In the whole IPC, there’s just one section i.e Section 303 where death is prescribed because the only punishment for murder by an individual under a sentence of imprisonment for life; and even this lone section has been struck down by the Supreme Court because it was found to be violative of the constitutional provision. There is another section during which death is one among the choice punishments prescribed for the offence. The discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult due to the irrevocable character of execution.[I]
Section 354 (3) requires that when the conviction is for an offence punishable with death or in the alternative, with imprisonment for all times or imprisonment for a term of years, the judgment shall state the explanations for the sentence awarded and just in case of sentence of death the special reason for such sentence. Further, when a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he’s dead.
The requirement that the judgment shall state the rationale for the sentence awarded would be a good safeguard to make sure that the lower courts examine the case as elaborately from the purpose of view of the sentence as from the purpose of view of guilt. It might also provide good material at the time when a recommendation for mercy is to be made by the court, or a petition for mercy is taken into account.
Section 366 partially answers the question of who can pass a verdict. This section provides that if a Session Court passes the death sentence against the accused then the Supreme Court must confirm it before it comes into effect. Thereby, it’s necessary to submit the proceedings before the Supreme Court, and only after confirmation from the Supreme Court the executions are often brought into effect, and not before that.
Execution is the highest level of punishment and it follows the principle of ‘rarest of rare’ (uncommon crime or that’s unusual to an individual of ordinary prudence, the one which shocks and causes tremors throughout the judiciary and therefore the society). This section works as a precautionary step to attenuate the error while meeting the ends of justice.
In the case of State of Punjab vs Kala Ram @ Kala Singh (2018)[II]
The Court held that under Section 366(2) of CrPC the court while passing the conviction shall grant the jail custody of the convicted person under a warrant i.e. the person shall be kept in custody and not as a punishment. The ‘safekeeping’ in jail custody is the limited jurisdiction of the jailor. It’s a trusteeship within the hands of the Superintendent and not imprisonment in a real sense.[III]
The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006)[IV]
It was submitted to the Allahabad high court from Agra’s Sessions Court under Section 366 of CrPC. The accused had committed the offence of rape, murder, and kidnapping. Allahabad high court upheld the execution of the accused stating that it had been the rarest of rare cases.
Section 368- Power to the Supreme Court to verify sentence or annul conviction[V]
Section 368 provides that when a case is submitted to the Supreme Court under Section 366 of the Code of Criminal Code, the Supreme Court may; confirm the sentence gone by the Sessions Court, or pass a sentence aside from the one provided it’s warranted by the law, or annul the conviction gone by the Sessions Court, and instead either convict the accused under the other offence that the Session’s Court had convicted him/her or order for an attempt on an amended charge or on an equivalent charge, or acquit the accused of the fees made against him. The proviso to the section states that till the time the limitation period to file an appeal against the decision isn’t expired, or the appeal remains pending or isn’t disposed of, the Court cannot pass an order of confirmation.
In the case of Kartarey and Ors. vs The State of Uttar Pradesh (1975)
The Sessions Court had passed the decision announcing the death sentence which was later altered by the supreme court. When the case reached the Supreme Court it had been observed that the Supreme Court had committed a grave error in examining the evidence or additional evidence.
It states that it’s the duty of the Supreme Court to ‘reappraise the evidence in totality and it shall come to a conclusion on the merits of the case only after considering the proceedings altogether their aspects. It’s important and crucial to think about the defence evidence equally and to not neglect it as this is often contradictory to the settled rule of practice and law.
Section 369: Confirmation or new sentence to be signed by two judges[VI]
Section 369 provides that whenever a case is submitted to the Supreme Court under Section 366 of CrPC it shall be heard by a divisional bench i.e. a minimum of by two or more judges. For confirmation of the sentence, or any new sentence, or any order.
Passed by the Supreme Court shall be ‘made, passed and signed by either two or more judges. It’s an important condition that can’t be ignored.
Section 371- Procedure during a case submitted to the Supreme Court for confirmation[VII]
Section 371 of the Code of Criminal Procedure provides that cases of the execution which are submitted to the Supreme Court by the Sessions Court after being decided upon shall be sent to the Sessions Court. The order gone by the Supreme Court shall be one among the choices provided in Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the accused among others. It’s the duty of the concerned officer of the supreme court to send a replica of the order gone by the supreme court to the Sessions Court with no delay, under the seal of the supreme court and attested with his/her official signature[VIII].
The main functions of the criminal court are twofold:
1) to decide as to the guilt or innocence of the accused person,
2) if such a person is found guilty of any offence, then determine the appropriate punishment for him. The judgment is the final decision of the court, given with the reasons, on the questions of the guilt or innocence of the accused person. It also includes the court’s decision as to the punishment the guilty person has to suffer, or as to the conditions subject to which the offender is to be released without being punished as such.
I- R.V Kelkar’s, Criminal Procedure, Execution of sentences, 737 (sixth edition, 2014, reprinted 2018), EBC Publishing, Lucknow
II- State of Punjab vs Kala Ram, Also available: https://indiankanoon.org/doc/36641304/
III- Ayush Verma, What happens when death sentences are confirmed under CrPC, Last visited: 06.04.2021, 17:00pm, Also available on: https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/
IV- Bantu Son of Vidya Ram Bediya vs State Of U.P Also available on: https://indiankanoon.org/doc/939702/
V- The Code Of Criminal Procedure, 1973, No. 2, (Section 368)
VI- The Code Of Criminal Procedure, 1973, No. 2, (Section 369)
VII- The Code Of Criminal Procedure, 1973, No. 2, (Section 371)
VIII- Ayush Verma, What happens when death sentences are confirmed under CrPC, Last visited: 06.04.2021, 17:00pm, Also available on: https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc