IMPORTANT POINT
Death sentence – Obligation of Court to conduct separate hearing on issue of sentence – Meaningful, real and effective hearing must be afforded to accused, with opportunity to adduce material relevant for question of sentencing.

JUDGMENT :

S. RAVINDRA BHAT, J.

1. This order is necessitated due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, under law, the court is obligated to conduct a separate hearing on the issue of sentence.

2. Section 235 of the Code of Criminal Procedure, 1973 (hereinafter, “CrPC” or “Code”) reads as follows:

“235. Judgment of acquittal or conviction.-(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Section 235, as it exists in the statute today, was Section 309 of the erstwhile Code (of 1898). It was introduced on account of the recommendations of the 48th Report of the Law Commission of India, on Some Questions Under the Code of Criminal Procedure Bill, 1970 (dated July 1972).

Additionally, Section 309 of the CrPC is also relevant. It reads as follows:

“309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: 1

Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.

Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.”

3. In Bachan Singh v. State of Punjab, 1983 (1) SCR 145 this court, in its majority judgment, upheld the constitutionality of the death sentence, on the condition that it could be imposed in the “rarest of rare” cases. The court was conscious of the safeguard of a separate hearing, on the question of sentence, and articulated such a safeguard as a valuable right, which insures to a convict, to urge why in the circumstances of his or her case, the extreme penalty of death ought not to be imposed. This court, in Bachan Singh, observed as follows:

“151. Section 354 (3) of the CrPC, 1973, marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now according to this changed legislative policy which is patent on the face of Section 354 (3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death pe