IMPORTANT POINT
The court established that the High Court has a duty to proactively gather and consider mitigating circumstances in death penalty cases, ensuring compliance with the procedural mandates of the Cr.P.C.

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 Kuma