45

CHAPTER-III

CAPITAL PUNISHMENT UNDER THE INDIAN LEGAL SYSTEM

I. Introduction

The source of the power to award death sentences arises from Section 53 of the

Indian Penal Code, 1973. This is a general provision on punishment. There are

two broad categories of laws that provide for death sentences in India; The Indian

Penal Code, 1860; and Special or Local Legislations.

II. Capital Punishment under the Indian Penal Code, 1860

The Indian Penal Code provides a definition of crimes and prescribes the

punishment to be imposed when the commission of a crime is established through

a trial process in a court of law in which evidence is placed before the court and

the accused is provided with an opportunity not only to test the evidence of the

prosecution but to also lead his own evidence, if so desired.

The Indian Penal Code provides for capital punishment for the following

offences:

(a) Treason, for waging war against the Government of India

Section 121^' of the Indian Penal Code, 1860 embraces every description of war,

whether by insurrection or invasion. It punishes equally the waging of war against

the Government of India, or attempting to wage such war, or abetting the waging

"The Indian Penal Code, 1860, Section 121 reads as under: Whoever wages war against the
Government of India, or attempts to wage Such war, or abets the waging of such war shall be
punished with death, or imprisonment for life, and shall also be liable to fine.
 46

of such war. The offence of engagement in a conspiracy to wage war and that of

abetting the waging of war against the Government under section are offences

under the Penal Code only, and are not treason or misprision of treason.

'Wages war' imports a person arraying himself in defiance of the Government in

tike manner and by like means as a foreign enemy would do, having gained

footing within the realm. There must be an insurrection, there must be force

accompanying that insurrection, and it must be for an object of a general nature.

The waging of war is the attempt to accomplish by violence for any purpose of a

public nature.

Abetting the waging of such war is made a special offence. It is not essential that

as a result of the abetment the war should in fact be waged. The main purpose of

the instigation should be 'the waging of war'. It should not be merely a remote

and incidental purpose but the thing principally aimed at by the instigation. These

must be active suggestion or stimulation to the use of violence.^^

While under the general law as to abetment a distinction is made for the purpose

of punishment between abetment which has succeeded and abetment which has

failed, this section does away with the distinction and deals equally with an

abettor whose instigation has led to a war and one whose instigation has taken no

effect whatsoever. There is, thus, no distinction between principal and accessory

and all who take part in the unlawful action incur the same guilt.

'^Ratanlal and Dhirajlal, Indian Penal Code, 30"' ed., (2006), pp. 199-200.
"/hid
 47

(b) Abetment of mutiny actually committed

Under section 132 of the Indian Penal Code, 1860 whoever abets the committing

of mutiny by an officer, soldier, sailor or airman, in the army, navy or air force of

the Government of India, shall, if mutiny be committed in consequence of that

abetment, be punished with death or with imprisonment for life, or imprisonment

of either description for a term which may extend to ten years, and shall also be

liable to fine.

(c) Perjury resulting in the conviction and death of an innocent person

Giving or fabricating false evidence with the intent to procure convincing of

capital offence has been made punishable under section 194'^'' of the Indian Penal

Code. This offence is an aggravated form of the offence of giving or fabricating

false evidence made punishable by section 193. This section is divided into two

parts. First part of the section says that, if a person gives or fabricates false

evidence with the intention thereby to cause; or with the knowledge that it is

likely that he will thereby cause, any person to be convicted of such offence

which is capital offence according to the law in force at the time, shall be

punished with imprisonment for life or with rigorous imprisonment for a term

extending to ten years, and shall also be liable to fine; and the second part of the

section provides that if such false evidence leads to the conviction and execution

of an innocent person, the giver of such false evidence shall be punished either

'"The Indian Penal Code, Section 194 reads as under:

Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be
likely that he will thereby cause, any person to be convicted of an offence which is capital by
the law for the time being in force in India shall be punished with imprisonment for life, or with
rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine;
if innocent person be thereby convicted and executed and if an innocent person be convicted and
executed in consequence of such false evidence, the person who gives such false evidence shall
be punished either with death or the punishment hereinbefore described.
 48

with death or with imprisonment for life or with rigorous imprisonment for a term

extending upto ten years, and shall also be liable to fine.

In Darshan Singh v. State of Punjab, ^ where the investigating Inspector

concocted false evidence with the help of two sarpanchas and villagers to rope in

an innocent man in false murder case which led to his conviction by the Sessions

Court and during the course of hearing of appeal in the High Court the so-called

murdered man appeared in person before the High Court, it was held that the

Inspector, the Sarpanchas and the other witnesses were liable to be prosecuted

under section 194 of the Indian Penal Code read with section 340 of the Code of

Criminal Procedure.

Per Knox, J., in the case of Naurang.^^ of course, it is not necessary that some

specified person should be the target of such perjurer if his intention was to

implicate any person, his offence may be complete, though it fails to implicate a

certain person. But in order to sustain a conviction under this section, the false

evidence must be such that, if believed, it would result in a conviction for a

capital offence. In the above noted case, the accused Naurang deposed that he had

heard a sound something like a brick or stone falling into a well, and as he

subsequently saw a dead body in the well, and noticed Behari and another person

running away, and Behari was acquitted. It was held that deposition of Naurang

made out only a case of concealing evidence of murder and did not by itself or

coupled with other evidence make out Behari to be the murderer. He could not,

therefore, be charged under this section.

'^1985 CrLJ 71 (NOC) (P&H).

''(1906) ALJ 110, notes.
 49

(d) Threatening or inducing any person to give false evidence resulting in

the conviction and death of an innocent person

Threatening or inducing to give false evidence is made punishable under section

t95-A of the Indian Penal Code. Section 195-A says:

whoever threatens another with any injury of his person; reputation or properly or

to the person or reputation of anyone in whom that person is interested, with

intent to cause that person to give false evidence shall be punished with

imprisonment of either description for a term which may extend to seven years, or

with fine, or with both; and if innocent person is convicted and sentenced in

consequence of such false evidence, with death or imprisonment for more than

seven years, the person who threatens shall be punished with the same

punishment and sentence in the same manner and to the same extent such

innocent person is punished and sentenced.'^^

(e) Murder

Section 302 of the Indian Penal Code, 1860 provides that whoever commits

murder shall be punished with death, or imprisonment for life, and shall also be

liable to fme.

The section provides punishment for murder. Section 304 for culpable homicide

not amounting to murder. Except in case where there were extenuating

circumstances, the normal punishment under this section was death. But under

section 354 (3) of the Criminal Procedure Code, 1973, a new provision has been

introduced to say that when the conviction is for an offence punishable with death

"Sec. 195-A, inserted vide Criminal Law (Amendment) Act, 2005.

 50

or in the alternative witli imprisonment for life or imprisonment for a term of

years, the judgement shall state the reasons for sentence awarded and in the case

of sentence of death, special reasons for such sentence. It, thus, seems that normal

sentence for murder is no longer a sentence of death but imprisonment for life and

only for special reasons to be recorded in judgement a sentence of death can be

awarded in 'rarest of the rare cases.^**

In Bochan Singh v. State ofPunjah^'^ the Supreme Court observed that:

"As we read Sec. 354(3) and 235(2) and other related provisions of the Code of

1973, it is quite clear to us that for making the choice of punishment or for

ascertaining the existence or absence of'special reasons' in that context, the court

must pay due regard both to the crime and the criminal. What is the relative

weight to be given to the aggravating and mitigating factors, depends on the facts

and circumstances of the particular case. More often than not, these two aspects

are so intertwined that it is difficult to give a separate treatment to each of them.

This is so because 'style is the man'. In many cases, the extremely cruel or beastly

manner of the commission of murder is itself a demonstrated index of the

depraved character of the perpetrator. That is why it is not desirable to consider

the circumstances of the crime and the circumstances of the criminal in two

separate watertight compartments. In a sense, to kill is to be cruel and, therefore,

all murders are cruel. But such cruelty may vary in its degree of culpability. And

it is only when the culpability assumes the proportion of extreme depravity that

'special reasons' can legitimately be said to exist."

^Ratanlal and Dhirajlal, Indian Penal Cock. 30"' ed., (2006), p. 508.
"1980 CiLJ 636.
 51

In the above case, the court also agreed that the following constitute the

aggravating circumstances:

"Aggravating circumstances - A court may, however, in the following cases

impose the penalty of death in its discretion: (a) if the murder has been committed

after previous planning and involves extreme brutality; or (b) if the murder

involves exceptional depravity; or (c) if the murder is of a member of any of the

armed forces of the Union or of a member of any police force or of any public

servant and was committed (i) while such member or public servant was on duty;

or (ii) in consequence of anything done or attempted to be done by such member

or public servant in the lawful discharge of his duty as such member or public

servant whether at the time of murder he was such member or public servant, as

the case may be, or had ceased to be such member or public servant; or (d) if the

murder is of a person who had acted in the lawful discharge of his duty under

Section 43 of the Code of Criminal Procedure, 1973, or who had rendered

assistance to a magistrate or a police officer demanding his aid or requiring his

assistance under Section 37 and Section 129 of the said Code."

However, it is cautioned that:

"Stated broadly, there can be no objection to the acceptance of these indicators

but as we have indicated already, we would prefer not to fetter judicial discretion

by attempting to make an exhaustive enumeration one way or the other."

In the same, case the Constitution bench after examining various decisions of

courts in US observed that:

 52

"But this much can be said that in order to qualify for inclusion in the category of

'aggravating circumstances' which may form the basis of 'special reasons' in

Section 354(3), circumstances found on the facts of a particular case, must

evidence aggravation of an abnormal or special degree."

Likewise, the court also noted that the following constitute mitigating

circumstances:

"Mitigating circumstances: In the exercise of its discretion in the above cases, the

court shall take into account the following circumstances: (1) that the offence was

committed under the influence of extreme mental or emotional disturbance. (2)

The age of the accused. If the accused is young or old, he shall not be sentenced

to death. (3) The probability that the accused would not commit criminal acts of

violence as would constitute a continuing threat to society. (4) The probability

that the accused can be reformed and rehabilitated. The State shall by evidence

prove that the accused does not satisfy the conditions (3) and (4) above (5) that in

the facts and circumstances of the case, the accused believed that he was morally

justified in committing the offence. (6) That the accused acted under the duress or

domination of another person. (7) That the condition of the accused showed that

he was mentally defective and that the said defect impaired his capacity to

appreciate the criminality of his conduct."

Finally, the Constitution bench held that:

"There are numerous other circumstances justifying the passing of the lighter

sentence; as there are countervailing circumstances of aggravation.'We cannot

obviously feed into a judicial computer all such situations since they are
 53

astrological imponderables in an imperfect and undulating society'. Nonetheless,

it cannot be overemphasized that the scope and concept of mitigating factors in

the area of death penalty must receive a liberal and expansive construction by the

courts in accord with the sentencing policy writ large in Section 354(3) Judges

should never be bloodthirsty. Hanging of murderers has never been too good for

them. Facts and figures, albeit incomplete, furnished by the Union of India, show

that in the past, courts have inflicted the extreme penalty with extreme frequency

a fact which attests to the caution and compassion which they have always

brought to bear on the exercise of their sentencing discretion in so grave a matter.

It is, therefore, imperative to voice the concern that courts, aided by the broad

illustrative guidelines indicated by us, will discharge the onerous function with

evermore scrupulous care and humane concern, directed along the highroad of

legislative policy outlined in Section 354(3), viz. that for persons convicted of

murder, life imprisonment is the rule and death sentence an exception. 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."

In Machhi Singh v. Stale of Punjah^'^^, a bench of three Judges of the Supreme

Court having noted that a synthesis emerged in Bachan Singh case, wherein the

'rarest of rare cases' formula for imposing death sentence in a murder case, has

been evolved by the Supreme Court, considered the guidelines indicated in

Bachan Singh case and observed that the guidelines indicated therein will have to

'""AIR 1983 S C 957.

 54

be culled out and applied to the facts of each individual case where the question

of imposing of death sentence arises. It stated that:

"In order to apply these guidelines, inter alia, the following questions may be

asked and answered: (a) is there something uncommon about the crime which

renders sentence of imprisonment for life inadequate and calls for a death

sentence? (b) Are the circumstances of the crime such that there is no alternative

but to impose death sentence even after according maximum weightage to the

mitigating circumstances which speak in favour of the offender? If upon taking an

overall global view of all the circumstances in the light of the aforesaid

proposition and taking into account the answers to the questions posed

hereinabove, the circumstances of the case are such that death sentence is

warranted, the court would proceed to do so."

In Kehar Singh v. Slate (Delhi Aclminislrationy^\ the Supreme Court held as

under:

"This takes me to the question of sentence. Section 354(3) of the Code, 1973

marks a significant shift in the legislative policy of awarding death sentence.

Now, the normal sentence for murder is imprisonment for life and not sentence of

death. The court is required to give special reasons for awarding death sentence.

Special reasons mean specific facts and circumstances, obtained in the case

justifying the extreme penalty. This court in Bachan Singh v. State of Punjab has

indicated certain guidelines to be applied to the facts of each individual case

where the question of imposing death sentence arises. It was observed that in

cases where there is no proof of extreme culpability, the extreme penalty need not

""AIR 1988 S C 1883.

 55

be given. It may be given only in rarest of rare cases, where there is no

extenuating circumstance. In Machhi Singh v. State of Punjab, this court again

indicated some principles as to what constitute 'the rarest of rare cases' which

warrant the imposition of death sentence. The High court has carefully examined

these principles and given reasons why in this case, the death sentence alone

should be awarded."

In Shankar v. State of Tamil Nadu,^ the Supreme Court observed that it cannot

be said that since it may not be possible to eradicate crime itself, the criminals

cannot be awarded death sentence, though, warranted by law. Where the two

members of an unlawful assembly went forward to deal with iheir target by

disposing him of and, on being not able to get him, gunned down his two young

girls whom they chanced to spot on way back, the Supreme Court held that it was

not one of those 'rarest of rare' cases in which death penalty would be warranted.

(f) Murder Committed by a Life Convict

Though, the Section 303 of the Indian Penal Code, 1860 was struck down by the

Supreme Court, it still remains in the Indian Penal Code, 1860.

Section 303 of the IPC provided for a mandatory death sentence in cases where a

murder was committed by a person already undergoing a sentence of life

imprisonment. In Muhahir Gope v. State of Bihar,^ it was applied in the case of

an accused who was part of a mob in the prison that assaulted and killed some jail

officials. The Supreme Court observed that even, being partly involved in the

unlawful assembly that led to the murder or having common intention to commit

'"-(1994)4 s e c 478.
' " A I R 1963 S C 118.
 56

the murder would be sufficient to bring the charge of Section 303 in the case of an

accused already undergoing life imprisonment. In other similar cases, even though

the particular benches did not always approve of it, they upheld sentences of

death. In Oyami Ayalu v. The State of Madhya Pradesh,^'^'^ ihe accused was a

'lifer' and even admitted to the killing in the trial court. With a last resort, plea of

insanity being rejected, the Supreme Court observed that there was little option

but to uphold the sentence of death, as the law provided only a mandatory

sentence.

The mandatory provision had also received attention elsewhere. While the Law

Commission's 35"' Report (1967) had rejected any changes to Section 303,

arguing that in acute cases of hardship, powers under the Code of Criminal

Procedure, of commutation could be exercised by the executive, the 42"'' report of

the Law Commission (1971) did recommend that Section 303 should be restricted

only to those individuals, actually physically, serving their term in prison. The

Indian Penal Code Amendment Bill, 1972 went further and sought the deletion of

the mandatory death sentence.

The scope of Section 303 had been set out by the Supreme Court in Pratap v.

State of Uttar Pradesh and Or^-.,'"^vhere a convicted prisoner had committed a

second murder while on parole. This judgment clarified that the mandatory

sentence would be applied not only in cases where the killing occurred inside

prison but also where the killing took place when the accused was on parole as the

individual on parole was still under the sentence. However, in Dilip Kumar

'°'(1974) 3 s e c 299.
'°'(1973) 3 s e c 690.
 57

Sharma and Ors. v. State of Madhya Pradesh'"^, the Supreme Court set aside the

mandatory sentence, observing that Section 303 required "an operative,

executable sentence of imprisonment for life" and where the individual's previous

life sentence was on appeal it could not be considered that the accused was 'under

sentence of life imprisonment'. In Shaikh Abdul Azees v. State of Kamataka,^^^

the Supreme Court further clarified the legal position and stated that the

mandatory sentence would not be applicable where a person had been released on

remission, as he could not be said to be under a life sentence.

In Dilip Kumar Sharma and Ors. v. State of Madhya Pradesh, ^^ Justice Sarkaria

had observed that due to Section 303, "the Court has no discretion but to award

the sentence of death, notwithstanding mitigating circumstances, which by normal

judicial standards and modern notions of penology, do not justify the imposition

of the capital penalty. Viewed from this aspect, the section is draconian in

severity, relentless and inexorable in operation." The opinion voiced in this

judgment reflected an apparent growing consensus that the existence of Section

303 as a mandatory sentence of death was no longer tenable, itself reflected in

proposed amendments to the Indian Penal Code (IPC Amendment Bill 1972).

However, the proposed legislative amendments were left to gather dust and it was

not until Mithu v. State of Punjab (with 4 other cases)'°^, that a Constitutional

Bench of the Supreme Court finally struck down the mandatory death sentence,

prescribed by Section 303.

'°*AIR 1976 SC 133.

" " A I R 1977 SC 1485.
'™A1R 1976 SC 133.
""AIR 1983 SC473.
 58

In Milhu V. Slate of Punjab,"" Ihe Court observed that when Section 303 was

introduced, the severity of the punishment reflected deterrent and retributive

theories of punishment which were then prevalent, and that after the judgments of

the Supreme Court in Maneka Gandhi v. Union of India, 'law' must be right,

just and fair, and not arbitrary, fanciful or oppressive. The Court also clarified that

the judgment in Bachan Singh, upholding the death penalty would not apply here

as that case upheld only the death penalty as an alternative sentence for murder.

The Supreme Court further noted that in its drafting of Section 303, the legislature

appeared to have only one type of case in mind: the murder of a jail official by a

life convict. The Court observed that a mandatory death sentence was

unreasonable both for murders committed by life convicts within prison and those

on parole or bail. The Court argued that there was little statistical data on the

behaviour of life convicts released on bail or parole and there was therefore, no

reason to believe that the incidence would be higher in their case. "Indeed if there

is no scientific investigation on this point in our country, there is no basis for

treating such persons differently from others who commit murders." This was

indeed a strong statement by the Court, given that the absence of similar scientific

data showing the deterrent value of the death penalty in general did not deter the

Bachan Singh Bench from upholding the constitutionality of the death sentence.

The Supreme Court also pointed out that Section 303 also reduced Section 235(2)

of the Indian Penal Code (the judicial process of awarding sentence) to a farce, as

there was no choice left to a judge in terms of awarding sentence. The Court

observed, "a standardized mandatory sentence and that too in the form of a

'" AIR 1978 SC 597.

 59

sentence of death, fails to take into account the facts and circumstances of each

particular case. It is those facts and circumstances which constitute a safe

guideline for determining the question of sentence in each individual case." The

Court further remarked that, "There appears to be no reason why in the case of a

person whose case falls under Section 303, factors like the age and sex of the

offender, the provocation received by the offender and the motive of the crime

should be excluded from consideration on the question of sentence."

The impact of Mi thii v. Slate of Punjab"^ was immediate and in the few cases that

followed the same year, the Supreme Court struck down the convictions of the

individuals on this charge [see Bhagwan Bax Singh and anr. v. State of U.P.

[(1984) I s e c 278] and Surjit Singh and ors. v. State of Punjab (AIR 1983 SC

838)]. Despite Section 303, being struck down by the Supreme Court in 1983, it

remains to this day a formal part of the Indian Penal Code, leading to a ridiculous

situation in 2005 where a trial judge in Saihanna v. State of Karnataka

convicted an accused under this section before it dawned on the defense and the

court during sentencing that the provision had been declared unconstitutional over

two decades previously.

(g) Abetment of a suicide by a minor, insane person or intoxicated person

Under section 305 of the Indian Penal Code, 1860, if any person under eighteen

years of age, any insane person, any idiot, or any person in a state of intoxication,

commits suicide, whoever abets the commission of such suicide, shall be

"^AIR 1983 SC 473.

'"(2005) 4 s e c 165.
 60

punishable with death or imprisonment for life, or imprisonment for a term not

exceeding ten years, and shall also be liable to fine.

(h) Attempted murder by a serving life convict

Under section 307 (2), when any person offending under section 307 is under

sentence of imprisonment of life, he may, if hurt is caused, be punished with

death. Section 307 of the Indian Penal Code reads as under:

Whoever does any act with such intention or knowledge, and under such

circumstances that, if he by that act caused death, he would be guilty or murder,

shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine, and is hurt is caused to any

person by such act, the offender shall be liable either to imprisonment for life, or

to such punishment, as is hereinbefore mentioned.

Attempts by life convicts- When any person offending under this section is

under sentence of imprisonment for life he may, if hurt is caused, be punished

with death.

(i) Kidnapping for ransom

Section 364-A of the Indian Penal Code provides for death penalty for a

convict for an offence of kidnapping, abduction, detention and thereafter

threatening to cause death or hurt. Section 364-A of the Indian Penal

Code, 1860 provides as under:

Whoever kidnaps or abducts any person or keeps a person in detention of

the such kidnapping or abduction and threatens to cause death or hurt to

 61

such person, or by his conduct gives rise to a reasonable apprehension that

such person may be put to death or hurt, or causes hurt or death to such

person in order to compel the Government or any foreign State or

international inter-governmental organization or any other person] to do or

abstain from doing any act or to pay a ransom, shall be punishable with

death, or imprisonment for life, and shall also be liable to fine.

(j) Dacoity [armed robbery or banditry] with murder

Under section 396 of the Indian Penal Code, 1860 extreme penalty of

death may be inflicted on a person convicted of taking part in a dacoity in

the course of which a murder is committed, even though there is nothing

to show that he himself committed the murder or that he abetted it. The

section declares the liability of other persons as co-extensive with the one

who has actually committed murder.

Section 396 of the hidian Penal Code, 1860 provides as under:

If any one of five or more persons, who are conjointly committing dacoity,

commits murder in so committing dacoity, every one of those persons

shall be punished with death, or imprisonment for life, or rigorous

imprisonment for term which may extend to ten years, and shall also be

liable to fine.
 62

III. Capital Punishment under other Special Legislations

There are a number of other special legislations that also provide for the death

penalty. In some cases, the offences provide for mandatory death sentences Laws

relating to the Armed Forces, for example the Air Force Act, 1950; the Army Act,

1950; the Navy Act, 1950; the hido-Tibetan Border Police Force Act, 1992;

Defence and Internal Security of India Act, 1971 and Defence of India Act, 1971

(Section 5) Besides above, there are some other special legislations which provide

for the death penalty. A brief description thereof is given as under:

(a) Commission of Sati (Prevention) Act, 1987 (Section 4(1)

Under section 4(1) of the Sati (Prevention) Act, 1987 a provision for death

penally has been made. Section 4 of the Act provides as under:

(1) Notwithstanding anything contained in the Indian Penal

Code (45 of 1860), if any person commits Sati, whoever, abets the

commission of such Sati, either directly or indirectly, shall be punishable

with death or imprisonment for life and shall also be liable to fme.

(2) If any person attempts to commit Sati, whoever abets such

attempt, either directly or indirectly, shall be punishable with

imprisonment for life and shall also be liable to fine.

Explanation - For the purposes of this section, any of the following acts or the

like shall also be deemed to be an abetment, namely;

(a) Any inducement to a widow or women to get her burnt or

 63

buried alive along with the body of her deceased husband or with any

other relative irrespective of whether, he is in a fit state of mind or is

labouring under a state of intoxication or stupefaction or other case

impeding the exercise of her free will;

(b) Making a widow or woman believe that the commission of Sati would

result in some spiritual benefit to her or her deceased husband or relative

or the general well being of the family;

(c) Encouraging a widow or woman to remain fixed in her resolve to commit

Sati and, thus instigating her to commit Sati;

(d) Participating in the procession in connection with the commission of Sati

or aiding the widow or woman in her decision to commit Sati by taking her

along with the body of her deceased husband or relative to the cremation

or burial ground;

(e) Being present at the place, where Sati is committed as an active participant

to such commission or to any ceremony connected with it;

(f) Preventing or obstruction the widow or woman from saving herself from

being burnt or buried alive;

Obstructing or interfering with, the police in the discharge of its duties of taking

any steps to prevent the commission of Sati.

 64

(b) Narcotic Drugs and Psychotropic Substances (Prevention) Act 1985,

as amended in 1988

Under section 31A of the Narcotic Drugs and Psychotropic Substances

(Prevention) Act, 1985, as amended in 1988, provision for death penalty is

made. Section 31 of the Act reads as under:

(1) Notwithstanding anything contained in Section 31, if any

person who has been convicted of the commission of, or attempt to

commit, or abetment of, or criminal conspiracy to commit, any of the

offences punishable under section 19, section 24, section 27A and for

offences involving commercial quantity of any narcotic drug or

psychotropic substance, is subsequently convicted of the commission of,

or attempt to commit, or abetment of, or criminal conspiracy to commit,

an offence relating to, -

(a) Engaging in the production, manufacture, possession,

transportation, import into India, export from India or transhipment, of the

narcotic drugs or psychotropic substances, specified under column (1) of

the Table below and involving the quantity, which is equal to or more than

the quantity indicated against each such drug or substance, as specified in

column (2) of the said Table:

 65

TABLE Quantity

Particulars of Narcotic Drugs/

Psychotropic Substances

1 2

(i) Opium 10 Kg.

(ii) Morphine IKg.

(iii) Heroin IKg.

(iv) Codeine IKg.

(v) Thebeine IKg.

(vi) Cocaine 500 grams

(vii) Hashish 20 Kg

(viii) Any mixture with or without any 1,500 grams

neutral material of any of the above

drugs

(ix) LSD, LDS-25 (+)-(N)- 500 grams

Diethyllysergamide (d-lysergic acid

diethylamide)

(x) THC (Tetrahydrocannabinols, the 500 grams

following in omers: 6-a (10a), 6-a (7), 7,

8, 9, (11) and their stereochemical

 66

variantas)

(xi) Msethamphetamine (+)-2- 1,500 grams

Methylamine-a-Phenylpropane

(xii) Methaqualone (2-Metliyl-3-0-toly- 1,500 grams

4-(3-H)-Quinanzolinone)

(xiii) Amphetamine (+)-2-amino-l- 1,500 grams

Phenylpropan

(xiv) Salts and preparations of the 1,500 grams

Psychotropic Substances mentioned in

(ix) to (xiii)

(b) Financing, directly or indirectly, any of the activities specified in clause (a),

shall be punishable with death.

(2) Where any person is convicted by a competent court of criminal jurisdiction

outside India under any law corresponding to he provisions of section 19, section

24 or section 27A and for offences involving commercial quantity of any narcotic

drug or psychotropic substance, such person, in respect of such conviction, shall

be dealt with for the purposes of sub-section (1) as if he has been convicted by a

Court in India.

(c) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

(Section 3(2)(i))
 67

Punishment for terrorist acts

(1) Whoever, with intent to overawe the Government as by law established or

to strike terror in the people or any section of the people or to alienate any

section of the people or to adversely affect the harmony amongst different

sections of the people, does any act or thing by using bombs, dynamite or

other explosive substances or inflammable substances or fire-arms or other

lethal weapons or poisons or noxious gases or other chemicals or by any

other substances (whether biological or otherwise) of a hazardous nature in

such a manner as to cause, or as is likely to cause, death of, or injuries to,

any person or persons or loss of, or damage to, or destruction of, property

or disruption of any supplies or services essential to the life of the

community, or detains any person and threatens to kill or injure such

person in order to compel the Government or any other person to do or

abstains from doing any act, commits a terrorist act.

(2) Whoever commits a terrorist act, shall -

(i) [f such act has resulted in the death of any person, be punishable

with death or imprisonment for life and shall also be liable to fine;

(ii) In any other case, be punishable with imprisonment for a term

which shall not be less than five years but which may extend to

imprisonment for life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or

incites or knowingly facilitates the commission of, a terrorist act or any act

preparatory to a terrorist act, shall be punishable with imprisonment for a

 68

term which shall not be less than five years but which may extend to

imprisonment for life and shall also be liable to fine.

(4) Whoever harbours or conceals, or attempts to harbour or conceal, any

terrorist shall be punishable with imprisonment for a term which shall not

be less than five years but which may extend to imprisonment for life and

shall also be liable to fine.

(5) Any person who is a member of a terrorist gang or a terrorist organization,

which is involved in terrorist acts, shall be punishable with imprisonment

for a term which shall not be less than five years but which may extend to

imprisonment for life and shall also be liable to fine.

(6) Whoever holds any property derived or obtained from commission of any

terrorist act or has been acquired through the terrorist funds shall be

punishable with imprisonment for a term which shall not be less than five

years but which may extend to imprisonment for life and shall also be

liable to fine.

(d) Prevention of Terrorism Act, 2002 (POTA) (Section3(2)(a)

Punishment for terrorist acts

(I) Whoever,

a) With intent to threaten the unity, integrity, security or sovereignty of India

or to strike terror in the people or any section of the people, does any act

or thing by using bombs, dynamite or other explosive substances or

inflammable substances or firearms or other lethal weapons or poisons or

noxious gases or other chemicals or by any other substances (whether

 69

biological or otherwise) of a hazardous nature or by any other means

whatsoever, in such a manner as to cause, or likely to cause, death of, or

injuries to any person or persons or loss of, or damage to, or destruction

of, property or disruption of any supplies or services essential to the life of

the community or causes damage or destruction of any property or

equipment used or intended to be used for the defense of India or in

connection with any other purposes of the Government of India, any State

Government or any of their agencies, or detains any person and threatens

to kill or injure such person in order to compel the Government or any

other person to do or abstains from doing any act;

(f) Is or continues to be a member of an association, declared unlawful under

the Unlawful Activities (Prevention) Act, 1967, or voluntarily does an act

aiding or promoting in any manner the objects of such association and in

either case is in possession of any unlicensed firearms, ammunition,

explosive or other instrument or substance, capable of causing mass

destruction and commits any act resulting in loss of human life or grievous

injury to any person or causes significant damage to any property,

commits a terrorist act.

Explanation. For the purposes of this sub-section, "a terrorist act" shall include the

act of raising funds intended for the purpose of terrorism.

(2) Whoever commits a terrorist act, shall,

(a) If such act has resulted in the death of any person, be punishable with

death or imprisonment for life and shall also be liable to fine;

 70

(b) In any other case, be punishable with imprisonment for a term which shall

not be less than five years but which may extend to imprisonment for life

and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or

incites or knowingly facilitates the commission of, a terrorist act or any act

preparatory to a terrorist act, shall be punishable with imprisonment for a

term which shall not be less than five years but which may extend to

imprisonment for life and shall also be liable to fine.

(4) Whoever voluntarily harbours or conceals, or attempts to harbour or

conceal any person knowing that such person is a terrorist shall be

punishable with imprisonment for a term which shall not be less than three

years but which may extend to imprisonment for life and shall also be

liable to fine: Provided that this sub-section shall not apply to any case in

which the harbour or concealment is by the husband or wife of the

offender.

(5) Any person who is a member of a terrorist gang or a terrorist organisation,

which is involved in terrorist acts, shall be punishable with imprisonment

for a term which may extend to imprisonment for life or with fine which

may extend to rupees ten lakh or with both.

Explanation. For the purposes of this sub-section, "terrorist organisation" means

an organisation which is concerned with or involved in terrorism.

 71

(6) Whoever knowingly holds any property derived or obtained from

commission of any terrorist act or has been acquired through the terrorist

funds shall be punishable with imprisonment for a term which may extend

to imprisonment for life or with line which may extend to rupees ten lakh

or with both.

(7) Whoever threatens any person who is a witness or any other person in

whom such witness may be interested, with violence, or wrongfully

restrains or confines the witness, or any other person in whom the

witness may be interested, or does any other unlawful act with the said

intent, shall be punishable with imprisonment which may extend to three

years and fine.

(e) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 (Section 3(2)(i))

Punishment for offences of atrocities

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

(i) l-orces a member of Scheduled Caste or Scheduled Tribe to drink or eat

any inedible or obnoxious substance;

(ii) Acts with intent to cause injury, insult or annoyance to any member of a

Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter,

carcasses or any other obnoxious substance in his premises or

neighbourhood;
 72

(iii) Forcibly removes clothes from the person of a member of a Scheduled

Caste or a Scheduled Tribe or parades him naked or with painted face or

body or commits any similar act which is derogatory to human dignity;

(iv) Wrongfully occupies or cultivates any land owned by, or allotted, to, or

notified by any competent authority to be allotted to, a member of a

Scheduled Caste or a Scheduled Tribe or gets the land allotted to him

transferred;

(v) Wrongfully dispossesses a member of a Scheduled Caste or a Scheduled

Tribe from his land or premises or interferes with the enjoyment of his

rights over any land, premises or water;

(vi) Compels or entices a member of a Scheduled Caste or a Scheduled Tribe

to do 'begar' or other similar forms of forced or bonded labour other than

any compulsory service for public purposes imposed by Government.

(vii) Forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe

not to vote or to vote to a particular candidate or to vote in a manner other

than that provided by law;

(viii) Institutes false, malicious or vexatious suit or criminal or other legal

proceedings against a member of a Scheduled Caste or a Scheduled Tribe;

(ix) Gives any false or frivolous information to any public servant and thereby

causes such public servant to use his lawful power to the injury or

annoyance of a member of a Scheduled Caste or a Scheduled Tribe;

 73

(x) Intentionally insults or intimidates with intent to humiliate a member of a

Scheduled Caste or a Scheduled Tribe in any within public view;

(xi) Assaults or uses force to any woman belonging to a Scheduled Caste or a

Scheduled Tribe with intent to dishonour or outrage her modesty;

(xii) Being in a position to dominate the will of a woman belonging to a

Scheduled Caste or a Scheduled Tribe and uses that position to exploit her

sexually to which she would not have otherwise agreed;

(xiii) Corrupts or fouls the water of any spring, reservoir or any other source

ordinarily used by members of the Scheduled Caste or the Scheduled

Tribes so as to render it less fit for the purpose for which it is ordinarily

used;

(xiv) Denies a member of a Scheduled Caste or a Scheduled Tribe away

customary right of passage to a place of public resort or obstructs such

member so as to prevent him from using or having access to a place of

public resort to which other members of public or any section thereof have

a right to use of access to;

(xv) Forces or causes a member of a Scheduled Caste or a Scheduled Tribe to

leave his house, village or other place or residence, shall be punishable

with imprisonment for a term which shall not be less than six months but

which may extend to five years and with fine.

 74

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

(!) Gives or fabricates false evidence intending thereby to cause, or knowing

it to be likely that he will thereby cause, any member of a Scheduled Caste

or Scheduled Tribe to be convicted of an offence which is capital by the

law for the time being in force shall be punished with imprisonment for

life and with fine; and if an innocent member of a Scheduled Caste or a

Scheduled Tribe be convicted and executed in consequence of such false

or fabricated evidence, the person who gives or fabricates such false

evidence shall be punished with death.

(ii) Gives or fabricates false evidence intending thereby to cause, or knowing

it to be likely that he will thereby cause, any member of a Scheduled Caste

or a Scheduled Tribe to be convicted of an offence which is not capital but

punishable with imprisonment for a term of seven years or upwards, shall

be punishable with imprisonment for a term which shall not be less than

six months but which may extend to seven years or upward and with fine;

(iii) Commits mischief by fire or any explosive substance intending to cause or

knowing to be likely that he will thereby cause damage to any property

belonging to the member of a Scheduled Caste or a Scheduled Tribe, shall

be punishable with imprisonment for a term which shall not be less than

six months such any extend to seven years and with fine;

(iv) Commits mischief by fire or any explosive substance in ending to cause or

knowing it to be likely that he will thereby cause destruction of any

building which is ordinarily used as a place of worship or as a place for

 75

human dwelling or a place of custody of the property by a member of a

Scheduled Caste or a Schedule Tribe, shall be punishable with

imprisonment for life and with fine;

(v) Commits any offence under the Indian Penal Code (45 of 1860) punishable

with imprisonment for a term of a ten years or more against a person or

property on the ground that such person is a member of a Scheduled Caste

or a Scheduled Tribe or such property belongs to such member, shall be

punishable with imprisonment for life and with fine;

(vi) Knowingly or having reason to believe that an offence has been committed

under this chapter, causes any evidence of the commission of that offence

to disappear with the intention of screening the information from legal

punishment, or with that intention gives any information respecting the

offence which he knows or believes to be false, shall be punishable with

the punishment provided for that offence;

(vii) Being a public servant, commits any offence under this section, shall be

punishable with imprisonment for a term, which shall not be less than one

year but which may extend to the punishment provided for that offence.

(0 Arms Act, 1959, as amended in 1988 (Section 27)

Punishment for using arms, etc.

(!) Whoever uses any arms or ammunition in contravention of Section 5

shall be punishable with imprisonment for a term which shall not be less

than three years but which may extend to seven years and shall also be

liable to fine.
 76

(2) Whoever uses any prohibited areas or prohibited ammunition in

contravention of Section 7 shall be punishable with imprisonment for a

term which shall not be less than seven years but which may extend to

imprisonment for life and shall also be liable to fine.

(3) Whoever uses any prohibited arms or prohibited ammunition or does any

act in contravention of Section 7 and such use or act results in the death of

any other person, shall be punishable with death.

(g) Unlawful Activities Prevention Act, 1967, as amended in 2004 (Section

16(1))

Punishment for terrorist act-

(1) Whoever commits a terrorist act shall,-

(a) if such act has resulted in the death of any person, be punishable with

death or imprisonment for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall

not be less than five years but which may extend to imprisonment for life,

and shall also be liable to fine.

A number of state laws, including: Maharashtra Control of Organised

Crime Act, 1999 (Section 3(1) (i)), Karnataka Control of Organised Crime

Act, 2000 (Section 3(1) (i)), The Andhra Pradesh Control of Organised

Crime Act, 200! (Section 3(1) (i)). The Arunachal Pradesh Control of

Organised Crime Act, 2002 (Section 3(1) (i).

 77

IV, Judicial Process in Capital Punishment Cases

The Criminal Procedure Code, 1973 (CrPC) is a comprehensive law that sets out

procedural rules for the administration of criminal justice. The 1973 Code was the

result of a major overhaul of the previous Code of 1898. The Code covers

procedures from the registration of an offence, to the powers, duties and

responsibilities of various authorities involved in investigation as well as

procedural safeguards, provisions relating to bail and so on.

A. Awarding of Death Sentence shift in the Procedure

The object of the legislature in formulating rules as to judgment was partly to

ensure that a criminal court should consider the case before it in its different

bearings, and should, on such consideration arrive at definite conclusion, and also

one object may have been that the judgment should show, that, in fact, the

criminal court had considered the evidence in a case of first instance or in a case

of appeal and had found in case of a conviction that the facts proved to the

satisfaction of the court, brought an offence to be accused person whom the court

convicted."''

The inchoate indicators gatherable from the direct reforms of death penalty take

us to the next 'neon sign' from the changes in the Procedure Code. Section 302

Indian Penal Code, permits death penalty but Section 354 (3) of the Code of

Criminal Procedure, 1973 processes the discretionary power. Awarding the

sentence other than the sentence of death is the general rule now and only special

v . Ramanatha Aiyar, Code of Criminal Procedure, (2002), p. 3597.

 78

reasons, that is to say, special facts and circumstances in a given case, will

warrant the passing of death sentence.

Section 354 makes is obligatory to assign special reasons when the Judge

awards the death penalty. The unmistakable shift in legislative emphasis is that,

under the new Code of Criminal Procedure, 1973, life imprisonment for murder is

the rule and capital sentence the exception to be restored to for reasons to be

stated as per Section 354 (3).

The central issue of death/life discretion is not left naked by the Procedure Code

which, by necessary implication, has clothed it with pro-life language. The

legislative development, through several successive amendments, has shifted the

punitive centre of gravity from life-taking to life sentence. To start with, Section

367 (5) obligated the court to "state the reason why sentence of death was not

"*Code of Criminal Procedure, 1973, section 354 reads as under:

(1) Except as otherwise expressly provided by this Code, every judgment referred to in section
353,-
(a) Shall be written in the language of the court;
(b) Shall contain the point or points for determination, the decision thereon and the reasons for
the decision;
(c) Shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of
1860) or other law under which, the accused is convicted and the punishment to which he is
sentenced;
(d) If it be a judgment of acquittal, shall state the offence of which the accused is acquitted and
direct that he be set at liberty.
(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under
which of two sections, or under which of two parts of the same section, of that Code the
offence falls, the court shall distinctly express the same, and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons
for the sentence awarded, and, in the case of sentence of death, the special reasons for such
sentence.
(4) When the conviction is for an offence punishable with imprisonment for a term of one year of
more, but the court imposes a sentence of imprisonment for a term of less than three months,
it shall record its reasons for awarding such sentence, unless the sentence is one of
imprisonment till the rising of the court or unless the case was tried summarily under the
provisions of this Code.
(5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck
till he is dead.
(6) Every order under section 117 or sub-section (2) of section 138 and every final order made
under section 125, section 145 or section 147 shall contain the point or points for
determination, the decision thereon and the reasons for the decision.
 79

passed." In other words, the discretion was directed positively towards death

penalty. The next stage was the deletion of this part of the provision leaving the

judicial option open. And then came the new humanitarian sub-sec. (3) of Section

354 of the Code of 1973, whereby the dignity and worth of the human person,

under-scored in the Constitution, shaped the penal policy related to murder. The

sub-section provides:

"When the conviction is for an offence punishable with death or, in the

alternative, with imprisonment for life or imprisonment for a term of years, the

judgment shall state the reasons for the sentence awarded and in the case of

sentence of death, the special reasons for such sentence.""^

Thus, on the statutory side, there has been a significant shift since India became

free. In practice, the effect of the pre-1955 version is that while the former rule

was to sentence to death a person convicted for murder and to impose the lesser

sentence for reasons to be recorded in writing, the process has suffered a reversal

now. Formerly, capital punishment was to be imposed unless special reasons

could be found to justify the lesser sentence. The 1955 amendment, removing the

requirement, had left the courts equally free to award either sentence. Finally,

with the new 1973 provision-

"a great change has overtaken the law The unmistakable shift in legislative

emphasis is that life imprisonment for murder is the rule and capital sentence the

exception to be resorted to for reasons to be stated It is obvious that the

disturbed conscience of the State on the vexed question of legal threat to life by

"^Rajendra Prasad v. State of U.P., AIR 1979 SC 916.

'"Ibid
 80

way of death sentence has sought to express itself legislatively, the stream of

tendency being towards cautious, partial abolition and a retreat from total

retention."

Section 302 of the Indian Penal Code, 1860 gives the Court a discretion as to the

punishment to be imposed for an offence of murder and that discretion has to be

exercised between the two alternatives mentioned, namely, a sentence of death

and a sentence of imprisonment for life. Prior to the amendment of Section 367,

sub-section (5) of the Code of Criminal Procedure, 1898 by the Criminal

Procedure Code (Amendment) Act, 1955 it was a well settled principle that where

a person was convicted for an offence of murder, the Court was normally bound

to sentence him to death unless there were extenuating or mitigating

circumstances.

"The extreme sentence is the normal sentence; the mitigated sentence is the

exception, it is not for the Judge to ask himself whether there are reasons for

imposing the penalty of death, but whether there are reasons for abstaining from

doing so."

The reason probably was that this provision was not more than the re-statement of

the law as it stood in England at that time, where till the year 1965 the only

penalty for murder was death, except in two specific cases.

The effect of the Criminal Procedure Code (Amendment) Act, 1955, which

repealed Section 367, sub-section (5) of the Code with effect from January 1,

1956, was to restore to the Court the discretion conferred by Section 302 to award

the appropriate sentence having regard to the attendant circumstances, including

 81

the mitigating circumstances, if any. This brought the law into conformity with

the intentions of the framers of the Code. As regards the death sentence, far from

making it the normal sentence for an offence of murder, they stated that it ought

to be 'sparingly used'. Under Section 354, sub-section (3) of the Code of Criminal

Procedure, 1973, the law is now entirely changed.

Under Section 354, sub-sec. (3) of the Code of Criminal Procedure, 1973, the

Court is required to state the reasons for a sentence awarded, and in the case of

imposition of a sentence of death, the Judge has to record 'special reasons' for

imposing death sentence. Punishment for murder as a rule, should be life

imprisonment and death sentence is only an exception. In Balwant Singh's case,

Ambaram's case, ' and Sarveshwar Prasad Sharma's case,' the Court held that it

was neither necessary nor possible to specify the "special reasons" which may

justify the passing of death sentence in a given case.

The twin survey of attempted and half accomplished changes in the Penal Code

and the statutory mutation, pregnant with significance, wrought into the Procedure

Code, definitely drives judicial discretion to a benign destination. The message of

the many legislative exercises is that murder will ordinarily be visited only with

life imprisonment and it is imperative that death sentence shall not be directed

unless there exists "special reasons for such sentence."

The era of a broad discretion, when Jagmohan's case was decided, has ended and

a chapter of restricted discretion has since been inaugurated. This is a direct

response, not merely to the humane call of the Constitution, but also to the wider

"^(1976) 2 SCR 684: (AIR 1976 SC 230).

'"(1976)4 s e c 298: (AIR 1976 SC 2196).
"°(I978) 1 SCR 560: (AIR 1977 SC 2423).
'^'Rajendra Prasad v. State of U.P., AIR 1979 SC 916.
 82

cultural and criminological transformation of opinion on the futility of the law.

No longer did judicial discretion depend on vague 'principles'. It became

accountable to the strict requirements of Section 354 (3) of the 1973 Code.

B. Submission of Death Sentences for Confirmation

The Code of Criminal Procedure, 1973 provides for the possibility of a three-

stage judicial process. Since all death penalty cases involve a charge of murder or

similar other serious offences, all initial trials under the ordinary criminal law are

held before a District and Sessions Court in a particular state. In the event of the

trial court awarding a death sentence, it is mandatory for the respective High

Court of that state to confirm the sentence under Section 366 of the Code of

Criminal Procedure. Section 366 of the Code provides as under:

(1) When the Court of Sessions 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.

After passing sentence of death, the Court of Sessions is expected to issue a

warrant of commitment under sentence of death to the Superintendent of Jail.

While the form of warrant is set out as from XXXIV in Fifth Schedule of the

Code, it is not expressly referred to or provided for in Section 374 or anywhere

else. It is noticed that when the accused is sentenced by the Court of Sessions to

imprisonment for life, Section 383 expressly providing for the issue of suitable

warrant and forwarding the accused with the warrant to the jail in which he is to
 83

be confined. It is desirable that a similar provision should be made in Section 374

so that there may be specific statutory authority for holding the accused in prison

after the Court of Sessions has passed sentence of death and until it is executed in

due course.'^^

Section 366 (2) of Code of Criminal Procedure confers statutory power on the

Sessions Court to keep the accused in prison until the sentence is executed in due

course. The 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 in safe and protected

with the purpose that he may be available for execution of the sentence which has

been awarded. The purpose behind enacting sub-section (2) of 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 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. After the sentence becomes, executable he may be kept in a cell apart from

other prisoners with a day and night watch.'"^

it is only in cases in which a sentence of death has been passed that the Judge

should refer the proceedings to the High Court; and the High Court can only deal

with them as a Court of reference. It is the practice of the High Court to be

satisfied on the facts as well as the law of the case, that the conviction is right,

before it proceeds to confirm that sentence. The High Court has to come to its

'"Ratanlal and Dhirajlal, The Code of Criminal Procedure, le"" ed., (2002), pp.111 l-l 113.
'"Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
 84

own independent conclusion as to the guilt or innocence of the accused,

independently of the opinion of the Judge.'^^

The High Court has the power to direct further inquiry to be made or additional evidence

to be taken upon any point bearing on the guilt or innocence of the accused at this stage

under Section 367 ^ of the Code of Criminal Procedure. Based on its assessment of the

evidence on record, the High Court may: (i) confirm or pass any other sentence, or (ii)

annul the conviction and convict for any other offence that the Sessions Court might have

convicted the accused of or order a new trial on the basis of the amended charge, or (iii)

acquit the accused person. The High Court is also the first appellate court for a person

sentenced to death.

At the third level is the Supreme Court of India. There is no automatic right of

appeal from the order of the High Court to the Supreme Court in death penalty

cases, except in a situation in which the High Court has imposed a death sentence

while quashing a trial court acquittal. 'Special Leave' to file an appeal with the

Supreme Court has to be granted by the High Court or the Supreme Court has to

give leave to file an appeal before it.

In the case of some special legislations, such as the Terrorist and Disruptive

Activities (Prevention) Act, 1987, the law provides that appeals against the ruling

'"Ratanlal and Dhirajlal, The Code of Criminal Procedure, 16"' ed., (2002), p. 1113.
'^^The Code of Criminal Procedure, 1973, Section 367 reads as under:
(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 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.
 85

of the trial court should automatically lie only with the Supreme Court (though

this Act lapsed in 1995, trials under the Act continue to this day).

C. The Process of Appeal

Under the Code of Criminal Procedure, 1973 as part of the mandatory

confirmation by the High Court of a death sentence handed down by a trial court,

a High Court bench of a minimum of two judges must, on appreciation of the

facts, come to its own conclusion on guilt and award a sentence as deemed fit in

the circumstances of the case. As indicated above, if the High Court confirms the

death sentence, no automatic appeal is provided to the Supreme Court.

In the event that a trial court acquits an accused in a case involving a crime

punishable by death or other offences, the state alone can file an appeal against

acquittal before the High Court under Section 378'^*'of the Code of Criminal

Procedure, 1973. The High Court has full power to review at large the entire

'^^The Code of Criminal Procedure, 1973, Section 378, reads as under:

(1) Save as otlierwise provided in sub-section (2) and subject to the provisions of subsections (3)
and (5), tlie State Government may, in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order of acquittal passed by any court
other than a High Court or an order of acquittal passed by the Court of Session in revision.
(2) In such an order of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special police
Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make
investigation into all offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal, subject to the
Provisions subsection (3), to the High Court froin the order of acquittal.
(3) No appeal under subsection (1) or subsection (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon Complaint and the High
Court, on an application made to it by the complainant in this behalf, grants, special leave
to appeal from the order of acquittal, the complainant may present such an appeal to the
High Court.
(5) No application under subsection (4) for the grant of special leave to appeal from an order
of acquittal shall be entertained by the High Court after the expiry of six months, where
the complainant is a public servant, and sixty days in every other case, computed from
the dale of that order of acquittal.
(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of acquittal shall lie under
sub-section (I) or under subsection (2).
 86

evidence giving due weight to the views of the trial Judge as to the credibility of

the witnesses; the presumption of innocence in favour of the accused, a

presumption certainly not weakened by the fact that he has been acquitted at his

trial, the right of accused to the benefit of any doubt, and the slowness in

disturbing a finding of fact arrived at by the Judge who had the advantage of

seeing the witnesses in an order of acquittal. The powers under this section are not

circumscribed as its powers while dealing with a revision against acquittal under

section 401. The principles which would govern and regulate the hearing of

appeal by the High Court against an order of acquittal passed by the trial court

may be summarised as under:

(1) In an appeal against an order of acquittal, the High Court possesses all the

powers, and nothing less than the power it possesses while hearing an

appeal against an order of conviction.

'"The Code of Criminal Procedure, 1973, Section 401 provides as under:

(1) In the case of any proceeding the record of which has been called for by itself or which
otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of
the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a
Court of Session by section 307 and, when the Judges composing the court of revision are
equally divided in opinion, the case shall be disposed of in the manner provided by section
392.
(2) No order under this section shall be made to the prejudice of the accused or other person
unless he has had an opportunity of being heard either personally or by pleader in his own
defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of
acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way if
revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the
High Court by any person and the High Court is satisfied that such application was made
under the erroneous belief that no appeal lies thereto and that it is necessary in the
interests of justice so to do, the High Court may treat the application for revision as a
petition of appeal and deal with the same accordingly.
 87

(2) The High Court has the power to reconsider the whole issue, reappraise the

evidence, and come to its own conclusion and findings in place of the

findings recorded by the trial court, if the said findings are against the

weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider

each ground on which the order of acquittal was based and to record its

own reasons for not accepting those grounds and not subscribing to the

view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the findings of acquittal, the High Court had to keep in view

the fact that the presumption of innocence is still available in favour of the

accused and the same stands fortified and strengthened by the order of

acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and

other materials on record, is of the opinion that there is another view which

can be reasonably taken, then the view which favours the accused should

be adopted.

(6) The High Court has also to keep in mind that the trial court had the

advantage of looking at the demeanour of witnesses and observing their

conduct in the court especially in the witness-box

 88

(7) The High Court has also to keep in mind that even at that stage, the

accused was entitled to benefit of doubt. The doubt should be such as a

reasonable person would honestly and conscientiously entertain as to the

guilt of the accused.'^'^

The High Court can either confirm the acquittal or set aside the acquittal and

convict the accused for the alleged crimes and impose sentence. If the acquittal is

set aside and a death sentence imposed, Section 379'^^ of the Code of Criminal

Procedure provides for an automatic appeal to the Supreme Court.

Section 379 of the Code of Criminal Procedure, 1973 contemplates that where

the High Court has on appeal, reversed an order of acquittal of an accused

person and convicted him and sentenced him to death or to imprisonment to

life or to imprisonment for a term often years or more, that person may appeal

to the Supreme Court. This section is introduced in the Code of 1973 on the

recommendation of the Law Commission of India in its 41^' Report.'^"

Article 134(l)(a)' ' of the Constitution provides that an automatic appeal shall lie

to the Supreme Court from any judgment where a High Court reverses an order of

'^'Ratanlal and Dhirajlal, The Code of Criminal Procedure, 16"' ed., (2002),
p.1135.
'^'The Code of Criminal Procedure, 1973, Section 379 provides as under:
Where the High Court has, on appeal reversed an order of acquittal of an
accused person, convicted him, and sentenced him to death or to
imprisonment for life or to imprisonment for a term often years or more, he
may appeal to the Supreme Court.
''"Ratanlal and Dhirajlal, The Code of Criminal Procedure. 16"' ed., (2002), p. 1150.

'^'The Constitution of India, 1950 Article 134 provides as under:

(1) An appeal shall lie to the Supreme Court from anyjudgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court-
(a) Has on appeal reversed an order of acquittal of an accused person and sentenced him to
death; or
(b) Has withdrawn for trial before itself any case from any court subordinate to its authority and
has in such trial convicted the accused person and sentenced him to death; or
(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court:
 89

acquittal of an accused person and sentences him to death. This is also recognised

in Section 379 of the Code of Criminal Procedure. Thus, in all cases where the

High Court awards a death sentence overturning the acquittal of the trial court, the

Supreme Court hears the matter. The rationale behind such a rule is that there is a

need for the death sentence to be considered again by a higher forum as a

safeguard against arbitrariness and error. The right to appeal is also extended

under Article 134(l)(b) to cases where the High Court has withdrawn for trial

before itself any case from the court subordinate to its authority and has in such

trial convicted the accused person and sentenced him to death, which type of

cases are rare and in frequent occurrence. Under Clause (c) of the above said

Article, an appeal lies to the Supreme Court on a certificate under Article 134-A

by the High Court certifying that the case is a fit one for appeal to the Supreme

Court but, of course, subject to the proviso to Article 134 (I). The right to appeal

given under this section in line with Article 134(1) (a) and (b) and section 2(a)

and (b) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)

Act of 1970.'"

Appeals may also be filed by the state for enhancement of sentence imposed by

the trial court or the High Court if it feels that the sentence imposed is inadequate

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be
made in that behalf under clause (1) of article 145 and to such conditions as the High Court
may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court
in the territory of India subject to such conditions and limitations as may be specified in such
law.
'"The Code of Criminal Procedure, 1973 section 379 provides as under:
Where the High Court has, on appeal reversed an order of acquittal of an accused person,
convicted him, and sentenced him to death or to imprisonment for life or to imprisonment for a
term often years or more, he may appeal to the Supreme Court.
'"Ratanlal and Dhirajlal, The Code of Criminal Procedure. 16"' ed., (2002), p. 1150.
 90

under Section 377*^'' of the Code of Criminal Procedure, 1973. Ordinarily,

relatives of the victims of the crime can file revision petitions (but not appeals)

seeking enhancement of the punishment in the High Court or Supreme Court.

Notably, while in the event that a High Court overturns an acquittal and awards a

death sentence, there is an automatic right to appeal to the Supreme Court, there is

no such right in the event that a High Court enhances a trial court's sentence to

that of death.

As noted above, access to the Supreme Court for appeal can only be granted if the

High Court grants special leave or if special leave is granted by the Supreme

Court itself The Supreme Court can dismiss a death sentence case in limine, i.e.

at the threshold stage itself without even admitting the appeal for consideration.

Where the High Court has confirmed the death sentence or has de novo imposed

death sentence. Even then, there is quite a likelihood of an appeal to the Supreme

Court and the plenary power to the highest court extends to demolition of the

death sentence. Naturally, the pendency of the appeal itself inhibits the execution

of the sentence. Otherwise, the appellate power will be frustrated, the man

executed and the Supreme Court stultified if it upsets the death sentence later.

'^"The Code of Criminal Procedure, 1973, section 377 provides as under:

(1) Save as otherwise provided in sub-section (2), the State Government may in any case of
conviction on a trial held by any Court other than a High Court, direct the Public
prosecutor to present an appeal to the High Court against the sentence on the ground of
its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi
Special Police Establishment, constituted under the Delhi Special Police Establishment
Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an
offence under any Central Act other than this Code, the Central Government may also
direct the Public Prosecutor to present an appeal to the High Court against the sentence
on the ground of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the
High Court shall not enhance the sentence except after giving to the accused a reasonable
opportunity of showing cause against such enhancement and while showing cause, the
accused or for the reduction of the sentence.
 91

When an appeal is pending against a conviction and sentence in regard to an

offence punishable with death sentence, such death sentence even if confirmed by

the High Court, shall not work itself out until the Supreme Court has pronounced.

Section 415 Code of Criminal Procedure produces this result inevitably. Section

415 of the Code Criminal Procedure reads as under:

(1) Where a person is sentenced to death by the High Court and an appeal

from the judgment lies to the Supreme Court under sub-clause (a) or sub-

clause (b) of clause (1) of Article 134 of the Constitution, High Court shall

order the execution of the sentence to be postponed until the period

allowed for preferring such appeal has expired, or, if an appeal is preferred

within that period, until such appeal is disposed of.

(2) Where a sentence of death is passed or confirmed by the High Court, and

the person sentenced makes an application to the High Court for the grant

of a certificate under Art. 132. or under sub-cl. (c) of CI. of Art. 134 of the

Constitution, the High Court shall order the execution of the sentence to

be postponed until such application is disposed of by the High Court, or if

a certificate is granted on such application, until the period allowed for

preferring an appeal to the Supreme Court on such certificate has expired.

(3) Where a sentence of death is passed or confirmed by the High Court, and

the High Court is satisfied that the person sentenced intends to present a

petition to the Supreme Court for the grant of special leave to appeal under

Article 136 of the Constitution, the High Court shall order the execution of

the sentence to be postponed for such period as it considers sufficient to

enable him to present such petition."

 92

(d) Mode of Capital Punishment

Mode of Capital Punishment is prescribed under Section 354 (5) of the Code of

Criminal Procedure which provides that:

When any person is sentenced to death, the sentence shall direct that he be hanged

by the neck till he is dead.

In Deena alias Deen Dayal v. Union of India^^^ Ihe constitutionality of section

354 (5) was challenged. Justice Sarkaria who spoke for the majority contended

that "under the successive Criminal Procedure Codes which have been in force for

about 100 years, a sentence of death is to be carried out by hanging. In view of the

aforesaid constitutional postulates, by no stretch of imagination can it be said that

death penalty under Section 302, Penal Code, either per se or because of its

execution by hanging, constitutes an unreasonable, cruel or unusual punishment.

By reason of the same constitutional postulates, it cannot be said that the framers

of the Constitution considered death sentence for murder or the prescribed

traditional mode of its execution as a degrading punishment which would defile

"the dignity of the individual" within the contemplation of the Preamble to the

Constitution."

Bhagwati, J. who dissented from the majority considered the question of the

constitutional validity of the death sentence, both from the substantive and the

procedural points of view. The learned Judge says that "the worst time for most of

the condemned prisoners would be the last few hours when all certainty is gone

and the moment of death is known". After extracting quotations from

^(1983) 4 s e c 645; AIR 1983 SC 1155.

 93

Dostoyevsky and Canns which bear upon the execution of death sentence, the

learned Judge observed: "There can be no stronger words to describe the utter

depravity and inhumanity of death sentence" After making this observation

Bhagwati, J., proceeds thus;

"The physical pain and suffering which the execution of the sentence of death

involves is also no less cruel and inhuman. In India, the method of execution

followed is hanging by the rope. Electrocution or application of lethal gas has not

yet taken its place as in some of the western countries. It is, therefore, with

reference to execution by hanging that I must consider whether the sentence of

death is barbaric and inhuman as entailing physical pain and agony. It is no doubt

true that the Royal Commission on Capital Punishment, 1949-53 found that

hanging is the most humane method of execution and so also in Ichikawa v.

Japan, the Japanese Supreme Court held that execution by hanging does not

correspond to 'cruel punishment' inhibited by Article 36 of the Japanese

Constitution. But whether amongst ail the methods of execution, hanging is the

most humane or in the view of the Japanese Supreme Court, hanging is not cruel

punishment within the meaning of Article 36, one thing is clear that hanging is

undoubtedly accompanied by intense physical torture and pain."

Thereafter, the learned judge refers to the description of the method of hanging

given by Warden Duffy of San Quentin, a high security prison in America and the

description given in 1927 by a surgeon who witnesses a double execution and

records his conclusion by saying that the passages extracted by him established

beyond doubt that "the execution of sentence of death by hanging does involve

'David Pannick, "Judicial Review of Death Penalty" p. 73.

 94

intense physical pain and suffering, though it may be regarded by some as more

humane than electrocution or application of lethal gas."

The Supreme Court on the question of constitutionality of section 354 (5) finally

held that, "therefore, as soon as it is shown that the Act invades a right guaranteed

by Article 21, it is necessary to enquire whether the State has proved that the

person has been deprived of his life or personal liberty according to procedure

established by law, that is to say, by a procedure which is just, fair and

reasonable."'"

(e) Pardon in Capital Punishment

The Preambular statement of the Constitution begins with the significant recital:

"We, the people of India, having solemnly resolved to constitute India into a

Sovereign Socialist Secular Democratic Republic . . . do hereby adopt, enact and

give to ourselves this Constitution."

In any civilised society, there can be no attributes more important than the life and

personal liberty of its members. That is evident from the paramount position

given by the Courts to Art. 21 of the Constitution. These twin attributes enjoy a

fundamental ascendancy over all other attributes of the political and social order,

and consequently, the Legislature, the Executive and the Judiciary are more

sensitive to them than to the other attributes of daily existence. The deprivation of

personal liberty and the threat of the deprivation of life by the action of the State

is in most civilised societies regarded seriously, and recourse, either under express

constitutional provision or through legislative enactment is provided to the

"'Ibid
 95

judicial organ. But, the fallibility of human judgment being undeniable even in the

most trained mind, a mind resourced by a harvest of experience, it has been

considered appropriate that in the matter of life and personal liberty, the

protection should be extended by entrusting power further to some high authority

to scrutinise the validity of the threatened denial of life or the threatened or

continued denial of personal liberty. The power so entrusted is a power belonging

to the people and reposed in the highest dignitary of the State. In England, the

power is regarded as the royal prerogative of pardon exercised by the Sovereign,

generally through the Home Secretary. It is a power which is capable of exercise

on a variety of grounds, for reasons of State as well as the desire to safeguard

against judicial error. It is an act of grace issuing from the Sovereign. In the

United States, however, after the founding of the Republic, a pardon by the

President has been regarded not as a private act of grace but as a part of the

constitutional scheme.

The power to pardon is a part of the constitutional scheme, and has been reposed

by the people through the Constitution in the Head of the State, and enjoys high

status. It is a constitutional responsibility of great significance, to be exercised

when occasion arises, in accordance with the discretion contemplated by the

139
context.

In India, the President has the power to grant reprieve and pardon under Article

72 (1), as well as the Governor has the power of commutation under Article 161

of the Constitution which is a sovereign function. The relevant constitutional

Vehar Singh and Others v. Union of India and another, AIR 1989 SC 653; (1989) 1 SCC 204.
'''Ibid.
 96

provisions regarding the grant of pardon, remissions, suspension of sentence, etc.

by tiie President of India and the Governor of a Stale are as follows:

"Article 72. Power of President to grant pardons, etc. and to suspend, remit or

commute sentences in certain cases - (1) The President shall have the power to

grant pardons, reprieves, respites or remissions of punishment or to suspend, remit

or commute the sentence of any person convicted of any offence -

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any

law relating to a matter to which the executive power of the Union

extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by

law on any officer of the Armed Forces of the Union to suspend, remit or

commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend,

remit or commute a sentence of death exercisable by the Governor of a

State under any law for the time being in force.'''

Article 161: Power of Governor to grant pardons, etc., and to suspend, remit or

commute sentences in certain cases - The Governor of a State shall have the

power to grant pardons, reprieves, respites or remissions of punishment or to

suspend, remit or commute the sentence of any person convicted of any offence

°The Constitution of India, 1950, Article 72.

 97

against any law relating to a matter to which the executive power of the State

extends."""

The provision corresponding to Article 72 in the Government of India Act, 1935

(in short 'the Government Act') was Section 295 which reads as follows:

(1) Where any person has been sentenced to death in a Province, the

Governor-General in his discretion shall have all such powers of

suspension, remission or commutation of sentence as were vested in the

Governor-General in Council immediately before the commencement of

Part 111 of this Act, but save as aforesaid, no authority in India outside a

Province shall have any power to suspend, remit or commute the sentence

of any person convicted in the Province.

Provided that nothing in this sub-section affects any powers of any officer of His

Majesty's forces to suspend, remit or commute a sentence passed by a Court-

Martial.

(2) Nothing in this Act shall derogate from the right of His Majesty, or of the

Governor-General, if any such right is delegated to him by His Majesty, to

grant pardons, reprieves, respites or remissions of punishment."

There was no provision in the Government Act corresponding to Article 161 of

the Constitution.

The power of the President and of the Governor to grant reprieves and pardons is

wide enough to include the power to commute and to remit sentence of

punishment. All cases of capital punishment are closely scrutinised by the

""/^..Article 161.
 98

executive at both the levels to see whether there are such extenuating

circumstances as would justify a reprieve, and the power to commute a death

sentence is freely exercised, whenever there is some doubt as to the severity of the

punishment. Under the present system, the prerogative of mercy in the case, of

persons under sentence of death works well and it produces results generally

regarded as satisfactory. It helps in mitigating the rigour of the death sentence,

particularly in case of those murderers whose execution would offend the public

conscience.'''^

All cases of capital punishment are closely scrutinised by the Executive at both

the levels to see whether there are such extenuating circumstances as would

justify a reprieve, and the power to commute a death sentence is freely exercised,

whenever there is some doubt as to the severity of the punishment.'''^

The effect of a pardon or what is sometimes called a free pardon is to clear a

person from all infamy and from all statutory or other disqualifications following

upon conviction. It makes him as it were a new man.

But the same effect does not follow a mere remission which stands on a different

fooling altogether. In the first place, an order of remission does not wipe out the

offence; it also does not wipe-out the conviction. All that it does is to have an

effect on the execution of the sentence; though, ordinarily a convicted person

would have to serve out the full sentence which has been ordered to be remitted.

An order of remission, thus, does not in any way interfere with the order of the

court it affects only the execution of the sentence passed by the court and frees the

'"Rajendra Prasad v. State of U.P., AIR 1979 SC 916.

'''Ibid.
 99

convicted person from his liability to undergo the full term of imprisonment

inflicted by the court, though the order of conviction and sentence passed by the

court still stands as it was. The power to grant remission is executive power and

cannot have the effect which the order of an appellate or revisional court would

have a reducing the sentence, passed by the trial court and substituting in its place

the reduced sentence adjudged by the appellate or revisional court. To cut-short a

sentence by an act of clemency is an exercise of executive power which abridges

the enforcement of the judgement but does not alter it quo judgment.'""

it is open to the President in the exercise of the power vested in him by Article 72

of the Constitution to scrutinize the evidence on the record of the criminal case

and come to a different conclusion from that recorded by the court in regard to the

guilt of, and sentence imposed, on the accused. In doing so, the President does not

amend or modify or supersede the judicial record. The judicial record remains

intact, and undisturbed. The President acts in a wholly different plane form that in

which the court acted. He acts under a constitutional power, the nature of which is

entirely different from the judicial power and cannot be regarded as an extension

of it. And this is so, notwithstanding that the practical effect of the presidential act

is to remove the stigma of guilt from the accused or to remit the sentence imposed

on him. The legal effect of a pardon is wholly different form a judicial

suppression of the original sentence. It is apparent that the power under Article 72

entitles the President to examine the record of evidence of the criminal case and to

determine for himself whether the case of one deserving the grant of the relief

falling within that power. The President is entitled to go into the merits of the case

'Jagdish Swarup, Comlitution of India, Vol. 2, 2"=" ed., 2006, pp. 1746-47.
 100

notwithstanding that it has been judicially concluded by the consideration given to

it by the Supreme Court.'''^

The order of the President cannot be subjected to judicial review on its merits

except within certain limitations. However, the function of determining whether

the act of a constitutional or statutory functionary falls within the constitutional or

legislative conferment of power, or is vitiated by self-denial on an erroneous

appreciation of the full amplitude of the scope of the power, is the matter for the

court. The power to pardon belongs exclusively to the President and the Governor

under the Constitution. There is also no question involved of asking for the

reasons for the President's order. The courts are the constitutional

instrumentalities to go into the scope of Article 72 but cannot analyse the exercise

of the power under Article 72 on its merits. The question as to the area of the

President's power under Article 72 falls squarely within the judicial domain and

can be examined by the court by way of judicial review.'''

However, the power of pardon even if it is being wielded by the highest executive

authority needs to be exercised in good faith, with intelligent and informed care

and honesty for public welfare. Furthermore, the power to grant pardon is coupled

with the duty to act fairly and reasonably. All public powers, including

constitutional powers, should never be exercised arbitrarily or malafide and

ordinarily, guidelines for fair and equal execution are guarantors of the valid play

of power. The parameters for judicial review were reiterated in Maru Ram v.

Union of India and others, '''^ where the Constitutional Bench asserted that the

"^Kehar Singh v. Union of India, AIR 1989 SC 6.53.

""^Jagdish Swarup, Constitution of India, Vol. 2, 2"'' ed., 2006, p. 1750.
' " A I R 1980 SC 2147.
 101

courts would intervene in cases where political vendetta or party favouritism was

evident or where capricious and irrelevant criteria like religion, caste and race had

affected the decision-making process.

In a landmark case of Kehar Singh v. Union of India, the challenge was to the

President's order declining clemency to one of the accused in the Indira Gandhi

assassination case. The Supreme Court dismissed an appeal by special leave filed

by Kehar Singh after the President declined to go into the merits of the case

decided by the Supreme Court which was supposedly erroneous and also did not

permit an oral presentation in cases before it. The court held that the area of

President's power under Article 72 falls squarely within the judicial domain and

can be examined by the Court by ways of judicial review. The court can never

question or ask for reasons why a mercy petition was rejected. However, if the

reasons are provided by the President in his order and these are held to be

irrelevant, the court could interfere. The court has also admitted judicial review on

some specific grounds -

1. To determine the scope of Articles 72 and 161

2. The court can interfere where the President's exercise of power is vitiated by

self-denial or erroneous appreciation of the full amplitude of power conferred

by Article 72 e.g. where the President rejected a mercy petition on the

erroneous ground that he could not go behind the final decision of the highest

court of the land or where the decision is irrelevant, discriminatory or

malaflde.

'"^AIR 1989 SC 653.

 102

3. In case of inordinate delay in processing the mercy petition in case of death

sentences, it could be substituted to Ufeimprisonment.'''^

In Epurii Sudhakar and another v. Government of Andhra Pradesh, '^° the

Supreme Court laid clear ground on which the pardoning power may be

challenged. The Supreme Court laid down that the judicial review of the order of

the President or the Governor under Article 72 or Article 161, as the case may be,

is available and their orders can be impugned on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or wholly irrelevant

considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness

It was held in this case that clear separation of powers emphasized in the

Constitution of India regarding pardons, the scope for judicial review of executive

action is limited. Where constitutional powers of clemency are involved, the

extent of judicial review is limited further to extreme cases. The Supreme Court

referred to a large number of petitions challenging the grant of pardon or

remission to prisoners, there are no cases in which the Supreme Court has

quashed the decision of the President/Governor granting clemency.

'"'hppti/Avww.legal India.in/power-of-pardon-in-india.
''°AIR 2006 SC 3385.
 103

In addition to tiie above constitutional provisions, tiie Code of Criminal

Procedure, 1973 provides for power to suspend or remit sentences and the power

to commute sentence in Section 432 and Section 433 respectively.

Section 433-A lays down restrictions on provisions of remission or commutation

in certain cases mentioned therein. Section 434 confers concurrent power on the

Central Government in case of death sentence.

The Section provides that the power of the State Government to remit or commute

a sentence where the sentence is in respect of certain offences specified therein

will be exercised by the State Government only after consultation with the Central

Government.

Sections 54'^' and 55*" of Indian Penal Code, 1860 confer power on the

appropriate Government to commute sentence of death or sentence of

imprisonment for life as provided therein.

Sections 432 and 433 of the Code of Criminal Procedure, 1973 read as follows:

"Section 432. Power to suspend or remit sentences. (1) When any person has been

sentenced to punishment for an offence, the appropriate Government may, at any

time, without conditions or upon any conditions which the person sentenced

accepts, suspend the execution of his sentence or remit the whole or any part of

the punishment to which he has been sentenced.

'^'Indian Penal Code, 1860, Section 54 reads asunder:

In every case in which sentence of death shall have been passed, the appropriate Government
may, without the consent of the offender, commute the punishment for any other punishment
provided by this code.
'"Indian Penal Code, I860, Section 55 provides as under:
In every case in which sentence of death shall have been passed, the appropriate Government
may, without the consent of the offender, commute the punishment for any other punishment
provided by this code.
 104

(2) Whenever an application is made to tiie appropriate Government for the

suspension or remission of a sentence, the appropriate Government may

require the presiding Judge of the Court before or by which the conviction

was had or confirmed, to state his opinion as to whether the application

should be granted or refused, together with his reasons for such opinion

and also to forward with the statement of such opinion a certified copy of

the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in

the opinion of the appropriate Government, not fulfilled, the appropriate

Government may cancel the suspension or remission, and thereupon the

person in whose favour the sentence has been suspended or remitted may,

if at large, be arrested by any police officer, without warrant and remanded

to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this

section may be one to be fulfilled by the person in whose favour the

sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders, give

directions as to the suspension of sentences and the conditions on which

petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on

a male person above the age of eighteen years, no such petition by the person

sentenced or by other person on his behalf shall be entertained, unless the person

sentenced is in jail and,-

 105

(a) where such petition is made by the person sentenced, it is presented

through the officer in charge of the jail; or

(b) where such petition is made by any other person it contains a declaration

that the person sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order

passed by a Criminal Court under any section of this Code or of any other

law which restricts the liberty of any person or imposes any liability upon

him or his property.

(7) In this section and in section 433, the expression "appropriate

Government" means -

(a) in cases where the sentence is for an offence against, or the order referred

to in sub-section (6) is passed under, any law relating to a matter to which

the executive power of the Union extends, the Central Government;

(b) in other cases the Government of the State within which the offender is

sentenced or the said order is passed.

Section 433. Power to commute sentence - The appropriate Government may,

without the consent of the person sentenced, commute-

(a) a sentence of death, for any other punishment provided by the Indian

Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not

exceeding fourteen years or for fine;

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(c) a sentence of rigorous imprisonment for simple imprisonment for any term

to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment for fine".

In Maru Ram and others v. Union of India and olhers,^^^ Fazal Ali, J. while

examining the constitutionality of section 433-A observed as under:

1. Section 433A of the Code is constitutionally valid Section 433A is

actually a social piece of legislation which by one stroke seeks to prevent

dangerous criminals from repeating offences and on the other protects the

society from harm and distress caused to innocent persons.

2. The dominant purpose and the avowed object of the legislature in

introducing section 433A in the Code of Criminal Procedure unmistakably

seems to be to secure a deterrent punishment for heinous offences

committed in a dastardly, brutal or cruel fashion or offences committed

against the defence or security of the country.

Section 433A has advisedly been enacted to apply to a very small sphere

and includes within its ambit only offences under sections 121, 132, 302,

303, 396 etc., of the Indian Penal Code, that is to say, only those offence,

where death or life imprisonment are the penalties but instead of death life

imprisonment is given or where a sentence of death is commuted to that of

life imprisonment. Section 433A when it confines its application only to

these categories of offences which are heinous and amount to a callous

outrage on humanity, has taken care of the fact that a sentence out of

153
AIR 1980 SC 2147.
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proportion of the crime is extremely repugnant to the social sentiments of

a civilized society.

3. The deterrent punishment prevents occurrence of offences by- (i) making

it impossible or difficult for an offender to break the law again, (ii) by

deterring not only the offenders but also others from committing offences,

and (iii) punishment or for that matter a punishment in the form of a long-

term imprisonment may be a means to changing a person's character or

personality so that out of some motivation or reasons of a personal or

general nature, the offender might obey the law.

The Parliament in its wisdom chose to act in order to prevent criminals

committing heinous crimes from being released through easy remissions

or substituted form of punishments without undergoing at least a minimum

period of imprisonment of fourteen years which may in fact act as a

sufficient deterrent which may prevent criminals from committing

offences.

4. No doubt, the reformative form of punishment on principle, is in fact the

prime need of the hour, but before it can succeed people must be properly

educated and realise the futility of committing crimes.'^''

Even, like Sections 433, 434 and 435 Cr. P. C, the rules made under the

Prisons Act, taking note of these provisions, provide for a petition for

commutation by the prisoner. Rule 547 and Rule 548 framed under the

Prisons Act relate to the subject of petitions for mercy:

1S4
Ibid
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"(a) Rules framed by the Government of India:

I. Immediately on receipt of a warrant for exception consequent on the

confirmation by the High Court of sentence of death, Jail Superintendent

shall inform the convict concerned that if he desires to submit a petition

for mercy, it should be submitted in writing within seven days of the date

of such intimation.

II. If the convict submits a petition within the period of seven days prescribed

by Rule 1, it should be addressed both to the local Government and to the

Governor-General in Council, and the Superintendent of Jail shall

forthwith dispatch it, in duplicate, to the Secretary to the Local

Government in the Department concerned, together with a covering letter

reporting the date fixed for the execution and shall certify that the

execution has been stayed pending receipt of the orders of the Governor in

Council and the Governor General in Council on the petition, if no reply is

received within 15 days from the date of the dispatch of the petition, the

Superintendent shall telegraph to the Secretary to the local Government

drawing attention to the fact, but he shall in no case carry out the

execution before the receipt of the local Government's reply."

It follows that during the pendency of a petition for mercy before the State

Governor or the President of India, the death sentence shall not be executed. Thus,

until rejection of the clemency motion by these two high dignitaries, it is not

possible to predicate that there is a self-executory death sentence. Therefore, a

prisoner becomes legally subject to a self-working sentence of death only when

the clemency application by the prisoner stands rejected. Of course, thereafter

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Section 30 (2) is attracted. A second or a third, a fourth or further application for

mercy does not take him out of that category unless there is a specific order by the

competent authority staying the execution of the death sentence.

i. Concluding remarks

Death penalty can be awarded by Indian courts under various provisions of law as
prescribed under Indian Penal Code, I860 and other special legislations catering
to particular types of crimes. There has been a decline in the frequency of
execution of death penalty in India and a procedural shift was also introduced to
this effect. Further, the provision of mandatory appeal in cases of death penalty is
prescribed to curtail the scope of error and to bring objectivity in sentencing. Yet
another form of appeal is provided as clemency petition under which the
condemned person can appeal to the President or to the Government for
commutation of death penalty.
These provisions and procedure are applicable in all the cases irrespective of
whether the death penalty is awarded under IPC or any other special legislation.

ii. Testing of Hypothesis number 1

The hypothesis number I, thus, stands disproved.