#JudgmentReserved:A delayed judgment & a nuanced twist to the Nirbhaya verdict

The Supreme Court bench of Justices Dipak Misra, Rohinton Fali Nariman, and Uday Umesh Lalit delivered the verdict (authored by Justice Lalit) in Vasanta Sampat Dupare v State of Maharashtra, on May 3. It was reserved on October 5, 2016..The inordinate delay of seven months in delivering the judgment in this case, however, was not noticed because of its timing: It was followed within two days, by the judgment in the Nirbhaya case, with the first one alerting us as to what was likely to be there in the latter verdict..Indeed, the first verdict was cited in the second verdict. The Judge, who was part of both the benches, was Justice Dipak Misra, who seems to have ensured that there is consistency between the two verdicts, to answer the oft-repeated criticism that our death penalty jurisprudence is marked by inconsistency. The Supreme Court confirmed the death penalty for the convicts in both the cases, for the offence of rape and murder..Now, the twist..In both, the counsel for the convict in Dupare, and the Amicus Curiae in Nirbhaya, argued that proper and effective hearing on sentencing was not extended to the convicts..In both the cases, the respective benches permitted the appellant-convicts to file material to indicate mitigating factors for conversion of the death sentence to life imprisonment..In both, the benches relied on Dagdu and Others v State of Maharashtra, which was decided by a three-Judge bench in 1977, before the Supreme Court’s five-Judge Constitution Bench held death penalty constitutional in Bachan Singh in 1980. It is Dagdu which explains how the benches arrived at the results in Dupare and Nirbhaya. .So, what was significant about this little known case decided in 1977?.In Dagdu, as Nishant Gokhale, one of the counsels for Dupare points out in a blog post (jointly authored with Rahul Raman), the Court held that “remand is an exception, not the rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases”..Secondly, the Dagdu bench held that where the Court concluded that there was a defect in the sentencing process, it could remand the matter back to the trial court for a de novo sentencing hearing or itself cure the defect by allowing affidavits and materials to be filed on sentencing..The Supreme Court, in both Dupare and Nirbhaya cases, chose the second option, by deciding to cure the defect itself instead of remanding it to the trial court, where the defect occurred..So, what was the defect, which the Supreme Court conceded happened at the trial court level, in both the cases?.In Dupare, the High Court at the confirmation stage, held that the accused did not receive a fair trial or an opportunity to defend himself as the legal aid lawyer appointed on his behalf was absent during the cross-examination of four important witnesses, and remanded the case back to the trial court..On remand, the trial court repeated the same conviction and death sentence. Again, the trial court failed to observe procedural fairness, by imposing the death sentence on the same day when it delivered the conviction verdict, and with the absence of advocate of the accused..This time, however, the high court confirmed the death sentence on Dupare, and did not even mention the fact of the accused’s lawyer being absent at the time of sentencing..The Supreme Court dismissed Dupare’s appeal on November 26, 2014, without examining this lack of procedural fairness at the trial court hearing on sentencing..In his review judgment, Justice Lalit answered that merely because the trial court imposed the sentence on the same day when it delivered the conviction verdict, the proceedings did not get vitiated. Justice Lalit answered Dupare’s argument that he was not given any legal representation during the sentencing by the trial court, by pointing that the Review bench had allowed him to place the relevant material on record in the light of Dagdu..Dagdu’s influence on the Nirbhaya bench too was discernible. The Amicus Curiae argued that the sentencing was not individualized to each of the four accused, there was no personal hearing, and the trial court displayed no genuine effort to elicit relevant mitigating circumstances..Relying on Dagdu, the Supreme Court, even while admitting lack of procedural fairness at the trial court hearing on sentencing, held that it could cure the defect by allowing affidavits and materials to be filed by the convicts on their sentencing..So, what was wrong in this approach?.Gokhale and Raman point out that the Supreme Court appreciating evidence before it for the first time severely prejudices a convict due to the absence of reappreciation. That is, the convicts were deprived of the opportunity to have the facts on sentencing considered by the Trial Court as well as two Judges of the High Court..These are additional safeguards against arbitrary death sentencing, which are implied in the Supreme Court’s judgment in Mohd.Arif case, explain Gokhale and Raman. In Mohd. Arif, the Supreme Court recognized the importance of three Judges hearing the appeals from death-row convicts, and an open court hearing by three Judges of their review pleas..Gokhale and Raman also explain that the Supreme Court has invoked original jurisdiction in the criminal proceedings in both these cases, although the Constitution envisages it only in civil suits between the Union and states or inter se States under Article 131. A consequence of this approach is that the Court will have no way to test the information provided through affidavits, which can sometimes be contradictory, as there was no cross-examination of the deponents..More important, having conceded that the sentencing by the trial courts in both the cases was not fair, the Supreme Court did not follow its own precedent in remanding the case to the High Court, as was done in 2012 in Ajay Pandit v State of Maharashtra..The bench in Ajay Pandit included Justice KS Radhakrishnan, who authored it, and (hold your surprise) Justice Dipak Misra, who appears to have changed his view in the course of last five years. In this case, the High Court, while enhancing the sentence to death penalty from life sentence, as decided by the trial court, did not fulfil the mandatory requirements of Section 235(2) CrPC, and hear the accused properly on the enhancement of the sentence. Specifically, the Supreme Court held that the High Court should have elicited information about mitigating factors in enhancing the sentence from the accused, and not recorded his response mechanically..While Dupare can use these arguments in his curative petition, the Nirbhaya convicts may find these useful while arguing their review cases, though remanding the cases to the trial court would appear to be a far cry at this stage..The score-card.Of the 31 judgments delivered during last week (May 1 to May 5), Justice Kurian Joseph authored 13 non-reportable and one reportable judgments. Justice Abhay Manohar Sapre authored three. Justices AM Khanwilkar and Mohan M.Shantanagoudar authored two and one non-reportable judgments respectively..Justice Lalit authored two judgments. Justices Nariman, Madan B Lokur, Dipak Misra, R Banumathi, Prafulla C Pant, AK Sikri, Pinaki Chandra Ghose, Adarsh Kumar Goel and Ashok Bhushan authored one each..Sixteen judgments were reserved during the period from May 1 to May 9. Of these, five were delivered in the following week. The remaining eleven are as follows:.SLP [Civil].Jaspal Kaur Cheema and Anr v M/s Industrial Trade Links and Ors Etc., 22183-22185/2015, reserved by Justices J Chelameswar and S Abdul Nazeer, on May 2. It is a Rent Act matter arising out of the Punjab and Haryana High Court judgment dated February 21, 2015.Arihant Udhyog v State of Rajasthan, 31709/2012, reserved by Justices AK Sikri and Ashok Bhushan, on May 2. It pertains to market fee under the Agricultural Produce Market Committee Act, and it arose out of the Rajasthan High Court at Jodhpur judgment delivered on May14, 2012.Suresh Kumar Kohli v Rakesh Jain & Anr, 5489/2014, reserved by Justices RK Agrawal and Abhay Manohar Sapre, on May 2. This arose out of a Delhi high court judgment on tenancy rights, delivered on December 5, 2013.Gaurav Pradhan & Ors v State of Rajasthan & Ors, 30603/2014, reserved by Justices AK Sikri and Ashok Bhushan on May 5. Dealing with a service matter –recruitment/transfer/compassionate appointment, it arose out of the judgment of Rajasthan High Court at Jaipur, delivered on January 16, 2014.Nelatur Sampooranamma v Special Deputy Collector, LA, Telugu Ganga Project, Podalakur at Nellore, Andhra Pradesh & Anr, 14839/2015, reserved by Justices Kurian Joseph and R Banumathi, on May 9. Dealing with land acquisition, and matters challenging compensation, it arose out of a Hyderabad High Court judgment dated March 12, 2014.. SLP (Criminal).Rajesh Sharma and Ors v State of U.P. and Anr., 2013/2017, reserved by Justices Adarsh Kumar Goel and Uday Umesh Lalit, on May 1. Dealing with for/against quashing of criminal proceedings, it arose out of the judgment of Allahabad High court dated January 18, 2017.Girish Kumar Suneja v CBI, 9503/2016, reserved by Justices Madan B Lokur, Kurian Joseph and AK Sikri, on May 5. This arose out of a Delhi high court judgment dated October 27, 2016..Criminal Appeals.Neera Yadav v Central Bureau of Inv estigation, 253/2017, reserved by Justices Kurian Joseph and R Banumathi, on May 4. Judgments in related appeals were reserved earlier. The appellant, a former Chief Secretary of Uttar Pradesh, was convicted and sentenced under the Prevention of Corruption Act. Last week, the bench had reserved judgment in a related case..Contempt Petition (Civil).Avishek Raja & Ors v Sanjay Gupta, 411/2014. Dealing with non-compliance in the Court’s order in a labour matter, it was reserved by Justices Ranjan Gogoi and Navin Sinha, on May 3..Writ Petition (Civil).Binoy Viswam v Union of India, 247/2017, reserved by Justices Sikri and Bhushan on May 4. The hearing of the case against the mandatory requirement of Aadhaar number for filing Income Tax returns, received extensive commentary in the media. As the petitioners want an interim relief in the case, through a stay of the controversial Section 139AA of the Income Tax Act, which makes Aadhaar mandatory for filing IT returns, the bench is expected to pass an order in the case before the end of this month.Common Cause v Union of India, 114/2014, reserved by Justices Lokur and Gupta, on May 8. It deals with renewal of mining leases in Odisha, and flagrant violation of the laws relating to mining and environment protection and the fundamental rights of the local population.