2019 Supreme(SC) 450

SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, INDIRA BANERJEE, JJ.
Accused ‘X’ – Petitioner
Versus
State of Maharashtra – Respondent
Review Petition (Criminal) No. 301 of 2008, Criminal Appeal No. 680 of 2007
Decided On : 12-04-2019

IMPORTANT POINTS
If accused is afforded a real and effective opportunity to plead his case with respect to sentencing, by 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.
Pre-sentencing hearing is not required in case of imposition of minimum sentence.
Appellate court can rectify violation of section 235(2) by remanding the matter to trial court or by itself giving an effective opportunity to the accused
Sentencing is a socio-legal process. Any increase or decrease in the quantum of punishment than the usual levels need to be reasoned.
‘Sentencing guidelines’ and ‘Guideline judgments’.
Post conviction mental illness is recognized as a mitigating factor in a death penalty.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 235(2) – Pre-sentence hearing – Opportunity to accused to bring on record material or evidence showing mitigating circumstances for a lesser punishment – Prosecution/complainant also may argue on the aggravating circumstances against the accused for enhancing the sentence – Providing an opportunity to accused does not require adjournment – If accused is afforded a real and effective opportunity to plead his case with respect to sentencing, by 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. (Para 16, 34)

       (1976) 4 SCC 190; (1977) 3 SCC 68; AIR 1979 SC 916; (1981) 3 SCC 11; (1989) 3 SCC 5; AIR 1991 SC 1463; (1992) 3 SCC 700; (1994) 4 SCC 381; (2017) 4 SCC 124; (2017) 3 SCC 717; (2017) 6 SCC 1; Criminal Appeal Nos. 1482-1483 of 2018; Review Petition (Crl.) Nos. 306-307 of 2013; (1989) 3 SCC 33 – Relied upon

       (1991) 4 SCC 341 – Distinguished

       (b) Code of Criminal Procedure, 1973 – Section 235(2) – Pre-sentencing hearing – Not required in case of imposition of minimum sentence. (Para 32)

       (1977) 3 SCC 218; (2001) 5 SCC 714 – Relied upon

       (c) Code of Criminal Procedure, 1973 – Section 235(2) – Pre-sentencing hearing – Noncompliance of procedure – Impact – Remedy – Appellate court – Can rectify violation of section 235(2) by remanding the matter to trial court or by itself giving an effective opportunity to the accused – Instantly accused accorded a real and effective opportunity at the trial stage and appellate stage – Contention of violation of section 235(2) rejected. (Para 35, 39, 43)

       (d) Criminal Jurisprudence – Post conviction mental illness – Ground raised for the first time in present (second) review – Whether a mitigating circumstance – Usually, mitigating factors are associated with the criminal and aggravating factors are relatable to commission of the crime – Ground raised after long time after crime and conviction – Not tenable. (Para 46, 53, 55)

       (1980) 2 SCC 684 – Relied upon

       AIR 1944 FC 1 – Referred

       (e) Criminal Jurisprudence – Sentencing – A socio-legal process – Any increase or decrease in the quantum of punishment than the usual levels need to be reasoned – ‘Sentencing guidelines’ in UK and USA – a legislative function – ‘Guideline judgments’ in India – Judicial pronouncements – A holistic approach required. (Para 47, 48, 49, 50, 52)

       (2014) 4 SCC 375; (1979) 3 SCC 646 – Relied upon

       (f) Indian Penal Code, 1860 – Section 302 – Rarest of rare cases – Whether post-conviction mental illness a mitigating circumstance – Right of person with mental illness to live with dignity – Article 21, Constitution of India – Section 20 (1), Mental Health Care Act, 2017 – Execution of a person with mental illness would lower majesty of law – Person with mental illness not capable of understanding impact and purpose (deterrent) of his execution – Execution of such person will have no meaning – Strong international consensus against the execution of individuals with mental illness – Prison Rules in India recognizing post-conviction mental illness as a relevant factor for clemency – Held, post-conviction mental illness is recognized as a mitigating factor in a death penalty. (Para 55, 56, 57, 58, 60, 61, 62)

       (2014) 3 SCC 1 – Relied upon

       AIR 2018 SC 4321; AIR 2018 SC 1665; 536 U.S. 304 (2002) – Referred

       (g) Post-conviction mental illness – Plea based on appreciation of punishment and right to dignity – Distinct from section 84 IPC relating to mens rea at the time of commission of the crime – Convicts with ‘severe mental illness’ should not be executed – Test of severity – Directions given. (Para 63, 64, 68, 69)

       (2011) 3 SCC (Cri.) 232; AIR 1977 SC 608 – Relied upon

       (h) Indian Penal Code, 1860 – Section 302 – Death sentence – Post conviction mental illness – Accused suffering long incarceration as a death row convict – Reeling under bouts of some form of mental irritability since 1994 – No need to constitute expert panel for assessing his mental illness – However, life imprisonment simpliciter held grossly inadequate – Sentenced to imprisonment for rest of his life. (Para 72, 73)

       (2008) 13 SCC 767; (2016) 7 SCC 1; (2016) 9 SCC 675 – Relied upon

       Facts of the case:

       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?

       The Trial Court convicted the Petitioner for the offences under Sections 201, 363, 376 and 302 of the Indian Penal Code.

       The High Court confirmed the conviction and sentence as awarded by the Trial Court, including the sentence of death. Supreme 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 three Judge 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.

       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 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 three Judge Bench, and specifically permitted the reopening of review petitions in all cases where review petitions had been dismissed by circulation.

       Finding of the Court:

       Death sentence is not proper, modified to imprisonment for rest of his life.

       State Government 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.

       Result: Appeal allowed.