Confirmation of a Death Sentence
Chapter Sixty
Syllabus topic GUIDELINES rule 1.3, the Act is the boundary. Chapter XXX lies between MU's printed topics 3.2 and 3.3 and is named by neither, but a death sentence is not executable without it and it is asked.
Pages 405 to 409 of 699
In one line
A Sessions Court can pronounce a death sentence but cannot make it effective; the High Court must look at the whole case again and confirm it.
In exam wording: Chapter XXX of the Bharatiya Nagarik Suraksha Sanhita, 2023, sections 407 to 412, requires the submission of a sentence of death by the Court of Session to the High Court for confirmation, and sets out the High Court's powers on such a submission.
Why the law has this at all
Because a death sentence is the one punishment that cannot be corrected afterwards.
Every other error the criminal law makes is, in principle, reparable. A man wrongly imprisoned can be released. A fine can be refunded. A conviction can be set aside and a name restored. A man wrongly hanged cannot be given anything back.
So the law does something for this sentence that it does for no other: it refuses to let the sentencing court's own decision be final, and it refuses to leave the check to the convict's initiative. An appeal depends on somebody filing it, and a condemned man may be illiterate, unrepresented, or simply resigned. Confirmation happens by itself. The proceedings go up forthwith, and nothing can be done to him until two Judges of the High Court have looked at the case and put their names to it.
Note also how wide the reference is. This is not review of the sentence alone. Section 408 lets the High Court take further evidence on any point bearing on guilt or innocence, and section 409 lets it acquit. The whole case is reopened, because the whole case must be right.
Some words this chapter uses
Submission is the sending up of the proceedings; it is not an appeal and needs no party to move it.
Confirmation is the High Court's order making the sentence executable.
Annulling the conviction in section 409(b) means setting it aside as a conviction of that offence.
Section 407: the submission
Sub-section (1). When the Court of Session passes a sentence of death, the proceedings shall forthwith be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.
Sub-section (2). The Court passing the sentence shall commit the convicted person to jail custody under a warrant.
Three words carry the section. Forthwith, so there is no waiting. Shall, so it is not for the Sessions Judge to decide whether the case is clear enough to need no confirmation. And shall not be executed unless confirmed, which is the operative prohibition.
Section 408: further inquiry and additional evidence
Sub-section (1). If, when the 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 the inquiry or take the evidence itself, or direct the Court of Session to do so.
Confirmation of a Death Sentence
Sub-section (2). Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when the inquiry is made or the evidence taken.
Sub-section (3). Where the inquiry or evidence is not made or taken by the High Court, the result shall be certified to that Court.
The words bearing upon the guilt or innocence are the ones to quote. They show that the High Court on a confirmation reference is not confined to asking whether death was the right sentence for a man properly convicted.
Section 409: what the High Court may do
In any case submitted under section 407, 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.
Proviso: no order of confirmation shall be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within that period, until the appeal is disposed of.
The three clauses are a ladder, and they should be stated in that order. Clause (a) accepts the conviction and deals with the sentence. Clause (b) accepts that something was proved but not that offence, or that the trial itself must be done again. Clause (c) rejects the case altogether.
Sections 410 to 412: two Judges, a difference, and the copy back
Section 410. In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when the Court consists of two or more Judges, be made, passed and signed by at least two of them.
Section 411. Where such a case is heard by a Bench of Judges who are equally divided in opinion, the case shall be decided in the manner provided by section 433, which is the section on a difference of opinion among the Judges of an Appellate Court.
Section 412. In cases submitted for confirmation, the proper officer of the High Court shall, without delay after the order of confirmation or other order is made, send a copy of the order, physically or through electronic means, under the seal of the High Court and attested with his official signature, to the Court of Session.
Confirmation of a Death Sentence
The words or through electronic means in section 412 are new; the old Code knew only a physical copy.
A worked example
A Court of Session convicts Deepak of murder and sentences him to death.
What happens at once? The proceedings are forthwith submitted to the High Court, section 407(1), and Deepak is committed to jail custody under a warrant, sub-section (2).
Deepak does not appeal. It makes no difference. The submission is not his to make or to withhold, and the sentence cannot be executed unless the High Court confirms it.
The High Court doubts a piece of medical evidence. It may take additional evidence itself, or direct the Court of Session to take it, on any point bearing on guilt or innocence, section 408(1); Deepak's presence may be dispensed with unless the High Court directs otherwise, sub-section (2); and where the Sessions Court takes it, the result is certified to the High Court, sub-section (3).
On that material the High Court is satisfied of guilt but thinks death excessive. It may pass any other sentence warranted by law, section 409(a).
It concludes the offence was culpable homicide not amounting to murder. It may annul the conviction and convict him of an offence of which the Court of Session might have convicted him, section 409(b), or order a new trial on the same or an amended charge.
It concludes the case is not proved at all. It may acquit, section 409(c).
Deepak has filed an appeal. Then no order of confirmation may be made until that appeal is disposed of, proviso to section 409. If he has not appealed, none may be made until the appeal period has expired.
The Bench is of two Judges and both agree. The confirmation must be made, passed and signed by at least two of them, section 410.
They disagree. The case is decided in the manner provided by section 433, section 411.
The order is made. The proper officer of the High Court sends a copy without delay, physically or electronically, under the seal of the Court and attested with his official signature, to the Court of Session, section 412.
Distinctions
| Confirmation, Chapter XXX | Appeal, Chapter XXXI | |
|---|---|---|
| Who starts it | Nobody; the Court of Session submits forthwith | The appellant, by filing |
| Whether it happens if the convict does nothing | Yes | No |
| Scope | Guilt and sentence, with power to take evidence on guilt or innocence | The grounds taken |
| Powers | Confirm, pass another sentence, annul the conviction, order a new trial, acquit | The powers in section 427 |
| Signatures | At least two Judges where the Court has two or more | No such special rule |
Confirmation of a Death Sentence
| High Court's options under section 409 | Effect |
|---|---|
| (a) Confirm, or pass any other sentence warranted by law | The conviction stands |
| (b) Annul the conviction and convict of an offence the Sessions Court might have convicted him of, or order a new trial on the same or an amended charge | The conviction goes |
| (c) Acquit | The case goes |
What this does NOT mean
Submission is not a formality. Section 408 gives the High Court power to take evidence on guilt or innocence, and section 409 the power to acquit.
It is not a substitute for the appeal, nor the appeal for it. Both may exist in the same case, and the proviso to section 409 sequences them: no confirmation until the appeal period runs out or the appeal is decided.
The Court of Session does not lose custody of the prisoner to the High Court. Section 407(2) requires it to commit him to jail custody under a warrant.
A single Judge cannot confirm where the Court consists of two or more. Section 410 requires the confirmation, or any new sentence or order, to be made, passed and signed by at least two Judges.
And the sentence does not become executable when the High Court decides. It becomes executable on confirmation, and the Court of Session acts on the copy of the order sent under section 412.
Quick revision
- 407: a Court of Session sentence of death goes forthwith to the High Court; not executable unless confirmed; the convict is committed to jail custody under a warrant.
- 408: the High Court may order further inquiry or additional evidence on any point bearing on guilt or innocence, itself or through the Court of Session; the convict's presence may be dispensed with unless otherwise directed; the result is certified where the Sessions Court acts.
- 409: the High Court may (a) confirm or pass any other lawful sentence, (b) annul the conviction and convict of a lesser offence or order a new trial, or (c) acquit; no confirmation until the appeal period expires or the appeal is disposed of.
- 410: confirmation or any new sentence or order is made, passed and signed by at least two Judges where the Court consists of two or more.
- 411: on an equal division, the case is decided as provided by section 433.
- 412: the proper officer sends a copy of the order without delay, physically or electronically, under the seal and his official signature, to the Court of Session.
Confirmation of a Death Sentence
Test yourself
1. Can a Sessions Court's death sentence be carried out on its own authority? No. Section 407(1) requires the proceedings to be submitted forthwith to the High Court, and the sentence shall not be executed unless confirmed by the High Court.
2. Does confirmation depend on the convict appealing? No. The submission is automatic and independent of any appeal; and by the proviso to section 409, no confirmation may be made until the appeal period expires or a filed appeal is disposed of.
3. Can the High Court on a confirmation reference look at guilt? Yes. Section 408(1) allows further inquiry or additional evidence on any point bearing upon the guilt or innocence of the convicted person, and section 409(c) allows an acquittal.
4. Must the convict be present when additional evidence is taken? No. Unless the High Court otherwise directs, his presence may be dispensed with, section 408(2).
5. What are the High Court's three options under section 409? Confirm the sentence or pass any other sentence warranted by law; annul the conviction and convict of an offence of which the Court of Session might have convicted him or order a new trial on the same or an amended charge; or acquit the accused.
6. How many Judges must sign a confirmation? At least two, where the Court consists of two or more Judges, section 410.
7. What happens if the Judges hearing the reference are equally divided? The case is decided in the manner provided by section 433, section 411.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.