FACULTY OF LAW

Criminal Procedure Code Assignment

for 2nd GCT on
“Confirmation of Death Sentence”

BY- SANIYA AKHTAR

17BALLB54
GI6713
IX SEMESTER
3rd Group

ASSIGNED BY – Dr. Absar Kidwai

 ACKNOWLEDGEMENT

I SANIYA AKHTAR, student of BA.LLB (Hons.) IX Semester

would like to express my special thanks of gratitude to my teacher Dr.
Absar Kidwai who gave me the golden opportunity to do this
assignment for 2nd GCT on the topic “Confirmation of Death
Sentence” which also helped me in doing a lot of research and I came
to know about so many new things, for which I am really thankful to
him.
Secondly I would also like to thank my parents and friends who
helped me a lot in finalizing this project within the stipulated time
frame.
 SYNOPSIS

1. Introduction
2. Sentence of Death to be submitted By Court of Session for
Confirmation.
3. Power to Direct Further Inquiry to be Made or Additional Evidence
to be taken.
4. Power of High Court to Confirm Sentence or Annul Conviction
under Section 366.
5. Confirmation or New Sentence to be Signed by two Judges
6. Procedure In Case of Difference of Opinion
7. Procedure In Cases Submitted to High Court for Confirmation
8. Conclusion
Introduction

Since 1991, a total of thirty executions have taken place in India. Only limited offences
provide for the death penalty as a punishment that includes-

 rape (Section 376 of the Indian Penal Code, 1860 (IPC)),

 murder (Section 302 of IPC),
 dacoity with murder (Section 396 of IPC),
 waging or attempting to wage war against the Government of India (Section 121 of
IPC),
 certain offences after previous conviction (Section 31A of the Narcotic Drugs and
Psychotropic Substances Act, 1985), and
 abetting or aiding the act of sati (Section 4(1) of the Commission of Sati
(Prevention) Act, 1987).

What happens once the death sentence is passed by a judge of the Sessions Court? Sections
366-371 of the Code of Criminal Procedure, 1973 deals with the ‘Submission of death
sentences for confirmation’.1

Submission For Conformation To High Court (Section 366)

Section 366 in The Code Of Criminal Procedure, 1973

366. Sentence of death to be submitted by Court of session for confirmation.

(1) When the Court of Session passes a sentence of death, the proceedings shall be submitted
to the High Court, and the sentence shall not be executed unless it is confirmed by the High
Court.

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

Section 366 partially answers the question of who can pass a verdict. This section provides
that if a Session Court passes the death sentence against the accused(s) then the High Court
needs to confirm it before it comes into effect. Thereby, it is necessary to submit the
1
https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/ (last visited on November 21, 2021).
2
S.366 Bare Act, The Code of Criminal Procedure 1973(2 of 1974) Universal Law Publishing.
proceedings before the High Court and only after confirmation from the High Court the
execution can be brought into effect, and not before that.

The case of Bantu Son of Vidya Ram Bediya v. State Of U.P. (2006)3 was submitted to the
Allahabad High Court from Agra’s Sessions Court under Section 366 of CrPC. The accused
had committed the offence of rape, murder and kidnapping. The rape was so gruesome that
during the postmortem a stem of more than a foot was retrieved from her vagina which was
inserted by the accused while committing the offence. Allahabad High Court upheld the death
penalty of the accused stating that it was the rarest of rare case.

Further Sections provide the powers the High Court has in regard to cases submitted under
Section 366 of the CrPC.4

Power To Direct Further Inquiry To Be Made Or Additional Evidence To

Be Taken (Section 367)

Section 367 in The Code Of Criminal Procedure, 1973

367. Power to direct further inquiry to be made or additional evidence to be taken.

(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry
should be made into, or additional evidence taken upon, any point bearing upon the guilt or
innocence of the convicted person, it may make such inquiry or take such evidence itself, or
direct it to be made or taken by the Court of Session.

(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.

(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result
of such inquiry or evidence shall be certified to such Court.5

Sub-section (1) of Section 367 of the CrPC provides that when the proceeding for
confirmation of the death penalty is submitted to the High Court and it notices any point of
innocence or guilt of the accused, it may either direct the Sessions Court or itself to make

3
ILR (2006) 3 ALLAHABAD 1245.
4
https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/ (last visited on November 20, 2021).
5
S.367 Bare Act, The Code of Criminal Procedure 1973(2 of 1974) Universal Law Publishing.
further inquiry into it or take additional evidence into consideration. It is usually done when
the High Court feels that the Sessions Court has missed some points or factors.

Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her
presence during such inquiry or taking of the evidence unless the High Court otherwise
directs.

Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the
High Court) makes the enquiry or takes into consideration such evidence then it shall be
certified by the Sessions Court.

In the case of Balak Ram Etc v. The State of U.P. (1974)6 the Supreme Court in the final
judgment stated that High Court had failed in properly considering the pieces of evidence of
the prosecutor’s witnesses and held that while inquiring against a death penalty case or taking
into consideration different pieces of evidence, the High Court shall take into consideration
all the pieces of evidence itself as it is its duty.7

Power To The High Court To Confirm Sentence or Annul Conviction

(Section 368)

Section 368 in The Code Of Criminal Procedure, 1973

368. Power of High Court to confirm sentence or annul conviction. In any case submitted
under section 366, the High Court-

(a) may confirm the sentence, or pass any other sentence warranted by law, or

(b) may annul the conviction, and convict the accused of any offence of which the Court of
Session might have convicted him, or order a new trial on the same or an amended charge, or

(c) may acquit the accused person: Provided that no order of confirmation shall be made
under this section until the period allowed for preferring an appeal has expired, or, if an
appeal is presented within such period, until such appeal is disposed of.8

6
1974 AIR 2165, 1975 SCR (1) 753
7
https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/ (last visited on November 20, 2021).
8
S.368 Bare Act, The Code of Criminal Procedure 1973(2 of 1974) Universal Law Publishing.
The proviso to the section states that till the time the limitation period to file an appeal
against the verdict is not expired, or the appeal is still pending or is not disposed of, the Court
cannot pass an order of confirmation.

In the case of Kartarey and Ors. v. The State of Uttar Pradesh (1975)9, the Sessions Court
had passed the verdict announcing the death sentence which was later altered by the High
Court. When the case reached the Supreme Court it was observed that the High Court has
committed a grave error in examining the evidence or additional evidence.

It states that it is the duty of the High Court to ‘reap-praise’ the evidence in totality and it
shall come to a conclusion on the merits of the case only after considering the proceedings in
all their aspects. It is important and crucial to consider the defence evidence equally and not
to neglect it as this is contradictory to the settled rule of practice and law.10

Confirmation or New Sentence To Be Signed By Two Judges (Section 369)

Section 369 in The Code Of Criminal Procedure, 1973

369. Confirmation or new sentence to be signed by two Judges. In every case so submitted,
the confirmation of the sentence, or any new sentence or order passed by the High Court,
shall, when such Court consists of two or more Judges, be made, passed and signed by at
least two of them.11

Section 369 provides that whenever a case is submitted to the High Court under Section 366
of CrPC it shall be heard by a divisional bench i.e. at least by two or more judges. For
confirmation of:

 the sentence, or
 any new sentence, or
 any order.

9
AIR 1976 SC 76, 1976 CriLJ 13, (1976) 1 SCC 172.
10
https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/ (last visited on November 20, 2021).
11
S.369 Bare Act, The Code of Criminal Procedure 1973(2 of 1974) Universal Law Publishing.
Passed by the High Court shall be ‘made, passed and signed’ by either two or more judges. It
is an essential condition that cannot be ignored.

Procedure In A Case Submitted To The High Court For Confirmation

(Section 371)
Section 371 in The Code Of Criminal Procedure, 1973
371. Procedure in cases submitted to High Court for confirmation. In cases submitted by the
Court of Session to the High Court for the confirmation of a sentence of death, the proper
officer of the High Court shall, without delay, after the order of confirmation or other order
has been made by the High Court, send a copy of the order, under the seal of the High Court
and attested with his official signature, to the Court of Session.12

Section 371 of the Code of Criminal Procedure provides that cases of the death penalty which
are submitted to the High Court by the Sessions Court after being decided upon shall be sent
to the Sessions Court. The order passed by the High Court shall be one of the options
provided in Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the
accused among others. It is the duty of the concerned officer of the High Court to send a copy
of the order passed by the High Court to the Sessions Court without any delay, under the seal
of the High Court and attested with his/her official signature.13

Procedure In Case of Difference Of Opinion (Section 370)

Section 370 in The Code Of Criminal Procedure, 1973

370. Procedure in case of difference of opinion. Where any such case is heard before a Bench
of Judges and such judges are equally divided in opinion, the case shall be decided in the
manner provided by section 392.14
A question that arises now is what happens when the judges in equal proportion have
conflicting opinions? Section 370 of CrPC provides the answer to it and states that the
manner provided in Section 392 of CrPC shall be followed in the case when sitting judges
that heard the case are equally divided in opinion about the case. The parties do not have to

12
S.371 Bare Act, The Code of Criminal Procedure 1973(2 of 1974) Universal Law Publishing.
13
https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/
14
S.370 Bare Act, The Code of Criminal Procedure 1973(2 of 1974) Universal Law Publishing.
specify it to the court, the court takes the suo-moto and follows the procedure as per Section
392 of CrPC.

The Section 392 of states that when a High Court bench hears a case and ends up having
divided opinions, in such case the appeal along with the diverging opinions shall be laid
before a judge of the same Court. That judge shall deliver his/her opinion only after hearing
the judges, and that opinion shall be followed by the judgment or order in question. The
proviso to the section states that if any of the sitting judge, or the judge before whom the
judgment or order in question is laid under this section, requires the appeal to be heard again
or be heard by a larger bench of judges then it shall be done accordingly.

In various cases, this section has been applied including the case of Sri D N Srinivash Reddy
v. State of Karnataka (2018)15. The judge who heard the matter under Section 370 of CrPC
quashed the proceedings against the accused who were arrested during a raid.16

Conclusion

Taking an individual’s life is one of the epoch-making decisions. It has been a debatable topic
since the beginning as it is always feared that an innocent individual shall not be hanged for
the offences he/she did not even commit. All the sections provided in chapter 23 of the Code
of Criminal Procedure work as a tool to minimize the chances of an error. The party can
appeal to the Supreme Court if it is not satisfied with the High Court’s judgment and feels
that injustice has been served or the court has been erred.

Firstly, after Sessions Court’s judgment regarding the death sentence shall be submitted to the
High Court for confirmation under Section 366. Then, the court may make inquiries or take
into consideration evidence, both existing and additional as provided in Section 367. The
High Court then passes the order as per Section 368 which needs to be signed by at least two
High Court judges as mentioned in Section 369. In case of conflict in opinion, the case shall
be referred to a third judge and his/her opinion shall decide the final decision as per Section
370 read with Section 392 of the Code of Criminal Procedure. Finally, after the confirmation,

15
2018, Karnataka High Court.
16
https://blog.ipleaders.in/happens-death-sentences-confirmed-crpc/ (last visited on November 20, 2021).
or any other decision, it is sent to the Sessions Court by the concerned officer as provided in
Section 371 of the Code of Criminal Procedure.17

17
See supra note 16.