Report No. 35
Some Procedural Questions
Topic Number 50(a)
Replies to question 10
926. Question 10 and replies thereto.-
Question 10 in our Questionnaire, after referring to Article 134 of the Constitution and section 411A, Criminal Procedure Code, solicited views on this point-
"Are you favour of enlarging the powers of the Supreme Court so that an appeal shall lie to the Supreme Court as a matter of right in all cases in which a sentence of death has been passed or confirmed or upheld by the High Court?".
Conflicting views have been expressed on this point. While many replies oppose the enlargement of the powers of the Supreme Court as suggested in the question, many other replies favour such enlargement.
927. Amongst those who favour the enlargement of the appellate jurisdiction are a few High Court judges1-2, two State Governments3, many Bar Associations and similar bodies4. Some Bar Council have favoured it5. Enlargement is favoured by several members of the Bar6, several Members of Parliament and State Legislatures7-8 and certain officers9. The Law Minister of a State is in favour of enlargement10. A distinguished Member of the Rajya Sabha is in favour of enlargement11.
A former Member of the Lok Sabha, who is an Advocate, is in favour12.
The Principal Judge of a City Civil Court in a Presidency Town13 is in favour of enlargement
Some City Civil Court Judges are in favour14.
1. Chief Justice of a High Court and a Judge of the High Court, S. No. 130.
2. S. Nos. 97, 307, 316.
3. S. No. 130 and S. No. 580 (State Governments).
4. Bar Association of India; Supreme Court Bar Association; A District Bar Association; The Indian Federation of Women Lawyers, S. Nos. 183, 110, 125 and 121.
5. A Bar Council. S. No. 132.
6. An eminent member of the Bar, through the Bar Council of India, S. No. 161; Two Members of the Madras Bar Council, S. No. 104; An Advocate, Bangalore, S. No. 126; A Barrister, S. No. 150.
7. A Deputy Minister of the Union, S. No. 210; A Member, Rajya, Sabha, S. No. 206 (suggests right of appeal in every case of life imprisonment); A Member, Rajya Sabha, S. No. 209
8. Revenue Minister of a State, S. No. 216; An M.L.A., Madhya Pradesh, S. No. 213.
9. Law Secretary to a State Government, S. No. 162; An Inspector-General of Prisons, S. No. 166; An Inspector-General of Police, S. No. 143.
10. S. No. 253.
11. S. No 245.
12. S. No. 305.
13. S. No. 352, also 434.
14. S. Nos. 376-381.
928. The majority of Presidency Magistrates in a Presidency Town1 are in favour of enlargement, on the ground that no person should lose his life unless the highest Court has considered his case. An Inspector-General of Prisons is in favour of enlargement2.
1. S. No. 549.
2. S. No. 264.
929. The Judicial Section of the Indian Officers Association in a State has stated that an appeal should lie as a matter of right in all cases where the sentence of death has been confirmed, passed or upheld by the High Court. Further, it has suggested that appeals against acquittal on charges of murder should also be permissible up to the Supreme Court. "While the deterrent of death sentence is necessary in the interest of society, no consideration of the time or labour involved in scrutiny with the utmost care of all the evidence available should be spared even up to the highest tribunals of land. It is a miscarriage of justice whether it is a conviction or an acquittal, when it is not justified. No effort is too small to render impossible the miscarriage of justice even in a single instance.". Many District and Sessions Judges are in favour of enlargement1.
1. S. Nos. 325, 330, 335, 339, 347, 349, 521, 524, 525, 533, 548, 551, 554, 556, 557, 561 and 570.
930. One District and Sessions Judge1 who favours enlargement has stated that though such a right would amount to a second appeal in some cases, yet it would be justified in the case of a death sentence, and the accused must have right to get his case decided by the highest tribunal in the country.
1. S. No. 354.
931. Another District and Sessions Judge1 has supported enlargement on the ground that a person condemned should have a right of second appeal to the highest Tribunal.
1. S. No. 358.
932. An Assistant Judge1 has favoured the enlargement of the appellate jurisdiction, on the ground that it would give a guarantee that the punishment has been rightly given. He adds-
1. S. No. 340.
"In some of the cases the Supreme Court has reviewed even a finding of facts because it granted a leave to appeal. In some cases a certificate has been given by the High Court that the case is a fit one to appeal. There cannot be a sound basis for discrimination of these cases from the cases where no leave was given by the High Court or by the Supreme Court.".
Some Bar Associations are in favour of enlargement1.
1. S. No. 345.
933. It is suggested by a District Bar Association1 in Madhya Pradesh that life is precious to every human being and every human being does his utmost for survival. The Supreme Court being the highest and final judicial authority for pronouncing judgment on important matters pertaining to life and property and other matters of public interest, a man condemned must also have an opportunity as of right of putting his case before the highest judicial tribunal of the land by way of appeal.
1. S. No. 426.
934. Limited enlargement.-
There are some views favouring a limited enlargement. Thus the suggestion of a High Court Judge1 is that the Supreme Court should have only a limited jurisdiction, namely, where questions of law are involved.
1. S. No. 262.
935. The suggestion of a District and Sessions Judge1 in Maharashtra is that an appeal to the Supreme Court be provided but only to the extent of the propriety of the death sentence, where the sentence passed by the Court of Session is life imprisonment and is enhanced to death by the High Court.
1. S. No. 420.
936. A District and Sessions Judge1 is in favour of a limited right of appeal, where the High Court imposes the death sentence for the first time, the principle being that this would eliminate (from the field of appeal as of right to the Supreme Court) all death sentence cases in which the Trial Court and the High Court have concurred in the matter of awarding the death sentence.
1. S. No. 334.
937. Some replies expressed no views on the question1.
1. A High Court, S. No. 140.
938. Those who favour enlargement have advanced a number of arguments in support of their suggestion. One argument is that a further chance to the accused to agitate the question of sentence should be given in all cases of death sentence, including confirmation. The Supreme Court, it is stated, has found in a few cases, that while the finding of the High Court indicated that a particular type of culpable homicide was committed, the sentence happened to be awarded on a different type1. A few decisions2 have also been referred to in this context.
1. Chief Justice of a High Court and Judge of that High Court, S. No. 130.
2. Pandu Rang v. State of Hyderabad, (1955) 1 SCR 1083: 1955 SC 216; William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116; also Inder Singh v. Crown, 1928 ILR 10 Lah 477.
939. The point has also been made in one reply1, that considering the impossibility of rectification of mistake, a further process of scrutiny by a superior and more experienced judicial authority is always desirable. (In fact, the reply suggests that every sentence of death should be subject to confirmation by a Division Bench of the Supreme Court. It is stated2, that as death is the highest sentence, an opportunity of appeal should be given.
1. Reply of an Inspector-General of Police, S. No. 131.
2. A State Government, S. No. 143.
940. Amongst those who have opposed the proposed enlargement of jurisdiction are some High Courts1, and certain High Court judges2-3.
1. Two High Courts, S. Nos. 167 and 187.
2. Chief Justice of a High Court, S. No. 316.
3. Several High Court Judges, S. Nos. 105, 147 and 97.
941. A State Law Commission1, many State Governments2, and Administrations of Union Territories3, and many others are opposed to enlargement.
1. A State Law Commission, S. No. 133.
2. S. Nos. 129, 154, 182, 242, 261, 311 and 574.
3. S. Nos. 164 and 303.
942. A High Court Judge1 is opposed to enlargement because
(a) it will mean permitting a second appeal in case of concurrent decisions of two Courts awarding a death sentence, which is not ordinarily contemplated in the criminal law;
(b) in other countries there is no such power;
(c) in appropriate cases Articles 134 and 136 are sufficient.
1. S. No. 230.
943. Several High Court Judges are opposed to enlargement1.
1. S. Nos. 262, 393, 394, 395 and 396.
944. Another High Court Judge1 is opposed to enlargement on the ground that it would shift on the Supreme Court a burden which should appropriately lie in the High Court.
1. S. No. 251.
945. The Home Minister of a State1 is opposed to enlargement.
1. S. No. 258.
946. The Law Minister of a State1, who is opposed to enlargement, has expressed the view that the provisions relating to mercy are enough.
1. S. No. 313.
947. A Minister1 in a State Government is opposed to enlargement, on the ground that the procedure will become very lengthy and expensive.
1. S. No. 221.
948. Some members of Parliament are opposed to enlargement1. So are some members of the State Legislature opposed to enlargement2.
1. S. No. 207.
2. S. Nos. 102, 248 and 249.
949. An Inspector-General of Police1 has stated that enlargement would lead to delay.
1. S. No. 264.
950. A very Senior Advocate of the Bombay High Court1 has, while opposing enlargement, stated that generally speaking the right of appeal to superior court should not be extended and that it encourages litigation, protracted proceedings and inordinate delays, and keeps the condemned criminals in a state of suspense for an indefinite period. In his view, the right of multiple appeals in America has led to tortuous and protracted proceedings. He has observed that in America, the unfortunate appellant is not only kept in a state of agonising suspense for years, but, in some cases (the case of Sacco and Vanzetti for instance), it ends in the inhuman spectacle of the man being executed after years of suspense and expectation.
1. S. No. 318.
951. Certain District and Sessions Judges are opposed to enlargement1.
1. S. Nos. 416, 418, 553 and 560.
952. A District and Sessions Judge1 has opposed enlargement on the ground that theoretically there can be no end to the successive appeals which we can provide. He has pointed out that both the Sessions Judge and the High Court are very careful in convicting the accused and in imposing the death sentence, and enlargement would increase the work in the Supreme Court with no corresponding benefit.
1. S. No. 336.
953. Several District and Sessions Judges are also opposed to enlargement1.
1. S. Nos. 351, 353, 359, 364, 366, 380, 384, 385 and 391.
954. A small number of the members of the Bar are against it1.
1. A Pleader, Calcutta, S. No. 128.
955. Some others are also opposed to it1.
1. A retired Judge, High Court of Bombay, S. No. 95; A retired District and Sessions Judge, Nagpur, S. No. 139; A District and Sessions Judge (Gujarat), S. No. 212.
956. The opposition to enlargement is based on several points. The first is that the Supreme Court has ample powers to rectify miscarriage of justice; secondly, that the Supreme Court is not a court of criminal appeal in the ordinary sense, and an unconditional right of appeal would not be justified; thirdly, that a departure from the existing system is not necessary because justice is not hampered under the present system; fourthly, it would mean delaying justice and increasing the cost of litigation, would make the High Courts lose their prestige and would weaken the deterrent effect of the death penalty; and fifthly, that it would unnecessarily increase the work in the Supreme Court.