Guest Post - Same Day Sentencing in Death Penalty Jurisprudence

(I am happy to host this Guest Post by Ms Nivedita Mukhija, an advocate practising in New Delhi)

Section 235 of the Code of Criminal Procedure [CrPC] states as follows:

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

This provision is an explicit recognition of the idea that the relevant considerations for sentencing are different from that for conviction/acquittal, and thus, sentencing should be treated as a separate phase in a trial. It has assumed considerable significance in death penalty jurisprudence, where lower courts often downplay the importance of hearing, in detail, all aggravating and mitigating factors awarding the death penalty, erroneously assuming that these factors have already been sketched out during the trial. Bachan Singh v. State of Punjab [(1980) 2 SCC 684] called Section 235(2) as something enabling a “bifurcated trial”, wherein the accused submits evidence possibly without bearing on the crime, but which may still be linked to the “special reasons” to be provided while awarding a death penalty as per Section 354(3) of the CrPC. 

Conflicting Lines of Judicial Opinion

The question, however, is whether a separate phase implies that a different date be set for hearing on sentencing, or, whether sentencing can be conducted right after the determination of guilt has been concluded. There seem to be two lines of cases emanating from the Supreme Court. One states that Section 235(2) cannot be done justice to unless a different date is set, to afford ample time for the accused to prepare a case on sentencing. The second holds that Section 235(2) merely implies that the accused must be effectively heard, which does not require setting a different date for hearing. I argue here that sentencing should always be deferred to a later date in death penalty cases to grant an effective hearing to the accused. I also contend that if this has not been done, the appellate court should remand the case, as a fact-intensive exercise like sentencing should be done by a court of first instance, which also rightly extends the right to appeal against that decision to an accused. While doing so, the appellate court must ensure that the case is disposed off in a timely manner by the lower court to maintain judicial efficacy and reduce the suffering of the accused through further delays.

Set One: Mandatory Separation of Trial and Sentencing Phases

With respect to the first line of cases, the most prominent example is perhaps Allauddin Mian and Ors. v. State of Bihar [(1989) 3 SCC 5], where three judges of the Supreme Court recognised the importance of giving the accused an effective opportunity of placing all relevant mitigating factors, antecedents and background information, and other extenuating factors on record. The bench held in context of Section 235(2) that as “… a general rule the trial courts should after recording the conviction adjourn the matter to a future date ...”. It was believed that the accused must be allowed to absorb and overcome the shock of conviction before being heard on sentence. Since this was not done in that case, the Supreme Court went on to convert the death sentence into life imprisonment, finding insufficient material on sentencing to warrant awarding the death penalty. This decision was followed in Malkiat Singh v. State of Punjab [(1991) 4 SCC 341], where another three-judge bench noted that usually a failure to give sufficient time to adduce evidence on sentencing would lead to remanding the case. However, in that case, the Court held that given the long period of incarceration (it had now been six years since the accused was first convicted), it was more expedient to convert the death penalty into life imprisonment.

Set Two: Same Day Sentencing

The second line of cases is concerned more with hearing the accused sufficiently on sentence, and holds this can be done on the same day as well. On the point of remanding the case, these cases suggest that sentencing hearings need not involve remands. These views take their root in yet-another three judge bench decision in Dagdu v. State of Maharashtra [(1977) 3 SCC 68], wherein the Court held that a failure to be heard on sentence would not automatically entail a remand, and the appellate court could hear the accused on sentence at the later stage as well. The Court called remand the exception, in the interests of judicial efficacy.

A slew of recent decisions has come in support of same-day sentencing, to which I now return. In 2016, yet another three judge bench held in B. A. Umesh v. State of Karnataka [2016 (9) SCALE 600] that there was no mandate under Section 235(2) to fix a separate date for hearing on sentence, and the Court was required to determine whether an effective hearing was granted after looking the facts and circumstances of a given case instead. Merely because no separate date was fixed was no ground to allow the review petition, the Court held in the death penalty matter. The Court also noted that the parties had not objected to not being given a separate date of hearing in the lower courts, and since then several courts including the Supreme Court had heard the parties on the question of sentence in sufficient detail. This was reiterated by three judges in Vasanta Sampath Dupare v. State of Maharashtra [2017 (5) SCALE 724]. 

Neither B. A. Umesh nor Vasanta Sampath Dupare explain the inconsistencies arising by comparing their logic with the Allauddin Mian line of cases. Instead, they simply rely on Dagdu. Recently, in Mukesh and Ors. v. State of NCT of Delhi and Ors. [2017 (3) SCALE 356], the Court over-simplified the conundrum by stating that these decisions reflect two modes that can be afforded to the accused to present a case: either to remand it before the High Court, or be heard on sentence before the Supreme Court itself [the Court believed, in that case, that “regard being had to the nature of the case”, the second mode was preferable].

Making the Case for 'Bifurcation of Trial' 

It is submitted that this second line of decisions disregards the ‘bifurcation-of-trial’ approach adopted by Bachan Singh. These decisions do not explain why the exercise of sentencing, which is governed by different considerations, and may involve new evidence and witnesses requiring different preparation altogether, should be undertaken on the same day. While many of these decisions rely on rhetoric of ensuring an accused has been granted ‘effective hearing’, the Courts must also recognise that adequate time to prepare on a different limb of a trial is a pre-requisite to effective hearing.

The recent decisions I highlighted are also problematic on another level: they imply that the failure of the lower court to hear effectively on sentencing is remedied when an appellate court hears the same. However, our judicial system clarifies that the lower Courts are the courts of evidence with such exercises being exceptional during appellate hearings. Thus, original evidence must as per rule first go through the lower Courts, which are better equipped to deal with the same. Further, under Article 131 and the Supreme Court Rules, 2013, original jurisdiction is only limited to civil suits between the union and the states, or inter se states. For a factually-intensive exercise such as sentencing, often requiring cross-examination, the Supreme Court is not the ideal place for a first (and often final) determination. (On this, see, http://lawandotherthings.com/2017/05/death-penalty-sentencing-the-supreme-court-as-the-first-and-final-arbiter-of-facts/#_ftnref7).

Another important reason to question the second approach is that an automatic bypass in such cases would deny an accused a right to appeal against the ruling in the sentencing stage before the Supreme Court (see http://indianexpress.com/article/opinion/columns/death-penalty-in-india-supreme-court-cases-law-mitigating-evidence-4551607/). This leads to there being no chance of re-appreciation of evidence on sentencing in case of an error in judicial reasoning. In a death penalty case, where the stakes involved in the sentencing process are highest, we must ensure that there is the protective layer of multiple levels of Courts having the option of hearing on sentence.

Conclusions and Some Ways Out of the Bind

Since B. A. Umesh states that same day sentencing was not an issue there because it was not raised before lower courts, defence lawyers should ensure that the need for a separate date for sentencing is adequately highlighted before the lower court itself. Defence lawyers can perhaps also use the caveat given in Malkiat Singh, and argue that prima facie errors in sentencing coupled with lengthy delay for someone on death row should result in converting those cases to life imprisonment, instead of conducting a mini-trial for sentencing yet again. The Supreme Court's current treatment of 'delay' as a factor requires more nuance but. Consider Yakub Abdul Razak Memon v. State of Maharashtra [(2013) 13 SCC 1], where the Court concluded that sentencing hearings must involve remand unless it is likely to cause delay. But, I ask, given the pervading backlog in case-disposal, when would remand not involve some delay? Moreover, the lack of nuance uses delay to take away a right of appeal at the cost of judicial efficacy. Bland arguments suggest delay only lengthens the suffering of those on death row. Of course delay is bad, but it does not entail cutting corners to arrive at the end. This trade-off is unconscionable. Thus, I conclude with suggesting it is time that the Supreme Court clarifies the inconsistency between the two lines of cases by stating the true scope and import of Section 235(2), and while doing so pays heed to the adverse effects of not remanding a case in a case where the judicial power to take a life is at stake.