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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. Jayasankaran Nambiar, Kauser Edappagath, JJ.
State of Kerala, Represented By the Sub-Inspector of Police, Manarcadu Police Station
Versus
Narendra Kumar - Respondent
DSR NO. 1 OF 2018
Decided On : 27-09-2023
Mitigating circumstances and the possibility of reformation and rehabilitation are mandated to be considered before imposing the death penalty under Sections 235(2) and 354(3) of Cr.P.C. The court refers to various judgments, including Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, that emphasize the consideration of aggravating and mitigating circumstances. The court also highlights the duty of the court to elicit mitigating circumstances and the burden on the State to provide material showing the accused is beyond the scope of reform or rehabilitation. The court discusses the role and responsibility of the sentencing court, the High Court, and the appellate court in considering mitigating circumstances. The court also refers to the importance of collecting information regarding mitigating circumstances and outlines provisional guidelines for collecting such information. The court concludes that the High Court has the jurisdiction to order an inquiry into the mitigating circumstances of the convict in a proceeding to confirm the death sentence.
Fact of the Case:
The court considers the power and jurisdiction of the High Court to order an enquiry into the mitigating circumstances of a convict in a proceeding for confirmation of death sentence under section 366 of the Code of Criminal Procedure (Cr.P.C). The respondents in the case were convicted under section 302 of IPC and awarded capital punishment. The court discusses the arguments of the prosecution and the defense regarding the scope and permissibility of conducting a mitigation study before hearing the appeals challenging conviction and sentence on merits. The court refers to various judgments and legal provisions that mandate the consideration of mitigating circumstances and the possibility of reformation and rehabilitation before imposing the death penalty. The court concludes that the High Court has the jurisdiction to order an inquiry into the mitigating circumstances of the convict before hearing the appeals.
Finding of the Court:
The court analyzes the provisions of Cr.P.C and the judgments of the Apex Court that emphasize the consideration of mitigating circumstances and the possibility of reformation and rehabilitation before imposing the death penalty. The court highlights the duty of the sentencing court and the High Court to collect materials touching the mitigating circumstances of the convict. The court also discusses the role of outside agencies like Project 39A in conducting mitigation studies. The court repels the objection raised by the prosecution and holds that the High Court can order an inquiry into the mitigating circumstances of the convict in a proceeding to confirm the death sentence.
Ratio Decidendi: The High Court has the jurisdiction to order an inquiry into the mitigating circumstances of the convict in a proceeding to confirm the death sentence under section 366 of Cr.P.C. The court must play a proactive role in collecting materials touching the mitigating circumstances and must ensure a real and meaningful opportunity for the accused to place on record facts and material to show mitigating circumstances. The possibility of reformation and rehabilitation must be considered before imposing the death penalty.
Result: The court orders Project 39A to carry out a study of the respondents/death convicts involved in the case. The investigators associated with Project 39A shall have access to the concerned prison and other authorities. The study shall be completed within six months and a report shall be filed in a sealed cover. The prosecution and the defense are also allowed to collect materials pertaining to the aggravating or mitigating circumstances. The prosecution shall collect reports of the probation officers and the Director General of Prisons shall submit reports on the conduct of the respondents. The State shall conduct psychiatric/psychological evaluation of the respondents. Copies of the reports shall be given to the respective Prosecutors and the counsel for the respondents. The court forwards a copy of the order to the Executive Director of Project 39A.
ORDER :
Kauser Edappagath, J.
The power and jurisdiction of the High Court to order enquiry as to the mitigating circumstances of the convict in a proceeding for confirmation of death sentence under section 366 of the Code of Criminal Procedure (for short ‘Cr. P.C’) falls for consideration in these Death Sentence References (for short ‘DSRs’).
2. The respondents in the above six DSRs were convicted, inter alia, under section 302 of IPC and awarded capital punishment. The respective Sessions Court submitted the proceedings to this Court for confirmation of the death sentence. All the respondents, except respondent No.2 in DSR No.6/2018, have challenged their conviction and sentence in the separate appeals filed by them, which are also pending at this Court.
3. A Division Bench of this Court recently in State of Kerala v. Nino Mathew, (2023 KHC OnLine 369) held that the High Court can order to carry out study as to the mitigating circumstances of a death convict even before the hearing of the appeal filed by him against conviction. Project 39A of the National Law University, Delhi, was entrusted with the task of conducting the study.
4. When we were about to pass a similar order to carry out such a study in the above DSRs as well, the learned Senior Public Prosecutor Sri. T.B.Hood strongly opposed the move. Hence, we heard him as well as the learned Special Public Prosecutor Smt. Ambika Devi in detail. We have also heard the learned Counsel for the respondents/convicts.
5. The learned Senior Public Prosecutor and the Special Public Prosecutor submitted that conducting a mitigation study before hearing the DSRs and the appeals challenging conviction and sentence on merits is beyond the scope and ambit of section 366 of Cr. P.C and, thus, impermissible. They further submitted that the High Court cannot of its own take recourse to such a study unless a specific plea was made to that effect by the convict showing sufficient grounds. They also expressed their deep concern in entrusting the task of undertaking the study with an outside agency like Project 39A. Per contra, the learned counsel for the respondents/convicts argued that the death sentence in all the cases was passed without a proper mitigation exercise regarding the circumstances of the convicts, and as such this Court is obliged and duty-bound to do such an exercise.
6. Mitigating factors, in general, seek to explain the surrounding circumstances of the criminal to enable the Court to decide between the death penalty or life imprisonment. Under Sections 235(2) and 354(3) of Cr. P.C., there is a mandate for a full-fledged bifurcated hearing and recording of ‘special reasons’ if the Court inclines to award the death penalty. In the specific backdrop of sentencing policy in capital punishment, a scrupulous compliance of both provisions is necessary. An informed selection of sentence could be based on the materials collected and collated at this stage.
7. In Bachan Singh v. State of Punjab [(1980) 2 SCC 684], the Constitution Bench of the Apex Court, while upholding the constitutional validity of death sentence based on 'rarest of rare' test, held that before exercising discretion to impose the extreme penalty of death sentence, aggravating and mitigating circumstances are required to be considered. In Machhi Singh v. State of Punjab [(1983) 3 SCC 470], the Apex Court, building upon the observations in Bachan Singh (supra), observed that a balance sheet of ‘aggravating and mitigating circumstances’ needs to be drawn where ‘mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstance before the option is exercised'. Subsequently, the Apex Court, in several judgments, has recognised, and considered commutation to life imprisonment on grounds such as young age, socio-economic conditions, mental illness, and criminal antecedents as relevant indicators on the questions of sentence. In Santhosh Kumar
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The court emphasized the importance of assessing the character and behavior of the accused, obtaining psychological evaluations, and allowing access to mitigating circumstances before making a final ....
(1) Death sentence – On a reference for confirmation of sentence of death, High Court is under obligation to proceed in accordance with provisions of Sections 367 and 368 respectively of Cr.P.C.(2) S....
Trial courts are foreclosed from imposing such a modified or specific term sentence, or life imprisonment for the remainder of convict’s life, as an alternative to death penalty.
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