Confirmation Of Death Sentence

INTRODUCTION

Capital punishment, the death penalty, or execution is the sentence of death upon a person

by judicial process as a punishment for an offence. Crimes that can result in a death penalty

are known as capital crimes or capital offences. The term capital originates

from Latin capitalis, literally "regarding the head" (Latin caput). Hence, a capital crime was

originally one punished by the severing of the head from the body.

Capital punishment has in the past been practiced in virtually every society, although

currently only 58 nations actively practice it, with 95 countries having abolished it (the

remainder having not used it for 10 years or allowing it only in exceptional circumstances

such as wartime). It is a matter of active controversy in various countries and states, and

positions can vary within a single political ideology or cultural region. In the European

Union member states, Article 2 of the Charter of Fundamental Rights of the European

Union prohibits the use of capital punishment.

INDIA AND DEATH SENTENCE:

India stands poised between the global trend to end the death penalty and those nations

that continue to execute. Like many of the diminishing number of nations that still apply the

death penalty, over the last two decades, India has reduced the number of executions

carried out.

Death sentence in India is one of the capital punishment awarded by the courts in India.

The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in

"the rarest of rare cases.”Capital crimes in which death sentence can be awarded are:

1. murder,

2. gang robbery with murder,

3. Abetting the suicide of a child or insane person,

4. waging war against the nation, and

5. Abetting mutiny by a member of the armed forces.

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In recent years the death penalty has been imposed under new anti-terrorism legislation for

people convicted of terrorist activities. The judgement then goes on to say that the “rarest

of the rare1” must be measured not only in qualitative but also in quantitative terms.

Amnesty International is urging the Government of India to declare an immediate

moratorium on executions with a view to abolishing the death penalty. As an emerging

global and regional power and a party to the International Covenant on Civil and Political

Rights and other international human rights treaties, India has an opportunity to exercise

regional leadership and to strong signal of its determination to fully uphold human rights by

abolishing the death penalty.

In the past three decades, great strides have been made towards a world free from

executions. In 1980 only 25 countries had abolished the death penalty for all crimes. That

figure now stands at 91, with a further 11 countries having abolished the death penalty for

'ordinary' crimes (but retained it for offences such as treason or under military law). Thirty-

three countries are considered by Amnesty International to be 'abolitionist in practice' in

that they retain the death penalty for ordinary crimes such as murder but have not executed

anyone during the past 10 years and are believed to have a policy or established practice of

not carrying out executions, meaning that a total of 135 of the world's nations have turned

their back on capital punishment in law or practice.

The worldwide trend towards abolition is strong and clear. Outside China, an execution is

becoming an increasingly rare event. Vast swathes of the world are now execution-free. In

Africa only five countries executed in 2007; Belarus is the only European country that

continues to use the death penalty; and the USA is the sole country in the Americas to have

carried out any executions since 2003.

This trend was most recently illustrated by the world community voting at the United

Nations General Assembly for a moratorium on executions. The resolution was passed on 18

December 2007 by 104 votes to 54 (with 29 abstentions). Regrettably, India voted with the

1 Bachan singh v. State of Punjab, AIR 1980, SC 898.

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minority. The resolution is clear in its aim and instructs countries to impose an immediate

moratorium on executions as a first step towards abolition.

At the end of 2007, some 14 countries in Asia Pacific still retained the death penalty,

including China, where executions outnumber those in the rest of the world combined.

However, there is movement towards abolition in the region. In 2006 and 2007 respectively,

the Philippines and the Cook Islands abolished the death penalty joining those 17 other Asia

Pacific countries that have abolished the death penalty for all crimes. Twenty seven

countries have now abolished the death penalty in law or in practice in the Asia Pacific

region. In South Korea and Mongolia there have been legislative initiatives to abolish the

death penalty. There have also been increased levels of regional activism against the death

penalty by individuals and civil society groups.

FACTS AND FIGURES:

There are two broad categories of legislation providing for the death penalty in India: the

Indian Penal Code (IPC), and special or local legislation. Within the IPC, nine offences are

punishable by death. At least 14 other 'special' or 'local' laws also provide for the death

penalty. Three of these are successive anti-terror laws. The most recent law to be passed

that provides for the death penalty is the Unlawful Activities (Prevention) Ordinance 2004.

The government of India will not disclose how many people have been executed and how

many are awaiting execution today. According to the latest official figures, there were 273

persons under sentence of death as of 31 December 2005. However, the National Crime

Records Bureau, which publishes these figures, does not distinguish between condemned

prisoners whose sentences have been passed by a trial court, those whose sentences have

been upheld by a High Court or the Supreme Court, and those whose mercy petitions are

pending or have been rejected by the executive.

Amnesty International believes this figure to be a gross underestimate. At least 140 people

are believed to have been sentenced to death in 2006 and 2007. Some 44 persons are

currently known to be on death row awaiting a decision on their mercy petitions by the

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President of India (the last possible recourse). The execution of some of these prisoners may

be imminent.

Executions in India are carried out by hanging.

SECTION 28 :

Now, in Cr.p.c provisions are there that haw can a death sentence be given to a person and

which court has jurisdiction to pass judgment related to capital punishment? Sec.28 of the

criminal procedure code states about the courts which have jurisdiction to pass death

sentence. It states that –

“(1) A High Court may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised

by law; but any sentence of death passed by any such Judge shall be subject to

confirmation by the High court.

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a

sentence of death or of imprisonment for life or of imprisonment for a term

exceeding ten years.”

But a judicial magistrate (1st or 2nd class)/ metropolitan magistrate (1st or 2nd class) or a Chief

judicial magistrate or an assistant sessions judge, do not have jurisdiction to pass any capital

punishment.

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SUBMISSION OF DEATH SENTENCES FOR CONFIRMATION

Section 28(2) of the Cr.p.c states that a sessions judge and additional sessions judge has

power to pass any sentence including death sentence. But the death sentence passed by

any such judge shall be subject to the confirmation of the high court. Now for procedure of

confirmation there is a separate chapter given in the criminal procedure code. Chapter

XXVIII deals with the procedure for confirmation of death sentences by the high court.

High court has been given a vast power regarding the confirmation of death sentence. These

powers are being discussed in 5 sections from section 366 to 371.

Sec. 366 states that –

(1) When the Court of Session passes a sentence of death, the proceedings shall be

submitted to the High Court, and the sentence shall not be executed unless it is

confirmed by the High Court.

(2) The court passing the sentence shall commit the convicted person to jail custody

under a warrant.

This section deals with procedure for sentence of death to be submitted by court of sessions

for confirmation. This states that whenever under sec. 28(2) a death sentence is passed by

the session’s judge then it must not be executed till it is confirmed by the high court. And

the convict shall be sent to jail under a warrant passed by the court which passed the

sentence.

Sec. 367 states that –

(1) If, when such proceedings are submitted, the High Court thinks that a further

inquiry, should be made into or additional evidence taken upon, any point bearing

upon the guilt or innocence of the convicted person, it may make such inquiry or take

such evidence itself or direct it to be made or taken by the Court of Session.

(2) Unless the High Court otherwise directs, the presence of the convicted person may

be dispensed with when such inquiry is made or such evidence is taken.

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(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the

result of such inquiry or evidence shall be certified to such court.

This section deals with power of the high court to direct further inquiry to be made or

additional evidence to be taken. This states that, if, when such proceedings are submitted,

the high court thinks that a further enquiry should be made into or additional evidence

taken upon, any point bearing upon the guilt or innocence of the convicted person, it may

make such inquiry or take such evidence itself or direct it to be made or taken by the Court

of Session. The enquiry contemplated under this section would take in examination of the

accused under section 313 (1) (a).2 When the enquiry or evidence is not made or taken by

the high court, the result of such inquiry or evidence shall be certified to such court. Unless

the high court otherwise directs, the presence of the convicted person may be dispensed

with when such inquiry is made or such evidence is taken.

Sec. 368 states that -

In any case submitted under section 366, the High Court-

(a). May confirm the sentence, or pass any other sentence warranted by law, or

(b) May annul the conviction, and convict the accused of any offence of which the

Court of Session might have convicted him, or order a new trial on the same or an

amended charge, or

(c) May acquit the accused person:

Provided that no order of confirmation shall be made under this section until the

period allowed for preferring an appeal has expired, or, if an appeal is presented

within such period, until such appeal is disposed of.

This section deals with the power of high court to confirm sentences or annul conviction. It

is clear from the section that the High Court may :

1. confirm the death sentence or impose another sentence in its place;

2 Kaliram v. state of Maharashtra, 1989 Cri LJ 1625 (bom)

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2. annul the conviction and convict for any other offence of which the Sessions

Court might have convicted the defendant, or order a new trial on the basis of

the amended charge; or

3. Acquit the defendant.

But the confirmation cannot be executed until the date of filling appeal has been expired.

Since in every case of death sentence, there must be reference before the high court, but

the accused may not prefer appeal in every such cases, the power of high court on such

reference case are laid down in this self contained provision, irrespective of anything

contained in section 386. These powers are:

i. The high court may confirm the sentence.

ii. The high court may refuse to confirm the death sentence and pass any other

sentence warranted by law, such as imprisonment for life, provided the

circumstances justify.3

iii. The high court may set aside the conviction itself, and then convict the

accused of any offence of which the sessions judge could have convicted

him.4

iv. The high court may set aside the conviction and order a new trial5 on the

same charge or on an amended charge.

v. The high court may set aside the conviction and acquit the accused.

Sec. 369 states that –

“In every case so submitted, the confirmation of the sentence, or any new sentence or

order passed by the High Court, shall when such court consists of two or more Judges,

be made, passed and signed by at least two of them.”

This section deals with the procedure that the ‘confirmation of the death sentence or the

new sentence passed u/s 368 shall be signed by minimum of 2 judges, if the bench consists

of more than 2 judges.’ In case a high court consists of one judge only, the confirmation of

3 Asgar hussain v. state of U.P, AIR 1974 SC 336(para 2).4 Balak ram v. state of UP, AIR 1974 SC 2165.5 Rama Shankar singh v. state of W.B., AIR 1962 SC 1239.

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death sentence can be ordered by the single judge. Section 369 & 392 will have no

application to such case.6

Sec. 370 states that –

“Where any such case is heard before a Bench of Judges and such Judges are equally

divided in opinion, the case shall be decided in the manner provided by section 392.”

This section deals with the procedure in case of difference of opinion between the judges,

that ‘where bench of judges are divided equally in opinion, then according to sec. 392, one

other judge shall hear the matter and he will decide the matter.’

Sec. 371 states that –

“In cases submitted by the Court of Session to the High Court for the confirmation of

a sentence of death, the proper officer of the High Court shall, without delay, after the

order of confirmation or other order has been made by the High Court, send a copy

of the order under the seal of the High Court and attested with his official signature,

to the Court of Session.”

This section deals with the procedure in cases submitted to high court for submission, that

‘when the death sentence is confirmed or changed, the proper officer of the high court,

without delay, after the order of confirmation or other order has been made by the High

Court, send a copy of the order under the seal of the High Court and attested with his official

signature, to the Court of Session’.

6 Satwant v. state., (1986) Cr LJ, 1352.

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CONCLUSIONAt last I would like to conclude with this that when it comes to confirmation of death sentences; high

courts have been conferred vast power. It can confirm the sentence or it can annul the conviction

and convict for any other offence of which the Sessions Court might have convicted the

defendant, or order a new trial on the basis of the amended charge; or it can acquit the

defendant. Even it can setup an inquiry on any point bearing upon the guilt or innocence of the

convicted person.

BIBLIOGRAPHYBOOKS

1. Criminal procedure, kelkar. R.V, Eastern Book Company, fifth edition 2011.

2. Criminal procedure, takwani.C.K, lexis nexis butterworths, 2nd edition, 2007.

3. Criminal procedure code.1973, Malik M.R j, lexis nexis butterworths, 4th edition 2010.

WEBSITES

1. www.lawyersclubindia.com

2. www.amnesty.org/en/library 3. www.amnestyusa.org

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