It has to be said right at the outset that in a landmark judgment delivered on November 1, 2018 with far reaching consequences, the three-Judge Bench of Supreme Court comprising Justice AK Sikri, Justice Ashok Bhushan and Justice Indira Banerjee in Babasaheb Maruti Kamble v State of Maharashtra in Review Petition (Criminal) No. 388of 2015 in Special Leave Petition (Criminal) No. 458 of 2015 it was held that the Special Leave Petitions 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. The Bench recalled two such orders in two different cases in which it had dismissed SLPs filed by the accused against imposition of death penalty. It was held by the three-Judge Bench while addressing the contentions raised by senior advocate Shekhar Naphade who appeared for review petitioner whose death sentence was affirmed by the Apex Court in January 2015 by dismissing the SLP filed by him in limine that, 'There may be cases where at the Special Leave Petition stage itself, the Court may find that in so far as conviction is concerned there is no scope for interference at all as such a conviction for offence under Section 320 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.'
To start with, Justice AK Sikri who authored the judgment for himself, Justice Ashok Bhushan and Indira Banerjee states at the outset in para 1 that, '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. 82 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.' It is then pointed out in para 2 that, '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:
Para 3 clarifies that, 'Present review petition is filed seeking review of the aforesaid order of dismissal in limine.'
To be sure, it is then pointed out in para 4 that, '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.' Furthermore, para 5 then points out that, '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'.'
Truth be told, para 6 then brings out that, '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 Mohammad Ajmal Mohammad Amir Kasab alias Abu Mujahid vs State of Maharashtra (2012) 9 SCC 1 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'.'
Going forward, it is then revealed in para 7 that, 'Mr. Naphade also referred to the provisions of Order XX11 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 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 purpose of this rule, the term 'State' shall include a Union Territory'.'
Not stopping here, para 8 then goes on to add that, '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.' There is no reason why all courts should not follow the principle laid down in paragraph 5 of the Kasab's case. It must be adhered to in totality!
In hindsight, it is then observed by the Bench in para 9 that, '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. Naphada.' There can be no denying it!
Simply put, para 10 then stipulates that, '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.' It is also stipulated in this same para that the necessity and importance of such a hearing is explained in Rajesh Kumar vs. State Through Government of NCT of Delhi (2011) 13 SCC 706 whereinafter, it referred to various earlier judgments.
Needless to say, it is then brought out in para 11 that, '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 weighting 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.' Very rightly so! There can be no questioning it!
It would be pertinent to also bear in mind what is pointed out in para 12. Para 12 says that, '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.'
More importantly, it is then underscored in para 13 that, '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 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.'
It also cannot be lost on us that what has been stated above is reinforced in para 14 wherein it is pointed out that, '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 Orissa (2003) 9 SCC 310 and re-enforced by the Constitution Bench judgment in Mohd. Arif Alias Ashfaq vs. Registrar, Supreme Court of India and Others (2014) 9 SCC 737. 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. Evidence 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.'
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.'
Most importantly, para 15 then sums up this landmark case by stating that, '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.'
Finally, in the concluding para 16, it is held that, '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.'
All said and done, this landmark judgment indubitably has sent out a very loud, clear, categorical and convincing message to the courts and judges hearing special leave petitions against death sentence that, 'SLP against death sentence shall not be dismissed without giving reasons'! This must be borne in mind by all courts and judges without any exception whatsoever! If death sentence is affirmed, it must be accompanied by a reasoned order on the aspect of sentence at least! It must be complied with unambiguously and in totality!