Short notes on Procedure in Capital Crimes

Whenever, the Court of Sessions passes a sentence of death, the proceedings shall be submitted to the High Court for its examination and confirmation.

The High Court, on examination of the record may direct the Sessions Court to take further evidence or the High Court itself may record such additional evidence.

When a case is referred to the High Court under Sec. 366 Cr.P.C., the High Court:

(i) may confirm the sentence or pass any other sentence warranted by law, or

(ii) may annul the conviction and convict the accused of any offence of which the Court of Sessions might have convicted him or order for a new trial on the same or altered charges, or

(iii) may acquit the accused. However, a confirmation of the death sentence shall not be resorted to unless, time to appeal by the accused had exhausted.

The implication of the provision to S. 368 Cr.P.C. is to have a double check so that the High Court may not only hear the Public Prosecutor but may also hear the counsel for the accused regarding the merits of the case and regarding the sentence. Two judges of the High Court shall have to hear a reference made under Section 366 Cr.P.C. as well as appeal preferred by the accused whenever the accused is sentenced to death.

As pointed out in Bachhan Singh [AIR 1980 S.C. 898], the provisions of Sections 366-370 Cr.P.C. seek to ensure that the entire evidentiary material bearing on the innocence or guilt of the accused and the question of sentence shall be scrutinized with great care and caution. It was held in Triveni Ben’s case [AIR 1989 S.C. 1335] that a condemned prisoner should not be placed under solitary confinement.

There is a controversy as to the date of the judgment if the operative portion of the judgment is pronounced on one day and the reasons are stated on a subsequent day.

This of course, occurs only in High Courts and Supreme Court. Since, every subordinate Court upto the level of Sessions Court is expected to deliver its findings and reason for the same at one and the same time. It is now clear from the practice of the Supreme Court in consonance with the practice of the Privy Council and Court of Appeal of England that the date on which reasons are made known is the date of judgment.

This is so since the aggrieved person cannot prefer an appeal unless he knows the reasons for the Court in passing an order adverse to his interest.

Unlike in the civil cases the Code of Criminal Procedure did not make provision for delivery of judgment written by one officer to be pronounced by another officer. [Bai Sanav Charan Das vs. Amin Ali: AIR 1924 Cal. 55], and Md. Rafique vs. King Emperor: AIR 1926 Cal. 537]

It is envisaged by Section 366 Cr.P.C. that whenever a sentence of death is imposed by a Court of Sessions, the proceedings shall be submitted to the High Court and the sentence shall not be executed against the convict unless the death sentence is confirmed by the High Court on the reference of the Sessions Court.

A judge therefore, sentences an accused to death by the words “…. that he be hanged by the neck until he is dead subject to confirmation of the sentence of death by the High Court of Judicature.”

A Sessions judge who sentences the accused to death submits the entire record to the High Court under Section 366 Cr.P.C. along with a covering letter containing the terms of reference. The Criminal Rules of Practice envisage (vide Rule 95) that a prisoner sentenced to death is entitled to obtain a copy of the letter of reference submitted by the sessions judge to High Court.

Rule 96 of the Criminal Rules of Practice provides that Sessions Judges should make arrangements for communicating the order of the High Court imposing, confirming, reversing or commuting a sentence of death, to the Superintendent of the Jail where the condemned prisoner is lodged, within twenty four hours from the time of the receipt of the order.

In the case of the confirmation or imposition of a sentence of death by the High Court the sessions judge issues a warrant under Form No. 42 of the Criminal Rules of Practice fixing date of the execution of the death sentence not earlier than twenty one days and not later than twenty eight days from the date of the receipt of the confirmation order.