This article has been written by- Mr. Loknath Saha, a 1st year LL. B student from Lloyd Law College.
INTRODUCTION
According to Section 28, the High Courts possess the authority to pass any sentence that is permitted by law. In other words, they have the discretion to determine the appropriate punishment for an individual convicted of a crime, within the bounds of the legal framework. the High Courts have the widest range of sentencing powers, allowing them to impose any legally permissible punishment. Sessions Judges and Additional Sessions Judges have the same authority, except when it comes to imposing the death penalty. In such cases, they need to obtain confirmation from the High Court before the death sentence can be carried out. This additional requirement is in place to ensure that the decision to impose the ultimate punishment of death is thoroughly reviewed and validated by a higher judicial authority.
PROCEDURE OF DEATH SUBMISSION IN CHAPTER 28
Section 366:
When a lower court (Court of Session) sentences someone to death, the case must be sent to the High Court for confirmation.
The death sentence cannot be executed unless it is confirmed by the High Court.
Section 367:
If the High Court feels that further inquiry or additional evidence is necessary to determine the guilt or innocence of the convicted person, it can order such inquiry or evidence.
The presence of the convicted person may not be required during this inquiry unless otherwise directed by the High Court.
The result of the inquiry or evidence, if not conducted by the High Court, should be certified to the High Court.
Section 368:
In cases submitted under Section 366, the High Court has the power to: a) Confirm the sentence of death or impose any other lawful sentence, b) Annul the conviction and convict the accused of a different offense or order a new trial, or c) Acquit the accused person.
However, no confirmation order can be made until the period for filing an appeal has expired or until an appeal, if filed within that period, is disposed of.
Section 369:
In cases submitted to the High Court, the confirmation of the sentence or any new sentence or order must be made, passed, and signed by at least two Judges when the High Court consists of two or more Judges.
Section 370:
If a Bench of Judges hearing a case under Section 366 is equally divided in opinion, the case will be decided as per the procedure provided in Section 392.
Section 371:
In cases where the Court of Session has submitted a death sentence for confirmation to the High Court, the proper officer of the High Court must promptly send a copy of the confirmation order, under the seal of the High Court and attested by the officer’s official signature, to the Court of Session.
EXECUTION SYSTEM IN INDIA
The punishment system in India is based on two main concepts: reformation and deterrence. Reformation aims to give the convict an opportunity to contribute positively to society by displaying good behaviour and undergoing a transformation. Deterrence, on the other hand, aims to prevent crimes by emphasizing the severe consequences or impact of the offense.
However, the capital punishment system in India is primarily based on the concept of retribution. Retribution suggests that by imposing a punishment equal to the crime committed, justice is served to the victim. In the case of capital punishment, it is believed that by executing the person who has committed murder, justice is achieved for the victim.
The death penalty serves as a deterrent as it ensures that the criminals will never have the chance to commit the same crime again. This is important because there have been cases where convicts sentenced to life imprisonment have gone on to murder fellow prisoners or prison guards. Protecting the lives of the innocent is considered a priority over the well-being of serial killers.
In cases where the offenders have committed heinous crimes that not only harm innocent individuals but also pose a threat to the nation and community, the concept of capital punishment is considered justified. It is seen as a measure to maintain a positive and crime-free society.
In the case of Deena v. Union of India (1983) 4 SCC 645, the Supreme Court of India addressed a constitutional challenge to the method of execution by hanging. The Court rejected the challenge and held that while a prisoner cannot be subjected to barbarity, humiliation, torture, or degradation before the execution of the sentence, hanging as a method of execution did not involve these elements directly or indirectly. The Court affirmed that the death penalty by hanging was constitutional and did not violate the rights of the prisoner.
It is important to note that in the Deena case, there was an attempt to revisit the constitutionality of the death sentence itself, but the Court did not reopen the question. The Court focused specifically on the method of execution by hanging and its compatibility with constitutional principles.
In a later decision of Parmanand Katara v. Union of India (1995) 3 SCC 248, the Supreme Court addressed the issue of allowing the body to remain hanging after death during the execution process. The Court declared that the practice, as mentioned in the Punjab Jail Manual, of keeping the body hanging for half an hour after death was a violation of the dignity of the person and hence unconstitutional. The Court emphasized the importance of treating the deceased with respect and dignity, even in the context of capital punishment.
From a legal perspective in India, the Supreme Court has upheld the constitutionality of execution by hanging as a method of carrying out the death penalty. However, the Court has also recognized the need to ensure that the execution process does not involve unnecessary suffering, humiliation, or degradation of the individual. The concept of human dignity is considered significant in interpreting and applying the laws related to the death penalty in India.
In the case of Deena v. Union of India (1983) 4 SCC 645 for the imposition of the death penalty. The court established certain modes and criteria of death punishment –
- The act of execution should be swift and as painless as possible. It should not include anything that unnecessarily increases the fear and anxiety of the person facing the punishment.
- The method of execution should ensure that the person loses consciousness quickly and experiences a rapid death.
- The manner of execution should be dignified and respectful, avoiding methods that involve mutilation or dismemberment of the body.
CONCLUSION
take a person’s life through capital punishment is a matter of great significance and has been the subject of intense debate. The fear of wrongful conviction and the execution of an innocent person has always been a concern. However, the Code of Criminal Procedure includes several provisions in Chapter 23 to minimize the chances of error and ensure justice is served.
The appellate process plays a crucial role in the capital punishment system. If a party is dissatisfied with the judgment of the High Court, they have the right to appeal to the Supreme Court, seeking a review of the case and alleging any errors or injustices that may have occurred.
The Code of Criminal Procedure outlines a series of steps that must be followed in capital punishment cases. The Sessions Court’s judgment is submitted to the High Court for confirmation. The High Court has the authority to conduct further inquiries and consider both existing and additional evidence. The final order is passed by the High Court, requiring the signature of at least two judges to ensure a fair decision. In cases of differing opinions, a third judge’s perspective is sought to determine the ultimate outcome. Once the confirmation or any other decision is made, it is promptly communicated to the Sessions Court by the relevant officer.
REFERENCES
- Deena v. Union of India (1983) 4 SCC 645
- Parmanand Katara v. Union of India (1995) 3 SCC 248
- Mukesh v. State for NCT of Delhi (Nirbhaya Case)