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Report No. 35

Topic Number 20


266. Irrevocability.-

An argument which deserves our most anxious consideration is that based on the chances of error and execution of an innocent person. It is stated, that one peculiar feature of capital punishment, as contrasted with other punishments, is that it is irrevocable, and if an innocent person is sentenced to death on a charge of a capital offence and executed the injustice caused to him cannot be retrieved.

Some cases of erroneous convictions are cited in some of the studies1.

We have not the slightest intention of underrating the paramount importance of ensuring that no innocent person is subjected to any punishment by a criminal court, much less to a punishment depriving him of life. Nor do we intend to answer the argument by stating that in no circumstances would an innocent person be executed. All the same, we would like to draw attention to the safeguards which the law has anxiously provided for avoiding any such unfortunate consequence. Those safeguards are contained in the Constitution, in the substantive law, in the procedural law and in the administrative orders in force, and are re-inforced by the prerogative of mercy, and can be classified below:-

1. Mr. Justice B.N. Banerjee Abolition of Capital Punishment, (1965) June, Vol. 2, No. 2, Law Quarterly (Journal of the Indian Law Institute, West Bengal Unit), 123, 128.

267. Constitutional.-

Every person, who is arrested, has the right to consult and to be defended by a legal practitioner of his choice1. The Supreme Court has jurisdiction to entertain appeals where the accused has been sentenced to death2, where the requisite conditions of Article 134 are satisfied; in other cases also, the accused can appeal to the Supreme Court by obtaining special leave3. The Supreme Court has the power to review its judgments4.

1. Article 22(1) of the Constitution.

2. Article 134(1) of the Constitution.

3. Article 136 of the Constitution.

4. Article 137 of the Constitution.

268. Substantive.-

A person who gives or fabricates false evidence with intent to procure conviction of another person of a capital offence, is himself punishable with death, if an innocent person is convicted and executed in consequence of such false evidence1. There are other provisions dealing with false evidence and offences against public justice2.

1. Section 194, second para., Indian Penal Code.

2. Section 182 and sections 191 to 229, Indian Penal Code.

269. Procedural.-

The procedural safeguards can be sub-divided into-

(i) those relating to trial;

(ii) those relating to judgment and sentence;

(iii) those relating to appeals.

A case relating to a capital offence can be tried only by a Court of Session1 (or a High Court). There are provisions requiring pre-commitment by Magistrates in such cases2. The actual trial before the Court of Session, whether it is held by the Judge himself or with a jury, must proceed in accordance with the Code3. For enabling the accused to explain any circumstance appearing in the evidence against him, the Court must question him generally on the case after the close of the prosecution4. The accused is free to give evidence on oath5. The law of evidence6 contains elaborate provisions for excluding from evidence confessions obtained improperly.

1. Section 28 and Second Schedule, Code of Criminal Procedure, 1898.

2. Sections 206-220, Code of Criminal Procedure, 1898.

3. Sections 266-335, Code of Criminal Procedure, 1898.

4. Section 342(1), Code of Criminal Procedure, 1898.

5. Section 342A, Code of Criminal Procedure, 1898.

6. Sections 24 to 27, Indian Evidence Act, 1872.

270. Coming to the stage of judgment, if a sentence of death is proposed by a Court of Session, it must be confirmed by the High Court1. The powers of the High Court, on a reference for such confirmation are very wide2. The confirmation must, when the High Court consists of two or more Judges, be made, passed and signed by at least two of them3. The Court of Session, at the time of passing a sentence of death, in cases where it is appealable as a right, must inform the accused of the period within which the appeal must be preferred4.

1. Section 31(2), Code of Criminal Procedure, 1898, and sections 374-378, ibid.

2. Sections 375-376, Code of Criminal Procedure, 1898.

3. Section 377, Code of Criminal Procedure, 1898.

4. Section 371(3), Code of Criminal Procedure, 1898.

271. Where the trial was held by the Court of Session, there is a right of appeal to the High Court on conviction1. Where the trial was held by a Judge of the High Court in its original criminal jurisdiction, there is a right of appeal2 to the High Court in certain cases. In addition, the Constitution provides for appeal to the Supreme Court in certain cases3.

1. Section 410, Code of Criminal Procedure, 1898, subject to section 418.

2. Section 411A, Code of Criminal Procedure, 1898.

3. Articles 132, 134 and 136, Constitution.

272. Prerogative of mercy.-

Lastly, there are provisions dealing with the power of the President and the Governor to grant pardon, reprieve, respite or remission in respect of the punishment of death, or to suspend, remit or commit the sentence of death, under Articles 72 and 161 of the Constitution, and the power of the Government to suspend, remit or commute such sentence under sections 401-402, Code of Criminal Procedure, 1898.

273. Administrative.-

The assistance of counsel is provided at the cost of the State in all capital cases1.

1. Detailed discussion of legal aid to accused is made separately, see para. 1166-1176, infra.

274. The above resume of statuary provisions will show the anxious concern of the law to ensure that the chances of error are kept to the minimum. That minimum, perhaps, will never be a zero. We must constantly endeavour to bring it as near as possible to zero. Cases of erroneous conviction, whether noticed officially or unofficially, deserve to be looked into where they are brought to the notice of the authorities, to prevent a recurrence of such errors.

We hope, however, that such cases have not been many. After passing through the sieve of judicial scrutiny under the provisions already set out, and the scrutiny applied in proceedings for the exercise of the prerogative of mercy, it should be difficult-we do not say that it would be impossible-for a case to retain elements of material falsehood.

If, in spite of such scrutiny, such elements survive, that only shows the need for keeping the procedural and other provisions constantly under review. Elsewhere, in this Report, we ourselves have raised and discussed the question of improvements in the provisions relevant to safeguards against error1. But, viewing the matter in its proper perspective, we are not in a position to say that the possibility of error is an argument which can totally displace the paramount need for a provision intended to protect society.

1. See, for example, discussion relating to appeals in capital cases (Question 10 of our Questionnaire) (paras. 967-989, infra.).

275. We give below some of the important arguments advanced under the head of "erroneous conviction", and state briefly the safeguards-existing or proposed:-



(1) Conviction is based on the oral testimony of witnesses or circumstantial evidence. Both suffer from weaknesses. The trial is held before an experienced officer. The sentence of death when passed by a Sessions Judge, is subject to conformation by the High Court, and the confirmation must be made by at least two Judges. There is further a limited right of appeal to the Supreme Court. These safeguards are intended to ensure, as far as possible, that defects or discrepancies in the evidence are carefully considered.
(2) Witnesses may lie. In addition to the usual safeguards against false evidence, namely, efficient cross-examination by counsel for the accused and power of the Court to observe the demeanour of the witnesses and to take into account contradictions with previous statements made before the Police or before the committing Magistrate, there is the additional safeguard of the sentence of death provided for giving false evidence in such cases.1
(3) Appreciation of the evidence by the Judge may be faulty. Faulty appreciation by the trial Judge is subject to correction by at least two Judges of the High Court, sitting in confirmation proceedings.
(4) Accused may not be adequately represented by counsel. Separate discussion relating to legal aid to the accused may be seen.2
(5) Investigation might have been coloured by corruption and malpractice. Investigation into homicide cases is usually done by, or under the direct supervision of, senior Police officials.
(6) Persons who do not command talent or ability for taking the case with the highest court, would suffer. A case involving sentence of death must, even now, go up to the High Court. As regards appeals to the Supreme Court, separate discussion may be seen.3

1. Section 194, second para., Indian Penal Code.

2. See discussion relating to legal aid to the accused, paras. 1166-1175, infra.

3. See discussion relating to appeals to the Supreme Court, paras. 957-989, infra.

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