Report No. 187
Right of appeal to Supreme Court
There are many provisions in the Code of Criminal Procedure, 1973, which enable the High Court to award or confirm the death sentence. Under section 368 of the Code, a High Court can confirm the death sentence passed by the Court of Session. High Court can withdraw a case pending before a subordinate court and can try itself and can pass death sentence (section 407, Cr.PC). High Court on appeal against an order of acquittal passed by a Court of Session, can convict a person and pass sentence of death (section 386(a), Cr.PC). Apart from this, High Court while exercising power of enhancing the sentence can award the sentence of death (section 386(c), Cr.PC) But as of now appeal to the Supreme Court cannot be filed as of right in all the cases where the High Court has passed the death sentence.
In the following cases where the High Court passes a sentence of death, appeal to the Supreme Court can be filed as of right:-
(i) where High Court convicts a person on a trial held by it in its extra ordinary criminal jurisdiction. (Section 374(1), Cr.PC)
(ii) where High Court has withdrawn for trial before itself any case from any court subordinate to it and in such trial convicts the accused person and sentence him to death. (Art. 134(1)(b) of the Constitution of India).
(iii) Where High Court on appeal reversed an order of acquittal of an accused person and sentence him to death. (Art.134(1)(a), of the Constitution, section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, and section 379 of the Cr.PC.
(iv) Right to appeal to the Supreme Court is also provided where the High Court on appeal reversed an order of acquittal of an accused person and sentence him to imprisonment for life or imprisonment for a term of 10 years or more. (Section 379 of the Cr.PC and Sec.2 of the aforesaid Act of 1970).
However, in the following cases, a person against whom death sentence is passed or confirmed by the High Court, no appeal to the Supreme Court as of right is provided:-
(i) where the High Court under section 368 of the Cr.PC confirms the sentence of death awarded by the Court of Session, no appeal as of right may be preferred to the Supreme Court. In this regard following finding of the full bench of the Madras High Court made in K Govindswamy vs. Govt. of India, A.I.R. Mad. 204 (1990 Cr.LJ 1326) is also relevant,
"Hence, as against an order of confirmation of death sentence passed under section 368 of the Code of Criminal Procedure, 1973 there is and there can be no further right of first appeal on facts to the Supreme Court, unless the High Court in exercise its power under Article 134(1) (c ) grants leave to appeal to the Supreme Court, or, the Supreme Court grant special leave under Art.136(1) of the Constitution for an appeal being preferred".
In Chandra Mohan Tiwari vs. State of MP, AIR 1992 SC 891 , the Supreme Court has held that, in cases which are not covered by Article 134(1)(a) and (b) or section 2(a) and (b) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 or by section 379 of the Cr.PC, appeal in the Supreme Court will lie only either on a certificate granted by the High Court under Article 134(1)(c) or by grant of Special Leave to appeal by the Supreme Court under Article 136 of the Constitution of India.
That means that a person whose sentence of death awarded by the Court of Session is confirmed by the High Court, no appeal as of right can be preferred to the Supreme Court.
(ii) As per section 377 of the Cr.PC, the State Govt. or the Central Govt. as the case may be, may direct the public prosecutor to present an appeal to the High Court against the sentence passed by a trial court on the ground of inadequacy. The High Court may enhance the sentence to a sentence of death after giving an opportunity of hearing to the convict. (Sec.386(c) (iii), Cr.PC).
High Court can enhance the sentence passed by a trial court not only where the State has preferred an appeal against the sentence, but also where no appeal has been preferred by the State on the ground of inadequacy of sentence, in exercise of its suo-motu revisional power vested in it under section 397 read with section 401 Cr.PC. The Supreme Court in Nadir Khan vs. The State (Delhi Admn.), AIR 1976 SC 2205 , has held that High Court 58while exercising its criminal revisional jurisdiction has power to act suo-motu to enhance the sentence in appropriate case even in absence of an appeal against the adequacy of sentence as provided in section 377 of the Cr.PC.
Again in Sahib Singh vs. State of Haryana, AIR 1990 SC 1188 , the Supreme Court has observed that the failure on the part of the State Govt. to prefer an appeal does not, however, preclude the High Court from exercising suo-motu power of the revision under section 397 read with section 401 of the Cr.PC, since High Court itself is empowered to call for the record of proceedings of any court subordinate to it.
But before enhancing the sentence the High Court has to give notice and opportunity of hearing on the question of sentence to the convict, either in person or through counsel. (see also Surjit Singh vs. State of Punjab, AIR 1984 SC 1910 (2)) It is evident that High Court can enhance the sentence under its suo-motu revisional power, even without an appeal filed by the State. But where the High Court enhances the sentence passed by trial Court and passes even sentence of death, no appeal, as of right can be preferred in the Supreme Court against the order of enhancement of sentence.
As discussed, in both the circumstances mentioned above, no appeal as of right, to the Supreme Court can be preferred against the judgment of the High Court where it has awarded the death sentence. Appeal can only be filed either when a certificate under Article 134 (1)(c ) of the Constitution of India has been granted by the High Court that the case is fit one for appeal to the Supreme Court, or if the Supreme Court itself grants leave to appeal under Article 136(1) of the Constitution of India. But as of right no appeal can be preferred to the Supreme Court in such circumstances.
Death sentence can be passed by a Court Martial constituted under the Army Act, 1950, Air Force Act, 1950, Navy Act, 1957, and this has to be confirmed by the Central Government or by other authorities. But as of now, there is no provision under which appeal against such order can be filed. Even special leave to appeal to Supreme Court against such order of the Court Martial does not lie under Article 136(1) of the Constitution in view of the bar contained under Article 136(2) of the Constitution of India.
It may be mentioned that the right of appeal in civil cases was guaranteed till 1979 under pre-amended Article 133 of the Constitution when the pecuniary value of the subject matter was more than Rs.20,000/-. Similarly, under the Advocates Act, 1961 right of appeal to the Supreme Court is guaranteed against the decision of the Bar Council of India as follows:-
"38. Appeal to the Supreme Cour.- Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or section 37 (or the Attorney-General of India or the Advocate General of the State concerned, as the case may be) may, within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order (including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India) thereon as it deems fit:
Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard. "
So also under the Representation of Peoples Act, 1951, the right of appeal is guaranteed as follows:-
"116A. Appeals to Supreme cour.- (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by High Court under section 98 or section 99.
(2) Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under section 98 or section 99:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period."
Similarly, under Section 55 of the Monopolies & Restrictive Trade Practices Act, 1969, the right to appeal to the Supreme Court is guaranted as follows:-
"55. Appeals.-- Any person aggrieved by any decision on any question referred to in clause (a), clause (b) or clause (c) of section 2A, or any other made by the Central Government under Chapter III or Chapter IV, or, as the case may be, or the Commission under section 12A or section 13 or section 36D or section 37,may, within sixty days from the date of the order, prefer an appeal to the Supreme Court on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908)."
If the right of appeal to the Supreme Court is guaranteed in such matters, the question arises as to why appeal as of right should not be granted against death penalty imposed by the High Court, when death punishment has more serious consequences and is qualitatively different from any other punishment and is irreversible and there is scope for correcting an error.
Further, the afore quoted observations of Bhagwati J. in Bachan Singh's case (supra) that in every case where the death sentence is confirmed by the High Court 61there shall be an automatic review of the death sentence by the Supreme Court sitting as a whole and that the death sentence shall not be affirmed or imposed by the Supreme Court unless it is approved unanimously by the entire court sitting en banc, are apposite here. Accordingly, in the Consultation Paper a specific question was mooted as to whether in the Supreme Court a Bench of not less than 5 Judges should decide cases where death punishment has been awarded to invite the views of all concerned. This requires the Supreme Court Rules to be amended.
There may also be cases of acquittal or sentence of imprisonment for a term or life sentence given by the High Court against which the State may appeal to the Supreme Court. In E.K.Chandrasenan v. State of Kerala, AIR 1995 SC 1066, the Supreme Court held that it can suo-motu enhance the punishment to death sentence.
There is therefore also the need to make appropriate provision to deal with situations where in case the Supreme Court thinks that the acquittal is wrong and the accused should be convicted and sentence to death; or it thinks that the sentence for a term or life sentence is to be enhanced to a death sentence, then the Supreme Court may direct the case to be placed before the Hon'ble Chief Justice of India for being heard by a Bench of at least five judges. This also requires the Supreme Court's rules to be amended.