Death reference and the pervasive principles of natural justice

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment[1].”

The tussle between the proponents of death penalty and those against it is unrelenting. While the advocates in favour of capital punishment justify their stand on the basis of the deterrent and retributive principles of criminal jurisprudence, and those against it, term death penalty as “barbaric” and a rudiment of uncivilised thought process. Significantly, the Law Commission of India in its 262nd Report[2], inter alia, concluded, “death penalty does not serve the penological goal of deterrence any more than life imprisonment” and accordingly, recommended for the abolition of death penalty for all crimes, “other than terrorism related offences and waging war”. However, despite such recommendation(s), capital punishment continues to remain under the statute books as one of the forms of sanctions, which may be inflicted upon the convicts of serious offences. In fact, even the Supreme Court[3] has consistently upheld the constitutional validity of death penalty by noting, “so far the death penalty remains in the Penal Code the courts cannot be held to commit any illegality in awarding death penalty in appropriate cases”. Nevertheless, court’s power to grant capital punishment is not unrestrained, rather, is required to abide by the strict parameters of law and judicial precedents. Further, the Supreme Court[4] has unswervingly professed,

  1. … A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Pertinently, these restrains, parameters, guidelines, etc., are not only applicable at the stage of actual grant of sanction, rather, restrictions extend until the capital punishment is finally executed.

The provisions under Chapter XXVIII[5] of the Code of Criminal Procedure, 1973 (CrPC/ Code) are illustrations of such statutory guidelines/principles, demanding mandatory compliance, prior to the execution of death sentence(s), awarded by Sessions Court. The Supreme Court in Union of India v. V. Sriharan[6], while dealing with the provisions under the said chapter and terming the same as a separate Code, observed, 84. … Sections 366 to 371 are placed for the relevant consideration to be mandatorily made when a death penalty is imposed by the trial court. Under Section 366, whenever a Sessions Court passes a sentence of death, the proceedings should be mandatorily submitted to the High Court,

100. … the confirmation of the capital punishment of death penalty, the whole procedure has been mandatorily prescribed to ensure that such punishment gets the consideration by a Division Bench consisting of two Judges of the High Court for its approval. Significantly, as per the provisions of Section 366(1) of CrPC[7], “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.” Clearly, the said provision, unequivocally declares that the sentence of death, passed by Session Court, is automatically suspended on a reference made to the High Court, until the same is confirmed by the High Court. However, as per Section 366(2) of the Code, the Session Court/court passing the sentence of death is obligated to commit such a convict to jail custody under a warrant, until the final determination by High Court.

Significantly, the said provision was inserted under the Code[8], pursuant to the recommendations made by the Law Commission in its 41st Report[9]. Appositely, the Supreme Court in Sunil Batra v. Delhi Admn.[10], inter alia, while dealing with the provisions under Section 366 CrPC, observed,

  1. The purpose behind enacting Sub-section (2) Section 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. Similarly, the Supreme Court in Triveniben v. State of Gujarat[11], reiterated, 21. … prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence.

Pertinently, as per the provisions of Section 369 of the Code[12], the death reference(s) made by the Court of Session to the High Court are placed before, decided and signed by at least two of Judges of the said High Court, “when such court consists of two or more Judges”. However, in the case of a conflict/difference of opinion between the Judges constituting such a Bench at High Court, as per the provisions of Section 370 CrPC[13], the said case/conflict has to be decided in the manner as provided under Section 392 of the Code[14]. Significantly, the Supreme Court in Joseph Peter v. State of Goa, Daman and Diu[15], duly acknowledged,

5. … the insistence of the Code on two Judges hearing the matter of such gravity as a death sentence involves is because of the law’s grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are applied.

However, in the instant case, considering that only one Judicial Commissioner (out of sanctioned strength of two) was functional, the court, held,

5. Even so, exceptional situations may arise where two Judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either. In fact, while deciding so, the Supreme Court unambiguously noted that the provision[16], “obviously applies only to situations where the court, at the time of the confirmation of the death sentence, consists of two or more Judges”.

Significantly, the proceeding before the High Court in a death reference is not merely a mechanical exercise. On the contrary, it is trite law[17] that in a reference for confirmation of death sentence, High Court is required to examine the entire evidence for itself, independent of the Sessions Court’s findings/views. In this regard, the Supreme Court in Jumman v. State of Punjab[18], while considering the scope of High Court’s duty and power under such scenarios, held,

10. … it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own.

Similarly, in Subbaiah Ambalam v. State of T.N.[19], the Supreme Court, while reiterating that for confirming death sentence, “the High Court has to consider the evidence afresh and to arrive at its independent finding with regard to the guilt of the accused”, remanded the matter to the High Court, lamenting under the observation,

“we are distressed to find that to the judgment appealed against this statuary requirement has not been complied with and a case involving death sentence has been disposed of in a casual manner”.

Subsequently, in State of Maharashtra v. Sahebrao[20], the High Court of Bombay, reiterating the settled principle(s) of “doctrine of ‘rarest, of rare case’ ” and “sufficient cause”, professed with extreme vehemence,

15. … All the sides of this aspect of confirming the death penalty have to be scrutinised with great care and caution. The “mitigating circumstances”, always play dominant role in confirming the death sentence. The mitigating circumstance has to be gathered and or collected and to be weighed from the facts and circumstances of the case. The confirmation of death sentences therefore cannot be based only on the precedents and or aggravating facts and circumstances of any other case. The essential and relevant mitigating circumstances of the particular case always play a role of negative elements against the positive theory of death punishment.

Appositely, Section 367 CrPC[21] enables/empowers the High Court(s) to make an inquiry into or take evidence, itself or direct such an enquiry to be made or additional evidence taken by a Court of Session(s), where it, “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”. Further, noticeably, though, none of the provisions under the instant Chapter confer a right on a convict to be heard before the High Court in the said proceedings,

7. Even so[22], the accused is afforded an opportunity of being heard. He is elaborately heard, both on fact as well as on law. He is also even entitled to show that the decision arrived at by the Sessions Court is not sustainable on facts and law and that he is entitled to be acquitted, considering the sacrosanct principle of audi alteram partem[23].

In fact, in this regard, the Supreme Court in Masalti v. State of U.P.[24], held,

8. Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Session.

Further, moving a step ahead, the High Court of Bombay[25], dispelled the argument the term “inquiry”, as contemplated under Section 367 CrPC would not “take-in”/encompass an examination of the accused under Section 313 CrPC[26], by noting,

22. Putting such a limitation on the powers of the High Court under Section 367 may in proper cases deprive the accused persons of an opportunity to offer explanation in respect of the incriminating circumstances which have been brought in the evidence and exposing him to the risk of a conviction even if he were to have a proper and plausible explanation to offer in respect of that circumstance and put him in the peril of sufferring a conviction for fault of his.

Section 368 of the Code[27], further, contemplates that in any case submitted/referred by Sessions Court under Section 366 thereof, the High Court may either confirm the sentence or pass any other sentence warranted by law or may annul the conviction and convict the accused of any offence of which Sessions Court might have convicted him or order a new trial on the same or amended charges or may acquit the accused. Clearly, the powers conferred on the High Court(s) under the said Chapter are quite wide in nature, for the provisions enumerated therein not only entitle the High Court to direct further enquiry or to take additional evidence, in fact, the High Court, may, in appropriate case, even acquit the accused person. Significantly, as per the Supreme Court[28], the power of High Court, under Section 368(c) CrPC to acquit an accused person, “can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction” and that proceeding envisaged therein “is a proceeding in continuation of the trial”. It is to be, however, appreciated that as per the proviso appended to Section 368 CrPC, the power of the High Court to confirm a death sentence may be exercised only, “after the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of”. Appositely, the Supreme Court in Bhupendra Singh v. State of Punjab[29], while dealing with the scope of exercise of power of High Court under a corresponding/pari materia[30] provision, in the event of simultaneous filing of appeal by a convict and death reference by the Sessions Court, observed,

4. … if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under Section 375 of the Code[31] of Criminal Procedure and consequently, the court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed.

Mr Justice Krishan Iyer once remarked[32],

1. A death sentence, with all its dreadful scenario of swinging desperately out of the last breath of mortal life, is an excruciating hour for the Judges called upon to lend signature to this macabre stroke of the executioner’s rope. Even so, Judges must enforce the laws, whatever they be, and decide according to the best of their lights.…

Undoubtedly, task of a Judge in sanctioning a convict is quite unpleasant and even more so when it entails, depriving an individual of his life. However, there are abundant judicial and statutory parameters, which ensure that the powers conferred on Judges are not abused or misused. Simultaneously, the provisions under Chapter XXVIII of CrPC also dictate several guiding principles for the case(s) where a convict of death sentence awaits determination of his fate by High Court. Further, whenever there is any ambiguity or uncertainty regarding the appropriateness and application of law, courts have consciously and voluntarily stepped in to lay down doctrines and codes, which ensure fairness and justice. In fact, the courts have consistently professed in favour of the pertinence of the principles of natural justice in the cases even where the statutory provisions are silent and do not exclude such application, expressly or by necessary implication. Understandably, the principles of natural justice are deep-rooted and pervade even the gaping recesses of gloomy and tedious proceedings such as that of death reference(s) before High Court(s). Such principles, including a right of being hear of a convict; passing of a reasoned and independent finding/ decision by High Court, etc., are, therefore, intrinsic and inextricably intertwined with the proceedings before High Court(s) in death reference, to ensure fairness, both, explicit and implicit in such proceedings. As a famous saying goes, “Justice should not only be done but should manifestly and undoubtedly be seem to be done.” The same holds true even for proceedings before High Court while determining/deciding death reference(s).


Advocate, Delhi High Court

[1] J.R.R. Tolkien.

[2] The Death Penalty, August 2015

[3]Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186

[4] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[5] Sections 366 till 371 of the Code of Criminal Procedure, 1973 dealing with submission of death sentences for confirmation

[6] (2016) 7 SCC 1

[7] Section 366(1) of CrPC 

[8] Initially inserted under the corresponding provision, being, S. 374 of the Code of Criminal Procedure, 1898.

[9] September, 1969 (Vol. I)- Law Commission Report on the Code of Criminal Procedure, 1898. The Law Commission, accordingly, recommended, “It is noticed that when the accused is sentenced by the Court of Session to imprisonment for life, S. 383 expressly provides for the issue of a suitable warrant and the forwarding of the accused with the warrant to the jail in which he is to be confined. It is desirable that a similar provision should be made in S. 374 so that there may be specific statutory authority for holding the accused in prison after the Court of Session has passed sentence of death and until it is executed in due course.”

[10] (1978) 4 SCC 494

[11] (1989) 1 SCC 678

[12] Section 369 of CrPC 

[13] Section 370 of CrPC

[14] Section 392 of CrPC 

[15] (1977) 3 SCC 280 

[16] In the present case, the provision under consideration was S. 377 of the Code of Criminal Procedure, 1898, being pari materia/corresponding provision to S. 370 under the Code of Criminal Procedure, 1973.

[17]Refer to Balak Ram v. State of U.P., (1975) 3 SCC 219

[18]  AIR 1957 SC 469

[19] (1977) 4 SCC 603 

[20] 2004 SCC OnLine Bom 1186 : 2005 Cri LJ 2788

[21] Section 367 of CrPC

[22] Refer to Haidarkhan Lalkhan Pathan v. State of Gujarat, 1990 SCC OnLine Guj 16 : 1991 Cri LJ 1266

[23] One of the principles of natural justice and a Latin phrase meaning, “listen to the other side”, or “let the other side be heard as well”.

[24] (1964) 8 SCR 133 

[25]Kaliram v. State of Maharashtra, 1989 SCC OnLine Bom 56: 1989 Cri LJ 1625

[26] Section 313 of CrPC 

[27] Section 368 of CrPC

[28] Atma Ram v. State of Rajasthan, (2019) 20 SCC 481

[29] AIR 1968 SC 1438 : (1968) 3 SCR 404 

[30] S. 376 of the Code of Criminal Procedure, 1898 corresponds with S. 368 of the Code of Criminal Procedure, 1973.

[31] Section 375 of CrPC 

[32] Refer to Joseph Peter v. State of Goa, Daman and Diu, (1977) 3 SCC 280

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