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Report No. 187

Chapter 8

Recommendations

In the light of the study made in earlier chapters on the mode of execution of death sentence and the responses which the Law Commission received to its Consultation Paper and Questionnaire, the Law Commission recommends as follows:-

1. More than 85% persons in their responses have favoured that section 354(5) of the Cr.PC 1973 is required to be amended for providing other mode of execution of death sentence and approx. 76% persons are in favour that administering the lethal injection should be a mode of execution of death sentence.

The Commission is of the view that administering the lethal injection should be provided as an alternative mode of execution of death sentence along with existing mode of execution of death sentence by 'hanging by neck till death' as provided in section 354(5) of the Cr.PC, 1973. It may not be appropriate at this juncture to wipe out altogether the present mode of execution of death sentence i.e. ' hanging by neck till death'. We are of the view that the present mode of execution be retained and a further provision be added permitting an alternative mode of execution of death sentence by lethal injection.

Therefore the Commission recommends that,-

Section 354(5) of Cr.PC of 1973 which provides "when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he 83is dead", needs to be amended by providing an alternative mode of execution of death sentence by administering lethal injection until the accused is dead.

2. Whether discretion should be given to the court or to the convict in choosing the mode of execution of death sentence, majority of responses suggest that it should be given to the convict and not to the court.

The Commission is of the view that discretion should be given to the Court which can decide the mode of execution of death sentence after taking various relevant factors into consideration. Besides, the Commission is of the view that opportunity of hearing should be given to the convict on the question of mode of execution of death sentence, now that an alternative mode is recommended.

The court shall have to pass appropriate orders after hearing the accused on the mode of execution of death sentence. In this regard, a suitable provision for providing an opportunity of hearing to the convict on the question of mode of execution of death sentence needs to be inserted in section 354 of the Code of Criminal Procedure, 1973 which is applicable to the trial court as well as all appellate courts.

Therefore the Commission recommends that:-

In order to give opportunity of hearing to the accused about the mode of execution of death punishment, sub section (5) of section 354 of the Code of Criminal Procedure, 1973 needs to be amended by inserting a proviso as follows:

"Provided that the Court shall before passing the final order as to mode of execution of death sentence, hear the accused on that question".

3. As per section 166 of the Army Act, 1950, section 163 of the Air Force Act, 1950 and section 147 of the Navy Act, 1957, death sentence may be executed either by hanging by neck till death or by being shot to death.

The Law Commission is of the view that in these Acts, execution of death sentence by 'being shot to death' may be retained and the other mode of execution of death sentence by 'hanging by neck' prescribed by these Acts should be substituted by the words 'administering lethal injection'.

Therefore, the Commission recommends tha.-

The words "administering lethal injection until the accused is dead" should be substituted in place of "suffer death by being hanged by the neck until he be dead" in section 166 of the Army Act, 1950, section 163 of the Air Force Act, of 1950 and section 147 of the Navy Act of 1957.

4. Approx. 88% persons in their responses have suggested that in Supreme Court appeal should lie as of right in cases where High Court awards or confirm death sentence passed by the Court of Sessions.

Therefore, the Commission recommends that,-

There should be a statutory right of appeal to the Supreme Court against the judgment of High Court confirming the death punishment awarded by the Court of Session or awarding the death punishment in exercise of its power of enhancing the sentence.

In this regard a suitable amendment needs to be made in the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 by way of addition of clause (c) in section 2 of the Act as follows:-

"(c) has confirmed the death sentence passed by the Court of Session or awards the sentence of death in exercise of its power of enhancing the sentence under section 386(c) (iii) or sections 397 and 401 of the Code of Criminal Procedure, 1973".

5. Judge Advocates General of the Army, Navy and Air Force wrote letters to the Law Commission suggesting that there should not be a right of appeal to the Supreme Court against the Court Martial verdict of awarding that punishment.

The Law Commission is, however, unable to accept the above suggestion. The Commission, therefore recommends that,-

Regarding providing a right of appeal to the Supreme Court under the Army Act, 1950; Air Force Act, 1950; and Navy Act, 1957 where the court martial has passed the sentence of death and it has been confirmed by the Central Government or appropriate authority, wherever required, suitable 85amendments be made in the above said Acts so as to provide a right to appeal to the Supreme Court against the order of confirmation of sentence of death by the Central Government or by appropriate authority.

6. (A) Majority of the persons expressed the view that in the Supreme Court, a Bench of not less than 5 Judges should hear and decide the cases where death punishment has been awarded. The Law Commission is also of the same view.

The Commission further recommends that,-

The Supreme Court bench while hearing the case where death punishment has been awarded, should consist of at least five judges. Accordingly, the Supreme Court Rules may be amended.

(B) The Supreme Court while hearing a case may think that the acquittal is wrong and the accused should be convicted and sentenced to death; or it may think that the sentence for a term or life sentence is to be enhanced to a death sentence; in such situations, the Bench of the Court which has heard the case, must 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.

Accordingly, a provision in this regard has to be made in the Supreme Court Rules and we recommend accordingly.

We acknowledge the extensive contributions made by Dr. S. Muralidhar, Part time Member of the Commission in preparation of this report. We also appreciate the contribution made by Mr. Girish Naik Thigle, a 5th year student of National Law School of India University, Bangalore in the preparation of the consultation paper on "Mode of execution of death sentence and incidental matters".

We recommend accordingly.

Justice M. Jagannadha Rao
Chairman

Dr. N.M. Ghatate
Vice-Chairman

T.K. Vishwanathan
Member-Secretary

Dated: 17.10.2003



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