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Report No. 41

Chapter XXVII

Submission of Sentences for Confirmation

27.1. Section 37.-Supreme Court's power to confirm in appeal.-

When the Court of Session passes sentence of death and the proceedings are submitted to the High Court, section 374 provides that the sentence shall not be executed unless it is confirmed by the High Court. In an appeal which came before the Supreme Court, the accused had been sentenced to death by the Court of Session but the High Court, holding that section 27 of the Evidence Act was unconstitutional, excluded a statement admitted under that section and acquitted the accused as the remaining evidence was not sufficient to establish his guilt.

Against this order of acquittal the State appealed to the Supreme Court with a certificate under Article 134(1 )(c) of the Constitution granted by the High Court. The Supreme Court decided that section 27 of the Evidence Act was a valid provision and that, if the evidence admitted under that section was taken into account, there was no doubt as to the guilt of the accused. Their Lordships accordingly set aside the order passed by the High Court and restored the order passed by the Court of Session. They stated1.-

"It may be observed that the sentence of death cannot be executed unless it is confirmed by the High Court. The High Court has not confirmed the sentence, but in exercise of our powers under Article 136 of the Constitution, we may pass the same order of confirmation as the High Court is, by the Code of Criminal Procedure, competent to pass. We accordingly confirm the sentence of death."

It is difficult to follow the reference to Article 136; and it is possible that a reference to Article 142(1) was intended. However that may be, in view of this decision of the Supreme Court, we do not think it is necessary to amend section 374 of the Code for this purpose.

1. State of Uttar Pradesh v. Deoman Upadhyaya, 1961 (1) SCR 14 (33).

27.2. Authority to issue warrant in Form 34.-

After passing sentence of death, the Court of Session is expected to issue a "warrant of commitment under sentence of death" to the Superintendent of Jail. While the form of warrant is set out as Form XXXIV in the Fifth Schedule to the Code, it is not expressly referred to or provided for in section 374 or anywhere else. It is noticed that when the accused is sentenced by the Court of Session to imprisonment for life, section 383 expressly provides for the issue of a suitable warrant and the forwarding of the accused with the warrant to the jail in which he is to be confined. It is desirable that a similar provision should be made in section 374 so that there may be specific statutory authority for holding the accused in prison after the Court of Session has passed sentence of death and until it is executed in due course. We recommend that a su.-section should be added as follows.-

"(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant."

27.3. Section 375.-

In view of the abolition of jury trials, su.-section (2) of section 375 may be formally amended to read.-

"(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken."

27.4. Section 376.- No change is needed in section 376.

27.5. Section 377.-

Section 377 requires that every confirmation case shall be heard and decided by a Bench of two or more Judges of the High Court. The section, however, does not apply to a Judicial Commissioner's Court which has only one Judge, as in the Union Territories of Manipur and Tripura. It is somewhat anomalous that a person sentenced to death in either of these Union Territories does not have the benefit of two Judges of the Court of Criminal Appeal reviewing his case as in the rest of India. An obvious way of removing the anomaly is to extend the jurisdiction of the Assam High Court to these two Union Territories. However, since the number of death sentences passed by the two Sessions Judges is very small, the matter is not of much practical importance. No amendment is proposed in section 377.

27.6. Section 378.-

The wording of section 378 is repeated in section 429 which applies when the Judges composing the Court of Appeal are equally divided in opinion in regard to "the case" heard by them. The question has frequently arisen under section 429 as to what exactly is the case that is to be laid before the third Judge, whether it means the entire case of all the accused and all the charges in which they were tried, or whether it means the entire case of a particular accused about whose guilt the Judges are equally divided in their opinion or whether, even more restrictedly, it means only the particular point or points of law or of fact on which there is a difference of opinion. This difficulty does not appear to have been felt to any noticeable extent with reference to section 378.

27.7. In any event we do not consider it necessary or desirable to amend section 378 with the object of clarifying the position. When, for instance, five persons are tried together on charges of a capital offence, two are convicted and sentenced to death and the others are convicted of lesser offences, the whole proceedings before the Court of Session are submitted to the High Court for obtaining confirmation of the two death sentences passed in the case. If the two Judges hearing the "referred cases" together with the connected appeals, if any, of the convicted persons, are agreed that the death sentence of one of them should be confirmed but divided in opinion as to the other, it is "the case" heard by the Bench which has to be laid before another Judge together with the opinion of the two Judges.

The matter in regard to which the third Judge has to deliver a binding and conclusive opinion under section 378 is not expressly indicated in the section. There can however be hardly any doubt that it is the matter over which there is a difference of opinion between the two Judges and that the third Judge is entitled and bound to consider this matter in all its aspects and give his opinion so that a conclusive judgment or order may follow thereon. There is nothing to be gained by amending or adding to the words used in section 378 which would only have the effect of fettering the discretion of the third Judge.

27.8. In several cases the question has been discussed whether the third Judge ought to consider himself bound by the views expressed by the two referring Judges on points on which there was no difference between them. Under the corresponding provisions in the Letters Patent1 of High Courts and in the Code of Civil Procedure,2 the view of the majority of all the Judges including those who first heard the case prevails in a civil matter. The position in criminal cases, however, is different from that in civil cases where clea.-cut issues of fact and law have to be framed and decided.

As observed by the Supreme Court3 with reference to section 429, it is for the third Judge to decide on what points, if any, he will hear arguments and this postulates that he is completely free to resolve the differences in such manner as he thinks fit and proper. The position for the purposes of section 378 is no doubt the same. In our view, no change in the Code of Criminal Procedure is needed on this point, and the matter should be left to the discretion of the third Judge.

1. See e.g., Clause 36, Letters Patent of the Calcutta High Court.

2. Section 98.

3. Dharam Singh v. State, (1962) Suppl 3 SCR 769; Babu v. State, AIR 1965 SC 1467 (1470).

27.9. We may here refer to the amendment of section 378 proposed by the Lowndes Committee in 1917. They stated in their Report.-

"We think that in confirmation cases, where the Judges hearing the case are equally divided, it may not always be sufficient to refer the case to another Judge by whose opinion it is to be decided. We think that it should be within the power of the Judges before whom the case was originally heard in the High Court to insist upon a r.-hearing before themselves and the additional Judge. As in some cases this may not be feasible, we would allow the Chief Justice in any such case to direct a r.-hearing before three other Judges."

That Committee accordingly proposed the addition of the following proviso to section 378.-

"Provided that, if any Judge being a member of such Bench so require, such case shall be r.-heard before them and another Judge or, if the Chief Justice or the Judicial Commissioner so direct, before three other Judges, and the judgment or order shall follow the opinion of the majority of the Judges so r.-hearing such case."

This amendment was not accepted by the Select Committee which reported on the Bill in 1922.-

"The amendment of section 378 has been condemned by a majority of the Judges who have expressed an opinion on the Bill. In view of the fact that the difficulty which the amendment is intended to meet is probably of rare occurrence and that the second portion of the proviso will be inapplicable in the case of Judicial Commissioners' Courts which do not at present consist of five Judges, we prefer to leave the law as it is, and we delete this clause.1"

1. Gazette of India (1922), Pt. V, pp. 263 and 264; Report of the Select Committee under clauses 99 and 113.

27.10. Section 379.- No change is required in section 379.

27.11. Section 380.-

Section 380 is ancillary to section 362 which empowers Courts to release certain convicted first offenders on probation of good conduct instead of sentencing them to imprisonment. In fact, with the enforcement of the Probation of offenders Act, 1958, in many States, the utility of section 562 of the Code has been much reduced. If at all it is necessary to retain that section in the Code, section 380 may appropriately be added to it. We propose to omit section 380 from this Chapter and consequentially to alter the heading of the Chapter to "Of the Submission of Death Sentences for Confirmation."

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