Section 366 of the Code provides that when a Sessions Court passes a death-sentence, the proceedings must be submitted to the High Court, and the sentence cannot be executed, unless it is confirmed by the High Court. In the meanwhile, the Sessions Court must commit the convicted person to jail custody under a warrant.
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It is now a well-established practice of High Courts to be satisfied both on the law as well the facts of the case before confirming a death sentence. In other words, the High Court must come to its own independent conclusion as to the guilt or innocence of the accused, independently of the opinion of the Judge who has inflicted the death penalty on him. (Balak Ram, — A.I.R. 1974 S.C. 2165)
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When a death-sentence is submitted to it for confirmation, if the High Court is of the opinion that some further inquiry should be made or additional evidence taken, it may do so itself, or direct it to be done by Sessions Court. 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. (S. 367)
Whenever such a case is submitted to the High Court, it may,—
(a) Confirm the sentence, or pass any other sentence warranted by law; or
(b) Annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him or order a new trial on the same or an amended charge; or
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(c) Acquit the accused.
However, no order of confirmation of the death sentence can be passed until the period allowed for preferring an appeal has expired, or if an appeal has been filed within such period, until such appeal is disposed of.
Where both the confirmation case and the appeal arise from the same order of conviction, the practice of the High Court’s is to hear both together, and deal with the merits of the case on the basis that all material questions of fact and law can be agitated by the accused. The Bombay High Court has endorsed that this practice is fully justified by the provisions of the Criminal Procedure Code. (Narayan,—50 B.L.R. 151)
In every case thus submitted to the High Court, the confirmation or any other order passed by the High Court must be made, passed and signed by at least two Judges, when such a Court consists of two or more Judges. (S. 369)
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Moreover, if such a case is heard by a Bench of Judges, and such are equally divided in their opinion, the case, along with the Judge’s opinions, is to be laid before another Judge of the High Court. That Judge, after such hearing as he thinks fit, must deliver his opinion, and the judgement of the Court is to be based on that opinion. (S 370)
After the order of confirmation (or any other order) has been made by the High Court, the proper Officer of the High Court must, without any delay, send a copy of such order, under the seal of the High Court, and attested with his official signature, to the Sessions Court.
Specimen Form:
The following is a specimen of a warrant of commitment under a sentence of death (under S. 366):
To the Officer-in-charge of the Jail at…
Whereas at the Session held before me on the 10th April, 20…, (name of prisoner), the (1st, 2nd, 3rd, as the case may be) prisoner in case No. 176 of the Calendar Year 20………… at the said Session, was duly convicted of the offence of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code, and sentenced to death, subject to the confirmation of the said sentence by the High Court of Mumbai.
This is to authorise and require you to receive the said (prisoner’s name) into your custody in the said Jail, together with this warrant or order of this Court, carrying into effect the order of the said Mumbai High Court.
Dated, this 1st day of May, 20….
(Seal of the Court)
(Signature)