Introduction
In an interlocutory order that touches on an evolving and important area of death penalty jurisprudence — how courts gather mitigating circumstances before confirming a death sentence — the Bombay High Court has taken up an application seeking permission to appoint a private “mitigating investigator” to interview a death-row convict in Yerwada Central Prison. Rather than deciding the application outright, the Division Bench has sought the State’s response on a pointed practical concern: whether allowing a privately appointed mitigator to conduct the same exercise the State/trial court is already expected to carry out would result in unnecessary duplication.
Background of the Case
The matter arises out of a Confirmation Reference filed by the State of Maharashtra following a Sessions Court judgment convicting Yogesh Ashok Raut and others under Sections 120B, 302 read with 120B, 376(2)(g) read with 120B, 404 read with 120B, 397 and 366 of the IPC in Sessions Case No. 106 of 2010, and sentencing them to death. The Confirmation Case is being heard together with connected Criminal Appeals filed by the convicts — Mahesh Balasaheb Thakur (Criminal Appeal No. 459/2018), Yogesh Ashok Raut (Criminal Appeal No. 233/2018), and Vishwas Hindurao Kadam (Criminal Appeal No. 460/2018).
The specific application before the Court — Interim Application No. 2652 of 2022 in Criminal Appeal No. 459 of 2018 — was moved on behalf of Mahesh Balasaheb Thakur, seeking permission for one Ms. Nuriya Ansari to interview him in Yerwada Central Prison to gather information relevant to sentencing, and to either record the interviews herself or have a person nominated by her accompany her to take notes.
The Legal Backdrop
Counsel for the applicant relied on a series of Supreme Court precedents that have progressively shaped the procedure for collecting mitigating circumstances in death penalty cases:
1. Irfan @ Bhayu Mevati v. State of Madhya Pradesh (Criminal Appeal Nos. 1667-1668/2021): The Supreme Court had earlier permitted a nominated mitigating investigator to visit the Central Jail, conduct an in-person interview with the accused, and access records including medical history, jail conduct, and work or education undertaken in prison.
2. Manoj & Ors. v. State of Madhya Pradesh (2022 SCC OnLine SC 677): This judgment laid down that trial courts must elicit mitigation-related information from both the accused and the State. As regards the State, it directed that material — preferably collected before the Sessions Court itself — disclosing the psychiatric and psychological evaluation of the accused be produced, so as to establish proximity to the accused’s state of mind at the time of the offence and to inform consideration of the mitigating factors recognised in Bachan Singh v. State of Punjab (1980) 2 SCC 684. The accused, in turn, is to be given an opportunity to lead rebuttal evidence establishing mitigating circumstances.
3. Aman Singh & Anr. v. State of Bihar (2026 SCC OnLine SC 720): In this recent decision, the Supreme Court reiterated the Manoj guidelines, observing that they had not been consistently followed and that meaningful legal representation was needed in potential death sentence cases. Direction (f) of this judgment directs the National Legal Services Authority to frame and circulate guidelines identifying the relevant fields of inquiry for gathering mitigating circumstances — permitting the engagement of trained legal and social-work teams to interact with the convict, their family, and relevant authorities to gather detailed information on background, antecedents, socioeconomic conditions, and mental health status, so that the sentencing court has a holistic, well-documented picture of both mitigating and aggravating circumstances.
Relying on these precedents, counsel for the applicant argued that the right to bring rebuttal material before the Court necessarily includes the right to collect such information through a privately appointed mitigating investigator.
The Court’s Observations
The Division Bench did not dispose of the application outright. Instead, it flagged a practical concern arising from the interplay between the Manoj and Aman Singh directions and the relief sought:
- The Court directed the Registry to ascertain whether the guidelines contemplated under direction (f) of Aman Singh — to be framed by the National Legal Services Authority (NALSA) and circulated to the State Legal Services Authority — have in fact been formulated, since the Aman Singh directions were issued on 27th April 2026.
- The Bench noted that Aman Singh already contemplates an official, State-facilitated exercise involving trained legal and social professionals interacting with the convict, his family, and relevant authorities to gather the very same categories of information (background, antecedents, mental health, socioeconomic conditions).
- Given this, the Court posed a direct question to the State: if a privately appointed mitigator is separately permitted to conduct an overlapping exercise, would that amount to an undesirable duplication of the process already contemplated under the Aman Singh framework?
- The Bench also noted the broader significance of the Aman Singh directions — that the mitigation-gathering exercise under Manoj is expected to be carried out at the trial court stage, but where it is not, the High Court itself must carry it out as the first exercise upon a death reference being listed before it.
Next Steps
Rather than granting or rejecting the interim application at this stage, the Court directed the learned Senior Advocate and Special Public Prosecutor, Mr. Harshad Nimbalkar, to obtain instructions from the State specifically addressing:
- Whether NALSA guidelines under Aman Singh have been framed and circulated; and
- The State’s position on whether permitting a private mitigating investigator would duplicate the exercise already contemplated by the Supreme Court’s directions.
The matter has been listed for further directions on 13th August 2026.
Key Takeaways
- Mitigation-gathering in death penalty cases is an evolving, court-supervised process, with the Supreme Court progressively mandating structured, multi-disciplinary information-gathering on an accused’s background, mental health, and social circumstances before a death sentence can be confirmed.
- Where trial courts have not undertaken this exercise, the confirming High Court is expected to do so as the first step when a death reference comes up before it — per the Aman Singh directions.
- The question of private mitigating investigators versus State/NALSA-facilitated mitigation teams is still being worked out — this order highlights a live tension between an accused’s right to independently gather mitigation evidence and the risk of duplicating a parallel official process meant to serve the same purpose.
- Courts are increasingly attentive to ensuring meaningful legal representation and a holistic record of mitigating circumstances before any death sentence is confirmed, consistent with the constitutional framework laid down in Bachan Singh.
Conclusion
While this order does not resolve the underlying application, it offers a useful window into how High Courts are grappling with the practical implementation of the Supreme Court’s evolving mitigation-evidence framework in death penalty cases. The outcome — particularly the State’s response on potential duplication, and confirmation of whether NALSA’s guidelines under Aman Singh are now in place — will be significant for how mitigating investigators are engaged in capital cases going forward.
CASE DETAILS: State of Maharashtra v. Yogesh Ashok Raut & Ors. (Confirmation Case No. 2 of 2017), with connected Criminal Appeals Nos. 459, 233 and 460 of 2018 High Court of Judicature at Bombay | Order dated 27th July 2026 | Bench: Justices Bharati Dangre and Manjusha Deshpande
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