, in order to preserve the competing factors in play, provides discretion for the trial court to operate. However, appellate court must adopt a ‘cautionary approach’ when providing such indulgence, which must be restricted and balanced against competing interests. The approach of Supreme Court needs to be rationalized and understood in the light of cautionary approach. Thus, the term ‘hearing’ occurring under Section 235(2) requires the accused and prosecution at their option, to be given a meaningful opportunity. Meaningful hearing under Section 235(2) of CrPC, in the usual course, is not conditional upon time or number of days granted for the same. It is to be measured qualitatively and not quantitatively. The trial court need to comply with the mandate of Section 235(2) of CrPC with best efforts. Non-compliance can be rectified at the appellate stage as well, by providing meaningful opportunity. If such an opportunity is not provided by the trial court, the appellate court needs to balance various considerations and either afford an opportunity before itself or remand back to trial court, in appropriate case, for fresh consideration. However, the accused need to satisfy the appellate courts, inter alia by pleading on the grounds as to existence of mitigating circumstances, for its further consideration. Being aware of certain harsh realities such as long protracted delays or jail appeals through legal aid etc., wherein the appellate court, in appropriate cases, may take recourse of independent enquiries on relevant facts ordered by the court itself. If no such grounds are brought by the accused before the appellate courts, then it is not obligated to take recourse under Section 235 (2) of CrPC. [Paras 37 and 38][26-F-G; 27-B-G]

1.6 The record in the instant matter clearly shows that the accused was accorded a real and effective opportunity at the trial stage itself. Further, the opportunity granted to the petitioner by the High Court to adduce further material on this aspect was above and beyond the requirement of Section 235(2). The Courts had taken all the attendant circumstances into account before reaching the conclusion of awarding the death penalty. It is also not the case that the accused made a request for hearing on sentencing on a separate date and the same was refused. In such circumstances, it cannot be said that the procedure envisaged in Section 235(2) of CrPC was not complied with in the present case. [Para 43][29-B-C]

2.1 The World Health Organisation and the International Red Cross, identify multiple circumstances such as overcrowding, various forms of violence, enforced solitude, lack of privacy, inadequate health care facilities, concerns about family etc, can take a toll on the mental health of the prisoners. Due to the prevailing lack of awareness about such issues, the prisoners have no recourse and their mental health keeps on degrading day by day. [Para 45][29-E-F]

2.2 This Court may not laydown a ‘definitive sentencing policy’, which is rather a legislative function, however, the Courts in India have addressed this problem in a principled manner having regard to judicial standards and principles. These judicially setprinciples not only serve as instructive guidelines, but also preserve the required discretion of the trial judges while sentencing. However, achieving sentencing uniformity may not only require judicial efforts, but even the legislature may be required to step in. [Para 50][31-A-C]

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

Malimath Committee Report on Reforms in the

Criminal Justice System – referred to.

2.3 Sentencing is appropriate allocation of criminal sanctions, which is mostly given by the judicial branch. This process occurring at the end of a trial still has a large impact on the efficacy of a Criminal Justice System. It is established that sentencing is a socio-legal process, wherein a judge finds an appropriate punishment for the accused considering factual circumstances and equities. In the light of the fact that the legislature provided for discretion to the judges to give punishment, it becomes important to exercise the same in a principled manner. A strict fixed punishment approach in sentencing cannot be acceptable, as the judge needs to have sufficient discretion as well. [Para 47][30-B-C]

2.4 Considering that a large part of the exercise of sentencing discretion is principled, a Judge in India needs to keep in mind broad purposes of punishment, which are deterrence, incapacitation, rehabilitation, retribution and reparation (wherever applicable), unless particularly specified by the legislature as to the choice. The purposes identified above, marks a shift in law from crime-oriented sentencing to a holistic approach wherein the crime, criminal and victim have to be taken into consideration collectively. [Para 52][31-E-G]

Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC 646 : [1979] 3 SCR 78 ; Piare Dusadh v. King Emperor AIR 1944 FC 1 – referred to.

2.5 The reasoning of the trial court acts as a link between the general level of sentence for the offence committed and to the facts and circumstances. The trial court is obligated to give reasons for the imposition of sentence, as f irstly, it is a fundamental principle of natural justice that the adjudicators must provide reasons for reaching the decision and secondly, the reasons assume more importance as the liberty of the accused is subject to the aforesaid reasoning. Further, the appellate court is better enabled to assess the correctness of the quantum of punishment challenged, if the trial court has justified the same with reasons. The aforesaid principle is fortified not only by the statute under Section 235 (2) of CrPC but also by judicial interpretation. Any increase or decrease in the quantum of punishment than the usual levels need to be reasoned by the trial court. However, any reasoning dependent on moral and personal opinion/notion of a Judge about an offence needs to be avoided at all costs. [Para 48][30-D-F]

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

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

3.3 The present case pertains to death penalty, which inevitably affects right to life, and is subjected to a various substantive and procedural protections under criminal justice system. An irreducible core of right to life is ‘dignity’. The dignity of human being inheres a capacity for understanding, rational choice, and free will inherent in human nature, etc. The right to dignity of an accused does not dry out with the judges’ ink, rather, it subsists well beyond the prison gates and operates until his last breath. [Para 56][33-B]

Navtej Singh Johar v. Union of India AIR 2018 SC 4321 : [2018] 7 SCR 379 ; Common Cause v. Union of India AIR 2018 SC 1665 : [2018] 6 SCR 1 – referred to.

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

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

3.6 Article 20(1) of the Indian Constitution imbibes the idea communication/knowledge for the accused about the crime and its punishment. It is this communicative element, which is ingrained in the sentence (death penalty), that gives meaning to the punishments in a criminal proceeding. The notion of death penalty and the sufferance it brings along, causes incapacitation and is idealized to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution, because of his disability, then the raison d’être for the execution itself collapses. [Para 58][34-A-C]

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

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

3.8 Various prison rules in India also recognizes that generally the Government has the duty to pass appropriate orders on execution, if a person is found to be lunatic. Thus, the Prison Rules have already recognized post-conviction mental illness as a relevant factor for Government to consider under its clemency jurisdiction. [Para 61][35-A; C]

3.9 It must be recognized that insanity recognized under IPC and the mental illness in the present case arise at a different stage and time. Under IPC, Section 84 recognizes the plea of legal insanity as a defence against criminal prosecution. This defence is restricted in its application and is made relatable to the moment when the crime is committed. Therefore, Section 84 of IPC relates to the mens rea at the time of commission of the crime, whereas the plea of post-conviction mental illness is based on appreciation of punishment and right to dignity. The different normative standards underpinning the above consequently mean different threshold standards as well. [Para 63][35-F-H] Surendra Mishra v. State of Jharkhand (2011) 3 SCC (Cri.) 232 ; Amrit Bhushan Gupta v. Union of India AIR 1977 SC 608 : [1977] 2 SCR 240 – relied on.

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

3.11 ‘Severe Mental Illness’ under the ‘International Classification of Diseases (ICD)’, which is accepted under Section

3 of the Mental Health Care Act, 2017, generally includeschizophrenic and delusional disorders, mood (affective) disorders, including depressive, manic and bipolar forms, neuroses, including phobic, panic and obsessive–compulsive disorders, behavioural disorders, including eating, sleep and stress disorders, personality disorders of different kinds. [Para 66][36-G-H; 37-A-B]

3.12 There is no set disorders/disabilities for evaluating the ‘severe mental illness’, however a ‘test of severity’ can be a guiding factor for recognizing those mental illness which qualify for an exemption. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders-with schizophrenia. [Para 68][37-E-F]

3.13 Following directions need to be followed in the future cases : That the post-conviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to death penalty. The assessment of such disability should be conducted by a multidisciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness. The burden is on the accused to prove by a preponderance of clear evidence that he is suffering with severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting. The State may offer evidence to rebut such claim. Court in appropriate cases could setup a panel to submit an expert report. ‘Test of severity’ envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that objectively the illness needs to be most serious that the accused cannot understand or comprehend the nature and purpose behind the imposition of such punishment. [Para 69][37-G-H; 38-A-D]

3.14 In the present case, the accused has submitted a report of the Class-I Psychiatrist, indicating that he was suffering from some sort of mental illness without providing any objective factors for such assessment. Moreover, the expert opinion offered by a Psychiatrist registered with the Maharashtra Medical Council working as a co-ordinator of the Centre for Mental Health Law and Policy, Indian Law Society, Pune, does not provide any further clarity. The Court is not satisfied with such statements made by the doctors as the assessment seems to be incomplete. However, the present accused has been reeling under bouts of some form of mental irritability since 1994, as apparent from the records. Moreover, he has suffered long incarceration as well as a death row convict. In the totality of circumstances, it is not appropriate to constitute a panel for re-assessment of his mental condition, in the facts and circumstances of the case. [Paras 70, 71 and 72][38-E; H; 39-C-D]

3.15 At the same time, a sentence of life imprisonment simpliciter would be grossly inadequate in the instant case. Given the barbaric and brutal manner of commission of the crime, the gravity of the offence itself, the abuse of the victims’ trust by the Petitioner, and his tendency to commit such offences as is evident from his past conduct, it is extremely clear that the Petitioner poses such a grave threat to society that he cannot be allowed to roam free at any point whatsoever. In this view of the matter, it is fit to direct that the Petitioner shall remain in prison for the remainder of his life. It is a useful via media between the imposition of the death penalty and life imprisonment simpliciter (which usually works out to 14 years in prison upon remission). The petition is allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission. [Paras 73 and 74]39-E-H; 40-A-B]

Swamy Shraddananda (2) v. State of Karnataka (2008)

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

Shatrughan Chauhan v. Union of India (2014) 3 SCC

1 : [2014] 1 SCR 609 ; Navneet Kaur v. State (NCT of Delhi) (2014) 7 SCC 264 : [2014] 4 SCR 1138 ; Vasanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC

631 : [2017] 3 SCR 850 – referred to.

4.1 It is this state of ‘accused x’ that obliges the State to act as parens patriae. In this state ‘accused x’ cannot be ignored and left to rot away, rather, he requires care and treatment. Generally, it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad-spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally-ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems. [Para 75][40-B-C]

4.2 In order to address the same, the Mental Healthcare Act, 2017 was brought into force. The aspiration of the Act was to provide mental health care facility for those who are in need including prisoners. The State Governments are obliged under Section 103 of the Act to setup a mental health establishment in the medical wing of at least one prison in each State and Union Territory, and prisoners with mental illness may ordinarily be referred to and cared for in the said mental health establishment. Therefore, the State Government is directed to consider the case of ‘accused x’ under the appropriate provisions of the Mental Healthcare Act, 2017 and if found entitled, provide for his rights under that enactment. [Paras 76 and 77][40-E-F]

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

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