Bombay High Court
Mahesh Balasaheb Thakur vs State Of Maharashtra And Anr on 27 April, 2023
Author: A.S. Gadkari
Bench: A. S. Gadkari, Prakash D. Naik
Osk O-IA-2654-2022 & 2652-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2654 OF 2022
WITH
INTERIM APPLICATION NO. 2652 OF 2022
IN
CRIMINAL APPEAL NO. 459 OF 2018
Mahesh Balasaheb Thakur ]
Aged 36 years, Occupation Agriculturist, ]
Resident of Post Sohu, Taluka Khed, ]
District Pune. ]
Presently in custody in the ]
Yerwada Central Prison, ]
Yerwada, Pune 411 006. ] ... Applicant/Appellant
Org. Accused No.2
V/s.
1. The State Of Maharashtra ]
Through Yerwada Police Station, Pune. ]
2. The Superintendent ]
Yerwada Central Prison, ]
Yerwada, Pune 411 006. ] ... Respondents
Ms.Rebecca Gonsalvez for Applicant in IA Nos.2654 of 2022 & 2652 of 2022
and for Appellant in Appeal No.459 of 2018.
Mr.Harshad Nimbalkar, Special P.P. a/w. Mrs.M.H.Mhatre, A.P.P. for
Respondents-State.
Dr.Yug Mohit Chaudhary a/w. Ms.Sheefa Khan for Appellant in Appeal No.
460 of 2018.
Mr.Vijay Hiremath for Appellant in Criminal Appeal No. 233 of 2018.
CORAM : A. S. GADKARI AND
PRAKASH D. NAIK, JJ.
RESERVED ON : 17th February 2023.
PRONOUNCED ON : 27th April 2023.
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ORDER (Per : A.S. Gadkari, J.) :-
1. Applicant in both the aforestated applications is original accused No.2 in Sessions Case No. 106 of 2010, decided by the learned Additional Sessions Judge, Pune.
2. In Interim Application No. 2652 of 2022, Applicant has prayed that, the Respondents be directed to permit Ms.Nuriya Ansari to physically interview the Applicant in Yerwada Central Prison, Pune, on as many dates and for as much time as is necessary within the working hours of the prison for the purpose of collecting information relevant to sentencing; to permit Ms.Nuriya Ansari to interview the Applicant in a separate space and not in the usual mulakaat room without any prison official within hearing distance of the Applicant and her, for the sake of ensuring confidentiality and for other consequential reliefs.
2.1 In Interim Application No. 2654 of 2022, Applicant has prayed that, this Court may be pleased to direct the Respondents to permit Dr. Soumitra Pathare, Consultant Psychiatrist and Director, Centre for Mental Health Law & Policy (CMHLP), Indian Law Society (ILS), Pune, to physically interview the Applicant, on as many dates and for as much time as is necessary within the working hours of the prison, in order to conduct a comprehensive psychological/psychiatric assessment of the Applicant and to recommend an appropriate care and treatment plan; to direct the 2/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt Respondents to permit Dr.Soumitra Pathare to interview the Applicant in a separate space and not in the usual mulakaat room, without any prison official within hearing distance of the Applicant and Dr.Pathare, for the sake of ensuring confidentiality and for other consequential reliefs. 2.2 The Applicant, original accused No.2, in Sessions Case No. 160 of 2010 has been convicted under Sections 120B, 302 read with 120B, 376(2)(g) read with 120B, 404 read with 120B, 397 & 366 of the Indian Penal Code (for short, "I.P.C.") and sentenced to capital punishment by the learned Additional Sessions Judge, Pune by its Judgment and Order dated 8 th May 2017 and 9th May 2017.
3. Heard Ms.Rebecca Gonsalvez, learned Advocate for Applicant, Dr.Yug Mohit Chaudhary, learned Advocate for Accused No.3 and Mr.Harshad Nimbalkar, Special P.P. a/w. Mrs.M.H.Mhatre, A.P.P. for Respondents-State. Perused record.
4. Ms.Gonsalvez, learned Advocate appearing for Applicant submitted that, every accused/convict has a right to place on record mitigating circumstances for the 'Court's consideration' at the time of sentencing, in order to demonstrate that, he/she ought not to be sentenced to death. This would be necessary if the Court is considering the imposition of the extreme penalty of death. It is part of the right to fair trial under Article 21 of the Constitution of India. The hearing of sentencing under Section 235(2) of the Criminal Procedure Code (for short, "Cr.P.C.") is 3/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt intended to afford a real opportunity to the accused to place on record the facts and materials relating to various factors on the question of sentence, and if interested, to lead evidence to show mitigating circumstances for imposition of a lesser sentence. She submitted that, this includes the right to collect information on mitigating circumstances in advance, in order to prepare for the hearing on sentencing, in the event the Court at the relevant time considers that the case is one which may warrant the imposition of death penalty. The State has opportunity throughout the trial, to place aggravating factors on record. The accused does not have the same opportunity and therefore he must be given it, to collect this information in advance, if it is required at the stage of sentencing. She submitted that, the Hon'ble Supreme Court has held that, this information should preferably be collected beforehand, and if the appeal is heard after a long hiatus from the trial Court's conviction, recommended calling for fresh reports/updated information for complete understanding on the progress made by the accused.
4.1 Ms.Gonsalvez submitted that, the stage for consideration of this material would be at the time of sentencing, either at the trial Court, or the Appellate Court level, in the event the Court is considering imposing the extreme penalty of death. That the defence has the right to produce evidence in rebuttal to establish all mitigating circumstances. The Court has the duty to elicit information in that respect from the accused and the State. She 4/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt submitted that, a Mitigation Investigator (for short, "M.I.") works with the defence lawyer for an accused in a case where the death sentence is one of the possible sentencing. That the nature of M.I.'s work is intensive and would usually require 10-12 weeks. However, a Court hearing on death sentence case where a finding of conviction has been reached or upheld should not have to adjourn the case for such a long period. Therefore a Court may call for this information in advance. The Court may on earliest occasion direct/permit the collection of information relevant to sentencing by both the parties i.e. the State and the convict. In support of her contention, she relied on the decision in the case of Manoj & Ors. Vs. State of Madhya Pradesh, reported in 2022 SCC OnLine SC 677 : (2023) 2 SCC 353 and Irfan @ Bhayu Mevati Vs. State of Madhya Pradesh in Criminal Appeal Nos.1667- 1668/2021, dated 29th March 2022, and a series of decisions of Orders passed by the Hon'ble Supreme Court following the decision of Manoj & Ors. (supra).
4.2 She lastly relied on an Order in the case of Baburao Ukandu Sangerao Vs. State of Maharashtra & Ors. in Criminal Application No.2381 of 2021 in Criminal Appeal No.280 of 2021 & Confirmation Case No.01 of 2021, dated 19th December 2022, by a co-ordinate Bench at Aurangabad, wherein the said Bench by relying on the decision in the case of Manoj & Ors. (supra) and other decisions of the Hon'ble Supreme Court has issued similar directions as has been prayed by the Applicant herein. She however fairly 5/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt conceded the fact that, the Order dated 19 th December 2022 passed by the co-ordinate Bench at Aurangabad does not lay down any principle of law and has simply issued the directions as prayed for in the said application.
In view of above, Ms.Gonsalvez prayed that, the present Applications may be allowed.
5. Dr. Chaudhary submitted that, every prisoner has absolute and unfettered right to prepare his case when and how he wishes to, so long as he does not violate any law or impinge or another's rights in any way. This right is sacrosanct, not only for the accused, but also for the judicial system as a whole, for if this right is taken away or interfered with or restricted or controlled, it would undermine the legitimacy of judicial system and the sanctity of the final judicial verdict. The right to prepare a case when and how he wishes to is also rooted in the right to a fair trial, which is heart of Article 21. This right is also a constituent feature of democracies, while its absence features prominently in autocratic regimes. He submitted that, Article 21 demands that, to prepare defence is a right unencumbered and flows from Article 21 of the Constitution. That our Courts have not impeded a lawer's right to consult with his client and preparing defence in a criminal case, especially a case where capital punishment is imposed which requires skills that are beyond a lawyer. Often one may require the expert input of a psychiatrist, sociologist etc. He submitted that, Section 235(2) of Cr.P.C. lays down a general requirement for the Court to hear the accused on the point of 6/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt sentence, once he is found guilty of the charged offence. He fairly submitted that, a bare reading of Section 235(2) and 354(3) of Cr.P.C. suggests that, sentencing requires 'separate consideration from the question of conviction', and to that extent it is axiomatic. That the enhanced role to be played by the Court for selection of the correct sentence is only activity once a guilty verdict is pronounced. That the Court's interest in the issue of sentence only ignites once it delivers a guilty verdict.
5.1 He submitted that, however there is no reason for the Court to disallow a prisoner's private initiatives, borne out of his own resources and time, to gather information relevant to sentencing, at any stage of trial or confirmation. Such initiatives would typically extend to conducting psychiatric evaluation, mitigation study to be conducted by a qualified mitigation investigator or collecting information from the prison about the prisoner. He submitted that, the interest of the Court to ensure fair and just sentencing in a death case is independent of the efforts of defence in mounting an effective case. At the stage of sentencing, the Court would equip itself for deciding an appropriate sentence by making independent efforts to gather relevant information.
5.2 In support of his contentions he relied on decision of the Hon'ble Supreme Court, namely, (i) Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 684; (ii) Manoj & Ors. Vs. State of Madhya Pradesh, reported in 2022 SCC OnLine SC 677; (iii) Santosh Kumar Satishbhushan Bariyar Vs. 7/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt State of Maharashtra, reported in (2009) 6 SCC 498.
5.3 He lastly submitted that, as part of its constitutional obligation and duty to conduct an effective and meaningful sentencing exercise, the Court should call for relevant information pertinent to sentencing only after it concludes that the accused is guilty. That under no circumstance should such material be placed before the Court during the guilt phase of the trial / confirmation proceedings. He submitted that, the accused should be allowed to prepare for sentencing by meeting with psychiatrists, mitigation investigators, etc, even prior to the commencement of trial / confirmation proceedings and determination of guilt, if he so wishes. He therefore submitted that, appropriate Orders in the interest of justice, may be passed in the present applications.
6. There cannot be any difference of opinion or second opinion about the proposition of law enunciated by the Hon'ble Supreme Court in the case of Manoj & Ors. (supra) and other decisions/Orders passed by it following the decision in the case of Manoj & Ors. (supra).
According to us, the Hon'ble Supreme Court has passed the said decisions calling for report from the experts disclosing psychiatric, psychological evolution from the accused for assessing / evaluating mitigating circumstances at a stage after the High Court's have confirmed the reference under Section 366 of Cr.P.C.. As far as the Order passed by the Co- ordinate Bench at Aurangabad in Criminal Application No. 2381 of 2021 8/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt dated 19th December 2022 is concerned, it does not lay down any proposition of law and has simply allowed the said application on the ground that the Appellant therein has been sentenced to death and therefore it does not have any binding effect.
6.1 As far as the contention of learned counsel for the Applicant (Accused No.2) that, the Applicant be permitted to built up his defence since inception of the hearing of the present confirmation reference is concerned, according to us, the stage of building defence and putting it forth i.e. cross examining prosecution witnesses and/or examining defence witnesses is already over and the trial Court after recording evidence has passed the impugned Judgment and Order. Therefore we are unable to accept the said contention at such a belated stage as it does not appeals to this Court. 6.2 It is to be noted here that, in common legal parlance, we are yet to open the brief i.e. to even cursorily peruse the evidence on record to have the basic assessment of evidence against the Applicant and other accused/Appellants.
6.3 In the case in hand there are three probabilities.
(i) Acquittal of the accused. (ii) Commutation of sentence from death to life and (iii) Confirmation of death sentence.
As far as the first probability noted herein above is concerned, there would be no requirement for calling for the report of psychological 9/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 ::: Osk O-IA-2654-2022 & 2652-2022.odt evaluator/psychiatrist or Mitigation Investigator. Same would be the analogy as far as second probability noted herein above is concerned. 6.4 As far as third probability is concerned, if the Court after scrutinizing entire evidence on record reaches to the irresistible conclusion that, the Applicant/accused are not only guilty of the offence alleged against them, but the capital punishment is the only sentence which can be imposed, according to us, then only the report from the Psychological Evaluator/Psychiatrist/Mitigating Investigator is required to be called for by appointing such person/persons. It is also required to be noted that, in the event the information collected by the Mitigating Investigators is negative, it should not have any adverse effect on the proceedings before the Court arrives at conclusion of confirming the death sentence. It is pertinent to note that, the endeavour of defence Advocate would not only to commute sentence but also to strive for acquittal.
6.5 In the present case, the said stage is yet to be reached and therefore, according to us passing Orders on the Applications preferred by the accused No.2 at this stage is premature.
7. In view thereof, both the above Applications will be considered along with Main Appeal i.e. Criminal Appeal No. 459 of 2018 at the time of final hearing.
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8. List Interim Application Nos. 2654 of 2022 and 2652 of 2022 along with Criminal Appeal No. 459 of 2018 on board on 16 th June 2023, under the caption 'For Directions'.
[ PRAKASH D. NAIK, J. ] [ A.S. GADKARI, J. ] 11/11 ::: Uploaded on - 15/05/2023 ::: Downloaded on - 18/06/2023 21:47:02 :::