Report No. 35
975. Cases not appealable at present without certificate etc.-
This survey of the constitutional and statutory provisions shows, that at present there are certain situations wherein, even if the sentence is one of death, a right of appeal, without certificate of High Court or leave of Supreme Court, to the Supreme Court from the determination of the High Court, is not available.
These are as follows:-
(i) Where the Court of Session has convicted the accused of a capital offence and sentenced him to death, and the sentence is confirmed by the High Court in proceedings for confirmation;
(ii) where the/Court of Session has convicted the accused of a capital offence and sentenced him to death and the sentence is upheld in appeal by the High Court;
(iii) where the Court of Session has convicted the accused of a capital offence, but sentenced him to the lesser sentence, and the High Court has enhanced the sentence to one of death, either in revision or in the appeal from the conviction filed by the accused under sections 411(1A) and 439(2), Code of Criminal Procedure, 1893;
(iv) where a Judge of the High Court, sitting on the original side, sentences the accused to death, and the sentence is maintained by the High Court in an appeal under section 411A of the Code of Criminal Procedure, 18981;
(v) where a Judge of the High Court, sitting on the original side convicts the accused of a capital offence, but sentences the accused to the lesser sentence, and the High Court, in an appeal by the accused against the conviction, enhances the sentence to one of death, under section 411A read with section 423(1A) of the Code of Criminal Procedure, 1898.
1. The right under section 411A(4), Criminal Procedure Code, is not an unqualified one.
976. Whether change required.-
The next question to be considered is whether any change in the law is required. The necessity for considering this question arises because of the fact that the move for abolition of capital punishment has raised questions as to whether the existing law ensures that a person sentenced to death gets adequate justice.
977. Recommendation in Fourteenth Report.-
The Law Commission had occasion to consider this question previously, when examining generally the reform of judicial administration. Its observations on the subject were as follows1:-
"40. Criminal Appellate Jurisdiction.-We have not before us any substantial body of opinion calling for the enlargement of the jurisdiction of the Supreme Court under Article 134. A view has, however, been expressed by the Government of Madras that the limited right of appeal now conferred in cases of persons sentenced to death by clauses (a) and (b) of Article 134(1) should be enlarged and that in all cases in which the accused persons are sentenced to death, there should be a right of appeal to the Supreme Court, without the need of a certificate from the High Court. It was suggested that Parliamentary legislation to this effect under Article 134(2) should be undertaken.
41. In our view adequate grounds have not been made out for the proposed enlargement of the right of appeal. Even in cases not covered by clauses (a) and (b) of Article 134(1), the High Court has the power to certify a case as fit for appeal to the Supreme Court under clause (c). There is no reason to suppose that cases in which accused persons are sentenced to death other than those falling under clauses (a) and (b) of Article 134, if they are fit ones for appeal, are not being certified as fit cases under clause (c) of Article 134(1).
There is also the safeguard provided by the wide powers of the Supreme Court under Article 136 which will not fail to be exercised in cases of death sentences where a miscarriage of justice has occurred. The proposal of the Madras Government is based on the view that all cases, where the extreme penalty of the law has been awarded, should be examined by the Supreme Court. We are not inclined to accept this view. For over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Courts should not continue to deal with such cases in the same manner.".
Thus, enlargement of the jurisdiction, so as to allow an appeal in all cases wherein persons are sentenced to death, was not favoured, for several reasons; first, because of the Commission had not a substantial body of opinion calling for enlargement of jurisdiction; secondly, because the Commission thought that there was no reason to suppose that cases which were fit for appeal were not being certified under Article 134(1)(c); and thirdly, because the Commission felt that the safeguard under Article 136 would not fall to be exercised to rectify a miscarriage of justice.
1. Fourteenth Report of the Law Commission (Reform of Judicial Administration), Vol. 1.
978. Developments during last 10 years.-
It has, no doubt, to be noted, that since this Report was submitted, there has been a lot of thinking generally on the subject of capital punishment and particularly on the question of appeals in capital cases. During the last 10 years or so, the question of abolition has been debated again and again in many countries as well as in India, and one of the arguments against the retention of capital punishment is the possibility of erroneous conviction. That consideration, which no doubt must have been present to the minds of the framers of the Constitution1, has now come to the forefront, and it would not be improper if the question of right of appeal is reexamined in this light.
1. See Article 134(1)(a) and (b) of the Constitution.
979. Views of Canadian Committee.-
We may, in this connection, refer to the views of the Canadian Committee. That Committee noted1 that under the law in force then, a person whose conviction was upheld by a Provincial Court of Appeal, might appeal as of right to the Supreme Court of Canada, where there was a dissent on a question of law in the lower Court, and that, otherwise he could appeal to a single Judge of the Supreme Court after obtaining leave of appeal on a question of law.
After noticing that, under the law in force then, Courts could not grant an extension of time for leave to appeal in certain cases, and stating that this might cause injustice and embarrassment and the accused may be deprived of his right to appeal on a technical slip, the Committee recommended, first, an "automatic appeal" to a Provincial Appellate Court after every capital conviction, (so that the record would be transmitted to the Appellate Court automatically); secondly, that competent counsel should be provided to the appellant in such cases; and thirdly, that an appeal should be allowed from the Provincial Court of Appeal to the Supreme Court of Canada as of right to every person subject to a capital sentence2.
It is the last recommendation that is of interest to us. The Committee made this recommendation "because of the gravity of the crime and sentence". We quote below the relevant paragraph:-
"84. At present, appeals to the Supreme Court of Canada are limited to appeals as of right where there is a dissent on a question of law in the Provincial Court of Appeal. Otherwise an appeal may be taken only on a question of law if leave is obtained from one judge of the Supreme Court of Canada. Because of the gravity of the crime and sentence, the Committee considered it proper that an opportunity to be heard by the court of last resort should be open to every person subject to a capital sentence and recommends that the law be amended to provide for an appeal as of right in such event to the Supreme Court of Canada."
1. Canadian Report, p. 4, para. 9.
2. Canadian Report, p. 21, paras 83 and 84.
980. Canadian provision.-
Accordingly, the law has now been altered in Canada by the amendment made in 1961 to the Criminal Code. Sections 583A and 597A, of that Code (inserted in 1961) (dealing respectively with first and second appeals) are quoted below1:-
1. Sections 583A and 597A, Criminal Code (Canada).
"583A. (1) Right of appeal of person sentenced to death.-Notwithstanding any other provisions of this Act, a person who has been sentenced to death may appeal to the court of appeal-
(a) against his conviction on any ground of appeal that involves a question of law or fact or mixed law and fact; and
(c) against his sentence unless that sentence is one fixed by law.
(2) Notice deemed to have been given.-A person sentenced to death shall, notwithstanding he has not given notice pursuant to section 586, be deemed to have given such notice and to have appealed against his conviction and against his sentence unless that sentence is one fixed by law.
(3) Court of appeal may consider.-The court of appeal, on an appeal pursuant to this section, shall-
(a) consider any ground of appeal alleged in the notice of appeal, if any notice has been given; and
(b) consider the record to ascertain whether there are present any other grounds upon which the conviction ought to be set aside or the sentence varied as the case may be.
"597A. Appeal on law or fact or mixed law and fact.-Notwithstanding any other provision of this Act, a person-
(a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or
(b) who is acquitted of an offence punishable by death and whose acquittal is set aside by the court of appeal; may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact.".
981. Position in other countries.-
It must, however, be noted that in other countries of the Commonwealth1, excepting Canada, the right of appeal has not been widened, and broadly speaking, it is limited to questions of law except with the leave of the appellate Court. There is no absolute right of second appeal in a criminal case, on a question of fact, even where a sentence of death is passed.
1. Comparative material is given separately.
982. Question of enlargement considered.-
The question now is whether any change in the law is required. This question has so many aspects, and much can be said on either side. On the one hand, the widening of the jurisdiction of the Supreme Court is, no doubt, bound to increase its work.
983. On the other hand, there are certain points, stated below, which require to be considered.
984. First, the replies1 which we have received to our Questionnaire show that there is a considerable body of opinion in favour of proposed enlargement of the jurisdiction of the Supreme Court.
Secondly, the risk of an erroneous conviction is a fact which has to be considered. The law should make that utmost efforts to see that all safeguards that are reasonably practicable are made available for avoiding an erroneous conviction, in a case where the sentence of death has been awarded.
1. Replies to question 10 have been summarised separately. See paras. 926, 956, supra.
985. We have to consider this question, not from any abstract theoretical point of view, but from the practical point of view. The jurisdiction of the Supreme Court to intervene where there is a miscarriage of justice in criminal matters has been provided for in the Constitution in an ample measure. Expense and enlargement of the work of the Supreme Court, it has been argued, should not stand in the way of giving relief to the persons convicted in criminal matters, as the life and liberty of human being are more important than property. But that cannot conclude the matter. Life and liberty are certainly more important than property, but an unrestricted right of appeal either in civil or in criminal matters will do incalculable harm to the society1.
The general principle behind Article 134, is that a person who has been condemned to death ought to have at least one right of appeal2. This can be illustrated with reference to Article 134(1)(a) and (b). Thus, the principle on which Article 134(1)(a) proceeds is that where a person acquitted by the Court of Session (or, in the case of High Court exercising original criminal jurisdiction, at the High Court sessions) is, on an appeal against acquittal, convicted by the Appellate Bench, a right of appeal to the Supreme Court is needed, because the initial presumption of innocence is, in this case, further strengthened by the fact that the trial judge has found him innocent.
If, against this double presumption, the Appellate Bench finds him guilty and sentence him to death, it is certainly a matter which requires further investigation3. Similarly, Article 134(1)(b) provides a right of appeal to a person who has been acquitted for the first time and condemned to death by the High Court, and is based on the principle that a person who has been condemned to death ought to have at least one appeal4.
1. Cf. Dr. Bakshi Tek Chand's speech, Vol. 8, Constituent Assembly Debates, p. 850 (14th June, 1949).
2. See Dr. Ambedkar's speech, 8 CAD 853.
3. Dr. Bakshi Tek Chand's speech, Vol. 8, Constituent Assembly Debates, p. 851 (14th June, 1949).
4. See Dr. Ambedkar's speech, 8 CAD 853 (14th June, 1949).
986. These considerations do not apply to the cases sought to be covered by the suggested enlargement of the Supreme Court's jurisdiction. In cases other than those covered by Article 134(1)(a) and (b), the facts of the case would have received detailed consideration at the hands not only of the Court of Session but of the High Court, and, in effect, the High Court goes through the whole evidence over again in confirmation proceedings; and if it finds that the accused has been rightly convicted on the evidence, there are concurrent findings on facts. In such a case, it will be wrong to allow an appeal to the Supreme Court, as such appeal will amount to an appeal on grounds of facts.
987. Lastly, there is no reason to believe that the appellate jurisdiction of the Supreme Court is not a sufficient safeguard against the miscarriage of justice.
988. The fact that the Supreme Court had, in a majority of cases1, to refuse leave to appeal, further shows that that Court has not found any serious flaw in the present scheme. It is, no doubt, true that no human agency can be infallible, and it can be appreciated that a person sentenced to death may be desirous of having his case considered at the hands of the court of last resort. A line has, however, to be drawn somewhere; the existing law draws the line at the level of the High Court, and no convincing reasons have yet been made out to shift that line higher up.
1. See figures relating to special leave to appeal to the Supreme Court, given separately.
989. Further, the existing law provides adequate safeguards against an error on facts.
For these reasons, no change is recommended.
