All trials pertaining to capital cases falling under ordinary criminal law are conducted in the Court of Session
If the Court of Session awards the death sentence, the case is mandatorily referred to the concerned High Court for confirmation of the death sentence. [Section 366 (1), Code of Criminal Procedure, 1973 (CrPC)]
Proceedings Before the High Court
The High Court may confirm the death sentence awarded by the Court of Session, pass any other sentence warranted by law, annul the conviction, convict the person of any offence for which the Court of Session might have convicted her, order a new trial on the same or amended charge or acquit the accused person. [Section 368, CrPC]
The High Court bench must consist of a minimum of two judges. [Section 369, CrPC]The High Court may also enhance the sentence awarded by the Court of Session to death sentence. [Section 386 (c), CrPC]
The State Government or the Central Government may direct the public prosecutor to appeal to the High Court against the sentence granted by the Court of Session on grounds of inadequacy. [Section 377, CrPC]
The High Court shall not enhance the sentence awarded to the accused without giving her a reasonable opportunity of showing cause against such enhancement and while showing such cause, the accused may even plead for acquittal or reduction of sentence awarded by the Court of Session. [Section 377(3), CrPC]
In exercise of its suo-moto revisional powers, the High Court may, even in the absence of an appeal from the State against the inadequacy of the sentence, enhance the sentence awarded by the Court of Session. [Section 397, CrPC read with Section 401, CrPC]
The High Court may conduct or direct further inquiry into or additional evidence to be taken on any point bearing upon the guilt or innocence of the convicted person. Unless directed by the High Court, the accused need not be present during this period of this inquiry or when additional evidence is taken. [Section 367, CrPC]
The High Court also has the power to withdraw a case pending before a subordinate court and conduct the trial, and may award the sentence of death. [Section 407, CrPC]
Proceedings Before the Supreme Court of India
Right to Appeal under Article 134 of the Constitution of India (Constitution)
In cases where the High Court reverses the order of acquittal on appeal and sentences the accused to death, or where the High Court withdraws a case for trial before itself from a subordinate court and in such a trial convicts the accused and sentences her to death, an appeal shall lie with the Supreme Court. [Article 134(1) (a) & (b), Constitution]
Grant of Certificate of Appeal under Article 134A of the Constitution
A High Court may grant a certificate for appeal to the Supreme Court against its judgment, decree, final order or sentence, either on its own or on an oral application made by the aggrieved party, immediately after the passing or making of such judgment, decree, final order or sentence. [Article 134A, Constitution]
Appeal by Special Leave Special under Article 136 of the Constitution
The Supreme Court may in its discretion grant a special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order passed in any case, by any court or tribunal in India. [Article 136, Constitution]
Review Petition under Article 137 of the Constitution
A petition seeking review of a judgment or order passed by the Supreme Court may be filed before the Supreme Court within thirty days from the date of such judgment or order. As per the Supreme Court in Mohd Arif @ Ashfaq v The Registrar, Supreme Court of India & Ors, review petitions filed in those matters where death sentence has been given shall be heard in open court before a three-judge bench.
As per the Supreme Court in Rupa Ashok Hurrah v. Ashok Hurrah & Ors, after the dismissal of the review petition, the Supreme Court may allow a curative petition to reconsider its judgment or order if it is established that there was a violation of principles of natural justice or apprehension of bias on part of a judge. The curative petition would be circulated before the same bench which decided the review petition, if available, or the three senior-most judges of the Supreme Court. The curative petition would be disposed of without oral arguments, unless ordered otherwise by the Supreme Court.
Request of Pardon Filed Before a Governor of State or the President of India
The judicial process for confirmation of a death sentence concludes either in the Supreme Court or High Court (when no appeal has been filed by the prisoner or when the Supreme Court does not grant special leave to the prisoner). Thereafter, a person can file a request for pardon either to the Governor in case of a State or the President of India in case of Union Territories. [Art 72 and 161, Constitution]
In case of States, a request for pardon submitted by a person sentenced to death shall at the first instance be sent to the State Government, seeking orders of the Governor. Upon consideration, if the request for pardon is rejected by the Governor, it shall be immediately forwarded to the Secretary of the Government of India, Ministry of Home Affairs for consideration of the President of India.
In case of Union Territories, the request for pardon submitted by a person sentenced to death shall be sent to the Lieutenant-Governor/ Chief Commissioner/Administrator who shall forward it to the Secretary to the Government of India, Ministry of Home Affairs, for consideration of the President of India.
The Ministry of Home Affairs tenders advice to the President on the question of the requests for pardon submitted to him and the President is bound to act in accordance with such advice.
The power to grant pardon is not limited to the consideration of evidence that was placed before the court, but may also involve the examination of various factors that may be pertinent to the question of sentencing, such as socio-economic circumstances of the prisoner, age, sex, mental deficiency etc.
There is no requirement on the part of the Executive to provide reasons for the rejection or acceptance of requests for pardon. The nature of power exercised by a Governor or the President is different from judicial decision-making and would not result in abrogating the previous judicial record.
There is no limit as to the number of requests for pardon that can be filed by or on behalf of a prisoner, provided a new and substantial ground is presented in each request for pardon. The Law Commission of India in its 35th Report was also of the opinion that it was not desirable to lay down an exhaustive list of principles in accordance with which the sentence may be commuted by the Executive.
Writ Petition After the Rejection of Request for Pardon
The merits of the Executive’s decision or manner of execution of the power to grant parson cannot be scrutinised by the judiciary. The judicial review of the Governor or President’s decision is restricted to the area and scope of the pardoning power, as held by the Supreme Court in Kehar Singh v. Union of India.
In Shatrughan Chauhan v. Union of India, the Supreme Court held that the courts may also review whether relevant materials were examined by the Executive while exercising the power to grant pardon. It also held that non-consideration of supervening circumstances by a Governor or the President while rejecting the requests for pardon would be in violation of Article 21 of the Constitution and would be a sufficient ground for the Court to commute the death sentence to imprisonment for life. These supervening circumstances would include delay in execution, insanity/mental illness/ schizophrenia, solitary confinement, reliance on judgments declared per incuriam and procedural lapses in the disposal of the request for pardon.