Report No. 41
28.1. Section 38.-Death sentence passed by High Court in appeal or revision.-
Section 381, as it now stands, is confined to cases where a sentence of death passed by a Court of Session is sent up for confirmation by the High Court. When a sentence of death is passed by the High Court in appeal or in revision proceedings for enhancement of sentence, its execution is now left to be governed by sections 425(2) and 442 and the High Court Rules. As it is desirable to have a specific provision in regard to this important matter, we recommend that a new section 381A be inserted after section 381, as follows.-
"381A. Execution of death sentence passed by High Court.- When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant."
28.2. Postponement of execution in case of appeal to Supreme Court.-
We propose the insertion of another new section providing for the postponement of execution of a death sentence in cases where an appeal against the judgment of a High Court passing or confirming such sentence can be preferred to the Supreme Court under the Constitution. Our object in recommending the new provision is to ensure that where there is a possibility of appealing to the Supreme Court, the appeal is not rendered infructuous by an unfortunately prompt execution of the sentence.
Appeals in capital sentence cases may come up before the Supreme Court; (i) as of right under su.-clause (a) or (b) of Article 134(1); or (ii) on a certificate of fitness granted by the High Court under Article 132 or 134(1)(c), or (iii) after obtaining special leave from the Supreme Court under Article 136 of the Constitution.
In the first case, since the appeal is as of right, it is clearly necessary that execution should be postponed until the period of limitation for preferring the appeal expires, or, if an appeal is filed within that period, until the appeal is disposed of.
In the second case, it is only if an application for a certificate is made to the High Court that there is a reasonable possibility of appeal. If such application is made, execution should be postponed until the application is disposed of. If the certificate is granted, the possibility of appeal becomes almost a certainty, and the execution should be further postponed till the period of limitation for preferring an appeal expires. Within that period, the person sentenced should prefer an appeal and obtain a stay from the Supreme Court.
In the third case, it is sufficient if execution is postponed for such period as would enable the person sentenced to apply for special leave to the Supreme Court. Within that period, the person sentenced can apply for special leave and obtain from the Supreme Court orders for stay of execution.
28.3. New Section 38113.-
The new section providing for postponement of execution pending possible appeal to the Supreme Court may be/as follows.-
"381B. Postponement of execution in case of appeal to Supreme Court.- (1) Where a person is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under su.-clause (a) or (b) of clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or, if an appeal is preferred within that period, until such appeal is disposed of.
(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under su.-clause (c) of clause (1) of Article 134 of the Constitution, the High Court shall order execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.
(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under Article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition."
28.4. Section 382.- No change is needed in section 382.
28.5. Section 383.-
Under section 383, an accused person sentenced to imprisonment has to be forwarded with a warrant to "the jail in which he is or is to be confined". Section 384, however, refers to "the jail or other place", indicating the possibility of a convicted persons being confined temporarily in a place other than a jail. It is desirable to bring the wording of section 383 into line with that of section 384 in this respect.
Secondly, where the accused is sentenced to imprisonment till the rising of the Court, as is sometimes done, he is simply detained in custody in the Court premises for the few hours. No warrant is prepared or sent under section 383, which can be regarded as a breach of the statutory provision. It is desirable to add a proviso to the section legalising the procedure.
Thirdly, in our discussion1 on section 366, we have suggested that a suitable provision should be made in section 383 for cases where a sentence of imprisonment is passed in the absence of the accused.
Accordingly, we recommend that section 383 may be amplified and amended as follows.-
"383. Execution of sentence of imprisonment.-(1) Where the accused is sentenced to imprisonment for life or imprisonment in cases other than those provided for by section 381, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant:
Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the court may direct.
(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in su.-section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest."
1. See para. 26.6 above.
28.6. Sections 384 and 385.- No change is needed in sections 384 and 385.
28.7. Section 38.-Levy of fine by attachment and sale of movable property.-
Section 386 lays down the two methods by which the Court passing a sentence of fine may take action for realising it. One is to issue a warrant for levying the amount by attachment and sale of any movable property belonging to the offender. By virtue of section 4(2) the expression "movable property" has the meaning assigned to it by section 22 of the Indian Penal Code, and not the wider meaning given in the General Clauses Act, 1897; only "corporeal property" may be attached and sold for realising the fine imposed by a criminal court.
This would appear to exclude actionable claims, debts, salary not due, etc. from the court's process. Where the offender has only a share in movable property belonging to a joint family questions have arisen in the Courts whether the share can be attached and sold, and if so, whether attachment can be by way of seizure of the property. We do not, however, consider it necessary to clarify and elaborate this clause. It is primarily intended to furnish the Court with a rough and ready method of seizing and selling tangible goods belonging to the offender, especially when the fine to be realised is not a large sum, and it can be left at that.
28.8. Fine to be made recoverable as arrear' of land revenue.-
The second method laid down in clause (b) of su.-section (1) and su.-section (3) is cumbrous and time consuming. The Collector to whom the warrant is sent has to take steps like any other decre.-holder in a civil court for recovery of the fine. This appears to be a waste of time. Once payment of an amount has been judicially ordered, there is no reason why the amount due to the State should not be recovered like any other monetary demand of the State. We recommend that a provision authorising recovery of the fine by the Collector as an arrear of land revenue may be substituted in place of clause (b).
It appears that there is some uncertainty as to how far property exempt from attachment under the Code of Civil Procedure is exempt when the Collector proceeds under clause (b). In view of the changed procedure which we propose in place of clause (b), it is unnecessary to discuss this point elaborately.
28.9. Section 386(1), proviso.-
Under the proviso to section 386(1), if the offender has undergone the whole of the imprisonment in default of payment of fine, no court shall issue a warrant for levy of the fine unless, for special reasons to be recorded in writing, it considers it necessary to do so. The object of the proviso and the special reasons that can possibly arise were dealt with at length in a Bombay case1 in these words.-
"The proviso applies in terms only to the issue of a fresh warrant and does not require the withdrawal of a warrant already issued before expiration of the sentence in default of payment. But I think that in dealing with such existing warrants the Court should follow the policy which seems to have inspired the proviso to section 386.
"That policy appears to be that in general an offender ought not to be required both to pay the fine and to serve the sentence in default. But the proviso enables a warrant to be issued for recovery of the fine, even if the whole sentence in default has been served, if the Court considers that there are special reasons for issuing the warrant. I apprehend that the special reasons should be reasons accounting for the fact that the fine has not been recovered before the sentence in default has been served, and any reasons which are directed to that point would be relevant.
It may be that the authorities, through no negligence on their part, did not know of the existence of the property or the accused may have inherited property after he served his sentence in default; or there may not have been time to execute the warrant. Matters of that sort would all be special reasons for issuing a warrant after the sentence in default had been served; and I think, in the same way, they are reasons justifying the Court in refusing to withdraw a warrant already issued.
"In the present case, in my opinion, there are special reasons, though not quite those which were recorded by the Judge. I think that a special reason for not withdrawing the warrant is that before the sentence in default had been served the authorities had taken steps to enforce this warrant by levying execution upon the immovable property of the applicant, and the delay which has taken place is not, in my opinion, shown to be due to any default on the part of the authorities. The learned Judge himself gave as his reasons for not withdrawing the warrant that the offence was a serious one and the complainant had been allotted part of the fine. In my view, reasons of that sort are not relevant because they do not account for the fine not having been recovered before the service of the sentence in default."
1. Digambar v. Emperor, AIR 1935 Bom 160 (161, 162) (Beaumont C.J.).
28.10. Fine should be recoverable when compensation has been ordered.-
We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not, in our opinion, be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under section 545 has been passed for payment of expenses or compensation out of the fine, recovery of the fine should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to section 386(1) should make this clear.