BABASAHEB MARUTI KAMBLE versus STATE OF MAHARASHTRA on 1 November 2018

SUPREME COURT REPORTS

[2018] 13 S.C.R.

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BABASAHEB MARUTI KAMBLE

v.

STATE OF MAHARASHTRA

(Review Petition (Criminal) No. 388 of 2015)

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In

(Special Leave Petition (Criminal) No. 458 of 2015)

NOVEMBER 01, 2018

[A. K. SIKRI, ASHOK BHUSHAN AND

CINDIRA BANERJEE, JJ.]

Sentence/Sentencing: Death sentence – Award of, by courts below– Special Leave Petition filed thereagainst – Dismissed in limine withone word – Review petition filed against the dismissal of SLP –Held: When death sentence is rare, there has to be an independentDexamination by this Court also, ‘unbound by the findings of thetrial court and the High Court’ – Such approach is the ‘time-honoured practice of this Court’ – Thus, special leave petition filedin those cases where death sentence is awarded by the courts below,should not be dismissed without giving reasons, at least qua deathsentence – Order dismissing the Special Leave Petition is recalled –EConstitution of India – Art. 137.

Allowing the Review Petition, the Court

HELD: 1.1 In the instant case, since the special leavepetition filed by the review petitioner was dismissed in limineFwith one word and without giving any reasons, the review petitionis allowed and the order dismissing the Special Leave Petition isrecalled. [Para 16][1165-D-E]

1.2 When it comes to providing hearing in cases where thejudicial mind is to be applied in choosing the sentence betweenGlife imprisonment and death, this requirement assumes greaterimportance. It has been held in Bachan Singh’s case that sincedeath sentence can be awarded only in the ‘rarest of rare cases’,the Court is supposed to give ‘special reasons’ when it choses toaward death sentence. The reasoning process has to undertakethe exercise of considering mitigating as well as aggravating H

circumstances and after weighing those circumstances withobjective assessment, a decision has to be taken in this behalf.Such an exercise inherently calls for recording of reasons forawarding death sentence. The legislature has added anotherdimension in order to obviate any possibility of error, by makinga specific provision to the effect that in those cases where theSession Judge inflicts death penalty, it has to be affirmed andapproved by the High Court. [Para 11][1165-D-F]

1.3 Keeping in view all the factors, particularly, when deathsentence is rare, this Court has emphasised time and again thatin such cases there has to be an independent examination by thisCourt also, ‘unbound by the findings of the trial court and theHigh Court’. Such approach is the ‘time-honoured practice ofthis Court’. [Para 12][1163-G]

Mohammed Ajmal Mohammad Amir Kasab alias AbuMujahid v. State of Maharashtra (2012) 9 SCC 1 :[2012] 8 SCR 295 - relied on.

1.4 While undertaking the exercise as to whether the deathpenalty is to be given imprimatur by this Court, even after theapproval thereof by the High Court, case law of this Court amplydemonstrates that proper exercise of sentence discretion callsfor consideration of various factors like the nature of offence,circumstances-both extenuating or aggravating, the prior criminalrecord, if any, of the offender, the age of the offender, hisbackground, his education, his personal life, his social adjustment,the emotional and mental condition of the offender, the prospectsfor the rehabilitation of the offender, the possibility of hisrehabilitation in the life of community, the possibility of treatmentor training of the offender, the possibility that the sentence mayserve as a deterrent to crime by the offender or by others.[Para 13][1163-G-H; 1164-A-B]

1.5 A cumulative effect of all the circumstances does suggestthat special leave petition filed in those cases where deathsentence is awarded by the courts below, should not be dismissedwithout giving reasons, at least qua death sentence. There maybe cases where at the Special Leave Petition stage itself, theCourt may find that insofar as conviction is concerned there is no A

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Ascope for interference at all as such a conviction for offence underSection 302 is recorded on the basis of evidence which isimpeccable, trustworthy, credible and proves the guilt of theaccused beyond any shadow of doubt. At the same time, if deathpenalty is to be affirmed even while dismissing the Special LeavePetition in limine, it should be by a reasoned order on the aspectBof sentence, at least. [Para 15][1165-B-D]

Rajesh Kumar v. State Through Government of NCT ofDelhi (2011) 13 SCC 706; Dayanidhi Bisoi v. State ofOrissa (2003) 9 SCC 310; Mohd. Arif Alias Ashfaq v.Registrar, Supreme Court of India and Others (2014) 9CSCC 737 : [2014] 11 SCR 1009 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Review Petition(Criminal) No. 388 of 2015 in Special Leave Petition (Criminal) No. 458Eof 2015

From the Judgment and Order dated 06.01.2015 of the SupremeCourt of India in S.L.P. (Crl.) No. 458 of 2015.

Shekhar Naphade, Sr. Adv., Ms. Shreya Rastogi, Abhikalp PratapSingh, Siddharth Dharmadhikari, Ms. N. Susan Thomas, Yash S. Vijay,FMs. Amaraya Kanjilal, Ms. Liz Mathew, Advs. for the Petitioner.

Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar Advs. for theRespondent.

The Judgment of the Court was delivered by G

A. K. SIKRI, J. 1. This Review Petition is filed by the petitionerwho has been convicted for offences under Sections 302, 376(2)(f) and342 of the Indian Penal Code (for short, ‘IPC’). He was awarded deathpenalty for the offence punishable under Section 302, IPC by the trialcourt vide its judgment dated September 27, 2013 in Sessions Case No.

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87 of 2012. For offence under Section 376(2)(f) of IPC, the petitionerwas sentenced to life imprisonment and for the offence under Section342 of IPC, the trial court awarded simple imprisonment for two months.

2. Since sentence of death was imposed on the petitioner, theSessions Judge made a Reference to the High Court for confirmation ofdeath sentence. The petitioner also challenged his conviction andsentences imposed by filing Criminal Appeal No. 80 of 2014 before theHigh Court. The said appeal as well as Reference were heard togetherby the High Court. The High Court upheld the conviction under theaforesaid provisions and also confirmed death sentence of the petitionervide its judgment dated July 09/10, 2014. Against that judgment, thereview petitioner preferred Special Leave Petition (Criminal) No. 458of 2015. The special leave petition came up for preliminary hearing onJanuary 06, 2015 which was dismissed by passing the following order:

“Delay condoned.

Dismissed.”

3. Present review petition is filed seeking review of the aforesaidorder of dismissal in limine.

4. Mr. Shekhar Naphade, learned senior counsel appearing forthe petitioner submits that in a case where conviction is followed bydeath sentence, and the special leave petition is filed thereagainst, suchpetition should not be dismissed in limine and in case the Supreme Courtstill finds it fit to do so, some reasons need to be recorded.

5. Learned senior counsel has referred to the provisions of Article137 of the Constitution which provide for review of judgments or ordersby the Supreme Court and reads as under:

“137. Review of judgments or orders by the Supreme Court.—Subject to the provisions of any law made by Parliament or anyrules made under Article 145, the Supreme Court shall have powerto review any judgment pronounced or order made by it.”

6. He submits that the scope of review in criminal cases is broaderthan in civil cases and unless some reasons are recorded while dismissingthe special leave petition, the remedy of review would become illusive.He also referred to the judgment of this Court in Mohammed AjmalMohammad Amir Kasab alias Abu Mujahid vs. State of Maharashtra[1]

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Awhere the Court succinctly stated the approach that is needed in dealingwith the cases of death sentence, with the following observations:

“5. We may also state here that since it is a case of death sentence,we intend to examine the materials on record first hand, inaccordance with the time-honoured practice of this Court, andBcome to our own conclusions on all issues of facts and law,unbound by the findings of the trial court and the High Court.”

7. Mr. Naphade also referred to the provisions of Order XXIIRule 7 of the Supreme Court Rules which provide for summoning of thetrial court record for deciding the appeals and reads as under:

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“7. (1) If the petitioner is in jail and is not represented by anadvocate-on-record, he may present his petition for special leaveto appeal together with the certified copy of the Judgment andany written argument which he may desire to advance to theofficer in charge of the jail, who shall forthwith forward the sameto the Registrar of this Court. Upon receipt of the said petition,the Registrar of the Court shall, whenever necessary call, fromthe proper officer of the Court or the Tribunal appealed from, therelevant documents for determination of the petition for specialleave to appeal.

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(2) As soon as all necessary documents are available the Registrarshall direct engagement of an Advocate from the panel of SupremeCourt Legal Services Committee, or assign a Panel Advocate atthe cost of the state and thereafter place the petition and completedocuments for hearing before the Court. The fee of the advocateso engaged shall be such, as may, from time to time, be fixed bythe Chief Justice.

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(3) After the hearing of the petition or the appeal, as the case maybe, is over, the Registrar, the Additional Registrar or the DeputyRegistrar shall issue to the Advocate, engaged at the cost of theState, a certificate in the prescribed form indicating therein thename of the said Advocate engaged at the cost of the Stateconcerned and the amount of fees payable to the said advocate.

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(4) The State concerned shall pay the fees specified in thecertificate issued under sub-rule (3) to the Advocate named thereinwithin three months from the date of his presenting before it his H

claim for the fees supported by the certificate. If the fees are notpaid within the period abovesaid, the Advocate shall be entitled torecover the same from the State concerned by enforcement ofthe certificate as an order as to costs under the Supreme Court(Decrees and Orders) Enforcement Order, 1954.

Explanation.—For the purposes of this rule, the term “State”shall include a Union Territory.”

8. His argument was that though normally such record issummoned only after the special leave petition is granted, but in thosecases where death sentence is imposed, the court should summon therecord when it is making the final order even at the stage of specialleave petition, keeping in view the spirit of the principles laid down inparagraph 5 of the Kasab’s case.

9. We have given our thoughtful consideration to the aforesaidsubmissions of the learned senior counsel for the petitioner. We findconsiderable force in, at least, some of the submissions made by Mr.Naphade.

10. In cases where an accused is convicted for offence underSection 302, IPC, minimum sentence that is to be awarded is the lifeimprisonment. However, in rarest of rare cases, the Sessions Courtmay award death sentence as well. As per the provisions of Section235 of the Code of Criminal Procedure, it is mandatory for the sessionscourt to give a proper hearing to the accused on the question of sentenceas well. The necessity and importance of such a hearing is explained inRajesh Kumar vs. State Through Government of NCT of Delhi[2]wherein after referring to various earlier judgments, this Court summedup in the following manner:

“44. In Santa Singh [(1976) 4 SCC 190 : 1976 SCC (Cri) 546]this Court noted that in most countries of the world problem ofsentencing the criminal offender is receiving increasing attentionand it is so in view of rapidly changing attitude towards crime andcriminal. In many countries, intensive study of sociology of thecrime has shifted the focus from the crime to the criminal, leadingto a widening of the objectives of sentencing and simultaneouslyof the range of the sentencing procedures.

2 (2011) 13 SCC 706

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45. Bhagwati, J. (as His Lordship then was) giving the judgmentin Santa Singh[(1976) 4 SCC 190 : 1976 SCC (Cri) 546] pointedout and which was later on accepted in Bachan Singh v. Stateof Punjab [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] that properexercise of sentencing discretion calls for consideration of variousfactors like the nature of offence, the circumstances—bothextenuating or aggravating, the prior criminal record, if any, of theoffender, the age of the offender, his background, his education,his personal life, his social adjustment, the emotional and mentalcondition of the offender, the prospects for the rehabilitation ofthe offender, the possibility of his rehabilitation in the life ofcommunity, the possibility of treatment or training of the offender,the possibility that the sentence may serve as a deterrent to crimeby the offender or by others. After referring to all the aforesaidfacts, the learned Judge opined as under: (Santa Singhcase [(1976) 4 SCC 190 : 1976 SCC (Cri) 546] , SCC p. 195,para 3)

“3. … These are factors which have to be taken into accountby the court in deciding upon the appropriate sentence, and,therefore, the legislature felt that, for this purpose, a separatestage should be provided after conviction when the court canhear the accused in regard to these factors bearing on sentenceand then pass proper sentence on the accused. Hence the newprovision in Section 235(2).”

46. After analysing the aforesaid aspects, the learned Judgein Santa Singh case[(1976) 4 SCC 190 : 1976 SCC (Cri) 546]posed the question: What is the meaning and content of expression“hear the accused”? By referring to various aspects and also theopinion expressed by the Law Commission in its Forty-eighthReport, Bhagwati, J. (as His Lordship then was) opined that thehearing contemplated under Section 235(2) is not confined merelyto oral submissions but it is also intended to give an opportunity tothe prosecution and the accused to place before the court factsand material relating to various factors bearing on the question ofsentence. However, there was a note of caution that in the nameof such hearing, the court proceedings should not be undulyprotracted.

47. This Court held in Santa Singh [(1976) 4 SCC 190 : 1976SCC (Cri) 546] that non-compliance with such hearing is not amere irregularity curable under Section 465 of the 1973 Code.This Court speaking through Bhagwati, J. (as His Lordship thenwas) emphasised that this legal provision under our constitutionalvalues has acquired a new dimension and must reflect “new trendsin penology and sentencing procedures” so that penal laws canbe used as a tool for reforming and rehabilitating the criminalsand smoothening out the uneven texture of the social fabric andnot merely as a weapon for protecting the hegemony of one classover the other (see p. 197, para 6 of the Report).

48. In Muniappan v. State of T.N. [(1981) 3 SCC 11 : 1981 SCC(Cri) 617] Chandrachud, C.J. delivering the judgment again hadto consider the importance of Section 235(2) and Section 354(3)CrPC in our sentencing procedure. The learned Chief Justice heldthat the obligation to hear the accused on the question of sentenceunder Section 235(2) of the 1973 Code is not discharged by puttinga formal question to the accused as to what he has to say on thequestion of sentence. The learned Chief Justice made it clear thatthe Judge must make a genuine effort to elicit from the accusedall items of information which will eventually bear on the questionof sentence. All such items of information that would furnish aclue to the genesis of the crime and the motivation of the criminalare relevant and the learned Chief Justice emphasised that in suchan exercise, “it is the bounden duty of the Judge to cast aside the formalitiesof the court scene and approach the question of sentence froma broad, sociological point of view”.

49. The learned Chief Justice further said that in the sentencingprocedure it is not only the accused but the entire society is atstake and therefore the questions the Judge puts and the answersthe accused gives may be beyond the narrow constraints of theEvidence Act. In the words of the learned Chief Justice the positionof the Court in an exercise under Section 235(2) is as follows:(Muniappan case [(1981) 3 SCC 11 : 1981 SCC (Cri) 617] ,SCC pp. 13-14, para 2)

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A“2. … The court, while on the question of sentence, is in an altogetherdifferent domain in which facts and factors which operate are of anentirely different order than those which come into play on the questionof conviction.”

50. To the same effect is the judgment of Ahmadi, J. (as HisBLordship then was) in Allauddin Mian v. State of Bihar [(1989)3 SCC 5 : 1989 SCC (Cri) 490] . Explaining the purpose of Section235(2), this Court in Allauddin Mian [(1989) 3 SCC 5 : 1989SCC (Cri) 490] held that Section 235(2) satisfies a dual purpose;first of all it satisfies rules of natural justice by according to theaccused an opportunity of being heard on the question of sentence.CUnder such sentencing procedure the accused is given anopportunity to place before the court all relevant materials havinga bearing on the question of sentence. The Court opined that it isa salutary principle and must be strictly observed and is not amatter of mere formality. This Court further held that in suchDhearing exercise the accused should be given a real and effectiveopportunity to place his antecedents, social and economicbackground, etc. before the court, for the court to take a fairdecision on sentence as otherwise the sentence would bevulnerable.

E51. The Court therefore opined: (Allauddin Mian case [(1989) 3SCC 5 : 1989 SCC (Cri) 490] , SCC p. 21, para 10)

“10. … We think as a general rule the trial courts should afterrecording the conviction adjourn the matter to a future dateand call upon both the prosecution as well as the defence toFplace the relevant material bearing on the question of sentencebefore it and thereafter pronounce the sentence to be imposedon the offender.”

52. Therefore, it is clear from the purpose of Section 235(2) asexplained in the aforesaid cases, that the object of hearing underSection 235(2) being intrinsically and inherently connected withthe sentencing procedure, the provision of Section 354(3) whichcalls for recording of special reason for awarding death sentencemust be read conjointly with Section 235(2) of the 1973 Code.This Court is of the opinion that special reasons can only be validlyrecorded if an effective opportunity of hearing as contemplated G

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under Section 235(2) CrPC is genuinely extended and is allowedto be exercised by the accused who stands convicted and isawaiting the sentence. These two provisions do not stand inisolation but must be construed as supplementing each other asensuring the constitutional guarantee of a just, fair and reasonableprocedure in the exercise of sentencing discretion by the court.

53. These changes in the sentencing structure reflect the “evolvingstandards of decency” that mark the progress of a maturingdemocracy and which is in accord with the concept of dignity ofthe individual—one of the core values in our Preamble to theConstitution. In a way these changes signify a paradigm shift inour jurisprudence with the gradual transition of our legal regimefrom “the rule of law” to the “due process of law”, to which thisCourt would advert to in the latter part of the judgment.”

11. When it comes to providing hearing in cases where the judicialmind is to be applied in choosing the sentence between life imprisonmentand death, this requirement assumes greater importance. It has beenheld in Bachan Singh’s case that since death sentence can be awardedonly in the ‘rarest of rare cases’, the Court is supposed to give ‘specialreasons’ when it choses to award death sentence. The reasoning processhas to undertake the exercise of considering mitigating as well asaggravating circumstances and after weighing those circumstances withobjective assessment, a decision has to be taken in this behalf. Such anexercise inherently calls for recording of reasons for awarding deathsentence. The legislature has added another dimension in order to obviateany possibility of error, by making a specific provision to the effect thatin those cases where the Session Judge inflicts death penalty, it has to beaffirmed and approved by the High Court.

12. Keeping in view all the aforesaid factors, particularly, whendeath sentence is rare, this Court has emphasised time and again that insuch cases there has to be an independent examination by this Courtalso, ‘unbound by the findings of the trial court and the High Court’.Such approach is the ‘time-honoured practice of this Court’, as observedin Kasab’s case.

13. Again, while undertaking the exercise as to whether the deathpenalty is to be given imprimatur by this Court, even after the approvalthereof by the High Court, case law of this Court amply demonstrates AB

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Athat proper exercise of sentence discretion calls for consideration ofvarious factors like the nature of offence, circumstances—bothextenuating or aggravating, the prior criminal record, if any, of theoffender, the age of the offender, his background, his education, hispersonal life, his social adjustment, the emotional and mental conditionof the offender, the prospects for the rehabilitation of the offender, theBpossibility of his rehabilitation in the life of community, the possibility oftreatment or training of the offender, the possibility that the sentencemay serve as a deterrent to crime by the offender or by others.

14. The accepted practice of this Court to afford hearing in thecases where death penalty is challenged, has also been acknowledgedCin Dayanidhi Bisoi vs. State of Orissa[3]and re-enforced by theConstitution Bench judgment in Mohd. Arif Alias Ashfaq vs. Registrar,Supreme Court of India and Others[4]. In Mohd. Arif case, this Courtmade departure from the rule of hearing the review petitions in chambersby making an exception to this rule and held that when review petition isDfiled seeking review of the order of this Court affirming death penalty,such a review petition should be heard in the open court and by a Benchof three-Judges. Relevant portion of the said judgment is reproducedbelow:

“34. We feel that this oral hearing, in death sentence cases,Ebecomes too precious to be parted with. We also quote thefollowing observations from that judgment: (P.N. Eswara Iyercase [P.N. Eswara Iyer v. Registrar, Supreme Court of India,(1980) 4 SCC 680] , SCC p. 692, para 29-A)

“29-A. The possible impression that we are debunking the valueFof oral advocacy in open court must be erased. Experiencehas shown that, at all levels, the bar, through the spoken wordand the written brief, has aided the process of judicial justice.Justicing is an art even as advocacy is an art. Happy interactionbetween the two makes for the functional fulfillment of thecourt system. No judicial ‘emergency’ can jettison the vitalGbreath of spoken advocacy in an open forum. Indeed, there isno judicial cry for extinguishment of oral argument altogether.”

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3 (2008) 9 SCC 310

4 (2014) 9 SCC 737

35. No doubt, the Court thereafter reminded us that the time hascome for proper evaluation of oral argument at the review stage.However, when it comes to death penalty cases, we feel that thepower of the spoken word has to be given yet another opportunityeven if the ultimate success rate is minimal.”

15. A cumulative effect of all the aforesaid circumstances doessuggest that special leave petition filed in those cases where deathsentence is awarded by the courts below, should not be dismissed withoutgiving reasons, at least qua death sentence. There may be cases whereat the Special Leave Petition stage itself, the Court may find that insofaras conviction is concerned there is no scope for interference at all assuch a conviction for offence under Section 302 is recorded on the basisof evidence which is impeccable, trustworthy, credible and proves theguilt of the accused beyond any shadow of doubt. At the same time, ifdeath penalty is to be affirmed even while dismissing the Special LeavePetition in limine, it should be by a reasoned order on the aspect ofsentence, at least.

16. In the instant case, since the special leave petition filed by thereview petitioner was dismissed in limine with one word and withoutgiving any reasons, we allow this review petition and recall the orderdated January 06, 2015. As a consequence, SLP(Criminal) No. 458 of2015 is restored to its original number.

Nidhi Jain

Review Petition allowed.

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