High Court At Appellate Stage Can Order Mitigation Investigation Even Before Conviction Is Upheld: Kerala High Court In Death Sentence Reference

While hearing two death sentence references, the Kerala High Court on Thursday held that there is no legal bar in commencing mitigation investigation even before the High Court begins hearing the issue on conviction at the appellate stage.

A division bench comprising of Justice Alexander Thomas and Justice C. Jayachandran was of the view that if the mitigation investigation is conducted only after the High Court has affirmed the finding of conviction arrived at by the lower court, this would amount to unduly protracting the hearing proceedings at the appellate stage:

“If the study process is commenced only after the conviction is affirmed at the appellate stage, then there will be serious issues and delay, if the said exercise is to be carried out meaningfully and effectively thereafter. This will lead to the position that the convict, who was awarded death sentence by the trial court, will face more anxious and agonizing time, and for all purposes, he may experience a “Damocles' sword hanging over his head”, guessing with great tension, as to whether the death sentence awarded by the trial court will be confirmed by the High Court or would be commuted to life sentence.”

The Court held that undertaking mitigation study efforts even before commencement of hearing by the High Court could help reduce the trauma and torture for the convict who has been awarded a death sentence by the trial court and is awaiting confirmation by the High Court:

“…if mitigation study efforts are taken even before the commencement of the hearing on the issue of conviction, etc. so that, in case the conviction is affirmed, minimal time alone may be required for completing the remaining formalities of the said assessment process and after hearing both sides, the High Court may be equipped to render a decision as to whether the death sentence could be converted to life sentence or whether the impugned death sentence is liable to be confirmed.”

The Court was considering the Death Sentence References (DSR) of two persons who had been convicted under Section 302 IPC by the Sessions Court and were imposed death sentence. The references were made in compliance with Sec.366(1) of the CrPC., which mandates that if a Sessions Court imposes a death sentence, the said sentence cannot be executed until it is confirmed by the concerned High Court.

The Court had appointed Adv. Mitha Sudheendran and Adv. Sai Pooja as Amici Curiae in the matter to assist in matters related to mitigation investigation. On the submission of the Amici Curiae, the court directed Project 39A of the National Law University (NLU), New Delhi, an expert agency in the field, to conduct the mitigation investigations in the said cases. The Court specifically noted that the agency, that is a pioneer in the field and whose services have been frequently availed by the Supreme Court, has offered to conduct mitigation studies pro bono.

The Court referred to various decisions of the Apex Court to ascertain the legal position as to the stage at which mitigation investigation will have to be conducted.

The State submitted that at the trial stage the mitigation investigation comes into play only after conviction. As the appeal is a continuation of trial process, the mitigation investigation should ideally be conducted only if the appellate court affirms the conviction, the State argued. The State also pointed out that if the mitigation investigation is conducted by the High Court at the appellate stage, and subsequently the conviction is set aside, the process of mitigation investigation would turn out to be an ‘unnecessary and futile exercise’.

However, the counsel for the convicts and the amicus curiae submitted that, there is no legal bar for the High Court in undertaking mitigation studies after admitting the matter and before the final hearing. If mitigation investigation is conducted in advance, it was argued that in case the conviction is affirmed, then time could be saved. In such a case the further time required to ascertain whether the case fits into the ‘rarest of rare category’, so as to warrant death penalty, would be minimal.

The Court observed that a prima facie reading of both the judgments of the Sessions Court would show that a proper mitigation study may not have been conducted by the lower court concerned. In both cases the death sentence was pronounced soon after the conviction was rendered, the Court noted. The Court observed that at the trial stage mitigation studies ought to be conducted after the conviction is rendered and when the sentencing process commences. In cases where appropriate mitigation studies have not been undertaken by the trial court, it is the duty of the High Court to ensure that proper steps are taken to ensure effective mitigation investigation, Court said. It added:

“Prima facie, we would venture to observe that there is no point in critiquing the approaches of the Sessions court, as mitigation investigation is a newly emerging approach. True that, recently the Apex Court has taken the lead in fine tuning the legal principles and applying the same in various cases. The Sessions court, generally, may not be equipped with the necessary perspectives and the wherewithal to enter into detailed mitigation investigation, even in Sec. 302 cases. So, it is the duty of this Court, as the head of the State Judiciary to carry forward the perspectives and approaches taken by the Apex Court in cases of this nature, so that the appropriate legal culture is evolved and the same can be imbibed by the Session Courts at the District Judiciary level, etc. Even in these cases, now there is some resistance, as the approach in these perspectives is seen as novel.”

The Court considered the argument of the State that if the mitigation efforts are conducted in advance and if the conviction is ultimately set aside, the mitigation study may not be of use. This cannot be said to be wastage of time and money, the Court observed. It was held that in doing so the Court would only be fulfilling its duty of providing meaningful and effective opportunity of hearing, ”if such mitigation studies are conducted in advance, the same is in fulfillment of the duties, functions and obligations of the courts in exercise of its sovereign judicial powers.”

The Court also noted the submission of the Amicus Curiae that if the mitigation study is held in advance there is a likelihood of bias. In this regard the Court held that Registry must keep the report of the mitigative investigation confidential until the conviction is affirmed or set aside.

“The said issue can be resolved by ordering that the papers of the mitigative investigation may be filed and the same shall be kept in a confidential file by the Registry and that access should not be given to the Judges until the issue regarding the sustainability or otherwise of the conviction is decided by the Appellate Court. Further, the prosecution and the defence should also ensure that such papers are kept confidential and are not circulated to anybody else.”

Based on above, the Court directed Project 39A of the National Law University, New Delhi, to independently assess the matter submit its report in both cases. The Court directed that the person appointed for this purpose will be allowed to visit the convicts in prison and conduct interviews. The Court also directed that the person so appointed be given access to the medical records, jail conduct, certificates of educational, vocational or employment opportunities undertaken, etc. of the convicts.  

The Court also directed the State to arrange for two separate Government Medical College psychiatrists to assess both convicts, along with a clinical psychologist. The reports of the psychologist and clinical psychologist were directed to be submitted to the Court Registry and kept confidential in sealed envelopes.

The Court also made specific note of the recent Apex Court order dated 17th April 2023, where Project 39A was directed to conduct psychological assessment of a death row convict:

“the Expert associated with the Project 39A of the National Law University, Delhi, has been entrusted with the responsibility of submitting report in regard to the psychological assessment of the appellant death row convict and also, issued further directions regarding furnishing of reports of the Probation Officer and also, that of the Psychiatrist regarding the psychological evaluation of the death row convict etc."

Case Title: State of Kerala V Nino Mathew 

Citation: 2023 LiveLaw (Ker) 217

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