IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRIMINAL) NO. 301 OF 2008  IN

CRIMINAL APPEAL NO. 680 OF 2007

ACCUSED ‘X’                 …PETITIONER

VERSUS

STATE OF MAHARASHTRA                               ...RESPONDENT

J U D G M E N T

N. V. RAMANA, J.    

1. The instant proceedings pertain to the reopening of Review

Petition (Crl.) No. 301 of 2008 to review the final Judgment and

Order dated 16.05.2008 passed by this Court in Criminal Appeal

No. 680 of 2007 dismissing the appeal filed by the Review

Petitioner (hereinafter “the Petitioner”) and confirming his

conviction under Sections 201, 363, 376 and 302 of the Indian

Penal Code (in short,  “the IPC”).  Vide the impugned judgment,

this Court upheld the sentence of 2 years’ rigorous imprisonment

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REPORTABLE

each under Sections 201 and 363, 10 years’ rigorous

imprisonment under Section 376 and the death sentence under

Section 302, IPC imposed upon the Petitioner.

2. This petition raises complex questions concerning the

relationship between mental illness and crime. How can

culpability be assessed for sentencing those with mental illness?

Is treatment better suited than punishment? These are some of

the questions we need to reflect upon in this case at hand.

3. In line with Section 23 (1) of the Mental Healthcare Act, 2017,

(Act 10 of 2017) and the right to privacy of the accused herein,

while taking further action on this judgment, we direct the

Registry to not disclose the actual name of the accused and other

pertinent information which could lead to his identification as it

concerns confidential information. In this context we shall

address the accused herein as ‘accused x’.  

4. Brief facts giving rise to the present petition are as follows; the

two deceased, viz. victim­1  (studying in the  4th  standard)  and

victim­2 (studying  in the 1st  standard) were cousins staying at

Gulumb, Maharashtra, in a locality of homeless people (Beghar

Vasti) at the house of Ramdas Jadhav (PW­13, victim­1’s father).

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The Petitioner  lived  in the adjacent house with his family.  On

13.12.1999, at about 6 p.m., the Petitioner had gone to the

grocery shop run by Sunil (PW­6),  with his daughter,  Reshma

(PW­8), where he met the two deceased girls, and on the pretext

of offering sweets, he led the girls to accompany him. Thereafter,

he committed the rape and  murder of both girls, and threw

victim­2’s  body  in a  well  situated  in  the field  of the father  of

Sakharam  Bhiku Yadav (PW­11), and concealed the body of

victim­1 in a “kalkache bet” (place  where bamboo trees and

shrubs grow together thickly).  

5. The Petitioner was apprehended by the villagers on the next day,

i.e. 14.12.1999, before whom he made an extra judicial

confession about the murder of victim­2. The same day, he also

led the police to the recovery of the bodies of the deceased as well

as the discovery of the spot of commission of rape, from where

bloodstained earth and plants, half­burnt bidis and broken

bangles were recovered. The blood­stained clothes worn by the

Petitioner at the time of arrest were also seized. The clothes of the

deceased were recovered at his instance on 25.12.1999. The FIR

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came to be lodged by Jaysing Dinkar Jadhav, PW10, the brother

of the grandfather of the deceased.

6. The Trial Court in Sessions Case No. 142 of 2000 convicted the

Petitioner for the offences stated  supra  on the basis of the ‘last

seen’  evidence; motive of the accused; seizure of  blood­stained

clothes worn by the accused; the Chemical Analysis Report

showing that “A” group blood was found on the shirt and pant of

the Petitioner as well as in his nail clippings, which was the blood

group of both the deceased; recovery of the bodies of the

deceased at the instance of the accused; discovery of the spot of

commission of rape of the two deceased wherefrom blood­stained

earth and other incriminating articles were seized; extra­judicial

confession of the Petitioner; recovery of  frocks at his  instance;

and the false explanation given by the Petitioner. The Trial Court

found that all these circumstances formed a complete chain

pointing to the guilt of the Petitioner.

7. The High Court in Criminal Appeal No. 652 of 2001 and

Confirmation Case No.3 of 2001, confirmed the conviction and

sentence as awarded by the Trial Court, including the sentence of

death, relying upon all the aforementioned circumstances except

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for the alleged extra­judicial confession. This Court, in appeal,

being  Criminal  Appeal  No.  680  of 2007, confirmed the same,

holding that the case at hand falls into the category of the rarest

of rare cases warranting punishment with death.  Review Petition

(Crl.) No. 301 of 2008 filed by the Petitioner against the above

Judgment and  Order of this  Court  was dismissed vide order

dated  19.11.2008  by the same three­Judge  Bench which  had

rendered the Judgment in appeal, who after considering the

matter by way of circulation held that there was no merit in the

petition.  

8. A criminal  miscellaneous  petition  being  Crl.  M.P.  No.  5584 of

2015 was filed by the Petitioner seeking reopening of this review

petition, placing reliance on the decision of this  Court dated

02.09.2014 in W.P. (Crl.) No. 77 of 2014 in Mohd. Arif @ Ashfaq

v. The Registrar, Supreme Court of India, (2014) 9 SCC 737,

which held that in light of Article 21 of the Indian Constitution,

review  petitions in death sentence cases  were required to be

heard orally by a three­Judge Bench, and specifically permitted

the reopening of review petitions in all cases where review

petitions had been dismissed by circulation.  

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9. In light of the above decision, this Court has heard the review

petition filed by the Petitioner orally in the open Court.

10. Learned counsel for the Petitioner, Ms. Nitya Ramakrishnan, did

not raise any argument concerning the merits of the case,

however raised only the following two arguments:­ firstly, that the

Trial Court had not given the Petitioner a separate hearing while

awarding the sentence, in direct contravention of Section 235(2)

of the Code of Criminal Procedure (in short, “CrPC”), which

provides for the right of  pre­sentencing hearing as affirmed by

this Court in  Bachan Singh v. State of Punjab, (1980) 2 SCC

684 and a plethora of  other  decisions;  and  secondly, that the

award of the death sentence to the Petitioner is contrary to the

ratio of the three­Judge Bench decision of this Court in

Shatrughan  Chauhan v. Union of India, (2014) 3 SCC 1,

followed in a four­Judge Bench decision of this Court in Navneet

Kaur v. State (NCT of Delhi), (2014) 7 SCC 264, which held that

the execution of persons suffering from mental illness or insanity

violates Article 21 of the Indian Constitution and that such

mental illness or insanity would be a supervening circumstance

meriting commutation of the death sentence to life imprisonment.

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11. Learned counsel for the Respondent, i.e. the State of

Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the

other hand, highlighted that the pre­sentencing hearing as

envisaged under Section 235(2) of the Cr.P.C need not be

conducted on a separate date, and the sentence awarded by the

Trial Court does not stand vitiated merely because the sentence

with respect to hearing was not conducted on a separate date. To

that end, the counsel relied on the three­Judge Bench decision of

this Court in  Vasanta Sampat Dupare v. State of

Maharashtra, (2017)  6 SCC 631.  He also submitted  that the

Petitioner is not suffering from any  mental illness so as to

warrant commutation of the death sentence, and to that effect

submitted certain medical reports.

12. On hearing this petition, this Court was of the opinion that there

was no merit in the Petitioner’s submissions against the order of

conviction, and it  was therefore decided that this Court would

hear only on the aspects of sentencing pertaining to two issues.  

13. The first relates to the implications of non­compliance of Section

235 (2) of CrPC during the sentencing process before the Trial

Court. The second issue concerns the mental illness of ‘accused

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x’, which was raised for the first time in this Review Petition, after

the judgment of this Court in the earlier round.

14. On the first issue, the learned counsel on behalf of the Petitioner

contended that considering the fact that the procedural right of

Pre­Sentence  Hearing, as envisaged  under Section 235 (2) of

CrPC, was never provided to the accused, this mandated a fresh

hearing before the trial court on the sentencing aspect.  In the

instant case before us, the principle argument advanced by the

counsel for the Petitioner was that, since the order of conviction

and the order of sentence in the present case were passed on the

same day,  no  opportunity  was  awarded to the  Petitioner  with

regard to the sentence imposed upon him. Therefore, the counsel

contended that the order of sentence passed in the present case

is in violation of Section 235 (2) of the CrPC, which is an illegality

vitiating the entire sentence. The counsel vehemently argued that

a holistic reading of Section 235 (2) of the CrPC would indicate

that the accused should be given ample opportunity to produce

materials in his favour so as to place on record the mitigating

circumstances which mandate the imposition of lesser penalty.

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15. It is pertinent at this point of time to note that countries following

the common law tradition, prosecution historically did not play

any part in the sentencing process and that it was mostly left for

the judge to decide. In India, under the old Code, no opportunity

was provided, post­conviction, for the accused to place relevant

facts before the court. It was only after the introduction of the

present Code in 1973 that such a hearing was provided for in

accordance with modern penological  practices.  At this  stage  it

may be necessary to quote Section 235 of CrPC, which provides

for Pre­Sentence Hearing, among other things.

235. Judgment of acquittal or conviction.

…

(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 (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 favor. In other words, the 9

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.  

16. 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 the case at hand, the accused

argues that his right to fair trial stands extinguished as he was

not provided a separate hearing for sentencing. This issue can be

resolved directly by relying on the interpretation of Section 235

(2) of  CrPC  and this  Court’s jurisprudence built around  Pre­

Sentence Hearing.

17. As also highlighted by the Petitioner, this requirement has also

been affirmed by the five­Judge Bench of this Court in Bachan

Singh v. State of Punjab (supra), wherein it was also held that

at the stage of Pre­Sentence Hearing, the accused can bring on

record material or evidence, which may not be strictly relevant to

or connected with the particular crime under inquiry, but

nevertheless, may have a bearing on the choice of sentence.

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18. The  first  case on this  point is  Santa Singh v.  The State of

Punjab, (1976)  4  SCC 190,  which  was  decided  by  a  Division

Bench of this Court presided by Justice Bhagwati (as His

Lordship then was) and Justice Fazal Ali. This case revolved on

the fact that an accused in a double murder case was sentenced

to death  without providing an opportunity of ‘hearing’ under

Section 235 (2) of CrPC, which was the only ground of appeal

before the Supreme Court. This Court, by two concurrent

opinions, remanded the matter back to the trial court for fresh

consideration on sentencing after giving an opportunity of

‘hearing’ to the  accused.  Justice  Bhagwati interpreted  Section

235 (2) of CrPC in the following manner­

“This  material  may be placed before the court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record. The hearing on the  question of sentence,  would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties  and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such  material before the court.

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…

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.”

(emphasis supplied)

Justice Fazal Ali, agreed with the aforesaid conclusion, and made

observations along the same lines.  

19. The aforesaid ruling came to be questioned in  Dagdu and

others v. State of Maharashtra, (1977) 3 SCC 68, wherein a

similar question came before this Court. This Court, while

repelling the submission of the counsel for the accused therein,

who argued that the  ratio  in  Santa Singh Case  (supra)

mandated compulsory remand of the case to the trial court, held

as under­

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“But we are unable to read the judgment in Santa Singh (supra) as laying down that the failure on the part of the Court, which convicts an accused, to 'hear him on the question of sentence must necessarily entail a remand to that Court in order to afford to the accused an opportunity to. be heard on the question of sentence.  The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in  writing before the  Court  whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to 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.  

Bhagwati J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings.”

(emphasis supplied)

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20. In  Rajendra Prasad v. State of Uttar Pradesh,  AIR 1979 SC

916, the Supreme Court expressed its concern that the

mandatory Pre­Sentence Hearing had become nothing more than

a repetition of the facts of the case. The Bench hoped that “the

Bar will assist the Bench in fully using the resources of the new

provision to ensure socio­personal justice, instead of ritualising the

submissions on sentencing by reference only to materials brought

on record for proof or disproof of guilt”.  

21. In the case of  Muniappan v. State of Tamil Nadu, (1981) 3

SCC 11, the Supreme Court noted that the trial court had

sentenced the accused to death stating that when the accused

was asked to speak on the question of sentence, he did not say

anything. In such a case the  Supreme  Court noted that the

requirement of Section 235(2) was not discharged by  merely

putting a formal question to the accused, and the court should

undertake genuine efforts. The Court observed therein that, “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”.  

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22. The question of providing sufficient time for  Pre­Sentence

Hearing was dealt with by the Court in Allauddin Mian v. State

of Bihar, (1989) 3 SCC 5. The Supreme Court observed that the

trial  court had not  provided sufficient  time to  the accused for

hearing on sentencing. Relevant factors, such as, the antecedents

of the accused, their socio­economic conditions, and the impact

of their crime on the community had not come on record, and in

the  absence  of such  information deciding  on punishment  was

difficult. The Supreme Court therefore recommended that, “as a

general rule the trial courts should after recording the conviction

adjourn the matter to a future 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”. The

aforesaid proposition was also  reiterated  in  Malkiat Singh v.

State of Punjab, (1991) 4 SCC 341.  

23. On the other hand, in Sevaka Perumal v. State of Tamil Nadu,

AIR 1991 SC 1463, this Court upheld the death sentence even

though it was argued that no time had been given to raise

grounds on sentencing by the trial  court.  This Court observed

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that, during the appeal, the defence counsel had been unable to

provide any  additional grounds  on sentence and therefore  no

prejudice had been caused to the accused.  

24. In State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700,

the Supreme Court clarified that while Section 309 of the CrPC

prescribed no power for adjournment of sentencing hearings,

these should be provided where the accused sought to produce

materials in capital cases. In  Jai Kumar v. State of Madhya

Pradesh, AIR 1999 SC 1860, this Court observed that the trial

court had given an opportunity to the defence to produce

materials, which they chose not to do, and had considered the

mitigating circumstances raised by them. This Court opined that,

in such circumstances, it was not a miscarriage of justice that

the judge did not adjourn the hearing.  

25. In Anshad v. State of Karnataka, (1994) 4 SCC 381, this Court

disapprovingly noted that the trial judge had dealt with

sentencing  cryptically in  one  paragraph and this  defeated the

very object of Section 235(2) of CrPC, exposing a “lack of

sensitiveness on his part while dealing with the question of

sentence”. Commuting the sentences of the appellants, the

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Supreme  Court observed that both the lower courts did not

appreciate the aggravating and  mitigating circumstances and

therefore their entire approach to sentencing was incorrect.  

26. The aforesaid principle was further elucidated in the case of B.A.

Umesh v. Registrar General, High Court of Karnataka, (2017)

4 SCC 124, wherein it was held that a review petition cannot be

allowed merely because no separate date was given for hearing on

the sentence. This Court held that Section 235(2) of CrPC does

not  mandate separate date for the hearing of the sentence,

rather, it is  dependent  on  the facts  and circumstances  of the

case, for instance, if parties insist to be heard on separate dates.

27. As per the order dated 03.02.2017 in Mukesh v. State (NCT of

Delhi), (2017) 3 SCC 717, this Court, having found that there

was  no  compliance  of  Section  235 (2) of  CrPC by the court’s

below, observed as under­

“Having considered all the authorities, we find that there are two modes, one is to remand the matter or to direct the accused persons to produce necessary data and advance the contention on the question of sentence. Regard being had to the nature of the case, we think it appropriate to adopt the second mode. To  elaborate,  we  would like to give  opportunity

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before conclusion of the  hearing  to the  accused persons to file affidavits along  with documents stating about the mitigating circumstances. Needless to say, for the said purpose, it is necessary that the learned Counsel, Mr. M.L. Sharma  and  his associate  Ms.  Suman and  Mr. A.P. Singh and his associate Mr. V.P. Singh should be allowed to visit the jail and communicate  with  the  accused persons and  file the requisite affidavits and materials.”

(emphasis supplied)

28. In the final order of  Mukesh v. State (NCT of Delhi),  (2017) 6

SCC 1, this Court held that in the event the procedural

requirements under Section 235 (2) of the CrPC are not met, the

appellate court can either remit the case back to the trial court or

adjourn the  matter  before the  appellate forum  for  hearing  on

sentence after giving an opportunity to adduce evidence. On the

other  hand, the court  also  noted that any  deficiency in  non­

compliance of Section 235 (2) of CrPC can be cured by providing

the opportunity at the appellate stage itself so as to curtail the

delay in the proceedings. In that case, this Court had allowed the

accused to file an affidavit  listing the mitigating circumstance,

noticing that no pre­hearing on sentence was ever carried out.

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29. Two recent three­Judge Bench decisions of this  Court  on this

aspect  merit our consideration. Firstly, in the decision dated

28.11.2018 in  Chhannu Lal Verma  v. State of Chhattisgarh

(Criminal Appeal Nos. 1482­1483 of 2018), this Court observed

that not having a separate hearing at the stage of  trial  was a

procedural impropriety. Noting that a bifurcated hearing for

conviction and sentencing was a necessary condition laid down in

Santosh Kumar Satishbhushan Bariyar,  (2009) 6 SCC 498,

the Court held that by conducting the hearing for sentencing on

the same day, the Trial Court failed to provide necessary time to

the appellant therein to furnish evidence relevant to sentencing

and mitigation. We find that this cannot be taken to mean that

this Court  intended to  lay down, as a proposition of  law, that

hearing the accused for sentencing on the same day as for

conviction would vitiate the trial.  On the contrary, in the said

case, it  was found on facts that the same  was a procedural

impropriety because the accused was not given sufficient time to

furnish evidence relevant to sentencing and mitigation.

30. Secondly, in the decision dated 12.12.2018 in  Rajendra

Prahladrao Wasnik v. State of Maharashtra, (Review Petition

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(Crl.) Nos. 306­307 of 2013), this Court made a general

observation that in cases where the death penalty may be

awarded, the Trial Court should give an opportunity to the

accused after conviction which is adequate for the production of

relevant material on the question of the propriety of the death

sentence. This is evidently at best directory in nature and cannot

be taken to mean that a pre­sentence hearing on a separate date

is mandatory.

31. It may also be noted that in the older three­Judge Bench decision

of this Court in Malkiat Singh Case (supra), the Court observed

that keeping in mind the two­Judge Bench decisions in

Allauddin  Mian Case  (supra) and  Anguswamy v. State of

Tamil Nadu, (1989) 3 SCC 33, wherein it had been laid down

that a sentence awarded on the same day as the finding of guilt is

not in accordance with law, the normal course of action in case of

violation of such procedure would be remand for further

evidence. However, on a perusal of these two decisions we find

that their import has not been correctly appreciated in Malkiat

Singh Case  (supra), since the observations in  Allauddin Mian

Case  (supra), as relied upon in  Anguswamy Case  (supra),

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regarding conduct of hearings on separate dates, were only

directory. Be that as it may, it must be noted that the effect of

Malkiat Singh Case (supra) has already been considered by this

Court in Vasanta Sampat Dupare Case (supra), wherein it was

already  noted that the  mere  non­conduct of the pre­sentence

hearing on a separate date would not per se vitiate the trial if the

accused has been afforded sufficient time to place relevant

material on record.

32. It may not be out of context to note that 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. (See  Tarlok Singh v. State of Punjab, (1977) 3 SCC

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

33. There cannot be any doubt that at the stage of hearing on

sentence, generally, the accused argues based on the mitigating

circumstances in his favour for imposition of lesser sentence. On

the other hand, the State/the complainant would argue based on

the  aggravating  circumstances  against the  accused  to  support

the contention relating to imposition of higher sentence. The

object of Section 235 (2) of the Cr.P.C is to provide an 21

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 the 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.

34. In light of the above discussion, we are of the opinion that 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 pre­sentencing hearing taking place

on the same day as the pre­conviction hearing. Depending on the

facts  and circumstances,  a  separate  date  may be  required  for

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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.

35. Now we need to consider the impact of non­compliance of

procedure provided under Section 235 (2) of  CrPC by the trial

court. 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. It

must be kept in mind that Section 465 of the 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.

36. The narrative provided by numerous cases on this aspect

portrays a picture of the appellate Court trying to balance two

important rights, viz., right to fair trial and right to speedy trial.

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On one side, is the procedural right granted to the accused under

Section 235 (2) of CrPC, and on the other side is the possibility of

misuse to delay the trial. The experienced judges in India have

enough expertise to distinguish, between the schemes for

protracting trials from that of genuine causes in order to protect

rights of the accused.

37. This brings us to the role of appellate courts under our Criminal

Justice System. There is no dispute that under our chosen

system,  that 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.1  The narration of various

court  dicta, which are cited above, provide for a cautionary tale

right from Santa Singh Case onwards, as the choice of solution

for remedying non­compliance of Section 235 (2) of CrPC provides

for selection of at least two different modes.  

1 Dame Sian Elias, Fairness in Criminal Justice (golden threads and pragmatic patches), Hamlyn Lectures (2018)

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38. As noted above, many cases have grappled with the question as

to the choice between the two. The approach of this Court needs

to be rationalized and understood in the light of cautionary

approach discussed above. From the aforesaid discussion,

following dicta emerge­  

i. That the term ‘hearing’ occurring under Section 235 (2) requires the accused and prosecution at their option, to be given a meaningful opportunity.

ii. 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.

iii. The trial court need to comply with the  mandate of Section 235 (2) of CrPC with best efforts.

iv. Non­compliance can be rectified at the appellate stage as well, by providing meaningful opportunity.

v. 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.

vi. 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.

vii. 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.  

25

viii. 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.

39. Having discussed the law on pre­sentence hearing, it would be

appropriate at this juncture to revisit the decisions of the Courts,

leading to this review in order to ascertain whether the Petitioner

was given an effective  opportunity  to place material  on record

relevant to the quantum of sentence, in this instant case.  

40. The Trial Court heard the Petitioner on the aspect of imposition

of sentence separately, which is amply clear from paragraphs 79­

87 of the judgment of the Trial Court.  Hence, based on the

material on record we are satisfied that the Trial Court has fully

complied  with the requirement  of  Section 235(2)  of the  CrPC,

While coming to its conclusion, the Court held that the

aggravating circumstances of the crime, i.e. the magnitude and

manner of commission of the crime in the form of the

kidnapping, rape and murder of two minor girls, outweighed the

mitigating circumstances of the accused, i.e. the dependency of

his aged mother on him, and his young age. The Court also gave

weightage to the prior convictions of the accused for the same

kind of offence, i.e. for the offence of rape of a nine­year­old girl

child under Sections 376 and 506 of the IPC and Section 57 of 26

the Bombay Children Act, as well as for the kidnapping and rape

of a seven­year­old girl child under Sections 363 and 366 of the

IPC. It  may be noted here  itself that in light  of  his two prior

convictions, the Trial Court also gave him an opportunity to be

heard on the question of Section 75 of the IPC, which pertains to

enhance punishment for certain offences under Chapter XII  or

XVII of the IPC after previous conviction, but the factum of these

convictions was also not contested by the Petitioner.  

41. Before the High Court as well, further material was brought on

record by the Petitioner regarding his discharge in one case

related to offences of the same nature, which the Court found to

not be in the nature of a mitigating circumstance. The High Court

was of  the opinion that the dependency of aged parents could

also  not  be considered  as  a  mitigating circumstance to  begin

with, and that the accused was not young enough for his age to

be considered as a  mitigating circumstance. The  High Court

noted the absence of any extreme mental or emotional

disturbance leading to the commission of the offence, and

observed that  given the  past  offending history of the  accused,

there was no hope of his reform or rehabilitation. The Court also

27

noted the barbaric nature of the offence, inasmuch as the

Petitioner had cold­bloodedly raped and murdered two innocent

and defenceless girls by abusing the faith that they had reposed

in him as their  neighbour, and concluded that he would pose a

threat to society even if released for the smallest period of time,

and might commit similar acts in the future. On this basis, the

High Court affirmed the death penalty awarded to the accused.

42. The Supreme Court, in appeal, being Criminal Appeal No. 680 of

2007, also determined the case to fall into the category of the

rarest of rare cases.

43. The record in the instant matter therefore clearly shows that the

accused was accorded a real and effective opportunity at the trial

stage itself. It may further be stated that 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, we reject the

28

contention that the procedure envisaged in Section 235(2) of the

CrPC was not complied with in the present case.  

44. Now  we need to consider the second issue concerning post­

conviction mental illness as a mitigating factor for converting a

death sentence to life imprisonment.

45. It is  pertinent for  us to  understand  the  phenomenon of  post­

conviction mental illness. As the phrase itself suggests, it is only

after  being proven guilty, that  the convict  has developed such

illness. It is well acknowledged fact throughout the world that,

prisons are difficult places to be in. 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.  The  prevailing

argument in favour of such prisoners is that; whether the 29

imposition of death penalty upon such prisoners is justified, who

have clearly impaired their abilities to even understand the

nature  and purpose  of such  punishment  and the reasons for

such imposition? The aforesaid issues will be dealt at length at

the later stage.

46. The accused has now pleaded an entirely new ground of post­

conviction mental illness for the first time herein, which obliges

us to go into the aspect of sentencing afresh. It is also brought to

our notice that the appellant has been a death row convict for

almost 17 years, mandating us to resolve the issue of sentencing

herein. Before we consider the appropriate punishment for the

accused herein, a reference needs to be made to the background

principles concerning sentencing policy considering that the

present Petitioner is pleading a mitigating factor which has arisen

post­conviction.

47. Sentencing is appropriate allocation of criminal sanctions, which

is mostly given by the judicial branch.2 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

2  Nicola Padfield, Rod Morgan and Mike Maguire,  ‘Out of Court, out of sight? Criminal sanctions and no­judicial decision making’, The Oxford Handbook of Criminology (5th Ed.).

30

socio­legal process, wherein a judge finds an appropriate

punishment  for the accused considering  factual  circumstances

and equities. In 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. We need to

appreciate that a strict fixed punishment approach in sentencing

cannot be acceptable, as the judge needs to have sufficient

discretion as well.  

48. Before analyzing this case, we need to address the issue of the

impact of reasoning in the sentencing process. 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 firstly, 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

31

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.  

49. Sentencing in India, is a midway between judicial intuition and

strict application of rule of law. As much as we value the rule of

law, the process of sentencing needs to preserve principled

discretion for a judge. In India, sentencing is  mostly led by

‘guideline judgments’  in the death penalty context, while many

other countries like United Kingdom and United States of

America, provide a basic framework in sentencing guidelines.  

50. Although at the outset, it is  clarified  that  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 regards 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. Such an effort has

32

already been initiated by the Supreme  Court, in  Sunil  Dutt

Sharma Case, (2014) 4 SCC 375, when the sentencing

guidelines evolved in the context of death penalty were applied to

a lesser sentence as well. However, achieving sentencing

uniformity  may  not  only require judicial efforts,  but even the

legislature may be required to step in.  

51. Moreover, our attention is also drawn to the Malimath Committee

Report on Reforms in the Criminal Justice System, which

recommended creation of a statutory body for prescribing

sentencing guidelines. Before concluding the aforementioned

observations  highlighting the  dangers  of  sentencing  discretion,

we are reminded of the words of Justice Krishna Iyer, who held

that  “Guided missiles  with  lethal  potential, in  unguided hands,

even judicial, is  a  grave risk  where the  peril is  mortal though

tempered by the appellate process.” [refer  Rajendra Prasad v.

State of Uttar Pradesh (1979) 3 SCC 646]

52. In any case, 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

33

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 crime­oriented sentencing to a holistic

approach  wherein the crime, criminal and victim have to be

taken into consideration collectively.  

53. Having observed some of the general aspects of sentencing, it is

necessary to consider the aspect of post­conviction mental illness

as mitigating factor in the analysis of ‘rarest of the rare’ doctrine

which has come into force post Bachan Singh Case (supra).  

54. As a starting point we need to refer to  Piare Dusadh v. King

Emperor, AIR 1944 FC 1, has already recognized post­conviction

mental illness as a mitigating factor in the following manner­

Case No. 47­The appellant in this case was convicted  by  a  Special  Judge  of the  offence  of murder and was sentenced to death on 30th September 1942. His appeal to the Allahabad High Court  was dismissed and the sentence of death was confirmed. The appellant  is a young man of 25  who has been twice  widowed.  His victim was his aunt, 30 years of age, whose husband (Kanchan) had about six years previously murdered his own brother, appellant's father. Kanchan was sentenced to death for the

34

murder,  but  lost his  reason while awaiting  the execution of the death sentence, and is now detained as a lunatic. The evidence in this case leaves no room for doubt that the appellant was rightly convicted of murder. There is some confusion as to the exact motive for the undoubtedly brutal assault of which the appellant made his aunt the victim. The prosecution alleged that the appellant being a widower was chagrined by the refusal of his aunt to become his mistress. In his statement before, the Special Judge he said that another uncle (P.W. 7) who according to the appellant was behind the prosecution was on terms of improper intimacy  with the  deceased and resented even small acts of kindness on the part of the deceased towards the appellant. In the appeal preferred by him through the jail authorities to the  High  Court, the appellant stated that his aunt was a woman of  loose character and was pursuing him  with unwelcome attentions. The previous history of this family indicates that the appellant  probably  suffers from an unbalanced mind. The nature and ferocity of the assault upon his aunt appear to confirm this.

In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death.

35

We accordingly reduce the sentence of death to one of transportation for life and subject to this modification dismiss the appeal.

(emphasis supplied)

However, this case does not provide any guidelines or the

threshold for evaluating what kind of mental illness needs to be

taken into consideration by the Courts.

55. We note that, 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, socio­economic condition etc. We note that

the ground claimed by ‘accused x’ is arising after a long­time gap

after crime and conviction. Therefore, the justification to include

the same as a mitigating factor does not tie in with the equities of

the case, rather the  normative justification is founded in the

Constitution as well  as  the jurisprudence of the  ‘rarest  of the

rare’ doctrine. It is now settled that the death penalty can only be

imposed in the rarest of the rare case which requires a

consideration of the totality of  circumstances.  In this  light,  we

have to assess the inclusion of post­conviction mental illness as a

determining factor to disqualify as a ‘rarest of the rare’ case.   

36

56. 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. In this

case we are concerned with the death penalty, which inevitably

affects right to life, and is subjected to a various substantive and

procedural protections  under our criminal justice system. An

irreducible core of  right to  life  is  ‘dignity’. [refer  Navtej Singh

Johar v. Union of India, AIR 2018 SC 4321]. Right to human

dignity  comes  in different  shades and colours. [refer  Common

Cause v. Union of India, AIR 2018 SC 1665]. For our purposes,

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. 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’.

57. All human beings possess the capacities inherent in their nature

even though, because of infancy, disability, or senility, they may

37

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.

58. 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.

59. It may not be out of context to refer Atkins v. Virginia, 536 U.S.

304 (2002),  wherein the  United States Supreme  Court,  while

dealing  with the question ‘whether the execution of  mentally

retarded persons "cruel and unusual punishment" prohibited by

the Eighth Amendment?’ The Court noted that hanging mentally

38

disabled  or retarded  neither increases the  deterrence  effect  of

death penalty nor does the  non­execution of the mentally

disabled will measurably impede the goal of deterrence.  

60. 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, our

Constitution embodies broad and idealistic concepts of dignity,

civilized standards, humanity, and decency against which penal

measures  have to be evaluated. In recognizing these civilized

standards, we   may refer to the aspirations of India in being 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, when the death penalty existed in England, there

was a common law right barring execution of lunatic prisoners.3

3 Hale's Pleas of the Crown Vol. I ­ p. 33; Coke's Institutes, Vol. III, pg. 6; Black­stone's  Commentaries on the Laws of England Vol. IV, pages 18 and 19; , "An Introduction to  Criminal Law", by Rupert Cross, (1959), p. 67.

39

Additionally, there  is  a  strong  international  consensus against

the execution of individuals with mental illness.4

61. We may note that 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. Andhra

Pradesh Prison Rules, 1979, Rule 796; Gujarat Prisons (Lunatics)

Rules,  1983;  Delhi  Prison Rules,  2018,  Rule  824;  Tamil  Nadu

Prison Rules, 1983, Rule 923; Maharashtra Prison Manual, 1979,

Chapter  XLII (Government  Notification,  Home department,  No.

RJM­1058 (XLVI)/12,495­XVI, dated 18.01.1971);  Model Prison

Manual by Ministry of Home Affairs (2016), Rule 12.36 are some

of the examples of legal instruments in India which have already

recognized post­conviction mental illness as a relevant factor for

Government to consider under its clemency jurisdiction.

62. Having understood the normative basis for recognition of post­

conviction mental illness as a mitigating factor in a death penalty

case, we must mention that Shatrughan Chauhan Case (supra)

had identified the same and holds as under:

4 Commission on Human Rights Resolution 2000/65 The question of the death penalty, UN Commission on Human Rights (Apr. 27, 2000); G.A. Res. 69/186, ¶ 5(d) (Feb. 4, 2015);  

40

“86. The above materials, particularly, the directions of the United Nations international conventions, of  which India is a  party, clearly show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this Court  in deciding whether in the facts  and circumstances  of the case death sentence could be commuted to  life imprisonment. To put it clear, “insanity” is a relevant supervening factor for consideration by this Court.”

63. Now we  need to consider the test for recognizing  an  accused

eligible for such  mitigating factor. It  must  be recognized that

insanity recognized  under IPC and the  mental illness  we are

considering 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. [refer  Surendra

Mishra v. State of Jharkhand, (2011) 3 SCC (Cri.) 232]. 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 post­conviction mental illness is based

on appreciation of punishment and right to dignity. [refer Amrit

Bhushan  Gupta v.  Union of India,  AIR 1977  SC 608] The

41

different normative standards underpinning the above

consequently mean different threshold standards as well.

64. On the other hand, considering the fact that the case is at the fag

end of the process and the mitigating factors so discussed above

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

aliment is not of grave severity.  

65. Before we analyse this case at hand, a brief survey of

classification of mental illness and its impact on death penalty

needs to be considered. The Diagnostic and Statistical Manual of

Mental Disorders  (DSM), is one of the most well­known

classification and diagnostic guides for mental disorders in

42

America. Its fifth edition (DSM­5), published in  2013, defines

mental disorder as follows: ­

A mental disorder is a syndrome characterized by     clinically significant disturbance     in an individual’s     cognition   , emotion regulation   , or    behaviour    that reflects a    dysfunction in the psychological, biological, or developmental processes underlying mental functioning   . Mental disorders are usually associated with    significant distress in social, occupational, or other important activities   .  An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.

66. ‘Severe Mental Illness’ under the ‘International Classification of

Diseases (ICD)’, which is accepted under Section 3 of the Mental

Health Care Act, 2017, generally include­  

1. schizophrenic and delusional disorders  

2. mood (affective)  disorders, including depressive, manic and bipolar forms  

3. neuroses, including phobic, panic and obsessive– compulsive disorders  

43

4. behavioural disorders, including eating, sleep and stress disorders  

5. personality disorders of different kinds.  

67. American  Bar Association, by its  Resolution 122A passed on

August 2006, notes as under­

(a) Grounds for Precluding Execution. A sentence of death should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity (i) to make  a rational  decision to forgo  or terminate post­conviction proceedings available to challenge the validity of the conviction or sentence; (ii) to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner's participation; or (iii) to  understand the  nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case.  

68. In line with the above discussion, we note that there appear to be

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

44

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

disorders­with schizophrenia.

69. Following directions need to be followed in the future cases in

light of the above discussion­

a. That the post­conviction 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.

b. 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.

c. 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.  

d. The State may offer evidence to rebut such claim.

e. Court in appropriate cases could setup a panel to submit an expert report.

45

f. ‘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.

70. Having said so, it needs to be considered that the accused has

submitted a report of the Class­I Psychiatrist, Yerawada Central

Prison, indicating that he was suffering from some sort of mental

illness without providing any objective factors for such

assessment. We may reproduce the aforesaid report dated

25.09.2014, in the following manner­

Clinical impression:­ no delusions, no hallucinations, sleep and appetite are normal.

Remark:­Taking regular medication and maintaining improvement. He is under OPD under Psychiatric treatment since 21.12.1994 and since then taking regular treatment. Currently he is on anti­psychotic drugs…

The doctor further opined that ‘he is maintaining good improvement on medication, good diet. He is having psychological disturbance and symptoms like irritability emerges when the dosage is decreased.

71. Moreover, the expert opinion offered by a Psychiatrist registered

with the Maharashtra Medical Council working as a coordinator

of the  Centre for  Mental  Health Law  and Policy, Indian Law 46

Society, Pune, does not provide any further clarity.  We  may

extract the conclusion reached by the aforesaid report as well­

While no definite opinion can be given relating to the  mental health condition of Accused ‘X’  and the treatment being administered to him, considering that he appears to be under treatment for a severe mental illness such as schizophrenia or some type of psychosis, there appears to be a need to review Accused x’s medical records and to clinically examine him to assess his current psychiatric status.

(emphasis supplied).

72. Even though we are not satisfied with such statements made by

the doctors as the assessment seems to be incomplete. However,

it is to be noted that the present accused has been reeling under

bouts of some form of mental irritability since 1994, as apparent

from the records placed before us. Moreover, he has suffered long

incarceration as well  as a death row convict. In the totality of

circumstances, we do not consider it be appropriate to constitute

a panel for re­assessment of his mental condition, in the facts

and circumstances of this case.  

73. At the same time, we cannot lose sight of the fact that a sentence

of  life  imprisonment  simpliciter  would be grossly  inadequate  in

the instant case. Given the barbaric and brutal manner of

47

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, we deem it fit to direct

that the Petitioner shall remain in prison for the remainder of his

life. It need not be stated that this Court has in a plethora of

decisions held such an approach to be perfectly within its power

to  adopt,  and  that it  acts  as  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).

(See for instance  Swamy Shraddananda (2) v. State of

Karnataka, (2008) 13 SCC 767; Union of India v. V. Sriharan,

(2016)  7  SCC 1;  Tattu Lodhi  v.  State  of  Madhya Pradesh,

(2016) 9 SCC 675).  

74. In  light of the above discussion,  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.  

48

75. Further, 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.5  Moreover, due to legal

constraints on the recognition of broad­spectrum mental illness

within  the Criminal  Justice  System, prisons  inevitably  become

home for a greater number of  mentally­ill  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.6

76. 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.  

5 Although statistics on the same are not available for all of Indian prisons, but we were able to compare sample studies within some Indian prisons and literature on psychiatric morbidity concurs as well. 6 Liebling, Maruna and McAra et al., The Oxford Handbook of Criminology (6th Ed. (2017)).

49

77. Therefore, we direct the State Government 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.

78. In light of the above discussion, this review petition stands partly

allowed in the aforesaid terms and pending applications, if any,

shall also stand disposed of.

     ..…………………………..……..J.                                               [N.V. Ramana]

     ..…………………………..……..J.                                               [Mohan M. Shantanagoudar]

                                               ..…..…………………….. ……..J.

      [Indira Banerjee]    

NEW DELHI; APRIL 12, 2019

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