Writ Petition (Criminal) Nos. 137 of 2010, 52 of 2011, 39 of 2013 and 77, 108 and 117 of 2014. Case: 1. Mohd. Arif, 2. Sundar, 3. Sonu Sardar Vs 1. The Registrar, Supreme Court of India, 2. State, 3. Union of India (UOI). Supreme Court (India)

Case NumberWrit Petition (Criminal) Nos. 137 of 2010, 52 of 2011, 39 of 2013 and 77, 108 and 117 of 2014
JudgesR.M. Lodha, C.J.I., J.S. Khehar, Arjan Kumar Sikri, Rohinton Nariman and Jasti Chelameswar, JJ.
IssueTerrorist and Disruptive Activities (Prevention) Act, 1987; Narcotic Drugs and Psychotropic Substances Act, 1985; Unlawful Activities Prevention Act, 1967; Army, Air Force and Navy Acts; Constitution 44th amendment Act; Indian Penal Code 1860, (IPC) - Sections 53, 57, 65, 116, 119, 121, 129, 132, 194, 302, 305, 307(3), 364A, 376A, 376E, 396, 51...
Judgement DateSeptember 02, 2014
CourtSupreme Court (India)


Jasti Chelameswar, J.

1. I have had the privilege of reading the draft judgment prepared by my esteemed brother Rohinton Fali Nariman, J. With utmost respect, I am unable to agree with the view taken by him that a review petition filed by a convict whose death penalty is affirmed by this Court is required to be heard in open Court but cannot be decided by circulation. The background facts and the submissions are elaborately mentioned by my learned brother. I do not propose to repeat them.

2. Extinguishment of life of a subject by the State as a punishment for an offence is still sanctioned by law in this country. Article 21 of the Constitution itself recognizes the authority of the State to deprive a person of his life. No doubt, such authority is circumscribed by many constitutional limitations. Article 21 mandates that a person cannot be deprived of his life except according to procedure established by law. Whether Article 21 is the sole repository of the constitutional guarantee against the deprivation of life and whether it is sufficient for the State to merely prescribe a procedure for the deprivation of life by a law, or whether such a law is required to comply with certain other constitutional requirements are questions which have been the subject matter of debate by this Court in various decisions starting from A.K. Gopalan v. State of Madras AIR 1950 SC 27. The history of such debate and the historical background in which such constitutional protections are felt necessary have been very elaborately discussed by my learned brother. Therefore, I do not propose to deal with the said aspect of the matter.

3. Section 531 of the Indian Penal Code, 1860 (hereinafter referred to as "Indian Penal Code") prescribes various punishments to which offenders are liable under the provisions of the Indian Penal Code. Death is one of the punishments so prescribed. Provisions of the Indian Penal Code prescribe death penalty for various offences as one of the alternative punishments for these offences2. For example, Section 302 prescribes death or imprisonment for life as alternative punishments for a person who commits murder. Similarly, Section 121 prescribes death penalty as one of the alternatives for an offence of waging or attempting to wage or abetting to waging of war against the Government of India.

4. Apart from the Penal Code, some other special enactments also create offences for which death penalty is one of the punishments. Unless, a special procedure is prescribed by such special law, all persons accused of offences are tried in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code of Criminal Procedure"). Under the scheme of the Code of Criminal Procedure, only the High Court and the Court of Sessions are the courts authorized to award punishment of death. The other subordinate courts such as Chief Judicial Magistrates and Magistrates are expressly debarred to award death penalty. Sections 283 and 294 of the Code of Criminal Procedure prescribe the punishment which the various courts in the hierarchy of the criminal justice administration system can pass.

5. Some special enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987, Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities Prevention Act, 1967 etc. also create offences for which death penalty is one of the alternative punishments prescribed. Though some of the offences are triable by special courts constituted under these Acts, generally the Code of Criminal Procedure is made applicable to the proceedings before the special courts and such special courts are generally manned by persons who are either Sessions Judges or Addl. Sessions Judges.

6. Legislature, as a matter of policy, entrusted the trial of serious offences for which death penalty is one of the possible penalties, to relatively more experienced members of the subordinate judiciary.

7. Even though Sessions Courts are authorized to award punishment of death in an appropriate case, the authority of the Sessions Court is further subjected to two limitations:

(i) Under Sub-section (3) of Section 354 of the Code of Criminal Procedure, the judgment by which the punishment of death is awarded, is required to give special reasons for such sentence.

354. Language and contents of judgment.--(1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353,-


(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.


(ii) The second limitation is contained in chapter XXVIII of the Code of Criminal Procedure Section 366(1) thereof mandates that a Court of Session passing a sentence of death shall submit the proceedings to the High Court and the sentence so imposed by the Sessions Court shall not be executed unless the High Court confirms the punishment awarded.

8. Section 367 of the Code of Criminal Procedure authorises the High Court to make a further enquiry into the matter or take additional evidence. Under Section 368 of the Code of Criminal Procedure, the High Court is precluded from confirming the sentence until the period allowed for preferring an appeal (by the accused) has expired or if an appeal is already presented within the period of limitation prescribed under law, until such appeal is disposed of. In other words, before confirming the award of death sentence, the High Court is required to examine the correctness of the finding of the guilt of the accused recorded by the Sessions Court, if the accused chooses to challenge the correctness of the finding of the guilt by the Sessions Court. In theory, the role of the High Court in confirming or declining to confirm the sentence of death awarded by the Sessions Court is limited to the examination of the correctness or the appropriateness of the sentence. The correctness and legality of the finding of guilt recorded by the Sessions Court, is required to be examined in the appeal, if preferred against such finding by the accused. Hence, the requirement Under Section 368 is to await the decision in the appeal preferred by the accused against the finding of guilt.

9. However, in practice when a reference is made Under Section 366, the High Court invariably examines the correctness of the finding of the guilt recorded by the Sessions Court. In fact such a duty is mandated in Subbaiah Ambalam v. State of Tamil Nadu AIR 1977 SC 2046-

It is well settled that in a Reference Under Section 374 of the Code of Criminal Procedure for confirming death sentence, the High Court has to consider the evidence afresh and to arrive at its independent finding with regard to the guilt of the accused.

and in Surjit Singh and Ors. v. The State of Punjab Criminal Appeal No. 77 of 1968 decided by this Court on 15th October, 1968-

It is clear from a perusal of these provisions that on a reference Under Section 374, Code of Criminal Procedure, the entire case is before the High Court. In hearing such a reference the High Court has to satisfy itself as to whether a case beyond a reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. In other words, in hearing the reference, it is the duty of the High Court to reappraise and to reassess the entire evidence and to come to an independent conclusion as to the guilt or innocence of each of the accused persons mentioned in the reference.

10. Section 369 Code of Criminal Procedure further stipulates that every case referred Under Section 366 to the High Court shall be heard and decided by at least two judges of the High Court, if that High Court consists of two or more judges.

11. In a case where the penalty of death is confirmed by the High Court in accordance with the Code of Criminal Procedure, the decision is final except for two categories of cases. Under Article 1345, a right of appeal to this Court is created in criminal cases where the High Court on appeal reverses an order of acquittal of an accused person recorded by the Sessions Court and sentences him to death or where the High Court withdraws for trial before itself any case pending before a court subordinate to it and convicts the accused person and awards death sentence to such an accused person. I may also state that apart from such a constitutional right of appeal, as a matter of practice, this Court has been granting special leave Under Article 136 in almost, as a matter of course, every case where a penalty of death is awarded.

12. In this Court, appeals, whether civil or criminal, have always been heard by at least two judges.

13. The authority of the courts to examine and adjudicate the disputes between the sovereign and its subjects and subjects inter se is conferred by law, be it the superior Law of Constitution or the ordinary statutory law. Such jurisdiction can be either original or appellate. A court's jurisdiction to review its own earlier judgment is normally conferred by law. The jurisdiction of this Court to review its own judgments is expressly conferred Under Article 137 of the Constitution.

137. Review of judgments or orders by the Supreme Court: Subject to the provisions of any law made by Parliament or any rules made Under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

14. The question on hand is as to the procedure to be followed in exercising such jurisdiction. Article 145 of the Constitution authorizes the making of rules by this Court regarding the practice and procedure of the court, of course such authority of this Court is made subject to the provisions of any law made by Parliament. Article...

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