“This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an exhaustive article that describes Chapter XXVIII of the Code of Criminal Procedure that deals with how a death sentence is confirmed under the Code.”

Introduction

Since 1991, a total of thirty executions have taken place in India. Only limited offences provide for the death penalty as a punishment that includes- 

• rape (Section 376 of the Indian Penal Code, 1860 (IPC)), 
• murder (Section 302 of IPC), 
• dacoity with murder (Section 396 of IPC), 
• waging or attempting to wage war against the Government of India (Section 121 of IPC), 
• certain offences after previous conviction (Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985), and 
• abetting or aiding the act of sati (Section 4(1) of the Commis­sion of Sati (Prevention) Act, 1987). 

The questions that arise are who can pass a verdict of the death penalty? What is the procedure of its confirmation? What happens once the death sentence is passed by a judge of the Sessions Court? Sections 366-371 of the Code of Criminal Procedure, 1973 deals with the ‘Submission of death sentences for confirmation’. 

Submission for conformation to High Court (Section 366)

Section 366 partially answers the question of who can pass a verdict. This section provides that if a Session Court passes the death sentence against the accused(s) then the High Court needs to confirm it before it comes into effect. Thereby, it is necessary to submit the proceedings before the High Court and only after confirmation from the High Court the execution can be brought into effect, and not before that.

The death penalty is the highest level of punishment and it follows the principle of ‘rarest of rare’ (uncommon crime or that is unusual to a person of ordinary prudence, the one which shocks and causes tremors throughout the judiciary and the society). This section works as a precautionary step to minimize the error while meeting the ends of justice. 

In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that under Section 366(2) of CrPC the court while passing the conviction shall grant the jail custody of the convicted person under a warrant i.e. the person shall be kept in custody and not as a punishment. The ‘safe keeping’ in jail custody is the limited jurisdiction of the jailor. It is a trusteeship in the hands of the Superintendent, and not an imprisonment in a real sense.

The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006) was submitted to the Allahabad High Court from Agra’s Sessions Court under Section 366 of CrPC. The accused had committed the offence of rape, murder and kidnapping. The rape was so gruesome that during the postmortem a stem of more than a feet was retrieved from her vagina which was inserted by the accused while committing the offence. Allahabad High Court upheld the death penalty of the accused stating that it was the rarest of rare case.

Further Sections provide the powers the High Court has in regard to cases submitted under Section 366 of the CrPC.

Power to direct further inquiry to be made or additional evidence to be taken (Section 367)

Sub-section (1) of Section 367 of the CrPC provides that when the proceeding for confirmation of the death penalty is submitted to the High Court and it notices any point of innocence or guilt of the accused, it may either direct the Sessions Court or itself to make further inquiry into it or take additional evidence into consideration. It is usually done when the High Court feels that the Sessions Court has missed some points or factors.

Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her presence during such inquiry or taking of the evidence unless the High Court otherwise directs.

Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the High Court) makes the enquiry or takes into consideration such evidence then it shall be certified by the Sessions Court. 

In the case of Balak Ram Etc vs The State of U.P. (1974) the Supreme Court in the final judgment stated that High Court had failed in properly considering the pieces of evidence of the prosecutor’s witnesses and held that while inquiring against a death penalty case or taking into consideration different pieces of evidence, the High Court shall take into consideration all the pieces of evidence itself as it is its duty.

Power to the High Court to confirm sentence or annul conviction (Section 368)

Section 368 provides that when a case is submitted to the High Court under Section 366 of the Code of Criminal Code, the High Court may;

• confirm the sentence passed by the Sessions Court, or pass a sentence other than the one provided it is warranted by the law, or
• annul the conviction passed by the Sessions Court, and instead either convict the accused under any other offence for which the Session’s Court had convicted him/her or order for a trial on an amended charge or on the same charge, or
• acquit the accused of the charges made against him.

The proviso to the section states that till the time the limitation period to file an appeal against the verdict is not expired, or the appeal is still pending or is not disposed of, the Court cannot pass an order of confirmation.

In the case of Kartarey and Ors. vs The State of Uttar Pradesh (1975), the Sessions Court had passed the verdict announcing the death sentence which was later altered by the High Court. When the case reached the Supreme Court it was observed that the High Court has committed a grave error in examining the evidence or additional evidence. 

It states that it is the duty of the High Court to ‘reap-praise’ the evidence in totality and it shall come to a conclusion on the merits of the case only after considering the proceedings in all their aspects. It is important and crucial to consider the defence evidence equally and not to neglect it as this is contradictory to the settled rule of practice and law.

Confirmation or new sentence to be signed by two judges (Section 369)

Section 369 provides that whenever a case is submitted to the High Court under Section 366 of CrPC it shall be heard by a divisional bench i.e. at least by two or more judges. For confirmation of: 

• the sentence, or
• any new sentence, or
• any order.

Passed by the High Court shall be ‘made, passed and signed’ by either two or more judges. It is an essential condition that cannot be ignored.

Procedure in case of difference of opinion (Section 370)

A question that arises now is what happens when the judges in equal proportion have conflicting opinions? Section 370 of CrPC provides the answer to it and states that the manner provided in Section 392 of CrPC shall be followed in the case when sitting judges that heard the case are equally divided in opinion about the case. The parties do not have to specify it to the court, the court takes the suo-moto and follows the procedure as per Section 392 of CrPC.

The Section 392 of states that when a High Court bench hears a case and ends up having divided opinions, in such case the appeal along with the diverging opinions shall be laid before a judge of the same Court. That judge shall deliver his/her opinion only after hearing the judges, and that opinion shall be followed by the judgment or order in question.

The proviso to the section states that if any of the sitting judge, or the judge before whom the judgment or order in question is laid under this section, requires the appeal to be heard again or be heard by a larger bench of judges then it shall be done accordingly.

In various cases, this section has been applied including the case of Sri D N Srinivash Reddy vs State of Karnataka (2018). In this case, the judges while deciding the case were not able to pass a majority decision due to difference in opinion therefore, the procedure described under Section 392 was followed. The judge who heard the matter under Section 370 of CrPC quashed the proceedings against the accused who were arrested during a raid.

Procedure in a case submitted to the High Court for confirmation (Section 371)

Section 371 of the Code of Criminal Procedure provides that cases of the death penalty which are submitted to the High Court by the Sessions Court after being decided upon shall be sent to the Sessions Court. The order passed by the High Court shall be one of the options provided in Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the accused among others. It is the duty of the concerned officer of the High Court to send a copy of the order passed by the High Court to the Sessions Court without any delay, under the seal of the High Court and attested with his/her official signature.

Conclusion

Taking an individual’s life is one of the epoch-making decisions. It has been a debatable topic since the beginning as it is always feared that an innocent individual shall not be hanged for the offences he/she did not even commit. All the sections provided in chapter 23 of the Code of Criminal Procedure work as a tool to minimize the chances of an error. The party can appeal to the Supreme Court if it is not satisfied with the High Court’s judgment and feels that injustice has been served or the court has been erred. 

Firstly, after Sessions Court’s judgment regarding the death sentence shall be submitted to the High Court for confirmation under Section 366. Then, the court may make inquiries or take into consideration evidence, both existing and additional as provided in Section 367. The High Court then passes the order as per Section 368 which needs to be signed by at least two High Court judges as mentioned in Section 369. In case of conflict in opinion, the case shall be referred to a third judge and his/her opinion shall decide the final decision as per Section 370 read with Section 392 of the Code of Criminal Procedure. Finally, after the confirmation, or any other decision, it is sent to the Sessions Court by the concerned officer as provided in Section 371 of the Code of Criminal Procedure.

References

• https://www.legalcrystal.com/cases/search/name:code-of-criminal-procedure-section-367/court:supreme-court-of-india
• https://www.latestlaws.com/articles/all-about-judgment-confirmation-of-death-sentences-under-code-of-criminal-procedure-1973-by-vatsala-walia/
• http://www.aaptaxlaw.com/CRPC/section-368-369-370-371-crpc-power-high-court-confirm-sentence-annul-conviction-confirmation-be-signed-two-judges-difference-of-opinion-sec-368-369-370-371-of-code-of-criminal-procedure-1973.html
• https://indiankanoon.org/docfragment/138219/?formInput=%20section%20366%2C%20crpc
• http://kanoon.nearlaw.com/2018/01/10/submission-death-sentences-confirmation/
• https://www.writinglaw.com/chapter-xxviii-366-371-of-crpc-submission-of-death-sentences-for-confirmation/

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: