Confirmation and Execution of Death Sentence under the Criminal Procedure Code, 1973

Confirmation and Execution of Death Sentence

Brief Outline

A. Submission of Death sentence for Confirmation (Ss. 366 – 371)

• S.366(1) – Sentence of Death passed by the Court of Session shall not be executed unless it has been confirmed by the High Court.
• S.366(2) – The convict shall be committed to jail custody under a warrant.
• S.367(1) – The High Court may carry out further inquiries or ask for additional evidence.
• S.367(2) – The presence of the accused can be dispensed with while such further inquiry is made.
• S.367(3) – In case the inquiry is not conducted by the High Court then the result of the inquiry shall be certified.
• S.368(1) – The High Court may confirm, annul or acquit the convict.
• S.368(2) – Such order shall not be passed during the limitation period of filing an appeal or until the appeal so filed is disposed of.
• S.369 – The case for confirmation shall be heard by a division bench.
• S.370 – In case there is no unanimity amongst the division bench, a third judge shall be referred and his decision shall be final.
• S.371 – Forwarding the copy of the order of conformation of death sentence to the Court who passed the order.

B. Execution of Death Sentence (Ss. 413 – 416 & Ss. 425, 426 & 430)

• S.413 – Execution of order of confirmation of Death Sentence passed by the High Court.
• S.414 – Execution of Death Sentence passed by the High Court in appeal, review or revision
• S.415 – Postponement of execution of Death Sentence – Appeal to Supreme Court.
• S.415(1) – Postponement in case of appeal to Supreme Court u/s. 379.
• S.415(2) – Postponement in case of application for a certificate (that the case involves a substantial question of law) is made to High Court under Article 132.
• S.415(3) – Postponement in case of special leave petition is filed under Article 136.
• S.416 – Postponement of capital sentence on pregnant woman.

A. Confirmation of Death Sentence

Introduction

• Under the Indian Penal Code, only in one section i.e., 303, death sentence is the only punishment prescribed. However, in the backdrop of the fact that Indian Penal System dwells upon reformatory forms of punishment, the said section has been struck down as unconstitutional.
• However, there are numerous other sections where death sentence is provided as an alternate punishment.

Scope & Objective

• The decision of the Sessions Court passing a death sentence is not final until and unless the same is not finalised by the High Court.
• For this purpose, the Sessions Court is required to make a reference to the High Court for seeking confirmation of death sentence passed by it.
• It shall be the duty of the referee Court i.e., the High Court to pursue the evidence and make inquiries as it may deem fit before confirming or annulling the death sentence.
• Such procedure is prescribed keeping in mind the irrevocable nature of death sentence once it is executed.
• The provisions pertaining to seeking confirmation are mandatory in nature.
• Such confirmation has to be sought regardless of the fact whether the convict files an appeal or not.

Submission of Death Sentence passed by Court of Session for conformation by the High Court – S.366(1)

• Once the death sentence has been passed by the Court of Session, it shall not be final until and unless the same is confirmed by the High Court.
• The High Court can only deal with such order as a court of reference and examine the correctness of facts and law in it.
• The High Court has to come to its own independent conclusion as to the guilt or innocence of the accused, independent of the opinion of the Sessions Judge.

The convict shall be committed to jail custody under a warrant – S.366(2)

• This provision is intended to keep the accused in custody until and unless the order of death sentence is confirmed.
• It is neither rigorous or simple imprisonment.
• This provision is mainly aimed at ensuring that the convict is available for execution of the death sentence, if the same is confirmed by the High Court.
• Once the sentence becomes executable he may be kept in a cell separate from other convicts.

Further Inquiries by the High Court – S.367

Duty of the High Court

• The High Court shall form its own opinion as to case before it for confirmation.
• In order to do so, it either carry out or may direct any further inquiries into the matter.
• The High Court shall on its own, without the opinion of Session Judge shall be able to remark objectively on the guilt or innocence of the accused.
• The High Court can take fresh evidence if it desires.
• The High Court shall pursue the record with great care and circumvention.

Examination under section 313

• The term inquiry u/s. 367 also includes examination of the convict u/s. 313/

Presence of the Convict

• The requirement of enforcing presence of the convict in the High Court can be dispensed with until the Court order the convict to be present before it.

Power of the High Court – S.368

• Once the case is submitted for confirmation by the Court of Sessions before the High Court, it may:
• Confirm the sentence; or
• Pass any other sentence; or
• Annul the conviction and convict under any offence of which the Court of Session might have convicted; or
• Acquit the accused person
• There are two limitations on powers of the High Court while dealing with confirmation of sentence, they are mentioned as follows:
• No order can be passed before the period of limitation gets over; or
• No order can be passed during pendency of an appeal and before the same is disposed of.

Division Bench shall hear the reference – S.369

• The order pertaining to such confirmation of death sentence shall be heard by the Division Bench of the High Court.
• It shall be passed and signed by two of them.

Opinion of a Third Judge – S.370

• In case there is no unanimity in the judicial opinion of the division bench, then a third judge’s opinion can be sought.
• Once he gives his opinion the same shall be final and binding.

Forwarding the Copy of order of High Court – S.371

• Once the High Court has passed an order for confirmation or any other order as it is authorized to pass u/s. 368;
• The same order shall be forwarded by the officer of the Court to the Court of Sessions who had passed the said order of death sentence and sought confirmation over the same.

B. Execution of Death Sentence

Introduction

• Once the High Court confirms the Death Sentence passed by the Court of Sessions or passes such a sentence in appeal, review or revision, the next question which comes up for consideration is as to the procedure of executing such a death sentence.
• The process of execution of sentence will depend upon the nature and type of the sentence awarded by the judge or the Magistrate.
• There are specific and separate rules for each such category of the sentence.

Execution of order of confirmation of Death Sentence passed by the High Court. – S.413

• Once the High Court passes an order of confirmation of death sentence u/s. 368 passed by the Session Court, in such cases the next step is to execute the death sentence.
• Procedure upon confirmation – The Court of Session would issue a warrant in the prescribed form to the officer in charge of the jail for the proper execution of the sentence.
• Procedure upon execution – Once the sentence of death has been executed, the officer executing it shall return the warrant to the Court of Session with an endorsement under his hand certifying the manner in which the sentence had been executed.

Execution of Death Sentence passed by the High Court in appeal, review or revision – S.414

• Conditions for applicability of S.414 – This section applies when the following conditions are met:
• Sentence should have been passed by the High Court; and
• In appeal, review or revision.
• The High Court does not require any sort of confirmation of death sentence passed by itself.
• Thus, once it is passed, the Court of Session upon receiving the order of the High Court shall cause the sentence to be executed by issuing a warrant.

The sentence of death can be postponed in the following circumstances:

Appeal to Supreme Court u/s. 379 against an order of conviction. – S.415(1)

If the convict prefers an appeal to the Supreme Court in such case the execution of the death sentence shall be postponed until:

1. The period of limitation gets over; or
2. The appeal is disposed of.

Certificate from High Court under Article 132 – S.415(2)

The convict has to obtain a certificate from the High Court before filing an appeal before the Supreme Court, which certifies the fact that there is a substantial question of law involved in the case. The execution of sentence shall remain suspended during such period as well.

Special Leave Petition under Article 136 – S.415(3)

It is sufficient if execution is post-poned for such period as would enable the person sentenced to apply for special leave to the Supreme Court.

Capital Sentence on Pregnant Woman – S.416

In case a death sentence is awarded to a woman who is pregnant, the High Court shall order the execution of death sentence of such woman to be postponed and may if it thinks fit, commute the death sentence to that of imprisonment for life.

Who may issue warrant – S.425

The Warrant for the execution of a sentence may be issued by:

1. The Judge who passes the sentence; or
2. The Magistrate who passed the sentence; or
3. Their successor in office.

Return of Warrant on Execution of Sentence – S.430

Once a sentence has been fully executed, the officer executing it shall return the warrant to the Court from which it is issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.

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