Confirmation of a Death Sentence Sections 407 to 412

Sections 407 and 409, BNSS 2023

Section 407. 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.

Section 409. In any 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. And 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 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.

📖 Jumman v. State of Punjab, AIR 1957 SC 469

Facts: A death sentence was submitted to the High Court for confirmation, and the High Court dealt with the reference in a manner which, it was contended, did not involve a proper consideration of the whole of the case. The Supreme Court was required to state what the High Court must do on a reference.

Held: The Supreme Court held that on a reference for confirmation, the proceedings are before the High Court as a whole, and it is under a duty to consider the entire matter for itself — the evidence, the findings, the conviction and the sentence — and to come to its own independent conclusion on the guilt or innocence of the accused, irrespective of the view taken by the Court of Session. The High Court is not merely reviewing the decision below or looking for error in it: the whole case is reopened, and the Court must satisfy itself that the conviction is justified and that the extreme sentence is the proper one. The Court held that this duty arises whether or not an appeal is preferred, and is not diminished by the absence of argument on the part of the convicted person, since the reference exists precisely for the case of a man who may have nobody to argue for him.

Ratio: On a death reference the whole case is before the High Court, which must consider the entire matter for itself and reach its own independent conclusion on guilt and on sentence, irrespective of the view taken below and whether or not an appeal is preferred.

📖 Balak Ram v. State of Uttar Pradesh, (1975) 3 SCC 219

Facts: Convictions and a death sentence came before the Supreme Court, and questions arose as to the approach the High Court should take to the evidence in a case involving the capital sentence, and to the reliability of witnesses whose evidence had been accepted below.

Held: The Supreme Court reiterated that in a case involving a sentence of death the High Court must reappraise the evidence for itself and must not content itself with the assessment made by the Sessions Judge. The High Court is required to examine the evidence with more than ordinary care, because the consequence of an error is irreversible; and where the evidence is of a kind that requires close scrutiny — interested or partisan witnesses, discrepant accounts, or circumstances capable of more than one explanation — that scrutiny must be undertaken and must appear in the judgment. The Court emphasised that the standard of proof is not lowered because the offence is grave, and that the gravity of the offence and the severity of the sentence are reasons for greater, not lesser, caution in accepting the evidence.

Ratio: In a case involving a death sentence the High Court must reappraise the evidence for itself and examine it with more than ordinary care, because the consequence of an error is irreversible. Gravity is a reason for greater caution, not less.

⚠ Three features of the procedure worth noting

The reference and the appeal are heard together. The proviso to section 409 forbids an order of confirmation until the appeal period has expired or the appeal has been disposed of, so where the convicted person appeals, the two come before the same Bench and are decided together.

Two Judges must sign. Section 410 requires the confirmation, or any new sentence or order, to be made, passed and signed by at least two Judges where the Court consists of two or more — so a death sentence can never be confirmed by a single Judge.

And a division of opinion goes to a third Judge. Section 411 provides that where the Court is equally divided, the case with the opinions is laid before another Judge, whose opinion the judgment shall follow. That is different from section 433, which governs an equal division on an ordinary appeal.

The position stated shortly

1. Section 407: when a 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 confirmed.

2. The reference is not an appeal. It happens whether or not the convicted person appeals, nobody applies for it, and it puts the whole record before the High Court.

3. The High Court must consider the entire matter for itself and reach its own independent conclusion on guilt and on sentence, irrespective of the view taken below: Jumman.

4. It must reappraise the evidence and examine it with more than ordinary care, because the consequence of an error is irreversible. Gravity is a reason for greater caution: Balak Ram.

5. Section 408: the High Court may make a further inquiry or take additional evidence itself, or direct the Court of Session to do so, on any point bearing on guilt or innocence.

6. Section 409: the High Court may confirm the sentence or pass any other sentence warranted by law; annul the conviction and convict of another offence or order a new trial; or acquit.

7. No order of confirmation shall be made until the appeal period has expired or, if an appeal is presented, until it is disposed of. So the reference and the appeal are heard together.

8. Section 410: the confirmation, or any new sentence or order, must be made, passed and signed by at least two Judges. A death sentence can never be confirmed by a single Judge.

9. Section 411: where the Court is equally divided, the case is laid before another Judge, and the judgment shall follow his opinion.

10. Section 412: the proper officer shall without delay send a copy of the order, under seal and attested, to the Court of Session.