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

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.
2.
3.
4.
5.

murder,
gang robbery with murder,
Abetting the suicide of a child or insane person,
waging war against the nation, and
Abetting mutiny by a member of the armed forces.
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In recent years the death penalty has been imposed under new antiterrorism

legislation for

people convicted of terrorist

activities.

The

judgement then goes on to say that the rarest of the rare 1 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
1 Bachan singh v. State of Punjab, AIR 1980, SC 898.
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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 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
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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 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
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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.

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.
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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 sessions 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
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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.

(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-

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

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(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;
1 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
1 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.

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ii.

The high court may refuse to confirm the death sentence and
pass

iii.

any

other

sentence

warranted

by

law,

such

as

imprisonment for life, provided the circumstances justify. 3

The high court may set aside the conviction itself, and then
convict the accused of any offence of which the sessions judge

iv.

could have convicted him.4

The high court may set aside the conviction and order a new

v.

trial5 on the same charge or on an amended charge.

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 death sentence can
be ordered by the single judge. Section 369 & 392 will have no application
to such case.6
Sec. 370 states that

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

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CONCLUSION
At 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.

BIBLIOGRAPHY
BOOKS
1. Criminal procedure, kelkar. R.V, Eastern Book Company, fifth edition
2011.
2. Criminal procedure, takwani.C.K, lexis nexis butterworths, 2 nd
edition, 2007.
3. Criminal procedure code.1973, Malik M.R j, lexis nexis butterworths,
4th edition 2010.

WEBSITES
1. www.lawyersclubindia.com
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2. www.amnesty.org/en/library
3. www.amnestyusa.org

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