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 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. 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.