"This is just not done," an irked Supreme Court told the Madhya Pradesh government on Thursday for a policy to give incentives to its public prosecutors for successfully arguing death penalty cases in courts and asked it to take it back or a judgement would follow.

The sharp observation was made by a bench headed by Justice Uday Umesh Lalit which is hearing a suo motu case to mull laying down guidelines to be followed in cases where maximum sentence provided for the offence is death penalty.

The bench, also comprising justices S Ravindra Bhat and Sudhanshu Dhulia, was told about the policy or a system in Madhya Pradesh where public prosecutors are being rewarded with a right of posting to a place of choice for successfully arguing death penalty cases.

"This is just not done," the bench said, adding, "As a matter of fact, this (aspect) can never be associated with the punishment of the sentence which a person as a public prosecutor is able to get from the court."

"One part of it is this that you want to convey to the public prosecutors that whatever is the way and the mode but you must achieve the end result that there must be a conviction," the bench said.

The bench asked the counsel for the state government to take a decision to take back the policy or a judgement to this effect would follow.

"Our attention was invited to some of the documents placed on records to submit that the state was seeking to incentivise securing the capital punishment on the part of the public prosecutors and that would undermine the prosecutorial independence, prosecutorial discretion, fair trial and judicial independence as well," the bench noted in the order.

"We are concluding the hearing and if we get the affidavit on the records, then we will simply record the submissions and dispose of this aspect."

Meanwhile, the bench mulled laying down the guidelines and the stage of trial when the study on mitigating circumstances, against the award of the death penalty can be undertaken.

The bench said currently, the crime and its nature, whether it falls under the rarest of rare category, are discussed and the criminal and the mitigating circumstances favouring him are only dealt with at the time of sentencing.

Attorney General K K Venugopal, who is assisting the bench, said that the task to consider mitigating circumstances against the award of death penalty can be left to the high courts which, in any case, have to approve the capital punishment.

The bench said that it would deprive the lower court judge an opportunity to have a look at the mitigating circumstances favouring the accused.

The bench said that issue needed "deeper consideration" and fixed the main plea for hearing in July.

Earlier, the bench had decided to examine the Madhya Pradesh government's policy to reward to its public prosecutors for successfully arguing death penalty cases in courts.

Venugopal had said that such a practice of rewarding prosecutors should be "nipped in the bud".

The suo motu case has been registered to examine and institutionalise the process involved in collection of data and information to decide award of death penalty.

To ensure proper legal assistance to the accused facing criminal trials, it said that like public prosecutors, who pursue cases on behalf of the state, the National Legal Services Authority (NALSA) can have defence counsel or public defender's office in every district of the country.

"I must share with you that at NALSA, we are thinking of having a defence counsel office in every district. Something like a public prosecutors' office...there would be the office of public defenders," Justice Lalit, who is heading the NALSA, had said.

The bench had said that currently, NALSA has a "very loose kind of arrangement" where there are "some panel and remand advocates and they keep changing".

Hence, there is a need to have an institutionalised system to ensure proper legal assistance to the accused, it said.

The bench said that it has been accepted by the advocates concerned that the matter required consideration at an early date and asked them to file relevant material pertaining to award of death penalty in other jurisdictions as well.

The matter arose from a plea of a man named Irfan challenging the death penalty imposed on him by the trial court and confirmed by the Madhya Pradesh High Court.

The bench, earlier, had decided to examine how courts dealing with a death sentence can procure a comprehensive analysis about the accused and the crime, especially the mitigating circumstances so that the judicial officer concerned can decide whether the death sentence needs to be awarded.

Prior to this, an application was filed by 'Project 39A of the National Law University, Delhi, an anti-death penalty body seeking nod for an investigator who would collect mitigating information in favour of the accused to argue on the sentencing.