Conformation of Sentence of Death by High Court,

Awarded by Sessions Court

Criminal Procedure Code

SUBMITTED TO:

Mr. PRAMOD RANJAN SHARMA

ASSISTANT PROFESSOR

CRIMINAL PROCEDURE CODE

SUBMITTED BY:

RISHABH TIWARI

ROLL NO. 17

SEMESTER V

SCHOOL OF LAW
GURU GHASIDAS VISHWAVIDYALAY, BILASPUR (C.G.)
 DECLARATION
I, RISHABH TIWARI, Roll Number 17, B.A. LL. B Semester V of Guru Ghasidas University
do hereby declare that, this project is my original work and I have not copied this
project or any part thereof from any source without due acknowledgement. I am
highly indebted to the authors of the books that I have referred in my project as well
as all the writers of the articles and the owners of the information taken from website
for it. It is only because of their contribution and proper guidance of my faculty advisor
PRAMOD RANJAN SHARMA, that I was able to gather light on the subject.

RISHABH TIWARI

Roll No. 17

B.A. LL. B Semester V

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 CERTIFICATE

I am glad to submit this project report on “Conformation of Sentence of Death

by High Court, Awarded by Sessions Court” as a part of my academic

assignment. The project is based on Research Methodology. It further studies
meaning, sources and methods of Research Methodology and further discusses the
Interview Method. I hope this would be significant for Academic purposes as well as
prove information to all readers.

Here through I declare that this paper is an original piece of research and all the
borrowed text and ideas have been duly acknowledged.

RISHABH TIWARI FACULTY SIGNATURE:

Roll No. 17

B.A. LL. B Semester V

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 ACKNOWLEDGEMENT

I would like to express my earnest and deepest gratitude to MR. PRAMOD RANJAN
SHARMA, Faculty for CRIMINAL PROCEDURE CODE for giving me this opportunity to
do a project on such a valuable topic of “Conformation of Sentence of Death by High
Court, Awarded by Sessions Court”. I am grateful for the assistance, guidance and
support that were extended during the course of excellent research. I am also thankful
to the college administration for providing the resource necessary for the research
work. I thank my parents and friends for their moral support and love throughout my
research work and project preparation. Above all I thank the God Almighty for blessing
me with the health and vitality to complete this project.

RISHABH TIWARI

Roll No. 17

B.A. LL. B Semester V

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 INTRODUCTION
A court of sessions cannot directly take the cognizance of any offence exclusively
triable by such court according to the first schedule. A competent magistrate may
take cognizance of such an offence and commit the case to the court of session
for trail. Even in respect of other offences a magistrate may commit a case to the
court of session under the circumstances mentioned in sections 322 to 324. All
such cases shall be tried by the court of session according to the procedure laid
down in section 226 to 236.
In respect of a trail before a court of session certain requirements are noteworthy:
1. As has been provided by section 225, “in every trail before the court of
session the prosecution shall be conducted by a public prosecutor”. Public
prosecutor means any person appointed under section 24 and includes any
person acting under the directions of a public servant. Section 225 is
essentially directory in nature; and if the prosecution is in the hands of the
public prosecutor does not matter that a lawyer privately engaged had acted
for the prosecution.
2. Section 303 confers an important right on the accused person to be
defended by a counsel of his choice; and in a trail before a court of session,
where the accused is not represented by a pleader, and where it appears to
the court that the accused has not sufficient means to engage a pleader, sec
304 requires that the court shall assign a pleader for his defense at the
expense of the state.
3. Section 207 and 208, requires the magistrate taking cognizance of the
offence to supply to the accused copies of certain documents like police
report, FIR statements recorded by police or magistrate during
investigation, etc.

INITIAL STEPS IN THE TRAIL

1. Opening case for prosecution- when the accused appears or is brought
before the court in pursuance of a commitment of the case under section
209, the prosecutor shall open his case by describing the charge brought
against the accused and stating by what evidence he purposes to prove the
guilt of the accused.
2. Discharge- if upon consideration of the record of the case and the
documents submitted there with, and after hearing the submission of the
accused and the prosecution in this behalf, the judge considers that there is
not sufficient ground for the proceeding against the accused, he shall

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 discharge the accused and record his reasons for so doing. This is a
beneficent provision to save the accused form prolonged harassment which
is a necessary concomitant of a protracted trail.
The object in requiring the sessions judge to record his reasons is to enable
the superior court in examining the correctness of the reasons for which the
sessions judge has held that there is or is not sufficient ground for
proceeding against the accused.
3. Framing of the charge- if after such consideration and hearing as
aforesaid the judge is of opinion that there is ground for presuming that the
accused has committed which
a. Is not exclusively trainable by the court of session he may frame a
charge against accused and by order transfer the court for trail to the
chief judicial magistrate or any other judicial magistrate of the first class
and direct the accused to appear before the CJM, or as the case may be,
the judicial magistrate of the first class on such date as he deems fit, and
there upon such magistrate shall try the offence in accordance with the
procedure for the trail of warrant cases instituted on a police report.
b. Is exclusively triable by the court, he shall frame in writing the charge
against the accused.
The purpose of section 227 and 228 of the court is to ensure that the court should
shall be satisfied accusation made against the accused person is not frivolous and
that there is some material for proceeding against him. The state prior to the
framing of a charge is not expected to be a dress rehearsal of a trail, or in other
words the details of all materials which the prosecution will produce or rely on
during the stage of the trail are not expected to be produced or referred to before
the judge at the time of the opening of prosecution.
4. Explaining the charge to the accused- where the offence is exclusively
triable by a court of session and a charge has been framed in writing against
the accused as mentioned above in section 228 the charge shall be read and
explained to the accused. The accused shall then be asked whether he
pleads guilty of the offence or claims to be tried.
the section requires that the charge should not only be read out but should
also be explained to the accused in clear and unambiguous terms. If
necessary, the judge may even interrogate the accused in order to ascertain
whether he fully understands the responsibility which he assumes by
making a plea of guilty.
5. Conviction on plea of guilty- if the accused pleads guilty, the judge shall
record the plea and may, in his direction, convict him thereon.

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 If the accused wants to pleads guilty he should do so personally and not
through his pleader. But where the personal attendance of the accused has
been dispensed with and he is allowed to appear by his pleader, the accused
may plead guilty through his pleader. The plea of guilty must be
unambiguous terms otherwise such a plea is considered as equivalent to a
plea of not guilty.
6. Date for prosecution evidence- if the accused refuses to plead or does not
plead or claims to be tried or is not convicted under section 229, the judge
shall fix a date for the examination of witness and may, on the application
of the prosecution, issue any process for compelling the attendance of any
witness or the production of any documents or other thing.
EVIDENCE OF PROSECUTION
A. Examination of witness- on the date so fixed the judge shall proceed all
such evidence as may be produced in the support of the prosecution.
Evidence as defined in section 3 Evidence act 1872, means and includes
i. All statements which the court permits or requires to be made before
it by witness, in relation to matter of fact under inquiry, such
statements are called oral evidence.
ii. All documents produced for inspection of the court such documents
are called documentary evidence.
B. Record of the evidence- (1) the evidence of each witness shall, as his
examination proceeds be taken down in writing either by the judge himself
or by his dictation in open court or under his direction and superintendence
by an officer of the court appointed by him in this behalf.
(ii) Such evidence shall ordinarily be taken down in the form of a narrative
but the presiding judge may, in his direction, take down, or cause to be
taken down any part of such evidence in the form of question and answer.
(iii) As the evidence of each witness is completed it shall be read over to
him in the presence of the accused, if in attendance or of his pleader, if he
appears by pleader and shall if necessary be corrected.
(iv) the evidence so taken down shall be signed by the judge shall form of
the record.
(v) when a judge has recorded an evidence of a witness he shall also record
such remarks if any as he thinks material respecting the demeanor of such
witness whilst under examination(sec.280) the section aims at giving in
some aid to the appellate court in estimating the value of the evidence
recorded by the trail court.
(vi) if the witness gives the evidence in the language of the court, it shall
be taken down in that language (sec. 277 (a)) if he gives evidence in any

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 other language, it may if practicable be taken down in that language and if
it is not practicable to do so a true translation of the evidence in the
language of the court shall be prepared as the examination of the witness
proceeds signed by the judge and shall form part of the record.
(vii) whenever any evidence is given in a language not understood by the
accused or his lawyer it shall be interpreted to him or his lawyer in a
language understood by him [Sec. 279].
Steps to follow the prosecution evidence:
1. Oral arguments and memorandum of arguments on behalf of the
prosecution.
2. Explanation of the accused.
3. Hearing the parties.
4. Order of acquittal.
EVIDENCE FOR THE DEFENCE
(a) Examination of witnesses for the defense- where the accused is not
acquitted under section 232 he shall be called upon to enter into his defense
and adduce any evidence he may have in support thereof. This salutary
provision is mandatory in nature and is intended to protect the interest of
the accused person to enter on his defense and adduce evidence, he may
have in support thereof.
(b) Written statement of the accused- The accused person if he so desires,
can put in any written statement in his defense. If he puts on any such
statement, the judge shall file it with the record sec 233(2).
(c) If the accused applies for compelling the attendance of any witness or
production of any document, the judge shall do so unless he considers
that the request should be declined for reasons to be recorded if the
judge feels that the application has been made for vexation or for
causing delay he should refuse to act.
STEPS TO FOLLOW THE DEFENSE EVIDENCE
1. Court witness if any.
2. Arguments.

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SUBMISSION OF DEATH SENTENCE FOR CONFORMATION

Once the Sessions Court passes the death sentence, it is bound to refer the
proceedings of the case to the High Court under Section 366(1) of the Code.
Under Section 366(2) of the Code, a sentence of death cannot be executed unless
it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the
1973 Code includes a provision that authorizes the Sessions Court to commit the
convicted person to judicial custody (that is, jail). The Supreme Court has
clarified in Sunil Batra (1979) that this custody cannot be considered equivalent
to an imprisonment. The logic behind the provision is probably that the incentive
to evade the legal process for a convicted person (sentenced to death by a sessions
court) is very high and therefore the provisions seeks to address scenarios wherein
the convict is not available for execution of the sentence.
It has been held in a catena of cases, including in State of
Maharashtra v. Sindhi and Jumman v. State of Punjab, that the confirmation
proceedings are a continuation of the trial at the Sessions Court. Support for such
an understanding can be derived from the fact that Section 366(1) states that the

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“proceedings” shall be submitted to the High Court unlike the appellate
provisions where the factum of appeal lies in the conviction or acquittal or the
enhancement of the sentence (Section 374 read with Section 386). There is
however, a fundamental distinction between the confirmation proceedings at the
High Court and a trial at the Sessions Court. While the Code, under Section 273,
creates a general rule that all evidences taken in the course of the trial shall be
taken in the presence of the accused, Section 367 states that the general rule in
case of confirmation proceedings is that, unless the High Court feels otherwise,
the presence of the convicted person is not required even when new evidence is
taken. The Supreme Court has suggested that the presence or the absence of the
accused does not make a difference at the confirmation stage since the High Court
are duty bound to give the matters its utmost and undivided attention. Here, it is
pertinent to mention that under the appellate jurisdiction, the Code in Section
391(3), grants the right to an accused (or his pleader) to be present when
additional evidence is taken.
The Code also specifies that the confirmation proceedings should be conducted
at least in front of a division bench of the High Court. Should there be any
difference of opinion, the matter will be referred to a third judge whose decision
will determine the final outcome of the case.
In death penalty cases, the normal practice is that the Sessions Court refers the
matter for confirmation to the High Court and additionally, the convict files an
appeal on his conviction under Section 374(2) of the Code. According to Section
368, the order of confirmation is not given until the appeal is disposed of by the
high court. It is also clarified that there is no obligation on the convict that he
must appeal his conviction to the High Court. Even if he does not, the
constitutional court is duty bound to re-assess the death case.
Powers of the High Court
As discussed above, the power of a high court in confirmation proceedings is
considered to be a continuation of trial. It is well settled that in a reference under
the confirmation provision, the High Court has to consider the evidence afresh
and arrive at its own independent findings with regard to the guilt of the accused,
independent of the views of the Sessions Judge. At the same time, the Supreme
Court has also cautioned that the conclusion arrived at by a sessions court cannot
be completely overlooked.
Section 368 delineates the powers of a high court during a confirmation
proceeding. The High Court can do the following: confirm the death sentence,
pass any other sentence, annul the conviction but convict the accused of any other

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offence, order a new trial on the same or amended charge, and finally may also
acquit the person. These powers look similar to the powers of the appellate court
under Section 386. However, there are some essential differences between the
confirmation and appellate proceedings.
Confirmation proceedings versus appellate proceedings
There are three major differences between the power of the High Court when it
is seized of a confirmation proceeding and an appellate proceeding under the
Code.
First, the reference to confirmation is automatic whereas appeal proceedings are
only brought before the court if the distressed party files an appeal (and has a
right to file one). A corollary of this situation is that in a criminal appeal, the court
can dismiss the appeal if it decides that there is no ground for interference without
examining the entire record. On the contrary, the High Court is duty bound to
consider the entire evidence on record while confirming a death sentence.
Second, the confirmation court has a power to order further inquiry or take
evidence (itself or by a lower court) without indicating any reason for doing so
(under Section367(1)) whereas under Section 391(1), an appellate court has to
provide written reasons to justify its act of taking new evidence (itself or by a
lower court). Further, Section 391 does not empower the High Court sitting in the
criminal appellate side to order further inquiry.
Finally, the appellate court has a certain leeway in not providing elaborate reasons
should it agree with the findings of the trial court which is absent in confirmation
cases. In confirmation proceedings, as written earlier, the High Court needs to
come to an independent finding regarding the guilt of the accused and the
sentence.

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Critical appraisal of power of conformation of death sentence by high court
The decision of the court of session awarding the sentence of death is not final
unless The decision of the Court. of Session awarding the sentence of death is not
final unless it is confirmed by the High Court. Therefore, the Sessions Court is
required to make a reference to the High Court for this purpose. Since death
sentence once executed, cannot be revoked, it becomes necessary that a thorough
scrutiny of the decision of the trial Court is made and all aspects of the case are
examined by the High Court to eliminate any possible error or mistake by the trial
Court in reaching that decision. Therefore, when a case of death sentence comes
before the High Court for confirmation under a reference made in accordance
with Section 366 (l) of the Code, it is the bounden duty of the High Court to
review the entire evidence and make its own assessment about the correctness of
the award of death sentence on the basis of the material available before it. I The
provision of reference under Section 366 (l) is mandatory and, it is applicable
irrespective of the fact whether appeal has been filed against the sentence by; the
accused or not.
When the Sessions Court passes a sentence of death against the accused, it has to
inform the accused about the period within which he may prefer an appeal against
his Sentence of death. The Court passing the sentence shall then commit the
accused to jail custody under warrant.

Where the High Court in a reference for confirmation of the sentence of death
forms an opinion that there is need for further inquiry into the case or additional
evidence to be taken to decide guilt or innocence of the convicted person, it may
itself do so direct it to be made by Sessions Court, the presence of the convicted
person may be dispensed with when such inquiry is made or such evidence is
recorded.
It may be stated that Sections 369 and 370 further provide for certain
precautionary measures/ to ensure that death sentence of the convicted person is
confirmed only after it is thoroughly scrutinized that his guilt is proved beyond
any doubt and he deserves to be condemned to death and nothing short of this
punishment would serve the, ends of justice.

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The Supreme Court in a catena of cases has reiterated that the proceedings under
Section 366 before the High Court are in fact a continuation of the trial on the
same or additional evidence. Therefore, High Court can take additional evidence
and decide the case after reappraisal of the entire evidence before it. I Thus the
High Court has to come to its own conclusion regarding the guilt or innocence of
the accused independently of the opinion expressed by the Sessions Judge in his
judgment.
The Supreme Court, in the case of Triveniben v. State of Gujarat,3 held that jail
custody of the convicted accused under a warrant as contemplated by sub-section
(2) neither amounts to punishment of imprisonment in addition to the death
sentence nor does it amount to solitary confinement. Therefore, it is not violative
of the provision relating to bar on double jeopardy under Article 20 of the
Constitution. In fact, such judicial custody is deemed necessary to keep the
accused safe and secure until the execution of his sentence of death.

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 BIBLIOGRAPHY
1. http://www.deathpenaltyindia.com/death-penalty-in-india/.
2. http://mylibertatem.com/commutation-of-death-sentences-a-critical-
analysis/.
3. https://indiankanoon.org/doc/778810/.
4. http://blog.mylaw.net/the-high-court-as-trial-court-in-death-penalty-
confirmation-proceedings/.
5. http://gkforallexams.in/law/crpc-section-366-sentence-death-
confirmation.aspx.
6. http://www.shareyouressays.com/117975/every-death-sentences-
passed-by-sessions-court-in-india-must-be-confirmed-by-the-high-
court-explained.
7. http://devgan.in/criminal_procedure_code/chapter_28.php#s366.
8. https://indiankanoon.org/search/?formInput=confirmation%20of%2
0death%20sentence.

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