Aggravated and mitigating circumstances

CRPC Sec. 235(2) and 354(3) r/w Sec 367(5)
Sangeet & ANR. Vs. State of Haryana.(2013 (1) Crimes 25 (sc))

K.S.Radhakrishan and Madan B. Lokur, JJ

Legislative change -Rule of “ death sentence being rule and life sentence exception” changed to life
sentence being the rule and death sentence exception” – Death sentence to be awarded only rare rest of
rare cases.

Jagmohan Singh was decided when the Code of Criminal Procedure, 1898(for short the old Code)
was in force. Section 367(5) of the old Code provided that if an accused person is convicted of an offence punishable with death, and he is sentenced to a punishment other than death, the Court was required to state the reason why a sentence of death was not passed. Section 367(5) of the old Code reads as follows:-

“If the accused is convicted of an offence punishable with death, and the court sentences him to any
punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.

“Bachan Singh was, however, heard and decided when the Code of Criminal Procedure, 1973 (for
short the Cr.P.C) had come into force with effect from 1st April, 1974. The Cr.P.C contained Section 354(3), which provided that for an offence punishable with death, the first option for punishment would be imprisonment for life (or imprisonment for a term of years) and the second option would be a sentence of death. Section 354(3)of the Cr. P.C reads as follows:- “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or 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.

“The conclusion of the Constitution Bench under these circumstances was that the sentence of death
ought to be given only in the rarest of rare cases and it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”.

Administration of Criminal Justice –Aggravated and mitigating circumstances- Aggravating
circumstances relate to the Crime –Mitigating circumstances relate to criminal.
Administration of Criminal Justice- Aggravating and mitigating circumstances –Not only does
the aggravating mitigating circumstances approach need a fresh look but the necessary of adopting
this approach also needs a fresh look.

Therefore, in our respectful opinion, not only does the aggravating and mitigating
circumstances approach need a fresh look but the necessity of adopting this approach also needs a fresh look in light of the conclusions in Bachan Singh. It appears to us that even though Bachan Singh intended

“principled sentencing”, sentencing has now really become judge-centric as highlighted in Swamy
Shraddananda and Bariyar. This aspect of the sentencing policy in Phase II as introduced by the Constitution Benchin Bachan Singh seems to have been lost in transition. Issue of crime and the criminal:
The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude:

1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.
2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.
3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.
4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.
5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced.
6. Remission can be granted under Section 432 of the Cr.P.C. in the case of a definite term of sentence. The power under this Section is available only for granting “additional” remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 of the Cr.P.C. can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
7. Before actually exercising the power of remission under Section 432 of the Cr.P.C. the appropriate
   Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner