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Report No. 35

Topic Number 50(b)

Scope of appeal in criminal cases where a sentence of death is in issue

957. Scope of appeal in criminal cases where a sentence of death is in issue-Sentence of death by High Court-Appeal from sentence of High Court.-

We propose to consider in detail the present law as to appeals in cases where the sentence of death is in issue. The Courts, which can pass a sentence of death, are either the High Courts in the exercise of their original criminal jurisdiction, or the Courts of Session.

The only High Court, which now exercises such criminal jurisdiction an the ordinary original side, is the Calcutta High Court, but every High Court has, what can be described as, "extraordinary original criminal jurisdiction" which may arise either by reason of withdrawal of a case from a subordinate court to the High Court under Article 228 of the Constitution, or by transfer of a case from a subordinate court to the High Court under section 526(1)(iii) of the Code of Criminal Procedure, 1898, or by an order passed by the High Court, directing that an accused person be committed for trial to itself under section 526(1)(iv) of the same Code, or by transfer of a case from a subordinate court to the High Court under the Letters Patent1-2, or by exercise of the High Court's extraordinary criminal jurisdiction, under the Letters Patent3, or an order under section 197 of the Code of Criminal Procedure, whereby the trial is directed to be held by the High Court, or transfer or committal of a case to the High Court under section 526A and section 527 of that Code.

1. For example, clause 24 of the Letters Patent of the High Courts of Bombay, Madras and Calcutta.

2. See Sasdhar v. Charies Taggart, AIR 1932 Cal 123.

3. For example, clause 24 of the Letters Patent of the High Court of Bombay, Madras and Calcutta.

958. So far as cases tried on the original side by the High Court are concerned, two provisions relevant to appeals may be noted. The first is section 411A of the Code of Criminal Procedure, 1898 which is quoted below:-

"411A. (1) Any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in section 418 or section 423, sub-section (2), or in the Letters Patent or law by which the High Court is constituted or continued, appeal to the High Court-

(a) against the conviction on any ground of appeal which involves a matter of law only;

(b) with the leave of the Appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appeal's to the Appellate Court to be a sufficient ground of appeal; and

(c) with the leave of the Appellate Court, against the sentence passed unless the sentence is one fixed by law.

(2) Notwithstanding anything contained in section 417, the State Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, and such appeal may, notwithstanding anything contained in section 418, or section 423, sub¬section (2), or in the Letters Patent or law by which the High Court is constituted or continued, but subject to the restrictions imposed by clause (b) and clause (c) of sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law.

(3) Notwithstanding anything elsewhere contained in any Act or Regulation, an appeal under this section shall be heard by a Division Court of the High Court composed of not less than two Judges, being Judges other than the Judge or Judges by whom the original trial was held; and if the constitution of such a Division Court is impracticable, the High Court shall report the circumstances to the State Government which shall take action, with a view to the transfer of the appeal under section 527 to another High Court.

(4) Subject to such rules as may from time to time be made by the Supreme Court in this behalf and to such conditions as the High Court may establish or require, an appeal shall lie to the Supreme Court from any order made on appeal under sub-section (1) by a Division Court of the High Court in respect of which order the High Court certifies that the case is a fit one for such appeal.".

959. It may be added, that section 411A applies to extraordinary criminal jurisdiction also1.

Sub-section (4) of section 411A of the Code of Criminal Procedure, it would have been noted, deals with appeals to the Supreme Court.

1. Sunil Chandra v. State, AIR 1954 Cal 305 (313) (DB).

960. Appellate jurisdiction of Supreme Court in regard to criminal matters.-

The second is the group of provisions contained in Articles 134 and 136 of the Constitution, which are quoted below:-

"134. (1) An appeal shall lie to the Supreme Court from any judgment, 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 that the case is a fit one for appeal to the Supreme Court:

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.".

136. (1) Notwithstanding anything in this Chapter the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.".

961. Appeal from Court of Session.-

So far as Courts of Session are concerned, the present position is this. Any person convicted at a trial held by the Sessions Judge or by the Additional Sessions Judge may appeal to the High Court.1 When the sentence passed by the Court of Session is one of death, the proceedings have to be submitted to the High Court for confirmation of the sentence, and the sentence cannot be executed unless to is confirmed by the High Court2.

1. Section 410, the Code of Criminal Procedure, 1898.

2. Section 374, the Code of Criminal Procedure, 1898.

962. Confirmation.-

The powers of the High Court on such reference are very wide, both in respect of procedure and in respect of the substantive order to be passed. The High Court can make or cause to be made a further enquiry into, or take or cause to be taken additional evidence upon, any point bearing upon the guilt or innocence of the convicted person1. It may confirm the sentence, or pass any other sentence warranted by law, or annul the conviction and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or acquit the accused person.2 The order of confirmation is not to be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.3 In fact, the confirmation proceeding and the appeal, if any, are heard together.

1. Section 375(1), Code of Criminal Procedure, 1898.

2. Section 376, Code of Criminal Procedure, 1898.

3. Section 376, Proviso, Code of Criminal Procedure, 1898.

963. Revision.-

Where the Court of Session, while convicting the accused of a capital offence, has imposed the lesser sentence, the High Court may, in exercise of its powers of revision, enhance the sentence1, after giving the accused an opportunity of being heard2. A revision cannot, of course, result in alteration of an acquittal into conviction3. Where the High Court confirms the sentence of death in confirmation proceedings, and maintains it in the appeal (if any), or enhances the lesser sentence to a sentence of death, further appeal to the Supreme Court is governed by Articles 134 and 136 of the Constitution4.

1. Section 439(1), Code of Criminal Procedure, 1898. As to appeal, see section 423(1A) of the Code.

2. Section 439(2) and section 439(6), Code of Criminal Procedure, 1898.

3. Section 439(4), Code of Criminal Procedure, 1898.

4. We need not discuss here Article 132 of the Constitution.

964. Appeals from acquittal.-

Where the Court of Session has acquitted the accused the State can appeal to the High Court1, and, in certain cases, a private party may also be allowed to appeal2. In such appeals, the High Court can reverse the order of acquittal and direct that further inquiry be made, or that the accused be retried, or committed for trial, or find him guilty and pass sentence on him according to law3.

1. Section 417 of the Code of Criminal Procedure, 1898.

2. Section 417(3) of the Code of Criminal Procedure, 1898.

3. Section 423(1)(a) of the Code of Criminal Procedure, 1898.

965. Appeal from conviction.-

In an appeal from conviction, the High Court may enhance the sentence after the accused has had an opportunity of showing cause against the proposed enhancement1-2.

1. Section 423(1A) of Code of the Criminal Procedure, 1898, as amended in 1955.

2. Figures relating to appeals to High Courts in capital cases are given separately.

966. Thus, whatever be the venue of the trial, every case of a capital offence, where the sentence of death is in issue, must ultimately come up before the High Court.

967. Article 134(1) of the Constitution sets out the extent of jurisdiction of the Supreme Court in criminal matters. The appeal lies in three cases-

(a) where the High Court, on appeal, reverses the order of acquittal by a Court of Session and sentences the accused to death;

(b) where the High Court withdraws a case from the Sessions Court and, on conviction, sentences an accused person to death;

(c) where the High Court certifies that a case is fit one for appeal to the Supreme Court.

This right of appeal under (c) above is not restricted to cases involving sentence of death, but extends to all criminal cases; it is however subject to rules made by the Supreme Court under Article 145 of the Constitution. Parliament has the power to confer on the Supreme Court any further powers to entertain and hear appeals from judgments, final orders or sentences in a criminal proceeding of a High Court under Article 134(2).

968. The appeal, therefore, lies as a matter of right where the High Court, for the first time imposes a sentence of death, either when the matter comes up in an appeal to the Court or when it tries a matter itself; but it does not lie as a matter of right in cases where the sentence is enhanced under section 439 of the Criminal Procedure Code.

As to when the appeal lies under clause (c) of Article 134(1), the principles have been laid down by the Supreme Court in some of its judgments, which we shall briefly discuss.

There is still another provision in the Constitution which confers jurisdiction on the Supreme Court to entertain appeals and that is Article 136, which also we shall discuss.

969. Under clause (c) of Article 134(1) of the Constitution, an appeal lies to the Supreme Court in all criminal matters where a certificate has been granted by the High Court of its being a fit case for appeal to the Supreme Court.

970. As to when a certificate can be granted under Article 134, the Supreme Court has laid down certain criteria for the exercise of discretion1. In Haripada Dey v. State of West Bengal, 1956 SCR 639., where a certificate had been granted in spite of the fact that the question involved was one of fact, the Supreme Court held that the grant of certificate was improper, and that the High Court had no jurisdiction to grant the certificate in these circumstances. The mere fact that the High Court was unable to remedy any defect on a question of fact was held not to be a ground on which a certificate could be granted.

In a later case2, where an appeal was dismissed by the High Court summarily and another Bench of the High Court had granted a certificate on the ground that on account of summary dismissal of the appeal, the appellant did not have the satisfaction of having fully heard, the Supreme Court held the certificate to be illegal, and observed-"Certifying" is a strong word and, therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case, requiring an authoritative interpretation by this Court. On the face of the judgment of the learned Chief Justice, the leave granted cannot be sustained3".

1. Nar Singh v. State of Uttar Pradesh, (1955) 1 SCR 238 (241-242).

2. Sidheshwar Ganguly v. State of West Bengal, 1958 SCR 749 (754).

3. Haripada Dey v. State of West Bengal, 1956 SCR 639, and case referred to therein.

971. In Khushal Rao v. State of Bombay, 1958 SCR 552 (559). where a certificate was granted not on a difficult question of law and procedure which required to be settled by the Supreme Court, but on a question which was essentially one of fact, namely, whether there was sufficient evidence of the guilt of the accused, the Supreme Court, following its previous judgment in Haripada Dey's case, made these observations:-

"In other words, this Court does not function, ordinarily, as a Court of Criminal Appeal. Under the Constitution, it has the power, and it is its duty, to hear appeals, as a regular Court of Appeal, on facts involved in cases coming up to this Court on a certificate under Article 134(1)(a) or (b). To the same effect are the other decisions of this Court, referred to in the reported decisions.1-2-3

It is, therefore, incumbent upon the High Courts to be vigilant in cases coming up before them, by way of an application for a certificate of fitness under Article 134(1)(c) of the Constitution."

In this case also, the certificate was held to be illegal.

Therefore, a certificate under clause (c) of Article 134(1) can be granted only where the question is one of great importance4-5.

1. Nar Singh v. State of Uttar Pradesh, (1955) 1 SCR 238.

2. Baladin v. State of Uttar Pradesh, AIR 1956 SC 181.

3. Sunder Singh v. State of Uttar Pradesh, AIR 1950 SC 411.

4. Banarsi Prasad v. Kasha Krishan, 28 IA 11 (13, 18) (PC).

5. See also Vaithianalh Pillal v. King Emperor, 40 IA 193: LR 36 Mad 501: 14 Cr LJ 577 (PC).

972. There is also another provision in the Constitution which gives to the Supreme Court the jurisdiction to hear appeals in criminal matters, and that is Article 136 of the Constitution. Several tests have been laid down as to when the Supreme Court will entertain an appeal under Article 136. As early as 1950, in Pritam Singh v. State 1950 SCR 453., the law was thus stated: The Supreme Court will not grant special leave to appeal under Article 136(1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question brings features of sufficient gravity to warrant a review of the decision. In the State of Madras v. A. Vaidyanatha Iyer 1957 SCR 581., the Court held that the Supreme Court will not readily interfere with the findings of the fact given by the High Court, but if the High Court acts perversely or otherwise improperly, interference will be called for.

The Supreme Court refused to give leave under Article 136 in Nar Singh v. State of Uttar Pradesh, (1955) 1 SCR 238 (242). where the sole question was the applicability of section 149 of the Indian Penal Code to a case where the High Court had held that the condition of five persons in section 149 had been complied with, and the only question was which was those of five persons and therefore a question of fact.

973. Thus, in our opinion, there is adequate provision in the Constitution to safeguard the interests of an accused person to prevent any miscarriage of justice or the imposition of a capital sentence not called for. The decisions on the subject of interference by the Privy Council in Criminal cases were reviewed hi Arnold's case1, where it was pointed out that the Judicial Committee was not a court of Criminal Appeal. It was also stated that the practice of the Court of Criminal Appeal in England would not be necessarily relevant regarding the procedure of the Privy Council in advising interference2.

1. Charming Arnold v. Emperor, (1914) 15 Cr LJ 309 (324, 325) (CP).

2. As to this point, see also Clifford v. Emperor, 40 IA 241: 15 Cr LJ 144 (PC) (A Court of Criminal Appeal can go into questions of evidence and questions of Procedure on the same footing as an ordinary Court of Appeal, but the Privy Council is limited by the principle laid down in Dillet's case).

974. In a recent decision of the Supreme Court1, the scope and ambit of Article 136 was considered. After pointing out that an appeal under Article 136 was not as of right, nor by special certificate of the High Court, the Supreme Court made the following observations:-

"Once a decision is given by the High Court, that is final unless an appeal is allowed by special leave of this Court. No doubt this Court has granted special leave to the appellants, but the question is one of the principles which this Court will ordinarily follow in such an appeal. It has been ruled in many cases before that this Court will not re-assess the evidence at large, particularly when it has been concurrently accepted by the High Court and the court or courts below. In other words, this Court does not form a fresh opinion as to the innocence or the guilt of the accused. It accepts the appraisal of the evidence in the High Court and the court or courts below.

Therefore, before this Court interferes something more must be shown, such as, that there has been in the trial a violation of the principles of natural justice or a deprivation of the rights of the accused or a misreading of vital evidence or an improper reception of evidence which, if discarded or received, would leave the conviction unsupportable, or that the court or courts have committed an error of law or of the forms of legal process or procedure by which justice itself has failed. We have, in approaching this case, borne these principles in mind. They are the principles for the exercise of jurisdiction in criminal cases, which this Court brings before itself by a grant of special leave.".

1. Saravanabhovan v. State of Madras, (1966) 1 SCA 730 (734): AIR 1966 SC 1276 (majority judgment).



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