BABASAHEB MARUTI KAMBLE versus STATE OF MAHARASHTRA
[2018] 13 S.C.R. 1154, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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BABASAHEB MARUTI KAMBLE
v.
STATE OF MAHARASHTRA
(Review Petition (Criminal) No. 388 of 2015)
In
(Special Leave Petition (Criminal) No. 458 of 2015)
NOVEMBER 01, 2018
[A. K. SIKRI,  ASHOK BHUSHAN AND
INDIRA BANERJEE, JJ.]
Sentence/Sentencing: Death sentence – Award of, by courts below
– Special Leave Petition filed thereagainst – Dismissed in limine with
one word – Review petition filed against the dismissal of SLP –
Held: When death sentence is rare, there has to be an independent
examination by this Court also, ‘unbound by the findings of the
trial court and the High Court’ – Such approach is the ‘time-
honoured practice of this Court’ – Thus, special leave petition filed
in those cases where death sentence is awarded by the courts below,
should not be dismissed without giving reasons, at least qua death
sentence – Order dismissing the Special Leave Petition is recalled –
Constitution of India – Art. 137.
Allowing the Review Petition, the Court
HELD: 1.1 In the instant case, since the special leave
petition filed by the review petitioner was dismissed in limine
with one word and without giving any reasons, the review petition
is allowed and the order dismissing the Special Leave Petition is
recalled. [Para 16][1165-D-E]
1.2 When it comes to providing hearing in cases where the
judicial mind is to be applied in choosing the sentence between
life imprisonment and death, this requirement assumes greater
importance.
It has been held in Bachan Singh’s case that since
death sentence can be awarded only in the ‘rarest of rare cases’,
the Court is supposed to give ‘special reasons’ when it choses to
award death sentence. The reasoning process has to undertake
the exercise of considering mitigating as well as aggravating
[2018] 13  S.C.R. 1154
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circumstances and after weighing those circumstances with
objective assessment, a decision has to be taken in this behalf.
Such an exercise inherently calls for recording of reasons for
awarding death sentence. The legislature has added another
dimension in order to obviate any possibility of error, by making
a specific provision to the effect that in those cases where the
Session Judge inflicts death penalty, it has to be affirmed and
approved by the High Court. [Para 11][1165-D-F]
1.3 Keeping in view all the factors, particularly, when death
sentence is rare, this Court has emphasised time and again that
in such cases there has to be an independent examination by this
Court also, ‘unbound by the findings of the trial court and the
High Court’. Such approach is the ‘time-honoured practice of
this Court’. [Para 12][1163-G]
Mohammed Ajmal Mohammad Amir Kasab alias Abu
Mujahid v. State of Maharashtra (2012) 9 SCC 1 :
[2012] 8 SCR 295 - relied on.
1.4 While undertaking the exercise as to whether the death
penalty is to be given imprimatur by this Court, even after the
approval thereof by the High Court, case law of this Court amply
demonstrates that proper exercise of sentence discretion calls
for consideration of various factors like the nature of offence,
circumstances-both extenuating or aggravating, the prior criminal
record, if any, of the offender, the age of the offender, his
background, his education, his personal life, his social adjustment,
the
emotional and mental condition of the offender, the prospects
for the rehabilitation of the offender, the possibility of his
rehabilitation in the life of 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.
[Para 13][1163-G-H; 1164-A-B]
1.5 A cumulative effect of all the circumstances does suggest
that special leave petition filed in those cases where death
sentence is awarded by the courts below, should not be dismissed
without giving reasons, at least qua death sentence. There may
be cases where at the Special Leave Petition stage itself, the
Court may find that insofar as conviction is concerned there is no
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scope for interference at all as such a conviction for offence under
Section 302 is recorded on the basis of evidence which is
impeccable, trustworthy, credible and proves the guilt of the
accused beyond any shadow of doubt. At the same time, if death
penalty is to be affirmed even while dismissing the Special Leave
Petition in limine, it should be by a reasoned order on the aspect
of sentence, at least. [Para 15][1165-B-D]
Rajesh Kumar v. State Through Government of NCT of
Delhi (2011) 13 SCC 706; Dayanidhi Bisoi v. State of
Orissa (2003) 9 SCC 310; Mohd. Arif Alias Ashfaq v.
Registrar, Supreme Court of India and Others (2014) 9
SCC 737 : [2014] 11 SCR 1009 – referred to.
Case Law Reference
(2011) 13 SCC 706
referred to
Para 10
[2012] 8 SCR 295
relied on
Para 12
(2003) 9 SCC 310
referred to
Para 14
[2014] 11 SCR 1009
referred to
Para 14
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) No. 388 of 2015 in Special Leave Petition (Criminal) No. 458
of 2015
From the Judgment and Order dated 06.01.2015 of the Supreme
Court of India in S.L.P. (Crl.) No. 458 of 2015.
Shekhar Naphade, Sr. Adv., Ms. Shreya Rastogi, Abhikalp Pratap
Singh, Siddharth Dharmadhikari, Ms. N. Susan Thomas, Yash S. Vijay,
Ms. Amaraya Kanjilal, Ms. Liz Mathew, Advs. for the Petitioner.
Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar  Advs. for the
Respondent.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. This Review
Petition is filed by the petitioner
who has been convicted for offences under Sections 302, 376(2)(f) and
342 of the Indian Penal Code (for short, ‘IPC’).  He was awarded death
penalty for the offence punishable under Section 302, IPC by the trial
court 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 petitioner
was sentenced to life imprisonment and for the offence under Section
342 of IPC, the trial court awarded simple imprisonment for two months.
2. Since sentence of death was imposed on the petitioner, the
Sessions Judge made a Reference to the High Court for confirmation of
death sentence. The petitioner also challenged his conviction and
sentences imposed by filing Criminal Appeal No. 80 of  2014 before the
High Court.  The said appeal as well as Reference were heard together
by the High Court.  The High Court upheld the conviction under the
aforesaid provisions and also confirmed death sentence of the petitioner
vide its judgment dated July 09/10, 2014.  Against that judgment, the
review petitioner preferred Special Leave Petition (Criminal) No. 458
of 2015.  The special leave petition came up for preliminary hearing on
January 06, 2015 which was dismissed by passing the following order:
“Delay condoned.
Dismissed.”
3. Present review petition is filed seeking review of the aforesaid
order of dismissal in limine.
4. Mr. Shekhar Naphade, learned senior counsel appearing for
the petitioner submits that in a case where conviction is followed by
death sentence, and the special leave petition is filed thereagainst, such
petition should not be dismissed in limine and in case the Supreme Court
still finds it fit to do so, some reasons need to be recorded.
5. Learned senior counsel has
referred to the provisions of Article
137 of the Constitution which provide for review of judgments or orders
by 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 any
rules made under Article 145, the Supreme Court shall have power
to review any judgment pronounced or order made by it.”
6. He submits that the scope of review in criminal cases is broader
than in civil cases and unless some reasons are recorded while dismissing
the special leave petition, the remedy of review would become illusive.
He also referred to the judgment of this Court in Mohammed Ajmal
Mohammad Amir Kasab alias Abu Mujahid vs. State of Maharashtra1
1 (2012) 9 SCC 1
BABASAHEB MARUTI KAMBLE v. STATE OF
MAHARASHTRA [A. K. SIKRI, J.]
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where the Court succinctly stated the approach that is needed in dealing
with 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, in
accordance with the time-honoured practice of this Court, and
come 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 XXII
Rule 7 of the Supreme Court Rules which provide for summoning of the
trial court record for deciding the appeals and reads as under:
“7. (1) If the petitioner is in jail and is not represented by an
advocate-on-record, he may present his petition for special leave
to appeal together with the certified copy of the Judgment and
any written argument which he may desire to advance to the
officer in charge of the jail, who shall forthwith forward the same
to the Registrar of this Court. Upon receipt of the said petition,
the Registrar of the Court shall, whenever necessary call, from
the proper officer of the Court or the Tribunal appealed from, the
relevant documents for determination of the petition for special
leave to appeal.
(2) As soon as all necessary documents are available the Registrar
shall direct engagement of an Advocate from the panel of Supreme
Court Legal Services Committee, or assign a Panel
Advocate at
the cost of the state and thereafter place the petition and complete
documents for hearing before the Court. The fee of the advocate
so engaged shall be such, as may, from time to time, be fixed by
the Chief Justice.
(3) After the hearing of the petition or the appeal, as the case may
be, is over, the Registrar, the Additional Registrar or the Deputy
Registrar shall issue to the Advocate, engaged at the cost of the
State, a certificate in the prescribed form indicating therein the
name of the said Advocate engaged at the cost of the State
concerned and the amount of fees payable to the said advocate.
(4) The State concerned shall pay the fees specified in the
certificate issued under sub-rule (3) to the Advocate named therein
within three months from the date of his presenting before it his
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claim for the fees supported by the certificate. If the fees are not
paid within the period abovesaid, the Advocate shall be entitled to
recover the same from the State concerned by enforcement of
the 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 is
summoned only after the special leave petition is granted, but in those
cases where death sentence is imposed, the court should summon the
record when it is making the final order even at the stage of special
leave petition, keeping in view the spirit of the principles laid down in
paragraph 5 of the Kasab’s case.
9. We have given our thoughtful consideration to the aforesaid
submissions of the learned senior counsel for the petitioner.  We find
considerable force in, at least, some of the submissions made by Mr.
Naphade.
10. In cases where an accused is convicted for offence under
Section 302, IPC, minimum sentence that is to be awarded is the life
imprisonment.  However,  in rarest of rare cases, the Sessions Court
may award death sentence as well.  As per the provisions of  Section
235 of the Code of Criminal Procedure, it is mandatory for the sessions
court to give a proper hearing to the accused on the question of sentence
as well.  The necessity and importance of such a hearing is explained in
Rajesh Kumar vs. State Through Government of NCT of Delhi2
wherein after referring to various earlier judgments, this Court summed
up 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 of
sentencing the criminal offender is receiving increasing attention
and it is so in view of rapidly changing attitude towards crime and
criminal. In many countries, intensive study of sociology of the
crime has shifted the focus from the crime to the criminal, leading
to a widening of the objectives of sentencing and simultaneously
of 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 judgment
in Santa Singh[(1976) 4 SCC 190 : 1976 SCC (Cri) 546] pointed
out and which was later on accepted in Bachan Singh v. State
of Punjab [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] that proper
exercise of sentencing discretion calls for consideration of various
factors like the nature of offence, the circumstances—both
extenuating or aggravating, the prior criminal record, if any, of the
offender, the age of the offender, his background, his education,
his personal life, his social adjustment, the emotional and mental
condition of the offender, the prospects for the rehabilitation of
the offender, the possibility of his rehabilitation in the life of
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. After referring to all the aforesaid
facts, the learned Judge opined as under: (Santa Singh
case [(1976) 4 SCC 190 : 1976 SCC (Cri) 546] , SCC p. 195,
para 3)
“3. … 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
and then pass proper sentence on the accused. Hence the new
provision in Section
235(2).”
46. After analysing the aforesaid aspects, the learned Judge
in 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 the
opinion expressed by the Law Commission in its Forty-eighth
Report, Bhagwati, J. (as His Lordship then was) opined that the
hearing contemplated under Section 235(2) is not confined merely
to oral submissions but it is also intended to give an 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. However, there was a note of caution that in the name
of such hearing, the court proceedings should not be unduly
protracted.
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47. This Court held in Santa Singh [(1976) 4 SCC 190 : 1976
SCC (Cri) 546] that non-compliance with such hearing is not a
mere irregularity curable under Section 465 of the 1973 Code.
This Court speaking through Bhagwati, J. (as His Lordship then
was) emphasised that this legal provision under our constitutional
values has acquired a new dimension and must reflect “new trends
in penology and sentencing procedures” so that penal laws can
be used as a tool for reforming and rehabilitating the criminals
and smoothening out the uneven texture of the social fabric and
not merely as a weapon for protecting the hegemony of one class
over 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 had
to consider the importance of Section 235(2) and Section 354(3)
CrPC in our sentencing procedure. The learned Chief Justice held
that the obligation to hear the accused on the question of sentence
under Section 235(2) of the 1973 Code is not discharged by putting
a formal question to the accused as to what he has to say on the
question of sentence. The learned Chief Justice made it clear that
the Judge must make a genuine effort to elicit from the accused
all items of information which will eventually bear on the question
of sentence. All such items of information that would furnish a
clue to the genesis of the crime and the motivation of the criminal
are
relevant and the learned Chief Justice emphasised that in such
an exercise,
“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”.
49. The learned Chief Justice further said that in the sentencing
procedure it is not only the accused but the entire society is at
stake and therefore the questions the Judge puts and the answers
the accused gives may be beyond the narrow constraints of the
Evidence Act. In the words of the learned Chief Justice the position
of 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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“2. … The court, while on the question of 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.”
50. To the same effect is the judgment of Ahmadi, J. (as His
Lordship then was) in Allauddin Mian v. State of Bihar [(1989)
3 SCC 5 : 1989 SCC (Cri) 490] . Explaining the purpose of Section
235(2), this Court in Allauddin Mian [(1989) 3 SCC 5 : 1989
SCC (Cri) 490] held that Section 235(2) satisfies a dual purpose;
first of all it satisfies rules of natural justice by according to the
accused an opportunity of being heard on the question of sentence.
Under such sentencing procedure the accused is given an
opportunity to place before the court all relevant materials having
a bearing on the question of sentence. The Court opined that it is
a salutary principle and must be strictly observed and is not a
matter of mere formality. This Court further held that in such
hearing exercise the accused should be given a real and effective
opportunity to place his antecedents, social and economic
background, etc. before the court, for the court to take a fair
decision on sentence as otherwise the sentence would be
vulnerable.
51. The Court therefore opined: (Allauddin Mian case [(1989) 3
SCC 5 : 1989 SCC (Cri) 490] , SCC p. 21, para 10)
“10. … We think 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 pronounce the sentence to be imposed
on the offender.”
52. Therefore, it is clear from the purpose of Section 235(2) as
explained in the aforesaid cases, that the object of hearing under
Section 235(2) being intrinsically and inherently connected with
the sentencing procedure, the provision of Section 354(3) which
calls for recording of special reason for awarding death sentence
must be read conjointly with Section 235(2) of the 1973 Code.
This Court is of the opinion that special reasons can only be validly
recorded if an effective opportunity of hearing as contemplated
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under Section 235(2) CrPC is genuinely extended and is allowed
to be exercised by the accused who stands convicted and is
awaiting the sentence. These two provisions do not stand in
isolation but must be construed as supplementing each other as
ensuring the constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the court.
53. These changes in the sentencing structure reflect the “evolving
standards of decency” that mark the progress of a maturing
democracy and which is in accord with the concept of dignity of
the individual—one of the core values in our Preamble to the
Constitution. In a way these changes signify a paradigm shift in
our jurisprudence with the gradual transition of our legal regime
from “the rule of law” to the “due process of law”, to which this
Court would advert to in the latter part of the judgment.”
11. When it comes to providing hearing in cases where the judicial
mind is to be applied in choosing the sentence between life imprisonment
and death, this requirement assumes greater importance.  It has been
held in Bachan Singh’s case that since death sentence can be awarded
only in the ‘rarest of rare cases’, the Court is supposed to give ‘special
reasons’ when it choses to award death sentence.  The reasoning process
has to undertake the exercise of considering mitigating as well as
aggravating circumstances and after weighing those circumstances with
objective assessment, a
decision has to be taken in this behalf.  Such an
exercise inherently calls for recording of reasons for awarding death
sentence.  The legislature has added another dimension in order to obviate
any possibility of error, by making a specific provision to the effect that
in those cases where the Session Judge inflicts death penalty, it has to be
affirmed and approved by the High Court.
12. Keeping in view all the aforesaid factors, particularly, when
death sentence is rare, this Court has emphasised time and again that in
such cases there has to be an independent examination by this Court
also, ‘unbound by the findings of the trial court and the High Court’.
Such approach is the ‘time-honoured practice of this Court’, as observed
in Kasab’s case.
13. Again, while undertaking the exercise as to whether the death
penalty is to be given imprimatur by this Court, even after the approval
thereof by the High Court, case law of this Court amply demonstrates
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that proper exercise of sentence discretion calls for consideration of
various factors like the nature of offence, circumstances—both
extenuating or aggravating, the prior criminal record, if any, of the
offender, the age of the offender, his background, his education, his
personal life, his social adjustment, the emotional and mental condition
of the offender, the prospects for the rehabilitation of the offender, the
possibility of his rehabilitation in the life of 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.
14. The accepted practice of this Court to afford hearing in the
cases where death penalty is challenged, has also been acknowledged
in Dayanidhi Bisoi vs. State of Orissa3 and re-enforced by the
Constitution Bench judgment in Mohd. Arif Alias Ashfaq vs. Registrar,
Supreme Court of India and Others4.  In Mohd. Arif case, this Court
made departure from the rule of hearing the review petitions in chambers
by making an exception to this rule and held that when review petition is
filed 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 Bench
of three-Judges.  Relevant portion of the said judgment is reproduced
below:
“34. We feel that this oral hearing, in death sentence cases,
becomes too precious to be parted
with. We also quote the
following observations from that judgment: (P.N. Eswara Iyer
case [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 value
of oral advocacy in open court must be erased. Experience
has shown that, at all levels, the bar, through the spoken word
and the written brief, has aided the process of judicial justice.
Justicing is an art even as advocacy is an art. Happy interaction
between the two makes for the functional fulfillment of the
court system. No judicial ‘emergency’ can jettison the vital
breath of spoken advocacy in an open forum. Indeed, there is
no judicial cry for extinguishment of oral argument altogether.”
3 (2008) 9 SCC 310
4 (2014) 9 SCC 737
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35. No doubt, the Court thereafter reminded us that the time has
come for proper evaluation of oral argument at the review stage.
However, when it comes to death penalty cases, we feel that the
power of the spoken word has to be given yet another opportunity
even if the ultimate success rate is minimal.”
15. A cumulative effect of all the aforesaid circumstances does
suggest that special leave petition filed in those cases where death
sentence is awarded by the courts below, should not be dismissed without
giving reasons, at least qua death sentence.  There may be cases where
at the Special Leave Petition stage itself, the Court may find that insofar
as conviction is concerned there is no scope for interference at all as
such a conviction for offence under Section 302 is recorded on the basis
of evidence which is impeccable, trustworthy, credible and proves the
guilt of the accused beyond any shadow of doubt.  At the same time, if
death penalty is to be affirmed even while dismissing the Special Leave
Petition in limine, it should be by a reasoned order on the aspect of
sentence, at least.
16. In the instant case, since the special leave petition filed by the
review petitioner was dismissed in limine with one word and without
giving any reasons, we allow this review petition and recall the order
dated January 06, 2015.  As a consequence, SLP(Criminal) No. 458 of
2015 is restored to its original number.
Nidhi Jain
  Review Petition allowed.
BABASAHEB
MARUTI KAMBLE v. STATE OF
MAHARASHTRA [A. K. SIKRI, J.]