Holding

A meaningful, real and effective separate hearing on sentencing under Section 235(2) CrPC is essential in capital cases, and the Court must develop uniform guidelines, hence the matter is referred to a larger bench.

Summary

The Supreme Court, hearing Suo Motu Writ Petition (Crl.) No.1 of 2022, examined whether a separate, meaningful hearing on sentencing is required after conviction for a capital offence under Section 235(2) of the CrPC. It noted divergent judicial opinions on same‑day sentencing and the lack of a uniform framework for considering mitigating circumstances in death‑penalty cases. Relying on precedents such as Bachan Singh, Santa Singh, Muniappan and numerous later judgments, the Court emphasized that the hearing must be real and effective, not a mere formality, and that sufficient time must be afforded to the accused. The Court observed that the absence of clear guidelines undermines the fairness guaranteed by natural justice and the Constitution. Consequently, the matter was referred to a larger five‑Judge Bench for formulation of comprehensive guidelines on mitigating factors and sentencing procedures in death‑penalty cases.

Issues considered

Whether Section 235(2) CrPC obliges the trial court to conduct a separate hearing on sentencing after conviction for a capital offence.
Whether same‑day sentencing violates the requirement of a meaningful hearing under Section 235(2).
What constitutes ‘sufficient time’ and a ‘real and effective’ hearing for the accused in capital cases.
The need for uniform guidelines on mitigating circumstances to be considered while imposing death sentences.
Whether the lack of such guidelines infringes the constitutional rights to natural justice, equality and life.

Legislation cited

Code of Criminal Procedure, 1973s. 235, s. 309, s. 360, s. 366, s. 367, s. 368, s. 369, s. 370, s. 432, s. 433, s. 433A
Indian Penal Code, 1860s. 302, s. 303

Subjects

death penaltymitigating circumstancessentencing hearingSection 235 CrPCcapital punishmentnatural justicebifurcated trialguidelinesSupreme Court of Indiasuo motu

Judgment

[2022] 16 S.C.R. 543 543

IN RE: FRAMING GUIDELINES REGARDING POTENTIAL A
MITIGATING CIRCUMSTANCES TO BE CONSIDERED WHILE
IMPOSING DEATH SENTENCES
(Suo Motu Writ Petition (Crl.) No. 1 of 2022)
SEPTEMBER 19, 2022
B
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND
SUDHANSHU DHULIA, JJ.]
Code of Criminal Procedure, 1973 – ss. 235, 309 – Whether,
after recording conviction for a capital offence, under law, the court
is obligated to conduct a separate hearing on the issue of sentence C
– Held: it is necessary to have clarity in the matter to ensure a
uniform approach on the question of granting real and meaningful
opportunity, as opposed to a formal hearing, to the accused/convict,
on the issue of sentence – Matter referred to a larger bench of five
Hon’ble Judges.
D
Referring the matter to larger Bench, the Court
HELD : 1. There are two views, one view is that a separate
hearing on the question of sentence should be afforded to the
accused, after recording conviction. The court held that the
hearing should be intended to afford an opportunity to place
E
materials to show mitigating circumstances - and, for the
prosecution, aggravating circumstances and that “sufficient time
must be given to the accused… on the question of sentence”. Another
view is, that same-day sentencing does not necessarily fall foul of
Section 235(2) of the CrPC. The contrary line of cases are based
on the premise that the court may adjourn for a separate hearing, F
but the absence of it would not in itself vitiate the sentence. [Paras
11 and 15][558-B-C; 560-E]
2. The common thread that runs through all these decisions
is the express acknowledgment that meaningful, real and effective
hearing must be afforded to the accused, with the opportunity to G
adduce material relevant for the question of sentencing. What is
conspicuously absent, is consideration and contemplation about
the time this may require. In cases where it was felt that real and
effective hearing may not have been given (on account of the
H
543
544 SUPREME COURT REPORTS [2022] 16 S.C.R.

A same day sentencing), this court was satisfied that the flaw had
been remedied at the appellate (or review stage), by affording
the accused a chance to adduce material, and thus fulfilling the
mandate of Section 235(2). [Para 20][563-C-D]
3. There exists a clear conflict of opinions by two sets of
B three judge bench decisions on the subject. As notice, this court
in Bachan Singh had taken into consideration the fairness afforded
to a convict by a separate hearing, as an important safeguard to
uphold imposition of death sentence in the rarest of rare cases,
by relying upon the recommendations of the 48th Law
Commission Report. It is also a fact that in all cases where
C imposition of capital punishment is a choice of sentence,
aggravating circumstances would always be on record, and would
be part of the prosecution’s evidence, leading to conviction,
whereas the accused can scarcely be expected to place mitigating
circumstances on the record, for the reason that the stage for
D doing so is after conviction. This places the convict at a hopeless
disadvantage, tilting the scales heavily against him. This court is
of the opinion that it is necessary to have clarity in the matter to
ensure a uniform approach on the question of granting real and
meaningful opportunity, as opposed to a formal hearing, to the
accused/convict, on the issue of sentence. [Para 23][564-D-G]
E
Mithu v. State of Punjab (1983) 2 SCC 277 : [1983]
(2) SCR 690 – followed.
X v. State of Maharashtra (2019) 7 SCC 1 : [2019]
6 SCR 1; Allauddin Mian v. State of Bihar (1989) 3 SCC
F 5 : [1989] 2 SCR 498; Anguswamy v. State of Tamil
Nadu (1989) 3 SCC 33; Bachan Singh v. State of
Punjab [1983] 1 SCR 145; Bhagwani v. State of
Madhya Pradesh AIR 2022 SC 527; Dagdu v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Dattaraya v. State of Maharashtra (2020) 14 SCC 290
G : [2019] 11 SCR 295; Malkiat Singh v. State of Punjab
(1991) 4 SCC 341 : [1991] 2 SCR 256; Manoj
Suryavanshi v. State of Chattisgarh (2020) 4 SCC 451
: [2020] 4 SCR 1; Manoj Pratap Singh v. State of
Rajasthan 2022 SCC OnLine SC 768; Muniappan v.
H
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 545
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES
State of Tamil Nadu (1981) 3 SCC 11 : [1981] A
3 SCR 270; Ramdeo Chauhan v. State of Assam (2001)
5 SCC 714 : [2001] 3 SCR 669; Santa Singh v. State of
Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229; Tarlok
Singh v. State of Punjab (1977) 3 SCC 218 : [1977]
3 SCR 711 – referred to.
B
Case Law Reference
[1983] 1 SCR 145 referred to Para 3
[1977] 1 SCR 229 referred to Para 7
[1981] 3 SCR 270 referred to Para 8 C
[1983] 2 SCR 690 followed Para 9
[1989] 2 SCR 498 referred to Para 10
[1991] 2 SCR 256 referred to Para 11
[2019] 11 SCR 295 referred to Para 12 D
[1977] 3 SCR 636 referred to Para 16
[1977] 3 SCR 711 referred to Para 16
[2001] 3 SCR 669 referred to Para 17
[2019] 6 SCR 1 referred to Para 19 E
[2020] 4 SCR 1 referred to Para 19
CRIMINAL ORIGINAL JURISDICTION: Suo Moto Writ
Petition (Crl.) No. 1 of 2022.
Under Article 32 of The Constitution of India F
By Courts Motion,
K.K. Venugopal, AG, Saurabh Mishra, AAG, Sidharth Dave,
Sr. Adv (A.C.), Siddharth Agarwal, Sr. Adv., K Parameshwar, (A.C.),
Ankur Talwar, Ms. Suhasini Sen, Ms. Chinmayee chandra, Siddhant
Kohli, Shikhil Suri, Ms. Jemtiben AO, Vidhi Thaker, Prastut Dalvi, Ms. G
Aarushi Singh, Madhav Chitale, Ms. A Sregurupriya, Ms. Ankita
Choudhary, Pashupati Nath Razdan, Ms. Rukhmini Bobde, Ms. Mirza
Kayesh Begg, Astik Gupta, Prakhar Srivastav, Ms. Ayushi Mittal, Vipul
Abhishek, Mohd. Irshad Hanif, Rizwan Ahmad, Mujahid Ahmad, Aarif
Ali, Mohd. Aslam, Mohd. Parvez, Ms. Sowjhanya Shankaran, Vishwajeet H
546 SUPREME COURT REPORTS [2022] 16 S.C.R.

A Singh Bhati, Ms Jasmine Chauhan, Ms. Shreya Rastogi, Ms. Pratiksha
Basarkar, Ms. Shivani Misra, Bhavesh Seth, Gaurav Agrawal, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
B
1. This order is necessitated due to a difference of opinion and
approach amongst various judgments, on the question of whether, after
recording conviction for a capital offence, under law, the court is obligated
to conduct a separate hearing on the issue of sentence.

C 2. Section 235 of the Code of Criminal Procedure, 1973
(hereinafter, “CrPC” or “Code”) reads 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
D 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.”
Section 235, as it exists in the statute today, was Section 309 of
the erstwhile Code (of 1898). It was introduced on account of the
recommendations of the 48th Report of the Law Commission of India,
E
on Some Questions Under the Code of Criminal Procedure Bill, 1970
(dated July 1972).
Additionally, Section 309 of the CrPC is also relevant. It reads as
follows:
F “309. Power to postpone or adjourn proceedings.
(1) In every inquiry or trial, the proceedings shall be held as
expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be
continued from day to day until all the witnesses in attendance
G have been examined, unless the Court finds the adjournment
of the same beyond the following day to be necessary for
reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
H postpone the commencement of, or adjourn, any inquiry or
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 547
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
trial, it may, from time to time, for reasons to be recorded, A
postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a warrant
remand the accused if in custody: Provided that no Magistrate
shall remand an accused person to custody under this section
for a term exceeding fifteen days at a time:
B
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in
writing: 1
Provided also that no adjournment shall be granted for the C
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him.
Explanation 1.- If sufficient evidence has been obtained to
raise a suspicion that the accused may have committed an
offence, and it appears likely that further evidence may be D
obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or
postponement may be granted include, in appropriate cases,
the payment of costs by the prosecution or the accused.”
3. In Bachan Singh v. State of Punjab1 this court, in its majority E
judgment, upheld the constitutionality of the death sentence, on the
condition that it could be imposed in the “rarest of rare” cases. The
court was conscious of the safeguard of a separate hearing, on the
question of sentence, and articulated such a safeguard as a valuable
right, which insures to a convict, to urge why in the circumstances of his F
or her case, the extreme penalty of death ought not to be imposed. This
court, in Bachan Singh, observed as follows:
“151. Section 354 (3) of the CrPC, 1973, marks a significant
shift in the legislative policy underlying the Code of 1898, as
in force immediately before April 1, 1974, according to which
G
both the alternative sentences of death or imprisonment for
life provided for murder and for certain other capital offences
under the Penal Code, were normal sentences. Now according
to this changed legislative policy which is patent on the face
1
1983 (1) SCR 145 H
548 SUPREME COURT REPORTS [2022] 16 S.C.R.

A of Section 354 (3), the normal punishment for murder and six
other capital offences under the Penal Code , is imprisonment
for life (or imprisonment for a term of years) and death penalty
is an exception. The Joint Committee of Parliament in its
Report, stated the object and reason of making this change,
as follows:
B
‘A sentence of death is the extreme penalty of law and it is but
fair that when a Court awards that sentence in a case where
the alternative sentence of imprisonment for life is also
available, it should give special reasons in support of the
sentence.
C
Accordingly, Sub-section (3) of Section 354 of the current
Code provides:
“When the conviction is for an offence punishable with death
or, in the alternative with imprisonment for life or
D imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence.”
152. In the context, we may also notice Section 235 (2) of the
Code of 1973, because it makes not only explicit, what
E according to the decision in Jagmohan’s case was implicit in
the scheme of the Code, but also bifurcates the trial by
providing for two hearings, one at the pre-conviction stage
and another at the pre-sentence stage. It requires that:
“If the accused is convicted, the Judge shall, unless he
F proceeds in accordance with the provision of Section 360,
hear the accused on the question of sentence, and then pass
sentence on him according to law.”
The Law Commission in its 48th Report had pointed out this
deficiency in the sentencing procedure:
G “45. It is now being increasingly recognised that a rational
and consistent sentencing policy requires the removal of
several deficiencies in the present system. One such deficiency
is the lack of comprehensive information as to characteristics
and background at the offender.
H
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 549
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
The aims of sentencing:- Themselves obscure become all the A
more so in the absence of information on which the
correctional process is to operate. The public as well as the
courts themselves are in the dark about judicial approach in
this regard.
We are of the view that the taking of evidence as to the B
circumstances relevant to sentencing should be encouraged
and both the prosecution and the accused should be allowed
to co-operate in the process.”
By enacting Section 235 (2) of the new Code, Parliament has
accepted that recommendation of the Law Commission. C
Although Sub-section (2) of Section 235 does not contain a
specific provision as to evidence and provides only for hearing
of the accused as to sentence, yet it is implicit in this provision
that if a request is made in that behalf by either the prosecution
or the accused, or by both, the Judge should give the party
or parties concerned an opportunity of producing evidence D
or material relating to the various factors bearing on the
question of sentence. “Of course,”, as was pointed out by
this Court in Santa Singh v State of Punjab AIR 1976 SC 2386
“care would have to be taken by the Court to see that this
hearing on the question of sentence is not turned into an E
instrument for unduly protracting the proceedings. The claim
of due and proper hearing would have to be harmonised with
the requirement of expeditious disposal of proceedings.”
153. We may also notice Sections 432, 433 and 433A, as they
throw light as to whether life imprisonment as currently F
administered in India, can be considered an adequate
alternative to the capital sentence even in extremely heinous
cases of murder.
154. Sections 432 and 433 of the Code of 1973 continue
Sections 401 and 402 of the Code of 1898, with necessary G
modifications which bring them in tune with Articles 72 and
161 of the Constitution. Section 432 invests the “appropriate
Government” as (defined in Sub-section (7) of that section)
with power to suspend or remit sentences. Section 433 confers
on the appropriate Government power to commute sentence,
without the consent of the person sentenced. Under Clause H
550 SUPREME COURT REPORTS [2022] 16 S.C.R.

A (a) of the section, the appropriate Government may commute
a sentence of death, for any other punishment provided by
the Indian Penal Code.
155. With effect from December 18, 1978, the Cr. PC
(Amendment) Act, 1978, inserted new Section 433A which runs
B as under:
“433A. Restriction on power of remission or commutation in
certain cases.- Notwithstanding anything contained in Section
432, where a sentence of imprisonment foe life is imposed on
conviction of a person for an offence for which death is one
C of the punishments provided by law, or where a sentence of
death imposed on a person has been commuted under Section
433 into one of imprisonment for life, such person shall not
be released from prison unless he had served at least fourteen
years of imprisonment.”

D 156. It may be recalled that in Jagmohan this Court had
observed that, in practice, life imprisonment amounts to 12
years in prison. Now, Section 433A restricts the power of
remission and commutation conferred on the appropriate
Government under Section 432 and 433, so that a person
who is sentenced to imprisonment for life or whose death
E sentence is commuted to imprisonment for life must serve actual
imprisonment for a minimum of 14 years.
157. We may next notice other provisions of the extant Code
(corresponding to Sections 374, 375, 376 and 377 of the
repealed Code) bearing on capital punishment. Section 366
F (i) of the Code requires the Court passing a sentence of death
to submit the proceedings to the High Court, and further
mandates that such a sentence shall not be executed unless it
is confirmed by the High Court. On such a reference for
confirmation of death sentence, the High Court is required to
G proceed in accordance with Sections 367 and 368. Section
367gives power to the High Court to direct further inquiry to
be made or additional evidence to be taken. Section
368 empowers the High Court to confirm the sentence of death
or pass any other sentence warranted by law; or to annul or
alter the conviction or order a new trial or acquit the
H
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 551
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
accused. Section 369 enjoins that in every case so submitted, A
the confirmation of the sentence, or any new sentence or order
passed by the High Court, shall, when such court consists of
two or more Judges, be made, passed and signed by at least
two of them. Section 370 provides that where any such case
is heard before a Bench of Judges and such Judges are equally
B
divided in opinion, the case shall be referred to a third Judge.
158. In this fasciculus of sections relating to confirmation
proceedings in the High Court, the Legislature has provided
valuable safeguards of the life and liberty of the subject in
cases of capital sentences. These provisions seek to ensure
mat where in a capital case, the life of the convicted person if C
at stake, the entire evidential material bearing on the
innocence as guilt of the accused and the question of sentence
must be scrutinised with utmost caution and care by a superior
Court.”
4. This court then considered the issue before it, from various D
perspectives, and observed further as follows:
“163. …Now, Section 235 (2) provides for a bifurcated trial
and specifically gives the accused person a right of pre-
sentence hearing, at which stage, he can bring on record
material or evidence, which may not be strictly relevant to or E
connected with the particular crime under inquiry, but
nevertheless, have, consistently with the policy underlined in
Section 354 (3) a bearing on the choice of sentence. The
present legislative policy discernible from Section 235 (2) read
with Section 354 (3) is that in fixing the degree of punishment F
or making the choice of sentence for various offences,
including one under Section 302, Penal Code, the Court
should not confine its consideration “principally” or merely
to the circumstances connected with particular crime, but also
give due consideration to the circumstances of the criminal.
G
***
165. Attuned to the legislative policy delineated in Section
354 (3) and Section 235 (2), propositions (iv) (a) and (v) (b)
in Jagmohan, shall have to be recast and may be stated as
below:
H
552 SUPREME COURT REPORTS [2022] 16 S.C.R.

A (a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such reasons
must be recorded in writing before imposing the death
sentence,
B
(b) While considering the question of sentence to be imposed
for the offence of murder under Section 302 Penal Code; the
court must have regard to every relevant circumstance relating
to the crime as well as the criminal. If the court finds, but not
otherwise, that the offence is of an exceptionally depraved
C and heinous character and constitutes, on account of its
design and the manner of its execution, a source of grave
danger to the society at large, the court may impose the death
sentence.”
5. Bhagwati, J. who differed from the majority on the
D constitutionality of death sentence, also noticed the need for what in his
opinion was a ‘bifurcated hearing’ on sentence, after a court recorded
conviction. The minority opinion pertinently observes as follows:2
“80. …These are undoubtedly some safeguards provided by
the legislature, but in the absence of any standards or
E principles provided by the legislature to guide the exercise of
the sentencing discretion and in view of the fragmented Bench
structure of the High Courts and the Supreme Court, these
safeguards cannot be of any
help in eliminating arbitrariness and freakishness in
F imposition of death penalty… The first requirement that there
should be a bifurcated proceeding at which the sentencing
authority is apprised of the information relevant to the
imposition of sentence is met by the enactment of Section 235,
sub-section (2), but the second requirement that the sentencing
G authority should be provided with standards to guide its use
of the information is not satisfied and the imposition of death
penalty under Section 302 of the Penal Code, 1860 read with
Section 354, sub-section (3) of the Code of Criminal

2
H Bhagwati, J.’s dissent in Bachan Singh v State of Punjab, (1982) 3 SCC 24.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 553
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
Procedure, 1973 must therefore be held to be arbitrary and A
capricious and hence violative of Articles 14 and 21.”
(emphasis supplied)
6. Plainly, therefore, the majority in Bachan Singh took note that
convicts would be afforded a separate hearing, to urge why capital
sentence ought not to be resorted to. The judgment noted the Law B
Commission’s observation that courts should “give the party or parties
concerned an opportunity of producing evidence or material
relating to the various factors bearing on the question of sentence.”
The majority concluded:
“157-A. In this fasciculus of sections relating to confirmation C
proceedings in the High Court, the legislature has provided
valuable safeguards of the life and liberty of the subject in
cases of capital sentences. These provisions seek to ensure
that where in a capital case, the life of the convicted person
is at stake, the entire evidential material bearing on the D
innocence or guilt of the accused and the question of sentence
must be scrutinised with utmost caution and care by a superior
court.
(emphasis supplied)
This aspect – presence of ‘valuable safeguards’ - therefore, was E
an important consideration to uphold the validity of death sentence, in
the rarest of rare cases.
7. In an earlier, two-judge bench decision in Santa Singh v. State
of Punjab3 this court had underlined the importance of a separate hearing
on the issue of sentence: F
“3. …Moreover it was realised that sentencing is an important
stage in the process of administration of criminal justice —
as important as the adjudication of guilt — and it should not
be consigned to a subsidiary position as if it were a matter of
not much consequence. It should be a matter of some anxiety G
to the court to impose an appropriate punishment on the
criminal and sentencing should, therefore, receive serious
attention of the court… The reason is that a proper sentence
is the amalgam of many factors such as the nature of the
3
Santa Singh v. State of Punjab, (1976) 4 SCC 190. H
554 SUPREME COURT REPORTS [2022] 16 S.C.R.

A offence, the circumstances — extenuating or aggravating —
of the offence, the prior criminal record, if any, of the offender,
the age of the offender, the record of the offender as to
employment, the background of the offender with reference
to education, home life, sobriety and social adjustment, the
emotional and mental condition of the offender, the prospects
B
for the rehabilitation of the offender, the possibility of return
of the offender to a normal life in the community, the possibility
of treatment or training of the offender, the possibility that
the sentence may serve as a deterrent to crime by the offender
or by others and the current community need, if any, for such
C a deterrent in respect to the particular type of offence. These
are factors which have to be taken into account by the court
in deciding upon the appropriate sentence, and, therefore,
the legislature felt that, for this purpose, a separate stage
should be provided after conviction when the court can hear
the accused in regard to these factors bearing on sentence
D
and then pass proper sentence on the accused. Hence the
new provision in Section 235(2).
4. …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
E opportunity to the prosecution and the accused to place before
the court facts and 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
F to see that this hearing on the question of sentence is not
abused and turned into an instrument for unduly protracting
the proceedings. The claim of due and proper hearing would
have to be harmonised with the requirement of expeditious
disposal of proceedings.”
G 8. In Muniappan v. State of Tamil Nadu,4 a two-judge bench of
this court held that Section 235(2) was not a formality which could be
dispensed with, and required consideration after conviction was confirmed:
“2. …The obligation to hear the accused on the question of
sentence which is imposed by Section 235(2) of the Criminal
4
H Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 555
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
Procedure Code is not discharged by putting a formal question A
to the accused as to what he has to say on the question of
sentence. The judge must make a genuine effort to elicit from
the accused all information which will eventually bear on the
question of sentence. All admissible evidence is before the
judge but that evidence itself often furnishes a clue to the
B
genesis of the crime and the motivation of the criminal. 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. The occasion to apply
the provisions of Section 235(2) arises only after the
conviction is recorded. What then remains is the question of C
sentence in which not merely the accused but the whole society
has a stake. Questions which the judge can put to the accused
under Section 235(2) and the answers which the accused
makes to those questions are beyond the narrow constraints
of the Evidence Act. The court, while on the question of
D
sentence, is in an altogether different domain in which facts
and factors which operate are of an entirely different order
than those which come into play on the question of conviction.
The Sessions Judge, in the instant case, complied with the
form and letter of the obligation which Section 235(2) imposes,
forgetting the spirit and substance of that obligation.” E
9. In Mithu v. State of Punjab5, a five-judge bench of this court
while deliberating on the mandatory imposition of death sentence on a
convict committing murder while undergoing a life sentence under Section
303 of the Indian Penal Code, 1908 held as follows:
“7. …The majority [in Bachan Singh] concluded that Section F
302 of the Penal Code is valid for three main reasons: Firstly,
that the death sentence provided for by Section 302 is an
alternative to the sentence of life imprisonment; secondly, that
special reasons have to be stated if the normal rule is departed
from and the death sentence has to be imposed; and, thirdly, G
because the accused is entitled, under Section 235(2) of the
Code of Criminal Procedure, to be heard on the question of
sentence. The last of these three reasons becomes relevant,
only because of the first of these reasons. In other words, it is
5
Mithu v. State of Punjab, (1983) 2 SCC 277. H
556 SUPREME COURT REPORTS [2022] 16 S.C.R.

A because the court has an option to impose either of the two
alternative sentences, subject to the rule that the normal
punishment for murder is life imprisonment, that it is important
to hear the accused on the question of sentence. If the law
provides a mandatory sentence of death as Section 303 of
the Penal Code does, neither Section 235(2) nor Section
B
354(3) of the Code of Criminal Procedure can possibly come
into play. If the court has no option save to impose the
sentence of death, it is meaningless to hear the accused on
the question of sentence and it becomes superfluous to state
the reasons for imposing the sentence of death”
C (emphasis supplied)
The court thus reiterated that the accused was entitled to be
heard on the question of sentence before its imposition. As Section 303
of the Indian Penal Code, 1908 denied the accused such opportunity, it
was struck down.
D
10. In another judgment delivered by a two-judge bench i.e.,
Allauddin Mian v. State of Bihar6, this court, noticing earlier decisions,
and Bachan Singh, stated that:
“10. …The requirement of hearing the accused is intended to
E satisfy the rule of natural justice. It is a fundamental
requirement of fair play that the accused who was hitherto
concentrating on the prosecution evidence on the question
of guilt should, on being found
guilty, be asked if he has anything to say or any evidence to
F tender on the question of sentence. This is all the more
necessary since the courts are generally required to make the
choice from a wide range of discretion in the matter of
sentencing. To assist the court in determining the correct
sentence to be imposed the legislature introduced sub-section
(2) to Section 235. The said provision therefore satisfies a
G dual purpose; it satisfies the rule of natural justice by
according to the accused an opportunity of being heard on
the question of sentence and at the same time helps the court
to choose the sentence to be awarded. Since the provision is
intended to give the accused an opportunity to place before
H 6
Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 557
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
the court all the relevant material having a bearing on the A
question of sentence there can be no doubt that the provision
is salutary and must be strictly followed. It is clearly
mandatory and should not be treated as a mere formality. Mr
Garg was, therefore, justified in making a grievance that the
trial court actually treated it as a mere formality as is evident
B
from the fact that it recorded the finding of guilt on 31-3-
1987, on the same day before the accused could absorb and
overcome the shock of conviction they were asked if they had
anything to say on the question of sentence and immediately
thereafter the decision imposing the death penalty on the two
accused was pronounced. In a case of life or death as stated C
earlier, the presiding officer must show a high decree of
concern for the statutory right of the accused and should not
treat it as a mere formality to be crossed before making the
choice of sentence. If the choice is made, as in this case,
without giving the accused an effective and real opportunity
D
to place his antecedents, social and economic background,
mitigating and extenuating circumstances, etc., before the
court, the court’s decision on the sentence would be
vulnerable. We need hardly mention that in many cases a
sentencing decision has far more serious consequences on
the offender and his family members than in the case of a E
purely administrative decision; a fortiori, therefore, the
principle of fair play must apply with greater vigour in the
case of the former than the latter. An administrative decision
having civil consequences, if taken without giving a hearing
is generally struck down as violative of the rule of natural
F
justice. Likewise a sentencing decision taken without following
the requirements of sub-section (2) of Section 235 of the Code
in letter and spirit would also meet a similar fate and may
have to be replaced by an appropriate order. The sentencing
court must approach the question seriously and must
endeavour to see that all the relevant facts and circumstances G
bearing on the question of sentence are brought on record.
Only after giving due weight to the mitigating as well as the
aggravating circumstances placed before it, it must pronounce
the sentence. We think as a general rule the trial courts should
after recording the conviction adjourn the matter to a future
H
558 SUPREME COURT REPORTS [2022] 16 S.C.R.

A 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 pronounce the sentence to
be imposed on the offender.”
(emphasis supplied)
B 11. In Anguswamy v. State of Tamil Nadu7, a two-judge bench
had also expressed the same view. In Malkiat Singh v. State of Punjab8,
again, three judges endorsed the view that a separate hearing on the
question of sentence should be afforded to the accused, after recording
conviction. The court held that the hearing should be intended to afford
C an opportunity to place materials to show mitigating circumstances -
and, for the prosecution, aggravating circumstances and that “sufficient
time must be given to the accused… on the question of sentence”.
12. Other more recent three-judge decisions have also ruled that
same day sentencing in capital offences violate the principles of natural
D justice, and is opposed to Section 235 (2). In Dattaraya v. State of
Maharashtra9, this court observed, inter alia, that:
“132. For effective hearing under Section 235(2) of the Code
of Criminal Procedure, the suggestion that the court intends
to impose death penalty should specifically be made to the
E accused, to enable the accused to make an effective
representation against death sentence, by placing mitigating
circumstances before the Court. This has not been done. The
trial court made no attempt to elicit relevant facts, nor did the
trial court give any opportunity to the petitioner to file an
affidavit placing on record mitigating factors. As such the
F petitioner has been denied an effective hearing.
133. Contrary to the dictum of this Court, inter alia, in Dagdu
[Dagdu v. State of Maharashtra, (1977) 3 SCC 68 : 1977
SCC (Cri) 421] and Santa Singh [Santa Singh v. State of
Punjab, (1976) 4 SCC 190 : 1976 SCC (Cri) 546] the
G petitioner was not given a real, effective and meaningful
hearing on the question of sentence under Section 235(2)

7
Anguswamy v. State of Tamil Nadu, (1989) 3 SCC 33.
8
Malkiat Singh v. State of Punjab, (1991) 4 SCC 341.
9
H Dattaraya v. State of Maharashtra, (2020) 14 SCC 290.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 559
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
CrPC. The death sentence imposed on the petitioner is liable A
to be commuted to life imprisonment on this ground.”
13. In Bhagwani v. State of Madhya Pradesh 10 also iterated
the need to have a separate hearing, on the question of sentence:
“16. A bifurcated hearing for convicting and sentencing is
necessary to provide an effective opportunity to the accused B
[Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498]. Adequate opportunity to
produce relevant material on the question of death sentence
shall be provided to the accused by the Trial Court [Rajendra
Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC C
460].”
14. In Manoj & Ors. v. State of Madhya Pradesh11 this court
highlighted that in the absence of guidelines or a framework, the scope
of the opportunity afforded to the accused to be heard on sentencing,
was not in keeping with the spirit of the law laid down in Bachan Singh D
regarding Section 235(2):
“221. However, despite over four decades since Bachan
Singh there has been little to no policy-driven change, towards
formulating a scheme or system that elaborates how mitigating
circumstances are to be collected, for the court’s consideration. E
Scarce information about the accused at the time of sentencing,
severely disadvantages the process of considering mitigating
circumstances. It is clarified that mere mention of these
circumstances by counsel, serve no purpose - rather, they must
be connected to the possibility of reformation and assist
principled judicial reasoning (as required under S. 235(2) F
CrPC). Constrained by this lack of assistance, this court (as
mentioned above) in Rajesh Kumar [Rajesh Kumar v. State
(2011) 13 SCC 706] has even gone so far as to hold that the
very fact that the state had not given any evidence to show
that the convict was beyond reform and rehabilitation was a G
mitigating circumstance, in itself.
***
10
Bhagwani v. State of Madhya Pradesh, 2022 SCC OnLine SC 52 (Criminal Appeal
Nos. 101-102/2022).
11
Manoj & Ors. v. State of Madhya Pradesh, (2022) SCC OnLine SC 677 (Criminal
Appeal Nos. 248-250/2015). H
560 SUPREME COURT REPORTS [2022] 16 S.C.R.

A 239. It is unfortunate to note that both the trial Court, and
High Court, failed to provide an effective sentencing hearing
to the accused, at the relevant stage, which is a right under
Section 235(2) CrPC recognised by this court in several
cases. In fact, it was argued by the accused that the trial court
in contravention of this court’s judgments, had proceeded to
B
hear on sentencing almost immediately, depriving the
accused of the opportunity to put forth their case for a less
stringent sentence. The trial court order on sentencing, records
in passing - the plea of ‘young age’ and ‘socio-economic
factors’ as mitigating circumstances, but reflects, at best, a
C mechanical consideration of the same. Swayed by the
brutality of the crime and “shock of the collective and judicial
conscience”, the High Court affirmed imposition of the death
penalty solely on the basis of the aggravating circumstances
of the crime, with negligible consideration of mitigating
circumstances of the criminal. This is in direct contravention
D
of Bachan Singh.”
15. However, this court, also in three-judge combinations, has on
a reading of these very judgments – i.e., Santa Singh, Muniappan,
Allaudin Mian, Anguswamy, Malkiat Singh, etc., arrived at a different
conclusion - that same-day sentencing does not necessarily fall foul of
E Section 235(2) of the CrPC. This contrary line of cases are based on the
premise that the court may adjourn for a separate hearing, but the absence
of it would not in itself vitiate the sentence.
16. In Dagdu v. State of Maharashtra12, a three-judge bench of
this court rejected the interpretation of Santa Singh as laying down that
F failure on the part of the court to hear a convicted accused, on the
question of sentence, would necessitate remand to the trial court. Instead,
it held that such an omission could be remedied by the higher court by
affording a hearing to the accused on the question of sentence, provided
the hearing was “real and effective” wherein the accused was permitted
G to “adduce before the court all the data which he desires to be
adduced on the question of sentence”. The court further held that:
“79. The Court may, in appropriate cases, have to adjourn
the matter in order to give to the accused sufficient time to

12
H Dagdu v. State of Maharashtra, (1977) 3 SCC 68.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 561
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
produce the necessary data and to make his contentions on A
the question of sentence. That, perhaps, must inevitably
happen where the conviction is recorded for the first time by
a higher court.”
This was in turn, followed by another three-judge bench in Tarlok
Singh v. State of Punjab13. B
17. Another case, where a similar conclusion was arrived at, but
on differing reasoning was Ramdeo Chauhan v. State of Assam14,
where in a review petition, a bench of three judges, upheld the death
penalty by a 2:1 majority. In this case, the proviso to Section 309(2) of
CrPC was considered, in relation to Section 235(2). The court observed C
that the previous rulings had not taken note of the second proviso15 to
Section 309 of the Code. The court held that the mandate of the proviso
under Section 309 was not to adjourn the hearing for affording a separate
proceeding on sentence, however in cases where death sentence was
one of the choices of punishment, the court had discretion to adjourn the
hearing for a separate proceeding on sentence: D

“28. In a case punishable with death or imprisonment for
life, there is no difficulty for the court where the sentence
proposed to be imposed is an alternative sentence of life
imprisonment but if it proposes to award the death sentence,
it has discretion to adjourn the case in the interests of justice E
as held in Sukhdev Singh case [(1992) 3 SCC 700 : 1992
SCC (Cri) 705] . I have no doubt in holding that despite the
bar of third proviso to sub-section (2) of Section 309, the
court, in appropriate cases, can grant adjournment for
enabling the accused persons to show cause against the F
sentence proposed on them particularly if such proposed
sentence is a sentence of death.”
Thus, it was held that while the accused facing the possibility of
death sentence was not entitled to an adjournment, nothing barred the
court from granting the same. G
18. Several decisions have since relied on Dagdu, and concluded
that the action of the court sentencing an accused on the same day as
13
Tarlok Singh v. State of Punjab, (1977) 3 SCC 218.
14
Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.
15
Inserted by Criminal Procedure Code Amendment Act, 1978. H
562 SUPREME COURT REPORTS [2022] 16 S.C.R.

A conviction in itself would not vitiate the sentence. These cases (in three-
judge combination) include: B.A. Umesh v. High Court of Karnataka16;
Vasanta Sampatha Dupare v. State of Maharashtra 17; Mukesh v.
State of NCT18; Mohd. Mannan v. State of Bihar19; and most recently,
Shatrughna Baban Meshram v. State of Maharashtra20.
B 19. This court in X v. State of Maharashtra21 (three-judge bench),
extensively considered the precedents on the question of sentencing,
and concluded the position of law as follows:
“40. As noted above, many cases have grappled with the
question as to the choice between the two. The approach of
C this Court needs to be rationalised and understood in the
light of cautionary approach discussed above. From the
aforesaid discussion, the following dicta emerge:
40.1. That the term “hearing” occurring under Section 235(2)
requires the accused and prosecution at their option, to be
D given a meaningful opportunity.
40.2. Meaningful hearing under Section 235(2) 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.
E 40.3. The trial court needs to comply with the mandate of
Section 235(2) CrPC with best efforts.
40.4. Non-compliance can be rectified at the appellate stage
as well, by providing meaningful opportunity.
40.5. If such an opportunity is not provided by the trial court,
F
the appellate court needs to balance various considerations
and either afford an opportunity before itself or remand back
to the trial court, in appropriate case, for fresh consideration.
40.6. However, the accused need to satisfy the appellate
courts, inter alia by pleading on the grounds as to existence
G of mitigating circumstances, for its further consideration.
16
B.A. Umesh v. High Court of Karnataka, (2017) 4 SCC 124.
17
Vasanta Sampatha Dupare v. State of Maharashtra, (2018) 6 SCC 631.
18
Mukesh v. State of NCT, (2017) 6 SCC 1.
19
Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584.
20
Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596.
H 21
X v. State of Maharashtra, (2019) 7 SCC 1.
IN RE: FRAMING GUIDELINES REGARDING POTENTIAL MITIGATING 563
CIRCUMSTANCES TO BE CONSIDERED WHILE IMPOSING DEATH
SENTENCES [S. RAVINDRA BHAT, J.]
40.7. Being aware of certain harsh realities such as long A
protracted 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.
40.8. If no such grounds are brought by the accused before B
the appellate courts, then it is not obligated to take recourse
under Section 235(2) CrPC.”
This reasoning was further relied on in many decisions, more
recently by this court in Manoj Suryavanshi v. State of Chattisgarh22.
20. The common thread that runs through all these decisions is C
the express acknowledgment that meaningful, real and effective hearing
must be afforded to the accused, with the opportunity to adduce material
relevant for the question of sentencing. What is conspicuously absent, is
consideration and contemplation about the time this may require. In cases
where it was felt that real and effective hearing may not have been D
given (on account of the same day sentencing), this court was satisfied
that the flaw had been remedied at the appellate (or review stage), by
affording the accused a chance to adduce material, and thus fulfilling
the mandate of Section 235(2).
21. The question of what constitutes ‘sufficient time’ at the trial E
court stage, in this manner appears not to have been addressed in the
light of the express holding in Bachan Singh. This, in the court’s
considered opinion, requires consideration and clarity. This court’s decision
in Manoj Pratap Singh v. State of Rajasthan23 is an example, where
‘sufficient time’ for compliance with Section 235(2) CrPC was
considered; it was concluded that the trial court had “scrupulously F
carried out its duty in terms of Section 235(2)” since the sentence
was awarded 3 days after the conviction, after considering both the
aggravating and mitigating circumstances.
22. After hearing the parties on the question of conviction in Manoj
& Ors. v. State of Madhya Pradesh, this court had adjourned the matter G
for submissions on sentencing, with directions24 eliciting reports from
22
Manoj Suryavanshi v. State of Chattisgarh, (2020) 4 SCC 451.
23
Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768 (Crl.A. Nos.
910 – 911/2022).
24
By order dated 29.09.2021. Reference was also made to orders dated 05.08.2021 and
08.09.2021 passed by this Court in Diary No. 5964/2019. H
564 SUPREME COURT REPORTS [2022] 16 S.C.R.

A the probation officer, jail authorities, a trained psychiatrist and
psychologist, etc., to assist the accused in presenting mitigating
circumstances. Noticing the lack of a uniform framework in this regard,
the present Suo Motu W.P. (Crl.) No. 1/2022 was initiated wherein
this court has indicated by its orders the necessity of working out the
modalities of psychological evaluation, the stage of adducing evidence in
B
order to highlight mitigating circumstances, and the need to build
institutional capacity in this regard. The apprehensions relating to the
absence of such a framework was also recorded in the final judgment of
Manoj & Ors. v. State of Madhya Pradesh, wherein the importance
of a separate hearing and the necessity of background analysis of the
C accused, was highlighted. It was suggested that the social milieu, the
age, educational levels, whether the convict had faced trauma earlier in
life, family circumstances, psychological evaluation of a convict and post-
conviction conduct, were relevant factors at the time of considering
whether the death penalty ought to be imposed upon the accused.
D 23. In light of the above, there exists a clear conflict of opinions
by two sets of three judge bench decisions on the subject. As noticed
before, this court in Bachan Singh had taken into consideration the
fairness afforded to a convict by a separate hearing, as an important
safeguard to uphold imposition of death sentence in the rarest of rare
cases, by relying upon the recommendations of the 48th Law Commission
E Report. It is also a fact that in all cases where imposition of capital
punishment is a choice of sentence, aggravating circumstances would
always be on record, and would be part of the prosecution’s evidence,
leading to conviction, whereas the accused can scarcely be expected to
place mitigating circumstances on the record, for the reason that the
F stage for doing so is after conviction. This places the convict at a hopeless
disadvantage, tilting the scales heavily against him. This court is of the
opinion that it is necessary to have clarity in the matter to ensure a
uniform approach on the question of granting real and meaningful
opportunity, as opposed to a formal hearing, to the accused/convict, on
the issue of sentence.
G
24. Consequently, this court is of the view that a reference to a
larger bench of five Hon’ble Judges is necessary for this purpose. Let
this matter be placed before the Hon’ble Chief Justice of India for
appropriate orders in this regard.

H Ankit Gyan and Anurag Bhaskar Matter referred to larger Bench.
(Assisted by : Priyanshu Agarwal, LCRA)