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22. The Constitution Bench observed that under the old Code, both the sentence of death and the sentence of imprisonment for life provided under Section 302 of the IPC could be imposed after weighing the aggravating and mitigating circumstances of the particular case. However, in view of Section 354(3) of the Cr.P.C. a punishment of imprisonment for life should normally be imposed under Section 302 of the IPC but a sentence of death could be imposed as an exception. Additionally, as per the legislative requirement if a sentence of death is to be awarded, special reasons need to be recorded. In a sense, the legislative policy now virtually obviated the necessity of balancing the aggravating and mitigating circumstances of the crime for the award of punishment in respect of an offence of murder (although “aggravating and mitigating circumstances” are repeatedly referred to in the judgment, including as “relevant circumstances” that must be given “great weight”). Therefore, the Constitution Bench (after a discussion in paragraphs 161 and 162 of the Report) “adjusted and attuned” proposition (iv)(a) by deleting the reference to “balancing all the aggravating and mitigating circumstances of the crime” to read as follows:-

29. Despite the legislative change and Bachan Singh discarding proposition (iv)(a) of Jagmohan Singh, this Court in Machhi Singh revived the “balancing” of aggravating and mitigating circumstances through a balance sheet theory. In doing so, it sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. It hardly need be stated, with respect, that these are completely distinct and different elements and cannot be compared with one another. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Nevertheless, the balance sheet theory held the field post Machhi Singh.

32. It does appear that in view of the inherent multitude of possibilities, the aggravating and mitigating circumstances approach has not been effectively implemented.

33. 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 Bench in Bachan Singh seems to have been lost in transition. Issue of crime and the criminal:

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.