ORDER : Kauser Edappagath, J. The power and jurisdiction of the High Court to order enquiry as to the mitigating circumstances of the convict in a proceeding for confirmation of death sentence under section 366 of the Code of Criminal Procedure (for short ‘Cr. P.C’) falls for consideration in these Death Sentence References (for short ‘DSRs’). 2. The respondents in the above six DSRs were convicted, inter alia, under section 302 of IPC and awarded capital punishment. The respective Sessions Court submitted the proceedings to this Court for confirmation of the death sentence. All the respondents, except respondent No.2 in DSR No.6/2018, have challenged their conviction and sentence in the separate appeals filed by them, which are also pending at this Court. 3. A Division Bench of this Court recently in State of Kerala v. Nino Mathew, (2023 KHC OnLine 369) held that the High Court can order to carry out study as to the mitigating circumstances of a death convict even before the hearing of the appeal filed by him against conviction. Project 39A of the National Law University, Delhi, was entrusted with the task of conducting the study. 4. When we were about to pass a similar order to carry out such a study in the above DSRs as well, the learned Senior Public Prosecutor Sri. T.B.Hood strongly opposed the move. Hence, we heard him as well as the learned Special Public Prosecutor Smt. Ambika Devi in detail. We have also heard the learned Counsel for the respondents/convicts. 5. The learned Senior Public Prosecutor and the Special Public Prosecutor submitted that conducting a mitigation study before hearing the DSRs and the appeals challenging conviction and sentence on merits is beyond the scope and ambit of section 366 of Cr. P.C and, thus, impermissible. They further submitted that the High Court cannot of its own take recourse to such a study unless a specific plea was made to that effect by the convict showing sufficient grounds. They also expressed their deep concern in entrusting the task of undertaking the study with an outside agency like Project 39A. Per contra, the learned counsel for the respondents/convicts argued that the death sentence in all the cases was passed without a proper mitigation exercise regarding the circumstances of the convicts, and as such this Court is obliged and duty-bound to do such an exercise. 6. Per contra, the learned counsel for the respondents/convicts argued that the death sentence in all the cases was passed without a proper mitigation exercise regarding the circumstances of the convicts, and as such this Court is obliged and duty-bound to do such an exercise. 6. Mitigating factors, in general, seek to explain the surrounding circumstances of the criminal to enable the Court to decide between the death penalty or life imprisonment. Under Sections 235(2) and 354(3) of Cr. P.C., there is a mandate for a full-fledged bifurcated hearing and recording of ‘special reasons’ if the Court inclines to award the death penalty. In the specific backdrop of sentencing policy in capital punishment, a scrupulous compliance of both provisions is necessary. An informed selection of sentence could be based on the materials collected and collated at this stage. 7. In Bachan Singh v. State of Punjab [ (1980) 2 SCC 684 ], the Constitution Bench of the Apex Court, while upholding the constitutional validity of death sentence based on 'rarest of rare' test, held that before exercising discretion to impose the extreme penalty of death sentence, aggravating and mitigating circumstances are required to be considered. In Machhi Singh v. State of Punjab [ (1983) 3 SCC 470 ], the Apex Court, building upon the observations in Bachan Singh (supra), observed that a balance sheet of ‘aggravating and mitigating circumstances’ needs to be drawn where ‘mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstance before the option is exercised'. Subsequently, the Apex Court, in several judgments, has recognised, and considered commutation to life imprisonment on grounds such as young age, socio-economic conditions, mental illness, and criminal antecedents as relevant indicators on the questions of sentence. In Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra [ (2009) 6 SCC 498 ], it was held that a conclusion as to the rarest of rare aspect with respect to a matter should entail the identification of aggravating and mitigating circumstances relating both to the crime and the criminal. 8. It is trite that the sentencing hearing contemplated under Section 235(2) of Cr.P.C is not confined merely to oral hearing but intended to afford a real and meaningful opportunity to the accused to place on record facts and material to show mitigating circumstances to impose a lesser sentence. 8. It is trite that the sentencing hearing contemplated under Section 235(2) of Cr.P.C is not confined merely to oral hearing but intended to afford a real and meaningful opportunity to the accused to place on record facts and material to show mitigating circumstances to impose a lesser sentence. One of the mitigating circumstances is the probability of the accused being reformed and rehabilitated. This is one of the mandates of the ‘special reasons’ requirement of Section 354(3) Cr.P.C as well. In the absence of an individual’s capacity to effectively bring forth mitigating factors, the Apex court in Bachan Singh (supra) placed the burden of eliciting mitigating circumstances on the Court, which has to consider them liberally and expansively. In contrast, the responsibility of providing material to show that the accused is beyond the scope of reform or rehabilitation, thereby unquestionably foreclosing the option of life imprisonment and making it a fit case for imposition of the death penalty, falls squarely on the State [ See Manoj and Others v. State of Madhya Pradesh (2023) 2 SCC 353 ]. This has been reiterated and further spelt out by the Apex Court in Mohd.Mannan v. State of Bihar [ (2019) 16 SCC 584 ], Mofil Khan and Another v. State of Jharkhand [(2021) SCC OnLine SC 1136, Ajay Pandit v. State of Maharashtra [2012 (3) KLT SN 97 (C.No.98) (SC)], Sundar @ Sundarrajan v. State by Inspector of Police [(2023) SCC OnLine SC 310] and Santhosh Kumar (supra). In Mohd. Mannan (supra), it was held that there is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent. In Mofil Khan (supra), a three-judge Bench of the Apex Court while commuting the death sentence to life imprisonment, reiterated the importance of looking at the possibility of reformation and rehabilitation. Notably, it pointed out that it was the Court’s duty to look into possible mitigating circumstances even if the accused was silent. A similar point was underlined in Ajay Pandit (supra), where it was held that the Court has a duty and obligation to elicit relevant facts even if the accused has kept silent in such situations. Notably, it pointed out that it was the Court’s duty to look into possible mitigating circumstances even if the accused was silent. A similar point was underlined in Ajay Pandit (supra), where it was held that the Court has a duty and obligation to elicit relevant facts even if the accused has kept silent in such situations. In Sundar (supra), while casting the burden on the State to place all material and circumstances on the record bearing on the probability of reform, it was emphasised that the Court could not be an indifferent bystander in the process. The process and powers of the Court may be utilised to ensure that such material is made available to it to form a just sentencing decision bearing on the probability of reform, it was suggested. In Santhosh Kumar (supra), it was held that the Court must play a proactive role in recording all relevant information while hearing sentence. In Anil v. State of Maharashtra [ (2014) 4 SCC 69 ], the Apex Court directed criminal courts to call for additional materials while dealing with offences like Section 302 IPC after conviction, in appropriate cases, to determine whether the accused could be reformed or rehabilitated. 9. Bachan Singh (supra), while enunciating the rarest of rare doctrine, did not deal with the role and responsibility of the sentencing court and the appellate court separately. Nor did it specify any review standards for the High Court and the Apex Court. However, in Santhosh Kumar (supra), it was held that all Courts, be it Trial Court, High Court, or the Apex Court, are duty bound to ensure that the ratio laid down in Bachan Singh is scrupulously followed. Again, in Accused 'X' v. State of Maharashtra [ (2019) 7 SCC 1 ], it was held that non-compliance with Section 235(2) of Cr.P.C. to provide a separate, effective hearing on the point of sentence can be rectified at the appellate stage as well, by providing meaningful opportunity. It was observed that in view of the harsh realities, such as long protracted delays or jail appeals through legal aid, etc., the appellate court, in appropriate cases, may take recourse to independent inquiries on relevant facts ordered by the Court itself. It was observed that in view of the harsh realities, such as long protracted delays or jail appeals through legal aid, etc., the appellate court, in appropriate cases, may take recourse to independent inquiries on relevant facts ordered by the Court itself. Good conduct of the accused at the post-conviction stage in prison (through a jail report), and psychiatric evaluation to evaluate the possibility of reform (albeit at the appellate sentencing stage), were considered recently in Chhannu Lal Verma v. State of Chhattisgarh [ (2019) 12 SCC 438 ] as necessary indicators for considering mitigating circumstances. In State of Maharashtra v. Sindhi [ (1975) 1 SCC 647 ], the Apex Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its conclusions on the material on record regarding the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge. Recently, in Manoj and Others v. State of Madhya Pradesh [ (2023) 2 SCC 353 ], the Apex Court expressed its concern regarding the absence of a uniform framework for mitigation investigation in India. It was observed that despite over four decades since Bachan Singh (supra), there has been little to no policy-driven change towards formulating a scheme or system that elaborates how mitigating circumstances are to be collected for the court’s consideration. It was observed that scarce information about the accused at the time of sentencing severely disadvantages the process of considering mitigating circumstances. It was clarified that the mere mention of these circumstances by counsel serves no purpose – rather, they must be connected to the possibility of reformation and assist principled judicial reasoning (as required under section 235(2) Cr.P.C). The Court outlined provisional guidelines to collect information regarding mitigating circumstances. It was suggested that the social milieu, age, educational levels, family circumstances, socio-economic background, psychological evaluation of a convict and post-conviction conduct were relevant factors at the time of considering whether death penalty ought to be imposed. 10. The Court outlined provisional guidelines to collect information regarding mitigating circumstances. It was suggested that the social milieu, age, educational levels, family circumstances, socio-economic background, psychological evaluation of a convict and post-conviction conduct were relevant factors at the time of considering whether death penalty ought to be imposed. 10. Sections 235(2) and 354(3) of Cr.P.C and the dictum laid in the aforementioned judgments clearly and unequivocally mandates the sentencing court to enquire into mitigating circumstances as well as to foreclose the possibility of reformation and rehabilitation before imposing the death penalty. The sentencing court must play a proactive role and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record even if the convict remains silent. Heavy duty is cast on the High Court as well to collect materials touching the mitigating circumstances of the convict while dealing with a reference for confirmation of a sentence of death, especially in a case where the sentencing court did no such exercise. This could be achieved by directing enquiry/study about his age, education, health condition, income and kind of employment, family background, socio-economic conditions, mental make-up, criminal antecedents, mental defect or disorder, conduct in jail, conduct outside jail if he has been on bail for some time, probability of reformation and rehabilitation etc. It is desirable to have such a study before hearing the DSR and the appeal challenging conviction and sentence on merits so that delay could be avoided. For these reasons, we repel the objection raised by the prosecution and hold that the High Court is well within its jurisdiction to order an inquiry as to the mitigating circumstances of the convict in a proceeding to confirm the death sentence under section 366 of Cr.P.C. even before hearing the DSR and the appeal challenging conviction and sentence on merits. So far as the concern raised by the Prosecutors in entrusting the task of undertaking the study with an outside agency like Project 39A is concerned, it has been brought to our notice that the Apex Court has recognised Project 39A and entrusted them to conduct mitigation study in several cases. Sri.Anup Surendranath, Executive Director, Project 39A who appeared before us through video conferencing agreed to undertake the study in all the DSRS pro bono. Sri.Anup Surendranath, Executive Director, Project 39A who appeared before us through video conferencing agreed to undertake the study in all the DSRS pro bono. In the wake of the above findings, we pass the following orders: (i) Project 39A of the National Law University, New Delhi is deputed to carry out study of the respondents/death convicts involved in the DSR Nos.2/2017 and 1, 3, 4, 5 & 6/2018. (ii) Sri.Anup Surendranath, the Executive Director of Project 39A shall depute investigators associated with Project 39A to conduct study in each case. (iii) The investigators who are so deputed shall have access to the concerned prison where the respondents are housed and also to other authorities concerned. (iv) The Jail Superintendent shall co-operate with the investigators and extend all necessary assistance to them including access to records pertaining to the convicts. (v) Project 39A shall complete the study within six months and file report at the Registry of this Court in a sealed cover. The copies of the report shall be given to the respective Prosecutors as well as to the counsel for the respondents. The Prosecutors and the counsel for the respondents shall keep such reports confidential till the DSRs and the appeals are finally heard. (vi) The prosecution and the defence are also at liberty to collect materials pertaining to the aggravating or mitigating circumstances. Such materials shall be produced by them at the Registry in a sealed cover within six months. (vii) The prosecution shall also collect report of the probation officers relating to the respondents in all the DSRs. The same shall be submitted at the Registry in a sealed cover within six months. A copy of the same shall be furnished to the counsel for the respondents. (viii) The Director General of Prisons shall place on record report from the concerned Jail Superintendents where the respondents are lodged about their conduct in a sealed cover within six months. (ix) The State shall take necessary steps to conduct the psychiatric/psychological evaluation of the respondents by qualified Psychiatrist/Psychologist of the Government Medical College. The reports of the same shall be submitted in a sealed cover within six months. (x) Registry shall forward a copy of this order to Sri.Anup Surendranath, the Executive Director of Project 39A.