Holding

A pre‑sentence hearing may be held on the same day as conviction if the accused is afforded a real and effective opportunity to present mitigating circumstances, and post‑conviction severe mental illness is a mitigating factor only in extreme cases where the illness prevents the accused from understanding the nature and purpose of the punishment.

Summary

The case concerns Accused X, convicted of kidnapping, raping and murdering two minor girls, for which a death sentence was imposed. The petitioner challenged the conviction on two grounds: (i) the trial court failed to conduct a separate pre‑sentence hearing as required by Section 235(2) of the CrPC, and (ii) the petitioner suffers from post‑conviction severe mental illness, which should mitigate the death penalty. The Supreme Court held that a pre‑sentence hearing may be conducted on the same day as conviction provided the accused is given a real and effective opportunity to present mitigating material, and any procedural lapse can be cured at the appellate stage. It further clarified that post‑conviction severe mental illness is a mitigating factor only in extreme cases and must be proved by the accused, with assessment by a multidisciplinary team. Applying these principles, the Court found that the trial court had complied with Section 235(2) and that the evidence of mental illness was insufficient to warrant commutation to life imprisonment. Consequently, the death sentence was commuted to imprisonment for the remainder of the petitioner’s life without remission, and the State was directed to consider his rights under the Mental Healthcare Act, 2017.

Issues considered

The adequacy of compliance with Section 235(2) of the CrPC regarding pre‑sentence hearing when the conviction and sentencing are pronounced on the same day.
Whether post‑conviction severe mental illness constitutes a mitigating factor sufficient to commute a death sentence to life imprisonment.
The scope of appellate power under Section 465 of the CrPC to remedy procedural irregularities in sentencing.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 465
Constitution of Indias. Article 20(1), s. Article 21
Indian Penal Code, 1860s. 201, s. 302, s. 363, s. 376, s. 506, s. 75, s. 84
Mental Healthcare Act, 2017s. 103, s. 20(1), s. 3

Subjects

pre‑sentence hearingSection 235(2) CrPCdeath penaltymental illnesspost‑conviction mental illnessmitigationsentencing discretionMental Healthcare Act 2017Article 21Article 20appellate reviewcriminal procedure

Judgment

[2019] 6 S.C.R. 1 1

ACCUSED ‘X’ A
v.
STATE OF MAHARASHTRA
(Review Petition (Criminal) No. 301 of 2008)
In B
(Criminal Appeal No. 680 of 2007)
APRIL 12, 2019
[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR AND
INDIRA BANERJEE, JJ.] C
Code of Criminal Procedure, 1973 :
ss. 235(2) and 465 – Pre-sentence hearing – Object and
purpose of – Whether pre-sentencing hearing, if conducted on the
date of conviction, is in contravention of s. 235(2) – Held: Object
of s. 235(2) is to provide an opportunity for accused to adduce D
mitigating circumstances – As long a purpose of s. 235(2) is met,
inasmuch as the accused is afforded a real and effective opportunity
to plead his case in respect of sentencing, there is no bar on pre-
sentencing hearing taking place on the same day as of conviction –
Even assuming that a procedural irregularity is committed by trial E
court to a certain extent on the question of hearing on sentence,
the violation can be remedial by appellate court – However, in view
of s.465 the appellate Court can reverse or alter order of competent
jurisdiction on account of any error or irregularity only when such
error/irregularity results in failure of justice – In the facts of
the present case it cannot be said that the procedure envisaged F
u/s. 235(2) was not complied with.
Sentence / Sentencing
Imposition of sentence – Need to give reasons – Held: Trial
court is obliged to give reasons for imposition of sentence – Any G
increase or decrease in the quantum of punishment than the usual
levels need to be reasoned – The principle is fortified by the statute
u/s. 235(2) Cr. P.C. as also by judicial interpretation – However,
any reasoning dependent on moral and personal opinion/notion of
a judge about an offence needs to be avoided.
H
1
2 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Sentencing discretion – Exercise of – Held: Power to exercise
discretion in giving punishment, should be exercised by Judges in a
principled manner – A strict fixed punishment approach in
sentencing cannot be accepted.
Death sentence – Post-conviction mental illness – Whether a
B mitigating factor for converting a death sentence to life
imprisonment – Held:Post-conviction mental illness is based on
appreciation of punishment and right to dignity – The Constitution
embodies broad and idealistic concepts of dignity, civilized standards,
humanity and decency against which penal measures have to be
evaluated – There is strong international consensus against the
C execution of individuals with mental illness – Various Prison Rules
also recognise post-conviction mental illness as a relevant factor
for Government to consider under its clemency jurisdiction – In the
present case, since the mitigating factors were not present at the
time of commission of crime, this ground needs to be utilized only in
D extreme cases of illness – There is no set disorders/disabilities for
evaluating ‘severe mental illness’ - However, a ‘test of severity’ can
be a guiding factor for recognizing those mental illnesses which
qualify for an exemption – Post-conviction 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
E – Assessment of such disability is to be conducted by a multi-
disciplinary team of qualified professionals – Burden to prove severe
mental illness is on the accused – In the present case assessment by
the Psychiatrist with regard to mental illness of the accused is without
any objective factor for such assessment and seems to be incomplete
F – However, in the facts of the case, it is not appropriate to constitute
a panel for reassessment of the mental health of the accused – In
view of fact situation of the case, life imprisonment simplicitor would
be inadequate – Therefore, death sentence is commuted to
imprisonment for remainder of his life sans any right to remission –
Constitution of India – Arts. 20(1) and 21 – Mental Healthcare Act,
G 2017 – ss. 3 and 20(1) – Penal Code, 1860 – s. 84.
Mental Healthcare Act, 2017:
s.103 – Prisoners in jail – Cannot be ignored and left to rot
away – State is obliged to act as a parens patriae – The Act aspires
H to provide mental health care to those who are in need, including
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 3

the prisoners – State is obliged to set up mental health establishment A
in the medical wing of at least one prison in each State/Union
Territory – State directed to consider the case of the accused under
the appropriate provisions of the Act.
Partly allowing the Review Petition, the Court
HELD: 1.1 Section 235(2) of CrPC implies that once the B
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 favour. In other words,
the accused at this stage argues for imposition of lesser sentence C
based on such mitigating circumstances as brought to the notice
of the Court by him. Section 235(2) of CrPC mandates Pre-
Sentence 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 case the
minimum sentence is proposed to be imposed upon the accused, D
the question of providing an opportunity under Section 235(2)
would not arise. [Paras 15, 16 and 32][19-B-D; 25-C-D]
Bachan Singh v. State of Punjab (1980) 2 SCC
684 – followed.
E
Sevaka Perumal v. State of Tamil Nadu AIR 1991 SC
1463 : [1991] 2 SCR 711 ; State of Maharashtra v.
Sukhdev Singh (1992) 3 SCC 700 : [1992] 3 SCR
480 ; Jai Kumar v. State of Madhya Pradesh AIR 1999
SC 1860 ; Anshad v. State of Karnataka (1994) 4 SCC
381 ; B.A. Umesh v. Registrar General, High Court of F
Karnataka (2017) 4 SCC 124 : [2016] 5 SCR 438 ;
Mukesh v. State (NCT of Delhi) (2017) 3 SCC 717 ;
Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017]
6 SCR 1 ; Chhannu Lal Verma v. State of Chhattisgarh
2019 AIR 243 ; Santosh Kumar Satishbhushan Bariyar G
(2009) 6 SCC 498 : [2009] 9 SCR 90 ; Rajendra
Prahladrao Wasnik v. State of Maharashtra
2019 AIR 1 ; Tarlok Singh v. State of Punjab (1977) 3
SCC 218 : [1977] 3 SCR 711 ; Ramdeo Chauhan v.
State of Assam (2001) 5 SCC 714 : [2001] 3 SCR
669 – relied on. H
4 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Santa Singh v. The State of Punjab (1976) 4 SCC
190 : [1977] 1 SCR 229 ; Dagdu and others v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636 ;
Rajendra Prasad v. State of Uttar Pradesh AIR 1979
SC 916 : [1979] 3 SCR 78 ; Muniappan v. State of
Tamil Nadu (1981) 3 SCC 11 : [1981] 3 SCR 270 ;
B
Allauddin Mian v. State of Bihar (1989) 3 SCC 5 :
[1989] 2 SCR 498 ; Malkiat Singh v. State of Punjab
(1991) 4 SCC 341 : [1991] 2 SCR 256 ; Anguswamy v.
State of Tamil Nadu (1989) 3 SCC 33 – referred to.
1.2 The object of Section 235(2) of Cr.P.C is to provide an
C 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 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
D 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. [Para 33][25-E-G]
E
1.3 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 pre-sentencing hearing
F taking place on the same day as the pre-conviction hearing.
Depending on the facts and circumstances, a separate date may
be required for 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. [Para 34][25-G-H; 26-A-B]
G 1.4 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. Section 465 of CrPC mandates that no finding,
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 5

sentence or order passed by the Court of competent jurisdiction A
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 non-
compliance can be remedied by the appellate Court by either
B
remanding the matter in appropriate cases or by itself giving an
effective opportunity to the accused. [Para 35][26-B-D]
1.5 There is no dispute that under Criminal Justice System
in India, 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. C
However, appellate court must adopt a ‘cautionary approach’ when
providing such indulgence, which must be restricted and balanced
against competing interests. The approach of Supreme Court
needs to be rationalized and understood in the light of cautionary
approach. Thus, the term ‘hearing’ occurring under Section 235(2) D
requires the accused and prosecution at their option, to be given
a meaningful opportunity. 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. The trial court need to comply
with the mandate of Section 235(2) of CrPC with best efforts. E
Non-compliance can be rectified at the appellate stage as well,
by providing meaningful opportunity. 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, F
for fresh consideration. 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. 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 G
independent enquiries on relevant facts ordered by the court
itself. 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. [Paras 37 and 38][26-F-G; 27-B-G]
H
6 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 1.6 The record in the instant matter clearly shows that the
accused was accorded a real and effective opportunity at the trial
stage itself. Further, 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
B
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, it cannot be said that the procedure envisaged in
Section 235(2) of CrPC was not complied with in the present
C case. [Para 43][29-B-C]
2.1 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
D 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. [Para 45][29-E-F]
2.2 This Court may not laydown a ‘definitive sentencing
E policy’, which is rather a legislative function, however, the Courts
in India have addressed this problem in a principled manner having
regard to judicial standards and principles. These judicially set-
principles not only serve as instructive guidelines, but also
preserve the required discretion of the trial judges while
sentencing. However, achieving sentencing uniformity may not
F only require judicial efforts, but even the legislature may be
required to step in. [Para 50][31-A-C]
Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi)
(2014) 4 SCC 375 : [2013] 9 SCR 1000 – relied on.

G Malimath Committee Report on Reforms in the
Criminal Justice System – referred to.
2.3 Sentencing is appropriate allocation of criminal
sanctions, which is mostly given by the judicial branch. This
process occurring at the end of a trial still has a large impact on
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 7

the efficacy of a Criminal Justice System. It is established that A
sentencing is a socio-legal process, wherein a judge finds an
appropriate punishment for the accused considering factual
circumstances and equities. In the 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
B
principled manner. A strict fixed punishment approach in
sentencing cannot be acceptable, as the judge needs to have
sufficient discretion as well. [Para 47][30-B-C]
2.4 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 C
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 crime-oriented sentencing to a holistic
approach wherein the crime, criminal and victim have to be taken D
into consideration collectively. [Para 52][31-E-G]
Rajendra Prasad v. State of Uttar Pradesh (1979) 3
SCC 646 : [1979] 3 SCR 78 ; Piare Dusadh v. King
Emperor AIR 1944 FC 1 – referred to.
2.5 The reasoning of the trial court acts as a link between E
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 f irstly, it is a
fundamental principle of natural justice that the adjudicators must
provide reasons for reaching the decision and secondly, the F
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 is fortified not only by the
statute under Section 235 (2) of CrPC but also by judicial G
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. [Para 48][30-D-F] H
8 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 3.1 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. [Para 56][33-D]
3.2 Usually, mitigating factors are associated with the
B criminal and aggravating factors are relatable to commission of
the crime. These mitigating factors include considerations such
as the accused’s age, socio-economic condition etc. [Para 55]
[33-B]
3.3 The present case pertains to death penalty, which
C inevitably affects right to life, and is subjected to a various
substantive and procedural protections under criminal justice
system. An irreducible core of right to life is ‘dignity’. 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,
D it subsists well beyond the prison gates and operates until his
last breath. [Para 56][33-B]
Navtej Singh Johar v. Union of India AIR 2018 SC
4321 : [2018] 7 SCR 379 ; Common Cause v. Union of
India AIR 2018 SC 1665 : [2018] 6 SCR 1 – referred
E to.
3.4 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’. [Para 56]
F [33-G]
3.5 All human beings possess the capacities inherent in
their nature even though, because of infancy, disability, or senility,
they may not yet, not now, or no longer have the ability to exercise
them. When such disability occurs, a person may not be in a
G 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. [Para 57][33-G-H; 34-A]
3.6 Article 20(1) of the Indian Constitution imbibes the idea
communication/knowledge for the accused about the crime and
H its punishment. It is this communicative element, which is
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 9

ingrained in the sentence (death penalty), that gives meaning to A
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
B
itself collapses. [Para 58][34-A-C]
Atkins v. Virginia 536 U.S. 304 (2002) – referred to.
3.7 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. C
By protecting even those convicted of heinous crimes, this right
reaffirm the duty to respect the dignity of all persons. Therefore,
Constitution embodies broad and idealistic concepts of dignity,
civilized standards, humanity, and decency against which penal
measures have to be evaluated. India is a signatory to the
Convention on Rights of Persons with Disabilities, which endorse D
‘prohibition of cruel, inhuman or degrading punishments’ with
respect to disabled persons. Additionally, there is a strong
international consensus against the execution of individuals with
mental illness. [Para 60][34-E-G]
3.8 Various prison rules in India also recognizes that E
generally the Government has the duty to pass appropriate orders
on execution, if a person is found to be lunatic. Thus, the Prison
Rules have already recognized post-conviction mental illness as
a relevant factor for Government to consider under its clemency
jurisdiction. [Para 61][35-A; C] F
3.9 It must be recognized that insanity recognized under
IPC and the mental illness 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. This
defence is restricted in its application and is made relatable to G
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 post-conviction mental illness is based
on appreciation of punishment and right to dignity. The different
normative standards underpinning the above consequently mean
different threshold standards as well. [Para 63][35-F-H] H
10 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Surendra Mishra v. State of Jharkhand (2011) 3 SCC
(Cri.) 232 ; Amrit Bhushan Gupta v. Union of India
AIR 1977 SC 608 : [1977] 2 SCR 240 – relied on.
3.10 Considering the fact that the case is at the fag end of
the process and the mitigating factors were not emergent at the
B 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
C 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 ailment is not of grave severity.
[Para 64][36-A-C]
D 3.11 ‘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-
schizophrenic and delusional disorders, mood (affective)
disorders, including depressive, manic and bipolar forms,
E neuroses, including phobic, panic and obsessive–compulsive
disorders, behavioural disorders, including eating, sleep and
stress disorders, personality disorders of different kinds.
[Para 66][36-G-H; 37-A-B]
3.12 There is no set disorders/disabilities for evaluating
F 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 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
G 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 disorders-with schizophrenia. [Para 68][37-E-F]

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ACCUSED ‘X’ v. STATE OF MAHARASHTRA 11

3.13 Following directions need to be followed in the future A
cases : That the post-conviction 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.
The assessment of such disability should be conducted by a multi-
disciplinary team of qualified professionals (experienced medical
B
practitioners, criminologists etc), including professional with
expertise in accused’s particular mental illness. 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. The State may offer C
evidence to rebut such claim. Court in appropriate cases could
setup a panel to submit an expert report. ‘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
D
cannot understand or comprehend the nature and purpose behind
the imposition of such punishment. [Para 69][37-G-H; 38-A-D]
3.14 In the present case, the accused has submitted a report
of the Class-I Psychiatrist, indicating that he was suffering from
some sort of mental illness without providing any objective factors
for such assessment. Moreover, the expert opinion offered by a E
Psychiatrist registered with the Maharashtra Medical Council
working as a co-ordinator of the Centre for Mental Health Law
and Policy, Indian Law Society, Pune, does not provide any further
clarity. The Court is not satisfied with such statements made by
the doctors as the assessment seems to be incomplete. However, F
the present accused has been reeling under bouts of some form
of mental irritability since 1994, as apparent from the records.
Moreover, he has suffered long incarceration as well as a death
row convict. In the totality of circumstances, it is not appropriate
to constitute a panel for re-assessment of his mental condition,
in the facts and circumstances of the case. [Paras 70, 71 and G
72][38-E; H; 39-C-D]
3.15 At the same time, a sentence of life imprisonment
simpliciter would be grossly inadequate in the instant case. Given
the barbaric and brutal manner of commission of the crime, the
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12 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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, it is
fit to direct that the Petitioner shall remain in prison for the
B
remainder of his life. It is 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).
The petition is allowed to the extent that the sentence
of death awarded to the Petitioner is commuted to imprisonment
C for the remainder of his life sans any right to remission.
[Paras 73 and 74]39-E-H; 40-A-B]
Swamy Shraddananda (2) v. State of Karnataka (2008)
13 SCC 767 : [2008] 11 SCR 93 ; Union of India v. V.
Sriharan (2016) 7 SCC 1 : [2015] 14 SCR 613 ; Tattu
D Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675:
[2016] 3 SCR 561 – relied on.
Shatrughan Chauhan v. Union of India (2014) 3 SCC
1 : [2014] 1 SCR 609 ; Navneet Kaur v. State (NCT of
Delhi) (2014) 7 SCC 264 : [2014] 4 SCR 1138 ; Vasanta
E Sampat Dupare v. State of Maharashtra (2017) 6 SCC
631 : [2017] 3 SCR 850 – referred to.
4.1 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.
F Generally, it needs to be understood that prisoners tend to have
increased affinity to mental illness. Moreover, due to legal
constraints on the recognition of broad-spectrum mental illness
within the Criminal Justice System, prisons inevitably become
home for a greater number of mentally-ill prisoners of various
degrees. There is no overlooking of the fact that the realities
G within the prison walls may well compound and complicate these
problems. [Para 75][40-B-C]
4.2 In order to address the same, the Mental Healthcare
Act, 2017 was brought into force. The aspiration of the Act was

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ACCUSED ‘X’ v. STATE OF MAHARASHTRA 13

to provide mental health care facility for those who are in need A
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.
B
Therefore, the State Government is 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. [Paras 76 and 77][40-E-F]
Liebling, Maruna and McAra et al., The Oxford
Handbook of Criminology (6th Ed. (2017)) – referred C
to.
Mohd. Arif @ Ashfaq v. The Registrar, Supreme
Court of India (2014) 9 SCC 737 : [2014] 11 SCR 1009
– referred to.
D
Case Law Reference
[2014] 11 SCR1009 referred to Para 8
(1980) 2 SCC 684 followed Para 10
[2014] 1 SCR 609 referred to Para 10
E
[2014] 4 SCR 1138 referred to Para 10
[2017] 3 SCR 850 referred to Para 11
[1977] 1 SCR 229 referred to Para 18
[1977] 3 SCR 636 referred to Para 19 F
[1979] 3 SCR 78 referred to Para 20
[1981] 3 SCR 270 referred to Para 21
[1989] 2 SCR 498 referred to Para 22
[1991] 2 SCR 256 referred to Para 22 G
[1991] 2 SCR 711 relied on Para 23
[1992] 3 SCR 480 relied on Para 24
AIR 1999 SC 1860 relied on Para 24
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14 SUPREME COURT REPORTS [2019] 6 S.C.R.

A (1994) 4 SCC 381 relied on Para 25
[2016] 5 SCR 438 relied on Para 26
(2017) 3 SCC 717 relied on Para 27
[2017] 6 SCR 1 relied on Para 28
B 2019 AIR 243 relied on Para 29
[2009] 9 SCR 90 relied on Para 29
2019 AIR 1 relied on Para 30
(1989) 3 SCC 33 referred to Para 31
C
[1977] 3 SCR 711 relied on Para 32
[2001] 3 SCR 669 relied on Para 32
[2013] 9 SCR 1000 relied on Para 50
[1979] 3 SCR 78 referred to Para 51
D
AIR 1944 FC 1 referred to Para 54
[2018] 7 SCR 379 referred to Para 56
[2018] 6 SCR 1 referred to Para 56
(2011) 3 SCC (Cri.) 232] relied on Para 63
E
[1977] 2 SCR 240 relied on Para 63
[2008] 11 SCR 93 relied on Para 64
[2015] 14 SCR 613 relied on Para 64

F [2016] 3 SCR 561 relied on Para 64
CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007.
From the Judgment and Order dated 16.05.2008 of the Supreme
Court of India in Criminal Appeal No. 680 of 2007.
G
Ms. Nitya Ramakrishnan, Shadan Farasat, Saaduzzaman, Yash
S. Vijay, Ms. Ninni Susan Thomas, Ms. Shruti Narayan, Ms. Jahnavi
Sindhu, Advs. for the Petitioner.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. for
the Respondent.
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 15

The Judgment of the Court was delivered by A
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 B
“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 each under Sections 201 and 363, 10 years’ rigorous
imprisonment under Section 376 and the death sentence under Section C
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 D
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 E
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. victim-1 (studying in the 4th standard) and victim-2 F
(studying in the 1 st standard) were cousins staying at Gulumb,
Maharashtra, in a locality of homeless people (Beghar Vasti) at the house
of Ramdas Jadhav (PW-13, victim-1’s father). 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 (PW-6), with his
daughter, Reshma (PW-8), where he met the two deceased girls, and on G
the pretext of offering sweets, he led the girls to accompany him.
Thereafter, he committed the rape and murder of both girls, and threw
victim-2’s body in a well situated in the field of the father of Sakharam
Bhiku Yadav (PW-11), and concealed the body of victim-1 in a “kalkache
bet” (place where bamboo trees and shrubs grow together thickly).
H
16 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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 victim-2. 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,
half-burnt bidis and broken bangles were recovered. The blood-stained
B
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 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
C the Petitioner for the offences stated supra on the basis of the ‘last
seen’ evidence; motive of the accused; seizure of blood-stained 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;
D 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 blood-stained earth and other incriminating articles were
seized; extra-judicial 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
E 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 for the alleged extra-
F judicial 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
G 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.
8. A criminal miscellaneous petition being Crl. M.P. No. 5584 of
2015 was filed by the Petitioner seeking reopening of this review petition,
H placing reliance on the decision of this Court dated 02.09.2014 in W.P.
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 17
[N. V. RAMANA, J.]

(Crl.) No. 77 of 2014 in Mohd. Arif @ Ashfaq v. The Registrar, A
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.
B
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 C
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 pre-
sentencing 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 D
to the ratio of the three-Judge Bench decision of this Court in Shatrughan
Chauhan v. Union of India, (2014) 3 SCC 1, followed in a four-Judge
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 E
and that such mental illness or insanity would be a supervening
circumstance meriting commutation of the death sentence to life
imprisonment.
11. Learned counsel for the Respondent, i.e. the State of
Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the other F
hand, highlighted that the pre-sentencing 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 three-Judge
Bench decision of this Court in Vasanta Sampat Dupare v. State of G
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 H
18 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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 non-compliance of Section
235 (2) of CrPC during the sentencing process before the Trial Court.
The second issue concerns the mental illness of ‘accused x’, which was
B 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 Pre-
Sentence Hearing, as envisaged under Section 235 (2) of CrPC, was
C 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
D 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
E place on record the mitigating circumstances which mandate the
imposition of lesser penalty.
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
F decide. In India, under the old Code, no opportunity was provided, post-
conviction, 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 Pre-Sentence Hearing, among other things.
G
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
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 19
[N. V. RAMANA, J.]

on the question of sentence, and then pass sentence on him A
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 B
in his favor. In other words, the 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 Pre-Sentence Hearing for
the accused and imbibes a cardinal principle that the sentence should be C
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. D

17. As also highlighted by the Petitioner, this requirement has also
been affirmed by the five-Judge Bench of this Court in Bachan Singh
v. State of Punjab (supra), wherein it was also held that at the stage of
Pre-Sentence Hearing, the accused can bring on record material or
evidence, which may not be strictly relevant to or connected with the E
particular crime under inquiry, but nevertheless, may have a bearing on
the choice of sentence.
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 F
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 G
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
H
20 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
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.
C …
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
D 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
E 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.

F 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-
G
“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
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 21
[N. V. RAMANA, J.]

to. be heard on the question of sentence. The Court, on A
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
B
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 C
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
D
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.”
E
(emphasis supplied)
20. In Rajendra Prasad v. State of Uttar Pradesh, AIR 1979
SC 916, the Supreme Court expressed its concern that the mandatory
Pre-Sentence Hearing had become nothing more than a repetition of the
facts of the case. The Bench hoped that “the Bar will assist the Bench F
in fully using the resources of the new provision to ensure socio-
personal 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 G
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
H
22 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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”.
22. The question of providing sufficient time for Pre-Sentence
B 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 socio-
economic conditions, and the impact of their crime on the community
had not come on record, and in the absence of such information deciding
C 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
D 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
E though it was argued that no time had been given to raise grounds on
sentencing by the trial court. This Court observed 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
F 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
G 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
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 23
[N. V. RAMANA, J.]

cryptically in one paragraph and this defeated the very object of Section A
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 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.
B
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 C
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 D
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 E
had to the nature of the case, we think it appropriate to
adopt the second mode. To elaborate, we would like to give
opportunity 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 F
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) G
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
H
24 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
that no pre-hearing on sentence was ever carried out.
29. Two recent three-Judge 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.
1482-1483 of 2018), this Court observed that not having a separate hearing
C 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
D 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
E 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 (Crl.)
Nos. 306-307 of 2013), this Court made a general observation that in
cases where the death penalty may be awarded, the Trial Court should
F 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 pre-sentence hearing on a separate date
is mandatory.
G 31. It may also be noted that in the older three-Judge Bench
decision of this Court in Malkiat Singh Case (supra), the Court observed
that keeping in mind the two-Judge 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
H day as the finding of guilt is not in accordance with law, the normal
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 25
[N. V. RAMANA, J.]

course of action in case of violation of such procedure would be remand A
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), regarding conduct of
hearings on separate dates, were only directory. Be that as it may, it
B
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 non-conduct of the pre-
sentence 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. C
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). D
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 E
relating to imposition of higher sentence. The object of Section 235 (2)
of the Cr.P.C is to provide an 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 F
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. G
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 H
26 SUPREME COURT REPORTS [2019] 6 S.C.R.

A pre-sentencing hearing taking place on the same day as the pre-conviction
hearing. Depending on the facts and circumstances, a separate date
may be required for 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.
B 35. Now we need to consider the impact of non-compliance 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
C 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
D non-compliance 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
E rights, viz., right to fair trial and right to speedy trial. 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.
F
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
G 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
1
Dame Sian Elias, Fairness in Criminal Justice (golden threads and pragmatic patches),
H Hamlyn Lectures (2018)
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 27
[N. V. RAMANA, J.]

solution for remedying non-compliance of Section 235 (2) of CrPC A
provides for selection of at least two different modes.
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- B
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 C
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.
D
iv. Non-compliance 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
E
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 F
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.
viii. If no such grounds are brought by the accused before the G
appellate courts, then it is not obligated to take recourse
under Section 235 (2) of CrPC.
39. Having discussed the law on pre-sentence 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 H
28 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B 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
C 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 nine-year-old girl child under Sections 376
and 506 of the IPC and Section 57 of the Bombay Children Act, as well
as for the kidnapping and rape of a seven-year-old girl child under Sections
D 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.
E
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
F 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
G reform or rehabilitation. The Court also noted the barbaric nature of the
offence, inasmuch as the Petitioner had cold-bloodedly 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
H Court affirmed the death penalty awarded to the accused.
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 29
[N. V. RAMANA, J.]

42. The Supreme Court, in appeal, being Criminal Appeal No. 680 A
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 B
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 C
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. D

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, E
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 F
keeps on degrading day by day. The prevailing argument in favour of
such prisoners is that; whether the 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. G
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 H
30 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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 post-conviction.
47. Sentencing is appropriate allocation of criminal sanctions, which
B 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 socio-legal 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
C 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
D 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
E 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 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
F 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
G 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
2
Nicola Padfield, Rod Morgan and Mike Maguire, ‘Out of Court, out of sight? Criminal
sanctions and no-judicial decision making’, The Oxford Handbook of Criminology
H (5th Ed.).
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 31
[N. V. RAMANA, J.]

United States of America, provide a basic framework in sentencing A
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. B
These judicially set-principles not only serve as instructive guidelines,
but also preserve the required discretion of the trial judges while
sentencing. Such an effort has 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 C
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 D
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 E
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 deterrence, incapacitation,
rehabilitation, retribution and reparation (wherever applicable), unless F
particularly specified by the legislature as to the choice. The purposes
identified above, marks a shift in law from crime-oriented 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, G
it is necessary to consider the aspect of post-conviction 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 post-conviction mental
H
illness as a mitigating factor in the following manner-
32 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Case No. 47-The 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)
B
had about six years previously murdered his own brother, appellant’s
father. Kanchan was sentenced to death for the 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
C 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
D
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
E 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
F 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.
G
We accordingly reduce the sentence of death to one of
transportation for life and subject to this modification dismiss
the appeal.
(emphasis supplied)
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 33
[N. V. RAMANA, J.]

However, this case does not provide any guidelines or the threshold A
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 B
accused’s age, socio-economic condition etc. We note that the ground
claimed by ‘accused x’ is arising after a long-time 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 C
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 post-conviction mental illness as a determining
factor to disqualify as a ‘rarest of the rare’ case.
56. Sentencing generally involves curtailment of liberty and D
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 E
‘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 F
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’. G
57. All human beings possess the capacities inherent in their nature
even though, because of infancy, disability, or senility, they may 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
H
34 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B 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.
C
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 disabled or retarded neither
D increases the deterrence effect of death penalty nor does the non-
execution 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
E 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
F 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 Additionally, there is a strong international consensus against
G the execution of individuals with mental illness.4
3
Hale’s Pleas of the Crown Vol. I - p. 33; Coke’s Institutes, Vol. III, pg. 6; Black-stone’s
Commentaries on the Laws of England Vol. IV, pages 18 and 19; , “An Introduction to
Criminal Law”, by Rupert Cross, (1959), p. 67.
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,
H 2015);
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 35
[N. V. RAMANA, J.]

61. We may note that various prison rules in India also recognizes A
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
B
Notification, Home department, No. RJM-1058 (XLVI)/12,495-XVI,
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 post-conviction mental illness as a
relevant factor for Government to consider under its clemency jurisdiction.
62. Having understood the normative basis for recognition of post- C
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:
“86. The above materials, particularly, the directions of the United
Nations international conventions, of which India is a party, clearly D
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 E
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 F
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 post-conviction mental illness is based on G
appreciation of punishment and right to dignity. [refer Amrit Bhushan
Gupta v. Union of India, AIR 1977 SC 608] The different normative
standards underpinning the above consequently mean different threshold
standards as well.
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36 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
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
C 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 well-known classification and
D diagnostic guides for mental disorders in America. Its fifth edition (DSM-
5), 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
E 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
F 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
G 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
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 37
[N. V. RAMANA, J.]

3. neuroses, including phobic, panic and obsessive–compulsive A
disorders
4. behavioural disorders, including eating, sleep and stress
disorders
5. personality disorders of different kinds.
B
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 C
decision to forgo or terminate post-conviction 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 D
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 E
those mental illness which qualify for an exemption. Therefore, the test
envisaged herein predicates that the offender 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 F
of such punishment. These disorders generally include schizophrenia,
other serious psychotic disorders, and dissociative disorders-with
schizophrenia.
69. Following directions need to be followed in the future cases in
light of the above discussion-
G
a. That the post-conviction 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.
H
38 SUPREME COURT REPORTS [2019] 6 S.C.R.

A b. The assessment of such disability should be conducted by a
multi-disciplinary team of qualified professionals (experienced
medical practitioners, criminologists etc), including
professional with expertise in accused’s particular mental
illness.
B 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.
C d. The State may offer evidence to rebut such claim.
e. Court in appropriate cases could setup a panel to submit an
expert report.
f. ‘Test of severity’ envisaged herein predicates that the offender
needs to have a severe mental illness or disability, which simply
D 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 Class-I Psychiatrist, Yerawada Central Prison,
E 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.
F
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 anti-
psychotic drugs…
The doctor further opined that ‘he is maintaining good improvement
G 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
H
ACCUSED ‘X’ v. STATE OF MAHARASHTRA 39
[N. V. RAMANA, J.]

Centre for Mental Health Law and Policy, Indian Law Society, Pune, A
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 B
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). C
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 D
as a death row convict. In the totality of circumstances, we do not
consider it be appropriate to constitute a panel for re-assessment 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 E
in the instant case. Given the barbaric and brutal manner of 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 F
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 G
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).

H
40 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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.
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
B 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
broad-spectrum mental illness within the Criminal Justice System, prisons
inevitably become home for a greater number of mentally-ill prisoners
of various degrees. There is no overlooking of the fact that the realities
C 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.
D 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.
E 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
F partly allowed in the aforesaid terms and pending applications, if any,
shall also stand disposed of.

Kalpana K. Tripathy Review Petition partly allowed.

G

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 (6 th Ed.
H (2017)).