K. Govindaswami Pillai vs Government of India and Others

Natarajan, J.—On a reference made by Nainar Sundaram, J. this writ petition has been heard by this Full Bench . for determination of the

question, whether the pronouncement of a Division Bench of this Court in S. S. A. Vivekanandan v. State of Tamil Nadu, etc. W. P. 11886 of

1983, order D/- 2nd.July 1985 sets out the correct position of law and whether the petitioner is entitled to invoke the ratio in the said case to his

aid.

The, petitioner herein is the father of one Jayaprakash alias Jayaprakasarn, who was convicted by the Sessions Judge of Chengallpattu in S.C.

89 of 1984 on the file of his Court under nine counts under S. 302,

IPC, for having committed the murder of his sister, sister''s husband, their child and six others. between the hours 3.30 p.m. and 10 p.m. on 2 .4-

24-1984, and sentenced to be hanged by neck till he is dead, subject to the confirmation of the sentence by the High Court. While the Sessions

Judge made a reference of the case of Jayaprakash to this Court under S. 366, Cr. P.C., (hereinafter called the Code) for confirmation of

sentence:

the accused too preferred an appeal in S.C.A.703 of 1984 under S. 374(.2) of the Code. The reference, which was numbered as R. T. No. 11 of

1984 and the criminal appeal were clubbed and heard together by a Division Bench of this Court, consisting of V. Ramaswami and K.

M.Natarajan, JJ. The learned Judges affirmed

the convictions under the nine counts and the sentence of death too on the ground. that the murders had been prepetrated in a dastardly brutal and

inhuman manner. The learned Judges have given the reasons for confirming the sentence of death in the following terms:

Turning to the question of sentence, we find that the appellant acted like a demon showing no mercy to the helpless victims,, three of whom are

little children and two are, women and the murders have been perpetrated in a cruel, callous and fiendish fashion. He has not only murdered his

sister, who had entertained him and provided him with job, but also her husband, her six months old milking child, two brothers of his brother-in~

law, wife of the brother-in-law''s brother and his two daughters aged 6yearsand 2yearsand also the employee in the factory who was staying with

them and the entire family was exterminated for no fault of theirs. He has not only murdered all the nine members of the entire family but also

removed their belongings. Applying the guidelines laid down by their Lordships of the Supreme Court in Bachan Singh Vs. State of Punjab, and.

considering the facts and circumstances of this case, we are of the view that this is one of'' the rarest of rare cases which warrants only the sentence

of death and that the failure to invoke the sentence of death in a case of such grave nature and magnitude of the crime where nine murders were

committed in a very dastardly, brutal and inhuman manner, will bring to naught the sentence of death provided by S. 302, IPC. Hence, no

interference is called for in the sentence also.

The reference under S. 366 of the Code was ordered in terms of the confirmation of the convictions and sentence and the appeal filed by the

accused was dismissed.

On pronouncement of the judgment, the counsel for the accused made an oral application under Art. 134A of the Constitution praying for the

grant of leave under Art. 134(l)(c) of the Constitution to appeal to the Supreme Court. The-learned Judges declined to grant leave on the ground

that in terms of their detailed judgment for affirming the conviction and sentence, and since no substantial question of law of general importance

which needed to be decided by the Supreme Court arose for consideration, a certificate of leave was not called for.

Thereafter, the accused, preferred a SLP in SLP (Crl.) No. 1758 of 1985 to the Supreme Court under Art. 136 of the Constitution praying for

grant of special leave, but it was dismissed by the Supreme Court by order dated 23rd July 1985. The .accused then sought for review and filed

review petition No. 460 of 1985 in the Supreme Court under Art. 137 of the Constitution and that was also dismissed by the Supreme Court.

The accused then submitted a mercy petition to the President of India under Art. 72 of the Constitution, but it has also been rejected by the

President of India.

It is in this backdrop of the matters, the petitioner, viz. the father of the accused, Jayaprakash, has come forward with this petition under Art.

226 of the Constitution praying for the issue of a writ of declaration or any other appropriate writ, order or direction in the nature of writ for

declaring that -

(1) the death sentence passed on the accused is not executable as he had no chance of a regular appeal as a matter of right and as a matter of

course on points of law and on fa6ts to a higher court under the Code or under any other law.

(2) that the procedure prescribed under Ss. 235(2) and 354(3) of the Code and under Art. 22(2) read with S. 167 of the Code and Ss. 3 and 9

of the Evidence Act and Order 624 of the Tamil Nadu Police Standing Orders and S. 154(2) of the Code have not been followed and that the

non-compliance of the procedure is violative of Arts. 14, 19, 20 and 21 of the Constitution;

(3) that as the death sentence imposed upon the accused under S. 302, IPC, has an alternative punishment,. it is violative of Arts. 14, 19 and 21 of

the Constitution, since the death sentence, has been given to him without being given an opportunity of appeal as a matter of right and course to a

higher court;

(4) that the execution of the death sentence as provided for under S. 413 of the Code is not executable as the accused had no opportunity to

prefer an appeal to a higher Court as a matter of right, and as such, any proceeding under S. 413 of the Code is violative of Arts. 14, 19 and 21 of

the Constitution;

(5) that the evidence provable under S.. 27,Evidence Act, read with S. 162(2) of the Code as far as it relates to S. 27, Evidence Act, is not in

accordance with the rights of the accused -under Arts. 14, 19, 20 and 21 of the Constitution; and

(6) that in the result, the death sentence passed upon accused Jayaprakash by the Sessions Judge, Chengalpattu, and confirmed in R.T. 11 of

1984 by this Court is not executable, and pass such other or further orders as this Honourable Court may deem fit and proper in the interests of

law and fair procedure and thus render justice.

Propounding the case of the petitioner Mr. Krishnaswami advanced elaborate arguments touching upon the provisions of the Constitution and

the C.P.C. The principal contentions urged by him can be summarised in the following terms:-

(1) Since S. 366 of the Code, 1973, mandates that 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 it is confirmed by the High Court, the conviction and sentence of death awarded by the

Sessions Court is not a conviction and sentence in the eye of law and the Sessions judgment would only constitute an opinion or recommendation

of the Sessions Judge and it is equitable to a Commissioner''s report and nothing more.

(2) As a sentence of death. cannot be executed unless it is confirmed by the High Court under S. 368 of the Code, a referred trial constitutes a

continuation of the trial and consequently, the High Court stands in the position of trial Court only and the conviction and sentence. awarded by it

amounts to an original conviction and sentence. Such being the case, the accused is entitled, by virtue of the principles of natural justice, to a first

appeal on facts to the Supreme Court. But neither Art. 134 of the Constitution nor the provisions of the Code provide for such an appeal, By

reason of this factual omission, there is a violation of Art. 21 of the Constitution.

(3) Under Arts. 134(l)(a) and 134(l)(b), an automatic right of first appeal. to the Supreme Court is provided for an accused person sentenced to

death -in an appeal against acquittal filed before the High Court and- an accused person sentenced to death in a case withdrawn by the High Court

for trial before itself from any court subordinate to its authority. But no such right of appeal is provided for an accused sentenced to death, whose

sentence is confirmed tinder S. 368 of the Code and this would constitute violation of Art. 14 of the Constitution.

(4) A referred, trial. is not equitable to or even comparable with a first appeal on facts. Such being the case, the referred trial, constitutes an

integral part of the. trial proceedings and in such circumstances, an accused person sentenced to death in a referred trial is entitled as of right to file

a first appeal on facts to the Supreme Court.

(5) Under the old Code, 1898, S. 411 (A) provided a fight of internal appeal to the High ''Court against a sentence of death passed by a Judge of

the High Court; but that right is nonexistent in the new Code, 1973. Since the right of internal appeal has been taken away, an accused person

sentenced to death by the High Court should have a right of first appeal on facts to the Supreme Court.

(6) S. 374(2) of the Code provides for an appeal to an accused person only in those cases where a Sessions Judge, Additional Sessions Judge or

any other Court awards a sentence of imprisonment for more than seven years, but since that provision does not confer a right of appeal to an

accused person sentenced to death by the Sessions Judge or Additional Sessions Judge, it follows that there is no provision for an appeal under

the Code for the latter.

(7) A referred trial by the High Court is not referable to its appellate jurisdiction or ordinary criminal jurisdiction or extraordinary criminal

jurisdiction and, therefore, it must be held that referred trial is a continuation of the trial proceedings of the Sessions Judge and for that reason, a

right of appeal on facts to the Supreme Court should be available under law-, but it has not been provided for under law.

(8) The reference in sub-s. (4) of S. 363 and the proviso to S. 368 of the Code to appeals against sentence of death imposed by the Sessions

Judge are meaningless provisions, because the Code does not expressly provide for an appeal to the High Court to an accused person sentenced

to death by the Sessions Judge.

(9) Under the Terrorists Act. a right of first appeal on. Facts to the Supreme Court is provided for; but no corresponding right has been provided

for under the Code for an accused sentenced to death by the Sessions Judge and hence, there is violation of Art. 14 of the Constitution.

Thiru R. Krishnamurthi, learned Advocate-General, appearing for respondents 2 to 4 advanced counter arguments to refute the contentions of

the petitioner''s counsel. The learned Advocate General elaborately dealt with the various provisions of the Code, which have not only relevance,

but also a direct bearing on the matters raised for consideration and argued that all judgments rendered by the Sessions Court, including a

Judgment where a conviction under S. 302, IPC is awarded and a sentence of death is imposed are judgments of finality in so far as that Court is

concerned, that there are specific provisions in the Code entitling an accused person sentenced to death to prefer a first appeal. on facts to the

High Court and that it is futile for anyone to contend that there is a lacuna, in Chap. XXIX of the Code and on account ''of that fact the

requirements of Art. 21 of the Constitution are. not satisfied whenever an accused is sentenced to death by a Sessions Judge. The learned

Advocate. General pointed out that Jayaprakash, on whose behalf'' this. petition has been filed, had earlier filed a first appeal on facts to this Court

in Cr. A. P. 703 of 1984 under S. 374(2) of the Code and canvassed before a Division Bench of this Court several questions of fact as well as

law and having availed the right of appeal, there is neither grace nor justice in the petitioner now contending that his son, Jayaprakash, has been

deprived of the right of first appeal on facts and as such, this Court should interfere with the death sentence awarded to him. The, Advocate

General then explained the scope and- object of the reference proceedings for confirmation of death sentence and argued that it is a self-w6rking

provision of appeal, which ensures to ''every accused person sentenced to death a thorough reappraisal by the High Court of this case and the

sentence awarded to him.irrespective of the question whether the accused exercises his option to prefer an appeal or not. It was further argued that

if the contentions of the petitioner''s counsel are to be accepted, then serious inroads would be made into Arts. 134 and 136 of the Constitution.

Thiru Narasimhan, learned Central Government Standing Counsel, appearing for the first respondent, adopted the arguments of the learned

Advocate-General.

Before we take up for consideration the arguments of Mr. Krishnaswami and the counter arguments of the learned Advocate General, it will be

relevant to point out that a sentence of death, notwithstanding the fact that it is the extreme penalty, which can be imposed on a human being, and a

sentence of death when executed, will lead to an irreversible and irremediable situation, is neither an unlawful nor an unconstitutional sentence. The

Penal Code provides for the extreme penalty of death sentence being imposed in a limited class of offences, if the Court is of the view that the

accused has forfeited his right to seek imposition of the alternate sentence of imprisonment for life, which has pre-emptive acceptance under S.

354(3) of the Code.

In Bachan Singh Vs. State of Punjab, , the Supreme Court held that -

The provision bf death penalty as an alternative punishment for murder in S. 302: IPC, is not unreasonable and, it is in the public interest.

Therefore, it can be held that the impugned provision in S. 302 violates neither the letter nor the ethos of Art. 19 of the Constitution.

It was further held that a sentence of death to be executed by hanging the convicted person by neck till he is dead is not violative of Art. 21. In the

words of the Supreme Court -

Thus expanded and read for interpretation purposes, Art. 21 clearly brings out the implication, that the Founding Fathers recognised the right of

the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.

This ratio has been reiterated in a latter case viz., Deena alias Deen Dayal and Others Vs. Union of India (UOI) and Others, . It is enough if we

extract the head note alone in the reported decision. It is to the following effect :

It is contended that it is inhuman to kill under any circumstances, even under a judgment of a Court and, therefore, no death sentence can be

executed at all by means fair or foul, and that the fact that the method prescribed by law for executing the death sentence is humane makes no

difference for, Art. 21 imposes a total prohibition on the taking of human life, which would include the execution of death sentence.

Held : It is impossible to accept the petitioners'' contention.

After thus freeing the mind from any boggling situation about the constitutional validity of the awesome sentence of death, we will turn our

attention to a very elementary question, viz., whether a judgment of conviction rendered by a Sessions Judge in a murder case and a sentence of

death awarded therein, will amount to a trial, judgment, conviction and sentence, as known to law, or, whether the judgment would only amount to

a Commissioner''s report, in a civil action and whether the conviction and sentence will only constitute a recommendation by the Sessions Judge.

We feel constrained to go into this elementary question because the counsel for the petitioner, whose arguments suffered not only from a total

misconception, but also from a mental delusion, initially tried to contend that a Sessions judgment is no judgment at all if death sentence is imposed;

but would only be equitable to a Commissioner''s report and amounts to a mere recommendatory exercise by the Sessions Judge. The basis for

such an argument is that a sentence of death imposed by a Sessions Judge is not a sentence of executability unless it is confirmed by the High

Court. The Counsel also sought to draw support for this proposition from certain observations made by the Division Bench in S. S. A.

Vivekanandan v. State of Tamil Nadu, etc. W. P. 11886 of 1983, order dt. 2-7-1985 by V. Ramaswami and Shanmukham, JJ. In para 9 of the

judgment, we find the following view expressed -

It is also of vital importance to notice that the judgment of the Sessions Court has no more efficacy than a Commissioner''s report, in a civil action.

The mere fact that the Code enables the accused to prefer a criminal appeal is of no consequence because the death sentence made by the

Sessions Court is still unenforceable and also because with or without such an appeal, the duty of this Court is to act under Chap. XX VNIII of the

Code. Above all, we would like to emphasize that for our purpose, it is enough that the jurisdiction of this Court under Chap. XXVIII is

undoubtedly not appellate. Further the verdict of the Sessions Court lacks the fundamental characteristics of a judgment, viz. the enforceability. Let

us recall the principle of law rendered by Govinda MenQn, J. in the decision of the Supreme Court, Therefore, when this Court passed the

sentence of death thereby approving the finding of the Sessions Court, it is the first judgment that is rendered in that case. We have just now

pointed out that the judgment of the Sessions Court cannot be a judgment in the eye of law.

It really passes our comprehension as to how such an argument can be advanced by the petitioner''s counsel in the face of the glaring provisions in

the Code and the legion of case law on those provisions.

The Criminal P.C. categorises the offences punishable under the Penal Code as (1) Summons cases and 12) Warrant cases. Warrant cases

have been defined under S. 2(x) of the Code as meaning a case relating to an offence punishable with death, imprisonment for life or imprisonment

for a term exceeding two years. All cases not falling within the definition of ''warrant cases, will fall under the category of ''summary cases''. The

First Schedule to the Code classifies the offences under the heads (a) cognisable and noncognisable; (b) bailable and non-bailable and (c) by what

Court triable. The Schedule sets out the cases, which are exclusively triable by the Court of Session and it is needless to say that the offence of

murder is one such case, which is exclusively triable by the Court of Session. Chapter XVIII sets out the procedure to be followed in trials before

a Court of Session. We then come to Chapter XXVII under the heading The Judgment . S. 353 lays down how a judgment in every trial in every

criminal court of original jurisdiction shall be pronounced'' by the Presiding Officer. Passing over the other sections, we must focus our attention on

sub-s. (4) of S. 363. The section itself deals with furnishing of a copy of the judgment -to the accused, who is convicted and sentenced. In so far

as sub-s. (4) is concerned, it reads as follows -

363(4) : - When the accused is sentenced to death by any Court and an appeal lies from such judgment as of right, the Court shall inf6rrii him of

the period within which, if he wishes to appeal, his appeal should be preferred.

Section 362 lays down that a judgment or final order disposing of ease, once signed, shall not be altered or reviewed unless for correcting a

clerical or arithmetical error. In our opinion these provisions by themselves are strongly indicative of the fact that on the conclusion of a sessions

trial, the Sessions Judge or the Additional Sessions Judge has to render judgment, the judgment once rendered acquires unalterable finality and that

if the accused is sentenced to death, the Court is duty bound to inform him of his right to file an appeal within the prescribed time, besides

furnishing him with a copy of the judgment.

Notwithstanding these provisions, the petitioner''s counsel submitted that since a death sentence awarded by a Sessions Judge is not eo instanti

executable, it is not a judgment and in any case, not a judgment of finality. Here again, we must expose the fallacies contained in the argument.

Section 366(l) does not suspend the conviction or even the sentence, but only the execution of the sentence till it is confirmed by the High Court.

We shall presently deal with the question whether the finality of a judgment is in any. way linked with the sentence awarded to the accused and in

particular with reference to its executability. But before doing that, we would like to draw attention to sub-s. (2) of S. 366. The said sub-section

provides that the Court passing the sentence of death ''shall commit the convicted person to jail custody under a warrant. From this, it may be seen

that a death sentence imposed by a Sessions Judge is not an inconsequential sentence and to have no relevance whatever till it is confirmed by the

High Court. As already stated the sentence of death does not stand nullified or effaced by reason of S. 366(l); but it only remains in a state of

suspended animation till it is confirmed by the High Court and till then, the accused has to necessarily suffer incarceration.

Coming now to the question whether a sentence and that too an executable sentence is a sine qua non for a verdict of Court being recognised

as a judgment in law, we have to notice that in a judgment of acquittal, there is no imposition of sentence at all. Even so, the judgment is a valid

judgment under the Code, and as against the judgment an appeal can be filed in the High Court Even if it is not a case of acquittal, but a case of

conviction, a sentence of imprisonment or fine need not necessarily be imposed. In fact S. 360 of the Code provides that any person not under 21

years of age, if he is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when a person

under 21 years of age or any woman is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is

proved against the offender, if it appears to the Court which convicts him/her that on account of his/her age, character, antecedents, circumstances

of the case, etc., it is expedient that the offender should be released on probation of good conduct the Court may instead of sentencing him/her at

once to any punishment direct that he/she be released on his/her entering into a bond with or without sureties, to appear and receive sentence when

called upon during such period (not exceeding three years) as the Court may direct and in the meantime; to keep the peace and be of the good

behavior Sub-section (3) of S. 360 provides that in the type of cases enumerated in that sub-section, it will be open to the Court to even release an

accused person after admonition. Section 361 contains a mandate that if a Court instead of acting under S. 360 or dealing with a youthful offender

under the Children Act 1960, or any law analogous to that Act awards sentence to an accused, it shall record in its judgment the special reasons

for having done so. Thus, it maybe seen that a sentence of imprisonment or fine is not a sine qua non for a judgment Of a criminal Court to merit

recognition as a judgment under the Code. On the other hand, the finality of a judgment is to be determined with reference to its appealability.

Viewing the matter from another angle, we are able to perceive yet another fallacy in the argument of Mr. Krishnaswami. The proposition

advanced by the Counsel is restricted only to judgments of Sessions Judges, where sentence of death is imposed on an acc used person. If we are

to accept the argument then the ridiculous position which would emerge would be, that the judgment of a Sessions Court, if it ends in awarding

imprisonment, including imprisonment for life or fine, it will constitute a judgment; but if it is a judgment in which death sentence is imposed, it will

not be a judgment, but only a recommendatory report. Therefore, the curious result that would follow is that a sessions trial would constitute a

completed trial and a sessions judgment will amount to a judgment in the eye of law if a sentence of fine or imprisonment or even imprisonment for

fife is awarded; but it will be no judgment if sentence of death is imposed. Such a proposition, unheard of in the annals of criminal jurisprudence,

from a flagrant misreading of the provisions of the Code.

Mr. Krishnaswami repeatedly harped upon the contention that it is a basic requirement of natural justice that there must beat least a single right

of first appeal on facts, when a conviction is awarded and that too with a dreadful sentence of death. In support of this argument he quoted the

following passage from the Division Bench judgment in Vivekananda v. State of Tamil Nadu etc., W. P. 11886 of 1983. The Division Bench, after

referring to the decision in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, , has observed as follows -

According to the above ratio, the convict shall have at least A single right of appeal on facts where criminal conviction is fraught with long lapse of

liberty. As in our view the judgment rendered under S. 367 (sic) by the High Court is the first judgment it would follow that on the principle laid

down by the Supreme Court the convict shall have at-least a right of first appeal on facts. We find reinforcement in Art. 21 of the Constitution of

India...........According to the Supreme Court the procedure referred to in Art 21 should be, fair, just and reasonable. It is in these circumstances,

Mr. P. H. Pandian, learned counsel contended that denial of a right of first appeal on facts is neither reasonable nor just nor plaisible. Is not

therefore the petitioner entitled to contend that when the three condemned prisoners are denied the right of first appeal against the judgment

rendered by High Court, under S. 368 of the Code, it is violative of Art. 21 of - the Constitution of India......

We wish to point out that the contention of Mr. Krishnaswami is only partly sustainable and not wholly sustainable. The very decision quoted by

the Division Bench has laid down that, ''the provisions of at least a single right of appeal on facts'' is not an unexceptional mandate in all

circumstances and the prescription is an inexorable one. In Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, , the Supreme Court has

laid down as under:-

One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts,

where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and

normative universality_save in special cases like the original Tribunal being ,a high bench sitting on a collegiate basis In short, a first appeal from the

Sessions Court to the High Court, as provided in the Cr. P.C.manifests this value up-held in Art. 21

From the above, it may be seen that if the original Tribunal were to be a high Bench sitting on a collegiate basis, it will not offend the principles of

natural justice or Art. 21 of the Constitution if a right of first appeal on facts against the judgment of the high Bench sitting on collegiate basis is not

provided. We may illustrate the position by a theoretical example. If the High Court were to set aside the conviction and sentence of death

imposed by a Sessions Judge, and acquit the accused and die State prefers an appeal against the acquittal to the Supreme Court, and the Supreme

Court were to allow the appeal and restore the conviction and the sentence of death, as it happened in State of U.P. Vs. Deoman Upadhyaya,

then there can be no right of first appeal on facts to any higher forum thereafter. In such a case, can it be said that the conviction and sentence

awarded by the Supreme Court is violative of the principles of fair procedure and natural justice and also Art 21 of the Constitution. The obvious

answer is in the negative. Likewise, if the High Court allows an appeal against acquittal under S. 378 of the Code and convicts and sentences an

accused to imprisonment for a term less than ten years, the accused has no right of appeal to the Supreme Court. In such a case, the accused

cannot complain of a denial of right to file an appeal without leave and invoke Art. 21 to his said because the High Court is a high Bench sitting on

collegiate basis and will therefore constitute a Court of finality in respect of such cases. Therefore, it has to be realised that the proposition that in

every case of conviction, there must at least be a single right of appeal on facts, is subject to certain limitations i.e. where the Court awarding the

conviction is a high Tribunal sitting on a collegiate basis or where the conviction has been awarded on admission of guilt or where the sentence is of

a petty nature.

Having noticed this position, we shall now take up for examination the main contention of Mr. Krishnaswami viz. that as against a sentence of

death imposed by a Sessions Judge, the Code has failed to provide a first appeal on facts to the High Court and hence, there is a violation of Art.

21 of the Constitution. Learned counsel for the petitioner completely oblivious of the provisions of Chap. XXIX and in particular S. 374(2),

strenu6usly contended that the Code does not provide for a single right of appeal on facts to an accused sentenced to death by the Sessions Judge

and, therefore, there is a lacuna in fie Code and on that ground it must be held that the conviction and sentence awarded to Jayaprakash is in

contravention of Art. 21 of the Constitution. In Joseph v. State of Goa, AIR 1977 SC 1812 at p. 1814, it has been pointed out -

A Code is complete and that marks the distinction between a Code and an ordinary enactment The Criminal Procedure Code, by that canon, is

self-contained and complete.

It therefore follows that Chap. XXIX is an all pervading Chapter in so far as the filing of appeals from any judgment or order of the criminal Court

is concerned, unless a right of appeal is conferred by any other law for the time being in force. Section 37 sets out this position in unmistakable

terms and it reads thus -

No appeal shall lie from any judgment or order of a Criminal Court except as-provided for by this Code or by any other law for the time

being in force.

Though Chap. XXIX contains Ss. 372 to 394, we will confine our scrutiny to the relevant provisions alone.

Section 374 provides for appeals against judgments of convictions. It contains three sub-sections and they read as follows : -

Appeals from convictions:-

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a

sentence of imprisonment for m re than seven years has been passed against him or against any other person convicted at the same trial may appeal

to the High Court.

(3) Save as otherwise provided in sub-s. (2), any person -

(a) convicted on a trial held by, a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b) sentenced under S. 325, or

(c) in respect of whom an order has been made or a sentence has been passed under S. 360 by any Magistrate, may appeal to the Court of

Session,

From a reading of the section, it may be seen that sub-s. (1) deals with those cases where a trial is held by the High Court in its extraordinary

original criminal jurisdiction and in such a trial, if a person is convicted, he is entitled to file an appeal to the Supreme Court unless the case falls

within the excepted categories envisaged under Ss. 375 and 376. Coming to sub-s. (2), it consists of two parts. The first part deals with

convictions awarded in trials held by a Sessions Judge or an Additional Sessions Judge. In respect of those cases, an automatic right of appeal to

the High Court is provided for unless the case falls within the excepted categories under Ss. 375 and 376 of the C ode. The second part of the

sub-section relates to trials held by all other Courts except by a Sessions Judge or an Additional Sessions Judge, in which a sentence of

imprisonment for more than seven years is awarded. In those cases, the convicted person has a statutory right of appeal on facts to the High Court.

The reason for this sub-section providing a right of first appeal to person convicted in trials held by a Sessions Judge or an Additional Sessions

Judge to the High Court is not far off to see. In the set up of Criminal Courts in this country, there is no higher court -Ito a Sessions Court or

Additional Sessions Court than the High Court. There fore,irrespective of the question whether the Sessions Judge or Additional Sessions Judge.

awards a sentence of death or imprisonment for life- or imprisonment for any term exceeding three months or a fine exceeding Rs. 200, the

convicted person will automatically have a right of first appeal on facts to the High Court. The second limb of S. 374(2) confers a right of first

appeal on facts to the High Court if the trial is held by any Court other than a Sessions Judge or Additional Sessions Judge In which a sentence of

imprisonment for more than seven years has been passed against an accused or against a co-accused tried along with him. In other cases, where

such Courts award a sentence of imprisonment for a period less than seven years, the accused has a right of appeal to the Sessions Court. This is

specifically provided for in sub-s. (3).

Mr. Krishnaswami, however, contended that S. 374(2) must be read conjunctively and not disjunctively and if so read, it may be seen that it

materially differs from S. 410 of the old Code, which expressly. provided a right of appeal on facts to the High Court against conviction awarded

by a Sessions Judge or an Additional Sessions Judge. This argument contains a fallacy so patent and manifest in it that we do not think the

argument requires serious examination. A mere comparative study of the relevant provisions in the old Code, 1898, and the present Code, 1973,

will be more than enough to reject the contention of the petitioners counsel. The relevant provisions of the old Code and the present Code in so far

as appeals to the High Court are concerned may be set out side by side and compared.

(for table see next page.)

From this comparative reading of the relevant provisions of the old Code and the new Code,, it will be seen that S. 410 in the old Code has .been

retained in its identical form in the first limb of sub-s. (2) of S-. 374. The second limb contains innovations, in that, under the old Code (a) a person

sentenced to imprisonment exceeding a term of four-years awarded by an Assistant Sessions Judge or a specially empowered Magistrate under S.

30(b) any person convicted by a Magistrate of an offence under S. 124(A). Penal Code, and (c) any person sentenced by a Presidency

Magistrate to imprisonment exceeding six months or fine, exceeding Rs. 200, was also entitled to file an

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Old Code (1898)

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410.: Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court.

408 Proviso (b) :

When in any case an Assistant Sessions Judge or a Magistrate specially empowered under S. 30 passes any sentence of imprisonment for a term

exceeding four years, or any sentence of transportation, the appeal of all or any of the accused person convicted at such trial shall lie to the High

Court.

408 Proviso (c) :

Where any person is convicted by a Magistrate. of an offence under S. 124-A I.P. Code, the appeal shall lie to the High Court. restricts the right

of first appeal to the High Court in trials held by a Court other than a Sessions Judge or an Additional Sessions Judge only if the sentence of

imprisonment is for more than seven years. All other sentences awarded by Courts other than the Sessions Judge or the Additional Sessions Judge

are appelable under sub-s. (3) of S. 374 of the new Code to the Court of Session, unless the right of appeal is taken away under. S. 375

(admission of, guilt cases) and under S. 376 (petty cases). It is, therefore, futile for the petitioner''s counsel to argue that a person sentenced to

death by a Sessions Judge or an Additional Sessions Judge was conferred a right of appeal to the High Court under the old Code, but such a right

has, either by inadvertence or defective drafting, been taken away under the new Code, 1973.

Section 375 deals with cases, where an accused has pleaded guilty. It is a non obstante section and it lays down that notwithstanding anything

contained in S. 374, if an accused person has been convicted on his admission of guilt by the High Court, there shall be no right of appeal. If the

conviction based on admission of guilt has been awarded by a Court of Session, Metropolitan Magistrate or Magistrate of the First or Second

Class, the accused has a limited. right of appeal, viz., only regarding the extent or legality of the sentence. Then comes S. 376 which excludes the

right of appeal in petty cases. The details

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New Code (1973)

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374(2). Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge......... may appeal to the High Court.

374(2). Any person convicted on a trial held by any other court in which a sentence of, imprisonment for more than seven years has been passed

against him or any other person convicted at the same trial may

appeal to the High Court. of that section do not require mention for the purposes of this Order. Suffice it to say that the exclusion of the right of

appeal in such case is on account of the light nature of the sentence.

We then have S. 377, which provides for the State Government or the Central Government, as the case may be, filing an appeal for

enhancement of sentence, where the sentence awarded by the trial Court is considered inadequate. Section 378 follows S. 377, and it provides for

appeals being filed against acquittals by the State Government or the Central Government, as the case may be, or even by a complainant if the

acquittal has been rendered in a case taken on file on a private complaint.

The next section which requires mention in S. 379 and it deals with appeals against the judgment of the High Court in certain cases. If in an

appeal against acquittal filed under S. 378, the High Court allows the appeal and convicts the accused person and sentences him to death or to

imprisonment for life, or to imprisonment for a period of ten years or more, he may appeal to the Supreme Court. It is pertinent to point out here

that though the conviction has been awarded by the High Court in exercise of its appellate powers, the conviction will tantamount to a conviction

awarded by a trial Court and therefore, the accused has been given a right of appeal on facts to the Supreme Court. Another feature of significance

to be noticed in this section is that if the sentence awarded by the High Court is for a lesser term than ten years, then the accused will not have an

automatic right of appeal to the Supreme Court even though the sentence has been awarded by the High Court in an appeal- against acquittal.

Such cases will fall- within the category of cases envisaged by the Supreme Court in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, ,

viz., special cases dealt by a Tribunal being a High Bench sitting on a collegiate basis.

23A. Section 381 sets out the manner in which the appeals are to be heard by the Sessions Judge or the Additional Sessions Judge and also by the

Assistant Sessions Judge or the Chief Judicial Magistrate, if the. conviction had been rendered by a Magistrate of the Second Class. Section 382

sets out the form in which a petition of appeal should be prepared for presentation to the appellate Court. Section 383 sets out the procedure as to

how an appeal should be prepared by an appellant if he is in jail Section 384 empowers the appellate Court to dismiss an appeal summarily if the

Court considers that there is no sufficient ground for interfering with the conviction and sentence. But at the same time, it also delineates the

parameters within the limits of which the power of summary dismissal can be exercised. Section 385 sets out the powers of the appellate Court in

various situations viz., appeals against convictions as well as appeals for enhancement of sentence and appeals against acquittal. In another portion

of the order, we will appositely refer to the powers exercisable by an appellate Court in appeals arising from convictions and compare those

powers with the powers exercisable by the High Court under S. 368 of the Code. Section 386 sets out the procedure to be followed when an

appeal is heard on merits by the High Court. This section calls for a comparison with S. 371 and we shall do so in another portion of the order.

Next in order to be mentioned is S. 391. It lays down that in appropriate cases, an appellate Court may order additional evidence to be recorded.

after first recording the reasons for such an order being made. Sub-section (1) of S. 391, we may however, ''mention also requires comparison

with S. 367(l).

Section 392 envisages the procedure to be followed where an appeal is heard by a Bench of Judges of the High Court and they are divided in

opinion. This section too warrants comparison with S. 370. Then comes S. 393 which lays down that the judgments and orders passed by an

appellate Court will be final, except in the cases falling under S. 377 (appeal for enhancement of sentence), S. 378 (appeal against acquittal), and

S. 384(4) (appeal presented under S. 382 on behalf of the. Same appellant, if his earlier appeal from jail under S. 383 has been summarily

dismissed Y. Lastly we have S. 394, which deals with the abatement of appeals. Sub-section (1) provides that every appeal under S. 377 (for

enhancement of sentence) and S. 378 (against acquittal) shall finally abate on the death of the accused. Subsection (2) provides that every other

appeal under the Chapter (except against a sentence of fine) shall abate on the death of the appellant; but there is a proviso, and it is of

significance. It states that if the appeal is against

a conviction and sentence of death or of imprisonment and the appellant dies during. the pendency of the appeal, his near relatives may, with the

permission of the Court continue the appeal, and in such cases, the appeal shall not abate. The proviso to S. 394, riot only proves the right of an

accused sentenced to death to prefer a first appeal on facts to the High Court but it goes a step further and says that even after the death of the

appellant, the appeal may be pursued by his near relatives,subject to the pre- condition that they obtain leave from the High Court to continue the

appeal.

While the Division Bench in Vivekananda''s case, W.P. 11886 of 1983, recognized the right of appeal conferred under S. 374(2) of the Code

to an accused person sentenced to death by a Sessions Judge or an Additional Sessions Judge, Mr. Krishnaswami who relied heavily on the order

of the Division Bench, went a step further and sought to canvass that the right of appeal conferred under S. 374(2) would not extend to. a case

where a sentence of death is imposed, because the sub-section refers only to sentences of imprisonment for more than seven years. Giving priority

of consideration to the order of the Division Bench, we find that the learned Judges have held that notwithstanding S, 374(2) conferring a right of

appeal to an accused person, whose sentence of death is confirmed by the High Court, the principles of natural justice will not be satisfied unless

he has a further right of appeal on facts to the Supreme Court. Such a view has been taken on the premise that referred trial proceedings constitute

an integral part of sessions trial and as such, the High Court also will stand in the shoes of the trial Court and the sentence of death confirmed by it

will amount to first executable sentence imposed on the accused. We will deal with the fallacy contained in this view, when we consider the scope

and effect of Chap. XXVIII and the nature of the powers exercised by the High Court under S. 368 of the Code. Coming now to the argument of

Mr. Krishnaswami, we find that this contention is not only in direct conflict with S. 374(2), but it also blacks out several relevant provisions of the

Code and also Art. 135 of the Limitation Act.

The relevant provisions, which will be rendered meaningless, if Mr. Krishnaswami''s argument is to be accepted are as under: The first is sub-

sec. (4) of S. 363, which obligates the Sessions Judge or Additional Sessions Judge to inform an accused sentenced to death of his right to prefer

an appeal and the period within which the appeal should be preferred. The second is, the proviso to S. 368, which enjoins the High Court to defer

the exercise of its powers of confirmation under S. 368 till the period allowed to an accused for preferring an appeal has expired, or, if an appeal

has been presented within the period allowed, until the appeal is disposed of. The third is, the proviso to S. 394, which provides for the

continuance of an appeal preferred by an accused against a sentence of death or imprisonment, by the relatives of the accused, after the death of

the accused himself, provided they obtain leave from Court to pursue the appeal, instead of allowing it to abate. Provision for an appeal being

continued even after the death of an accused person, has been made in order to enable the near relatives of the accused to prove his innocence

and vindicate his name even after his death. Moreover, a conviction for an offence of murder and sentence of death awarded to an accused, may

have certain ramifications on the rights of inheritance. For example, S. 25, Hindu Succession Act, disqualifies a person, who commits murder or

abets the commission of murder, from inheriting the properties of the person murdered or any other property in furtherance of the succession to

which he or she commits or abets the commission of murder. The fourth is, Art. 135, Limitation Act, which prescribes the period of limitation for

filing an appeal against the sentence of death imposed by a Court of Session or by the High Court in exercise of its original criminal jurisdiction as

30 days from the date of sentence (underlining by us). Under the old Limitation Act, the period of limitation was seven days; but in order to give a

longer period, the new Act has enlarged the period of limitation to 30 days. If Mr. Krishnaswami''s argument is to be accepted, then it would

follow that all these provisions in the Code and in the Limitation Act would become meaningless provisions. It is with reference to the strange

situation that would follow, the learned Advocate General submitted that the first limb of S. 374(2) should be read in its full amplitude and not in a

restricted manner, as propounded by Mr. Krishnaswami, and that it is a well-known rule of law that a Court should avoid construction of the

provisions in a statute as far as possible, which would render a part of the statute bereft of meaning or application. As authority for this argument,

Mr. Krishnamurthi learned Advocate General cited Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, where the rule of

interpretation to be followed was declared thus : -

While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute and imply a right of appeal, it is incumbent on the Court to

avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application.

We are in entire agreement with the argument of the learned Advocate General in this behalf. We therefore find that apart from the direct provision

contained in S. 374(2) conferring a right of appeal on facts to an accused person sentenced to death, there are other provisions in the Code and

also a provision in the Limitation Act, pointing clearly to existence of the right of appeal.

A scan of the case law affords us reinforcement materials, which authoritatively set out that there is not only a right of appeal on facts to the

High Court even in death sentence cases, but furthermore, that such an appeal is of a final nature. The judicial pronouncements on this aspect of the

matter are to be found in the following decisions of the Supreme Court. In Rajaram Govind Gavade Vs. State of Maharashtra, , it was stated thus

-

upon a conviction in a criminal trial on a charge of murder under S. 302, there is only one appeal on facts, that appeal lies to High Court.

In an earlier case, Balak Ram Vs. State of U.P., , it has been observed as follows -

In Ramaphupala Reddy and Others Vs. The State of Andhra Pradesh, it was observed that it was best to bear in mind that normally the High

Court is a final Court of appeal and the Supreme Court is only a Court of special jurisdiction.

Thus, on a conspectus of the relevant provisions of Chap. XXIX with particular reference to S. 374(2), it may clearly be seen that every

person convicted in a trial held by a Sessions Judge or an Additional Sessions Judge, and sentenced to death or imprisonment or fine, has an

indefeasible right of appeal to the High Court, unless the case falls under the excepted categories set out in Ss. 375 and 376. It therefore goes

without saying that every accused person sentenced to death by a Court of Session has not only a right, but an undeniable right, to file a first appeal

on facts to the High Court against his conviction and sentence, The contentions of Mr. Krishnaswami to the contra are clearly misconceived and

stem from an imperfect reading of S. 374(2) of the Code.

We shall take up for consideration the scope and effect of Ch. XXVIII and Ss. 366 to 371 contained therein. ''This exercise we have to

necessarily make in order to find out whether referred trial proceedings constitute an integral part of the trial proceedings before the Sessions Court

and whether by reason of a sentence of death not being executable till the High Court confirms it in the reference made to it, the High Court also

becomes a Court of trial and not a Court of appeal. The Division Bench has taken the view that the High Court stands relegated to the position of

a trial Court in all those cases, where death sentence is imposed by a Sessions Judge or an Additional Sessions Judge and a reference is made for

confirmation of sentence under S. 366 of the Code. The reasons, which have impelled the Division Bench to render such a finding are as follows -

(1) Sections 366 to 371 are not included in Chap. XXIX designated under the heading ''Appeals'' but have been grouped under a distinct Chapter,

viz., Chap. XXVIII under the heading ''Submission of death sentence for confirmation.

(2) The concept of appeal connotes that the sentence awarded under the judgment appealed against should be exercisable or enforceable unless it

is set aside or modified in an appeal; but a judgment of the Sessions Court, when it inflicts a death penalty is not straightway executable.

(3) The powers exercisable by the High Court under S. 307 differ from the powers conferred on it under S. 391

(4) Section 389 empowers an appellate Court to suspend the execution of the sentence or order appealed against; but no such powers are to be

found in Chap. XXLX.

(5) The expression ''to confirm the death sentence'' indicates that it is for the High Court acting under S. 368 to approve the view of the Sessions

Court after examining de novo the evidence recorded by the Sessions Court and if need be to receive additional evidence to render its own finding

and to pass suitable sentence; but the powers exercisable under S. 386 in appeals are somewhat different: and

(6) In Jumman and Others Vs. The State of Punjab, , it has been held that a proceeding under Chap. XXVIII is a continuation of the trial of the

accused on the same evidence and only additional evidence"". But such will not be the case if an appeal is preferred.

An examination of the matter in depth would reveal that Chap. XXVIII contains special provisions intended to confer certain indestructible

rights on accused persons, who have been sentenced to death in trials, held before Sessions Judges or Additional Sessions Judges. These

provisions have been in the Code from 1898 onwards. Thus, they have been on the statute book long before the Constitution of India was

adopted and enacted and given to the people and long before Arts. 220 and 21 Of the Constitution were available for being invoked.

Section 366 provides that if 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 it is confirmed by the High Court. The obvious reason for such a provision is that the framers of the Code

fully realised the value of human life and therefore a mandatory provision should be made for a thorough scrutiny of the case by the High Court

before a sentence of death awarded to an accused by a Sessions Judge is executed. It will be apposite to mention here that till S. 354(3) of the

Code was amended, death sentence was the normal penalty for an offence of murder and imprisonment for life was the exception. The framers of

the Code were fully aware of the imperative need for a zealous scrutiny being made by the High Court of all those cases where a Sessions Judge

or an, Additional Sessions Judge imposed a sentence of death on an accused for any offence for which capital punishment is provided. They had

also realised that the provision of a right of first appeal on facts would not by itself be enough to safeguard the interests of the condemned

prisoners, for there may be rare or exceptional cases, where a condemned prisoner may for some reason or other fail to avail or refuse to avail the

right of appeal. Even in such cases, it was realised that a condemned prisoner''s case should not go for default and he should not be deprived of the

right of first appeal on facts to a High Tribunal like the High Court. It was for that laudable reason, the, framers of the Code had provided an

inherent and sell-working appeal provision under the reference proceedings to the High Court irrespective of whether the concerned accused

himself files an appeal or not and thereby obligated the High Court to independently examine the records of the case and the merits of the

conviction and sentence awarded to the accused with meticulous care and then confirm the sentence of death, if it was warranted or pass any other

appropriate sentence on the accused or even acquit him if the evidence did not establish his guilt beyond reasonable doubt. It would therefore be a

complete distortion of facts if the reference provisions contained in Chap. XXVIII are construed as a continuation of the trial proceedings before

the Sessions Court.

We may now examine the provisions of Chap. XXVIII in an analytical manner. Subsection (1) of S. 366 mandates the Court of Session

passing a sentence of death, to submit to the High Court the entire proceedings of the case, and secondly, it interdicts the execution of sentence

until it is confirmed by the High Court. As already stated, the sentence of death does not get obliterated or effaced on account of the reference;

only its execution stands suspended. Till the High Court disposes of the Reference, the person sentenced to death has to be committed to jail

custody under a warrant. S. 367 provides that if the High Court thinks that a further enquiry should be made into or additional evidence should be

taken in the matter'' the High Court itself may make the enquiry or take evidence or direct it to be made or taken by the Court of Session. If this

power is contrasted with the power under S. 391, occurring in Chap. XXIX, it may be seen that if an appellate Court thinks that additional

evidence is necessary, it should record its reasons and then proceed to take the evidence itself or direct it to be taken by an inferior Court. But

under S. 367, no such reasons need be recorded. This only shows that unrestricted powers are conferred on the High Court under Chap. XXVIII

in order to provide ample elbow room to the High Court to exercise unrestricted powers, while dealing with a reference under S. 366 of the Code.

Section 368 defines the extent of powers exercisable by the High Court in cases referred to it under S. 366. As we shall, be presently

comparing the powers exercisable by the High Court under S. 368 occurring in Chap. XXVIII with the powers exercisable by it as an appellate

Court under S. 386, occurring in Chap. XXIX, we refrain from elaborating the powers of the High Court under the former provision at this

juncture. Then occurs in Chap. XXVIII, S. 369 prescribing that in every case submitted for confirmation under S. 366 the confirmation of the

sentence or the substitution of any new sentence or any other order passed by the High Court including an order of acquittal, shall be signed at

least by two Judges provided the Court consists of two or more Judges. S. 370 envisages the procedure to be followed in case of difference of

opinion between the Judges hearing the reference. Lastly, S. 371 sets out the procedure to be followed, when the High Court renders a judgment

in a case referred to it under S. 366 for confirmation of sentence of death.

At this juncture, we may appropriately compare the powers exercisable by the High Court under Chap. XXVIII with the powers exercisable

under Chap. XXIX.

(for comparative table see below)

From comparative table given above, it may be seen that the power of the High Court under S. 368 is as wide and unfettered as the power

exercisable by it as an appellate Court under S. 386. In fact, the powers exercisable under Chap. XXVIH are even greater than the powers

exercisable under the relevant

(contd on col. 2)

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Chapter XXVIII

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Chapter XXIX

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S. 367(l) If .......the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, the guilt or innocence of the

convicted person, it may make such enquiry or take such evidence itself or direct it to be made or taken by the Court of Session.

S..367(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.

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.

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 in S. 392.

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

Chapter XXIX

_________________________________

391 (1). In dealing with any appeal under this Chapter. the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons

and may either take such evidence itself or direct it to be taken by a Magistrate, or when the Appellate Court is the Hi Court, by a Court of

Session or a Magistrate.

391(3). The accused or his pleader shall have his right to be present when the additional evidence is taken.

228 of Cr. Rules of Practice. - The following classes of cases will ordinarily be heard by a Bench of two Judges -

(1) Every reference under S. 374 of the Code, and every appeal from the judgment of a Criminal Court in which a sentence of death or

imprisonment for life has been passed on the appellant or on a person tried with him.

When an appeal under this Chapter'' is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal with their

opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing, as he thinks fit, shall deliver his opinion, and the

judgment or order shall follow that opinion.

388(l). Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its judgment or order to the court by which the

finding, sentence or order appealed against was recorded or passed .....

_________________________________________________________________________________

provisions of Chap. XXIX. If the High Court in exercise of its appellate powers wants additional evidence to be recorded, then under S. 391 it

should record the reasons for it, whereas under S. 367 no such reason need be given. Then again, if additional evidence is directed to be taken

under S. 391, then as per sub-s. (3), the accused or his pleader shall have the right to be present when the evidence is taken. But under S. 367(2)

unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when additional evidence is taken.

In the light of these factors, it now falls for consideration whether the powers exercisable by the High Court under Chap. XXVIII tantamount

to powers exercisable by the High Court as a Court of original criminal jurisdiction or as a Court of extraordinary original criminal jurisdiction. It is

quite obvious that the powers conferred under Chap. XXVIII are not exercisable by the High Court in exercise of its original criminal jurisdiction.

Apart from the fact that the High Court no longer exercises such power and sits as a Court of original trial, there remains the fact that such powers

could be exercised only in those cases, which arise within the limits of the. original jurisdiction of the High Court. It is needless to say that death

sentences awarded by [he sessions Judges throughout the State also have to be referred to the High Court under S. 366. Therefore, the power

conferred under S. 368 of the Code is not referable to the power of the High Court sitting as a Court of original criminal jurisdiction. It is equally

an indisputable proposition that the powers conferred under Chap. XXVIII are not ,referable to its extraordinary original criminal 1jurisdiction,

because the exercise of that power 1would mean that the High Court should I withdraw to its file the original trial before a Sessions Court and

have the trial conducted before itself, instead of the Sessions Court. By such eliminative process, it can be safely said that the powers exercisable

under Chap. XXVIII are not powers exercisable by the, High Court either as a Court of original criminal jurisdiction or as a Court of extraordinary

criminal jurisdiction.

Thus, the next question that follows will be, whether such powers are ascribable to the ordinary appellate powers of the High Court. That

cannot also be because the High Court can; exercise appellate powers under Chap. XXLX only if a convicted person files an appeal against his

conviction and sentence or the State files an appeal for enhancement of sentence or against an order of acquittal. But we find that the High Court is

empowered to exercise under Chap. XXVIII all the powers exercisable by an appellate Court even without an accused sentenced to death filing

an appeal. We have therefore to find out what is the nature of the power vested in the High Court under S. 368. When the Code enjoins that every

sentence of death awarded by a Sessions Judge or an Additional Sessions Judge must be referred to the High Court for confirmation and when

such a reference is made, the High Court can exercise unlimited powers ranging from confirmation of-death sentence, at the one end, and acquittal

of the accused, at the other end, the power, in our opinion, should be ascribed to an extraordinary appellate power conferred on every High Court

and such power is coupled with the duty that every High Court, irrespective of the fact whether the accused sentenced to death files an appeal or

not, should treat every reference made to it under S. 366 as a special and self-generated appeal and minutely scan every piece of evidence in the

case and find out whether the trial has been conducted properly, besides independently assessing the evidence and finding out whether the charge

has been proved beyond reasonable doubt, and furthermore, whether the infliction of the extreme penalty of law is called for. In other words, the

provisions of Chap. XXVIII contain a built-in provision for an automatic first appeal on facts to safeguard the interests of an accused sentenced to

death independent of the right conferred on him under S. 374(2) in Chap. XXIX to file an appeal and whether he has chosen to avail of that right

or not. When an accused is sentenced to death by a Sessions Judge or Additional Sessions Judge, there is no escape for the trial Judge from

making a reference under S. 366, and likewise there is no escape for the High Court from taking the reference on file and making ,an independent

assessment of the evidence and the sentence to be awarded. The only restriction that has been imposed is the one contained in the proviso to S.

368 and that is that no order of confirmation shall be made until the period given to the accused to prefer an appeal has expired and if he has

preferred an appeal within the prescribed time, until the said appeal is disposed of. It can, therefore, be said that the reference provision under

Chap. XXVIII amounts to an indefeasible provision f '' or a first appeal on facts for protecting the interests of an accused sentenced to death and

the provision casts a more onerous burden and responsibility on the High Court than when it acts as a Court of Appeal under Chap. XXIX.

The learned Judges of the Division Bench in Vivekananda''s case, W.R 11886 of 1983, have held that the jurisdiction exercised by this Court

under S. 367 of the Code is not an appeal that ''the power to pass any other sentence warranted by law (under S. 368) is not incompatible with

the original jurisdiction'', that ''when this Court passes the sentence 6f death thereby approving the finding of the Sessions Court it is the first

judgment that is rendered in that case'' and that ''there is no escape from the conclusion that the judgment of this Court is the first of its kind in the

proceedings''. To render such findings the Division Bench has placed reliance on certain observations in the decision of the Supreme Court in

Jumman and Others Vs. The State of Punjab, , wherein, inter alia, it was observed as follows -

The entire case is before the High Court and in fact, it is the continuation of the trial of the accused on the same evidence and any additional

evidence and that is why the High Court is given power to take fresh evidence if it so desires."" -

This observation, in our opinion, cannot be construed to mean that the Supreme Court has held that when a case is referred to the High Court for

confirmation of sentence of death under Chap. XXVIII, the High Court merges with the trial Court and exercises its powers under S. 368 only as

a Court of trial and not as a Court of appeal. We have to mention that in the very same judgment it has been further observed as under : -

In an appeal under 0. 41, C.P. Code an appellate Court has to find whether the decision arrived at by the Court of first instance is correct or not

on facts and law; but there is a difference when a reference is made under S - 374, Cr. P.C and when disposing of an appeal under S. 423 Cr.

P.C. and that is that the High Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused

persons for the infliction of the penalty of death. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire

facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the

case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart

from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge but

under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own.

The observation pertains to the manner of exercise of power and not with reference to the status of the Court, viz., the trial Court or appellate

Court. We have already observed that the judgment of the Sessions Court is rendered after conclusion of the trial before it and that once the

judgment is pronounced, it cannot be altered. If that be so, then it is beyond understanding as to how it can logically be viewed that a High Court

acting as an extended trial Court, can set aside the conviction and acquit the accused or modify the conviction and sentence him to lesser

punishment. To put it differently, there cannot be a dichotomous trial Court, one trial Court convicting an accused person and -the other trial Court

acquitting him or modifying his conviction and sentence. Therefore, it would be reasonable and logical to hold that the powers exercisable by the

High Court under Chap. XXVIII are undoubtedly appellate in character and not limited to or identical with the powers of a trial Court.

We may now conveniently refer to some case law on the point. The observation of the Supreme Court in Jumman and Others Vs. The State of

Punjab, extracted above, has been made only to impress upon the High Court the greater responsibility cast upon it when a reference is made for

confirmation of a death sentence than when it deals with an appeal preferred against conviction and sentence. Instead of our exposition of the

matter, we may with advantage quote the pronouncements of their Lordships of the Supreme Court in some cases.

In Ram Shankar Singh and Others Vs. State of West Bengal, , it was held as follows -

It has been the uniform practice of the High Courts of India to hear the reference for confirmation of sentence of death and the appeal preferred

by the accused together and to deal with the merits of the case against the accused in the light of all the material questions of law as well as fact and

to adjudicate upon the guilt of the accused and the appropriateness of the sentence of death .........Under S. 376 the High Court dealing with a

case submitted to it under S. 374(l)(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 Sessions Court might have convicted him, or order a new trial on the same or an amended

charge, or (c) may acquit the accused person. These powers are manifestly of wide amplitude, and exercise thereof is not restricted by the

provisions of Ss. 418(l) and 423 of the Cr. P.C., irrespective of whether the accused who is sentence to death prefers an appeal, the High Court is

bound to consider the evidence and arrive at an independent conclusion as to the guilt or innocence of the accused and this the High Court must do

even if the trial of the accused was held by jury.

In Bhupendra Singh Vs. The State of Punjab, it was held as follows -

Ordinarily, in a criminal appeal against conviction, the appellate Court, under S. 423, Cr. P.C., can dismiss the appeal, if the Court is of the

opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the

decision given by the trial Court. It is not necessary for the appellate Court to examine the entire record for the purposes of arriving at an

independent decision of its own whether the conviction of the appellant is fully justified. The position is, however, different whether (sic. for where)

the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously, with the

appeal, a reference for confirmation of the capital sentence under S. 374 Cr. P.C. On a reference for confirmation of sentence of death, the High

Court is required to proceed in accordance with Ss. 375 and 376, Cr. P.C. and the provisions of those sections make it clear that the duty of the

High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for

itself and even direct a further enquiry on the taking of additional evidence, if the Court considers it desirable in order to ascertain the guilt or the

innocence of the convicted person. It is true that, under the proviso to S. 376, no order of confirmation is to be made until the period allowed for

preferring the appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a

condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of

such an appeal, however, it is necessary that the High Court should keep in view its duty under S. 375, Cr. P.C., and consequently, the Court

must examine the appeal records for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then

come to its own conclusion on the entire materials on record whether the conviction of the condemned prisoner is justified and the sentence of

death passed should be confirmed.

This view has been reiterated in Charan Singh and Others Vs. State of Punjab, , Hari Har Singh and Others Vs. The State of U.P., and Subhash

and Another Vs. State of U.P., . In Bashir Ahmad v. The Crown, AIR 1951 Punj 57 , it has been clearly stated that the High Court dealing with

the submission under S. 377 Cr. P.C. (old Code) acts as an appellate Court and not as a Court of original jurisdiction. The relevant passage

occurs in para 22 and it is in the following terms :-

It is suficient at present to say that in my view, when dealing with a submission under S. 374, the High Court is acting not in its original but in its

appellate jurisdiction, for the reason that the only object of those proceedings is to ensure that in a case of serious nature where the life of a citizen

is involved, the evidence should be properly scrutinised, by a superior Court and that Court gives the same attention to a case where no appeal is

filed as it would where it is moved on the appellate side. As a Court of confirmation, therefore the High Court performs the same function as it

does on the appellate side. The decision both of the appeal and on the question of confirmation of sentence is an indivisible mental act and the

decision, therefore, is necessarily identical. Where there is an appeal by a convict, the submission under S. 374 becomes unnecessary in the sense

that it is decided automatically with the appeal; but where an appeal has not been filed, the convict gets the same advantage that he would have had

if he had in fact preferred an appeal. This I understand to be the main object and purpose of S. 374, Cr. P.C..

For all these reasons, we find no difficulty in holding that a reference under S. 366 of the Code will not make the High Court a trial Court or

make it the first Court of conviction and that the reference proceedings constitute a compulsory appeal to the High Court in order to confer on the

accused the benefit of appeal without reference to his options. In view of this finding, it follows that the contra view taken by the Division Bench in

Vivekananda''s case W.P. 11886 of 1983 is not correct law.

By way of further elucidation for the debate regarding the correctness of the view taken in Vivekanan Ms case, W.P. 11886 of 1983, the

learned Advocate General stated that an acceptance''. of the Division Bench''s view will conflict with the provisions of Arts. 134 and 136 of the

Constitution. In the course of the order, the Division Bench has adverted only to sub-s. (1) of S. 374 and S. 379 of the Code; but has not

adverted to S. 374(2), which is the crucial provision. On account of this petition, the Division Bench has taken the view that a first appeal on facts

to the Supreme Court is provided only for a person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction, and

secondly, to an accused person, whose order of acquittal by the Sessions Court is reversed and the High Court convicts and sentences him to

death or to imprisonment for life or to imprisonment for a term of ten years or more, but no such right has been provided for an accused, whose

sentence of death is confirmed by the High Court under S. 368. The fallacy contained in the order of the Division Bench is that the difference

between the types of cases envisaged under S. 374(l) and S. 379, on the one hand, and the cases falling under S. 368, on the other has not been

noticed. In the cases of the former type, the High Court becomes the trial Court and the conviction and sentence awarded by it is the first one to

be awarded against the accused. But in the latter type of cases, the conviction and sentence is awarded by a Sessions Judge or an Additional

Sessions Judge, and the High Court''s confirmation of the conviction and the sentence constitutes the second stage of the conviction and sentence

already imposed. The two types of cases therefore fall under entirely different fields and there is no scope for mixing up of the two or for being

accorded parity of treatment.

On the premise that since the death sentence awarded by a Sessions Judge or an Additional Sessions Judge is not an executable sentence, the

Sessions trial does not become a completed trial and the Sessions Judgment does not constitute a Judgment in the eye of law and consequently, a

referred trial proceedings constitute a continuation of the trial and the High Court stands in the character of the trial Court and a sentence of death

confirmed by it will amount to the first executable sentence awarded on an accused, the Division Bench has held that there should be a right of first

appeal on facts to the Supreme Court without leave. being sought for and as such, there is a lacuna in the Code and this lacuna has not been

noticed by the Supreme Court, when it dismissed the SLP preferred by the condemned prisoner, Jayaprakash under Art. 136 of the Constitution

and that, therefore, there is a violation of Art. 21 of the Constitution. Therefore, the Division Bench has sustained the grievance of the petitioner in

that case and modified the sentence of death imposed on the three convicted persons to one of imprisonment for life. It has further held that

notwithstanding the dismissal of the petition under Art. 136 of the Constitution, it would be justified in allowing the writ petition in view of the

violation of Art. 21 of the Constitution and in commuting the sentence of death awarded to the accused persons to one for imprisonment for life.

The Bench has also deemed it fit to observe that the lacuna in the Code of Criminal Procedure must be rectified by the addition of a suitable

provision under Chap. XXVIII without however there being any necessity to amend the Constitution so that a right of first appeal on facts could be

made available to condemned prisoners to prefer appeals to the Supreme Court in cases dealt with by the High Court under S. 368 of the Code.

The Bench has also held that in view of the provisions of Art. 134(l)(a), S. 379 of the Code appeared to be superfluous, So far as this observation

is concerned, the Bench has failed to see that the Code has been in existence right from 1898 i.e, long before the Constitution came into force and

that the Code is a self contained legislative product.

Be that as it may, the learned Advocate General stated that if the view of the Division Bench is taken, it will lead to a rewriting of Art. 134 of

the Constitution, particularly Art. 134(l)(c) and it will also lead to an encroachment of the powers of the Supreme Court under Art. 136(l) of the

Constitution Art. 134(l)(a) deals with cases covered by S. 371) of the Code (where death sentence is given) and Art. 134(l)(b) deals with cases

covered by S. 374(l) of the Code. Though the Code itself has provided the right of first appeal to the Supreme Court to a person convicted on trial

held by the High Court in its extraordinary original criminal jurisdiction, and to a person convicted by the High Court in an appeal against acquittal

and sentenced to death or to imprisonment for life, the framers of the Constitution thought it necessary to make the right of appeal to the Supreme

Court a constitutional right whenever death sentence is imposed by the High Court, when it acts as the trial Court or when it allows an appeal

against acquittal and convicts and sentences an accused to death. For this purpose, Art. 134(l)(a) and (1) (b) has been incorporated in the

Constitution and under Art. 134(l)(c) a discretion is-, vested in the High Court to give certificate of leave in other cases, provided the case is

considered to be a fit one for appeal to the Supreme Court by judicial standards.

Art. 136(l) has been incorporated to confer extraordinary powers of special leave to the Supreme Court. Under this sub-article the Supreme

Court is empowered to grant special leave to appeal from any judgment, decree determination, sentence or order, if in its discretion such leave

should be granted. The argument of Mr. Krishnamurthi was that if the Division Bench''s view is to be accepted and an automatic right of appeal to

the Supreme Court should be provided in every case where death sentence is confirmed by the High Court under S. 368 of the Code, then it

would mean that the High Court''s discretion under Art 134(l)(c) and the Supreme Court''s discretion under Art. 136(l) will be taken away and

instead, a new sub-article would indirectly get introduced in Art. 134. We see a lot of force in this contention. But even so, we do not think it

necessary to go deep into the matter or render a finding on the merits of the contention,because we have already pointed out that the Code of

Criminal Procedure has provided, from the inception itself and continues to provide even now, a right of first appeal on facts to the High Court for

a person sentenced to death by a Sessions Judge and, therefore, there is no need for any amendment being made to the Code or any additional

section being introduced. We have further held that the reference proceedings under Chap. XXVIII are not trial proceedings, but appellate

proceedings, and as such, they themselves constitute a first appeal on facts and therefore, it is wholly unnecessary to provide a further right of

appeal on facts to the Supreme Court.

Another ground of discrimination, which on the face of it is futile, was sought to be invented by the petitioner''s counsel by inviting out attention

to S. 14, Terrorist Affected Areas (Special Courts) Act, 1984 (Act 61 of 1984). As per that section, a right of appeal to the Supreme Court both

on facts and on law, is provided to a terrorist convicted by a Special Court or an Additional Special Court under that Act. The Counsel would say

that such a right of appeal must likewise be conferred on an accused person, whose sentence of death is confirmed by the High Court under S.

368 of the Code. The learned counsel has conveniently overlooked the fact that in the above said Act the Supreme Court, and not in High Court is

constituted the first Court of appeal and the provisions of the Act override the provisions of the Criminal Procedure Code. But in so far as the

cases arising under the Penal Code are concerned, a person sentenced to death has a right of appeal on facts to the High Court and hence, there

cannot be a further appeal on facts to the Supreme Court, The argument of the learned counsel is therefore misconceived.

In the course of the arguments, Mr. Krishnaswami sought to contend that S. 27, Evidence Act, is unconstitutional and on that ground, the

conviction of Jayaprakash under S. 302, I.P.C. is bad in law and in any event, the imposition of death sentence is unwarranted. We are not

prepared to examine this contention because we are not hearing an appeal or sitting in judgment over the judgment of this Court in R. T. 11 of

1984 and C.A. 705 of 1984. Any argument with reference to the merits of the case including any alleged illegality in the recoveries effected during

the investigation of the case pursuant to the inform'' ion given by Jayaprakash to the police ought to have been canvassed in the trial before the

Sessions Judge are in the referred trial and criminal appeal argued before the Division Bench. Having failed to do so, it is not now open to the

petitioner to canvass in this petition the inadmissibility of certain evidence against Jayaprakash and argue on the merits of the case. But even while

refusing to entertain this argument, we have to point; out that the constitutional validity of S. 27, Evidence Act, has been raised before the Supreme

Court earlier and the Court has ruled that S. 27, Evidence Act, is not violative of Art. 14 of the Constitution. In State of U.P. Vs. Deoman

Upadhyaya, , the Supreme Court has overruled the decision by a Full Bench of the Allahabad High Court Deoman Upadhyaya Vs. State, and held

that S. 27, Evidence Act, and S. 162(2) Cr. P.C., in so far. as that section relates to S. 27, Evidence Act, are not void as offending Art. 14 of the

Constitution.

Besies making the above said attack on the constitutional validity of S. 27, Evidence Act, the petitioner''s counsel sought to justify the filing of

the writ petition on various grounds for seeking a writ of declaration in terms of the prayers set out in the petition. The counsel argued that several

points, which have been raised in the writ petition, were not canvassed before the Division Bench, which confirmed the reference and dismissed the

appeal and before the Supreme Court when it heard the petition for special leave under Art. 136 and the petition for review filed thereafter. We do

not find any force and merit in the plea of the petitioner''s counsel.

47.In the first place, it has to be pointed out that after the dismissal of the appeal preferred by Jayaprakash and the SLP preferred before the

Supreme Court this petition under Art. 226 will not lie at all. The appeal preferred by Jayaprakash was assigned to a Division Bench of two

Judges, who constituted the High Court and the judgment rendered by them is a judgment of the High Court, fully binding on all the honourable

Judges of the High Court. As against such a judgment, there is no question of issuing a writ, direction or order to the High Court itself in respect of

the judgment rendered in the criminal appeal and referred trial proceedings. The learned Judges of the High Court constituting the Bench are not

amenable to the writ jurisdiction of this Court Nevertheless Mr. Krishnaswarni argued that this Court can issue an appropriate writ to the jail

authorities to refrain from executing the death sentence on Jayaprakash. We fail to see bow su6h a direction can be issued. If any such direction is

to be issued, then the prison authorities will be faced with two orders, one of the Division Bench confirming the conviction and the sentence of

death awarded to Jayaprakash and another, directing the deferment of the execution of the death sentence. Moreover, how long is the execution of

death sentence to be deferred? The petitioner''s counsel''s contention that the death sentence should be modified to one of imprisonment for life

cannot be done, because the judgment of this Court in the criminal appeal and the referred trial has become a final one so far as this court is

concerned; more so, when the Supreme Court has also dismissed the special leave petition. This Court cannot therefore interfere with or modify

the conclusive judgment rendered by this Court in the criminal appeal and the confirmation of the sentence of death in the referred trial. In fact, if

the argument of the petitioner''s counsel is to be accepted, it will lead to the dangerous situation that a learned single Judge dealing with petitions

under Art. 226 of the Constitution, can sit in judgment over a judgment rendered by a Division Bench of the same High Court and modify the

judgment or even set it aside. Nothing but chaos will therefore result, if a judgment of finality rendered by the High Court is sought to be nullified or

modified by means of a petition under Art. 226. This view cannot more forcefully be expressed than by quoting the following passage occur-ring in

Jharia Vs. State of Rajasthan and Another, -

When a SLP is assigned to the learned Judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which

cannot be upset in these proceedings under Art. 32. Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any

judicial proceedings and the learned Judges constituting the Bench are not amenable to the writ jurisdiction of this Court.

In this case, we have to point out that this petition has been filed after every remedy available to the petitioner under law has been exhausted. After

the judgment of this Court, the Supreme Court was also moved, not once but twice, and thereafter a clemency petition had also been filed. It,

therefore, goes without saying that the petition is not maintainable at all and no rule can be sought for on an alleged violation of Art. 21 of the

Constitution.

We have also to point out that even the argument that new points are raised in the writ petition for consideration and on that score the

petitioner is entitled to canvass the correctness of the conviction and sentence awarded to him cannot be sustained. Without further discussion on

the matter, we will only refer to the ratio laid down by the Supreme Court regarding the right of a party to reagitate his case in spite of a decision of

irrevocable finality having been rendered against him on the ground that new questions arise for

consideration. In Mohd. Ayub Khan Vs. Commissioner of Police, Madras and Another, , it was held that even if certain aspects of a question

were not brought to the notice of the Court, it would decline to enter upon reexamination of the question since the decision had been followed in

other cases In Smt. Somavanti and Others Vs. The State of Punjab and Others, , it was held that the binding effect of a decision does not depend

upon whether a particular argument was considered therein or not provided that, the point with reference to which an argument was subsequently

advanced was actually decided .In T. Govindaraja Mudaliar Vs. The State of Tamil Nadu and Others, ,

it was held thus -

It is. common ground in the present cases that the validity of Chap. IV-A of the Act has been upheld on all previous occasions. Merely because

the aspect now presented based on the guarantee contained in Art. 19(l)(f) was not expressly considered for a decision given there on will not take

away the binding effect of those decisions on us

Lastly, Mr. Krishnawami submitted that even if his argument about infraction of Art. 21 of the Constitution on account of the Code of Criminal

Procedure and the Constitution fading to provide for a first appeal on facts to the High Court an accused person sentenced to death is not

accepted, the delay, which has occurred in the execution of the death sentence awarded to Jayaprakash and the mental torment he has undergone

during the pendency of the proceedings, is by itself an adequate factor for this Court to modify the sentence of death to one of imprisonment for

life. In support of this argument, the counsel placed reliance on the judgment of the Supreme Court in Javed Ahmed Abdul Hamid Pawala Vs.

State of Maharashtra, , and the order of'' the Division Bench in Vivekananda7s case, W.P. 11886 of 1983, where the view has been taken that

the mental anguish suffered by condemned prisoners during the period taken by the higher Courts to consider their appeal and pronounce final

orders, would constitute valid and relevant material for the modification of death sentence to one of imprisonment for life. We are unable to accept

this contention for more than one reason. In the first place, we have to point out that Jayaprakash has a fair trial and as against his conviction and

death sentence, there was a reference to this Court under S. 366 of the Code and he too had filed C.A. 703 of 1984. The reference and the

appeal were heard together and after detailed examination of the evidence in the case and taking all factors into consideration, a Division Bench of

this Court had dismissed the appeal and confirmed the sentence of death. As against the judgment of ,the Division Bench, he had preferred a SLP

to the Supreme Court under Art. 136(l) and that had been dismissed. He again filed a review petition in the Supreme Court and that was also

dismissed Thereafter, he sought for clemency and petitioned to the President of India, but that has also been rejected. Thus, the delay has occurred

on account of the proceedings taken by the accused himself to have his conviction and sentence set aside. After having agitated his case before

various forums, neither the accused nor any one on his behalf can put forward a claim that considerable delay has occurred and on account of the

mental anguish undergone by the accused during the pendency of the proceedings, the sentence of death must necessarily be modified to one of

imprisonment for life.

In so far as the argument that the delay of court proceedings per se entitles condemned prisoner to secure modification of death sentence to

one of imprisonment for life, we are unable to accept the contention as a proposition of law. In Joseph v. State of Goa, AIR 1977 SC 1812, a

period of six years had elapsed before the appeals before the High Court and the Supreme Court were heard and disposed of. On the ground of

delay, the counsel for the condemned prisoner pleaded for modification of sentence and the S supreme Court rejected the prayer and ''observed

as follows -

Undeterred by the fact that the murder is gruesome, counsel has pleaded that at least on the question of sentence leave should be 1granted

because his client1s a young man and the sentence of death has been haunting him agonisingly for around six years. Maybe that such a long spell of

torment may be one circumstance in giving the lesser sentence. Even go, we have to be guided by the rulings of this. Court, which have not gone to

the extent of holding that based on the circumstance alone, without other supplementing factors or in the face of surrounding beastly circumstances

of the crime, judicial clemency can attenuate the sentence. Possibly, Presidential power is wider but judicial power is embanked.

In another case, Sher Singh and Others Vs. State of Punjab, the Supreme court has held ''that the delay in the execution of death sentence,

irrespective of the circumstances under which it was caused will not by itself constitute an adequate ground for modification of the death sentence

into one of imprisonment for life. In the words of the Supreme Court: -

But, it is, at least relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a

series of untenable proceedings which have the effect of defeating the ends of justice. It is not uncommon that a series of review petitions and writ

petitions are filed in this court to challenge judgments and orders which have assumed finality, without any seeming justification. Stay orders are

obtained in those proceedings and then, at the end of it all, comes the argument that there has been prolonged delay in implementing the judgment

or order. We believe that the court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why

the delay was caused and who is responsible for it. If this is not done, the law laid down by this court will become an object of ridicule by

permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation.

No doubt in Javed Ahmed Abdul Hamid Pawala Vs. State of Maharashtra, reiterating the view taken in T.V. Vatheeswaran Vs. State of Tamil

Nadu, , it was held that a delay exceeding two years in the execution of death sentence would justify the sentence of death to be modified to one of

imprisonment for life. But we find that in that case, the Supreme Court has taken into consideration certain other relevant factors, besides the

question of delay in the disposal of the appeals. That was a case where the condemned prisoner was a young man of 22 years of age and had been

convicted for a single murder and his conduct and behaviour in the jail was reported to be good and moreover, he manifested genuine repentance

and expressed his desire to atone-for-the grievous wrong that had been done by him''. Their Lordships have stated that since the repentance and

the desire appeared to be sincere and since the sentence of death was hanging over his head for over two years and nine months, they would be

justified in modifying the death sentence into one of imprisonment for life. In the case of the petitioner''s son Jayaprakash, even a sketchy reference

to the. victims of the murder and-as to how they were murdered, will make any one realize the-horrendous nature of the crimes and the ''dance

macaber'' of the assailant.-It was not one or two human beings that he killed but nine persons consisting of his-sistr1r, Desika Rani aged about 18

years, her six months old son Sampath, her husband Narasimhan, Narasimhan''s two younger brothers Mani and Arumugham, Rani-wife of the

above said Mani, two daughters of Mani and Rani by name Kavitha and Selvi a has Thamizhselvi aged 2 and 6 years respectively, and one

Sekhar, who was an employee in the plastic factory run by Narasimhan (names have not been set out in the order of murder); the murders were

not committed in a berserk frame of mind or within a short span of time, but had been committed in a cold, calculated and diabolical manner during

a time span of several hours and they were not committed with whatever weapon that was available on hand, but by beating with stick, throttling

and strangulation with, hands, and cutting with knife. The assailant had deliberately misled several people intermittently during the commission of the

offences as well as after completion of the offences, by saying that the victims had gone out or had gone to Tirupati, etc. He had attempted to dig a

trench to dump all the bodies. He had removed the jewellery from the house and pledged them. He had falsely represented to people that nothing

abnormal had happened and then absconded from the City and went to Tirupatl. Men, women arid children had been killed senselessly and

remorselessly by the assailant turning devilincarnate. Jayaprakash is not an illiterate or rustic, but a man with college education and training in karate

art. For a short spell after the murders, he had felt contrition and remorse for the appalling murders committed by him and had made extra-judicial

and judicial confessions, but subsequently he resiled from those statements and during the trial before the sessions court, as well as in the appeal

before this court and in the SLP before the Supreme Court, his stand was a total unabashed denial of his responsibility for the murders. Innocent

victims after innocent victim had entered the house unwarily and had been trapped and murdered in the most foul manner so that the murderer can

derive ghoulish delight and fiendish satisfaction with each murder. In the, light of such abhorrent materials, we think there is absolutely no scope for

the petitioner''s counsel to compare the case of Jayaprakash with that of the condemned prisoner dealt with in Javed Ahmed Abdul Hamid Pawala

Vs. State of Maharashtra, , and seek parity of treAtm6nt by following the view taken in that case. Hence, apart from the fact that the judgment of

this court in C. A. 703 of 1984 and R.T. No. I I of 1984 has become final and cannot be sought to be varied or modified by means of a petition

under Art. 226, the gruesome nature of the offence, which is beyond the limits of human comprehension and tolerance, and the reprehensible

conduct of the assailant in not feeling remorse and contrition even at a late stage of matters, clearly disentitles any one to seek modification of the

sentence imposed on Jayaprakash under the guise of violation of Art. 21.

Thus, on a conspectus of the relevant provisions of the Code of Criminal Procedure, the Constitution and the pronouncements of the Supreme

Court, we make our pronouncements in the writ petition and the reference as under -

Even in those cases, where a Sessions Judge or Additional Sessions Judge convicts an accused of an offence punishable with death or

imprisonment for life, and sentences him to death, subject to the confirmation of the death sentence by the High Court, the judgment would

constitute a judgment under Chapter XXVII of the Code and the conviction and sentence will have finality so far as that is concerned. The

immediate executability of every sentence awarded by a criminal courts not the touchstone on which the finality of the judgment and the conviction

is to be tested. The real test is one of appealability.

As in every other criminal trial, the trial before a Sessions Judge or an Additional Sessions Judge of an accused charged for committing an

offence punishable with death or imprisonment for life, will come to an end when a judgment of conviction is rendered, and a sentence of death is

imposed, notwithstanding the fact the sentence of death requires confirmation by the High Court and it cannot be executed unless it is confirmed by

the High Court.

For every accused person sentenced to death by a Sessions Judge or Additional Sessions Judge in a trial held before him, there is a right of first

appeal on facts to the High Court under S. 374(2) of the Code.

Independent of that right of appeal, the Code contains a built-in mechanism for an automatic appeal on facts to the High Court under S. 366 of

the Code and this right of appeal is not dependent upon the option of the accused to prefer an appeal or not. This right of appeal has to be

compulsorily afforded'' to the accused by the Court of Session by making a reference under S. 366, Correspondingly, the High Court is bound to

entertain the reference and it has no right of summary dismissal as in the case of an appeal under S. 384 Code of Criminal Procedure.

The powers of confirmation, annulment and modification conferred on the High Court under S. 368 are not only co-extensive with the powers

exercisable by it as an appellate court, but are of even wider amplitude. The only restriction placed is under the proviso to S. 368, which lays

down that no order of confirmation of the sentence of death shall be made until the period allowed to an accused for preferring an appeal to the

High Court has expired, or if an appeal is preferred within the time limit, then till such appeal is disposed of.

The reference proceedings under Chap. XXVIII are not extended trial proceedings, but arc appellate in nature and hence, when.powers of

''confirmation, annulment or modification are exercised by, the High Court under S, 368, it would amount to exercise of powers. by the, Appellate

Court - and consequently, there can be no further right of first appeal on facts to the Supreme Court.

The right of appeal on facts to the Supreme Court provided for under Art. 134(l)(a) (corresponding to S. 379, Cr. P.C.) but only in respect of

such cases where death sentence is imposed) and Art. 134(l)(b) (corresponding to S. 374(l) Cr. P.C.) cannot be sought for in those cases where a

sentence of death imposed by a Court of Session Is confirmed by the High Court under S. 368, because the confirmation of death sentence is not

done by the High Court in an appeal against acquittal or in a case where a trial is withdrawn from a Sessions Court and the trial is held by the High

Court itself in exercise of its extraordinary original criminal jurisdiction.

When a reference under* S. 366 of the Code for confirmation of death sentence is made and an appeal, under S. 374(2) has also been

preferred, they are to be heard together. But if the appeal is preferred within the 1prescribed time, the reference will by itself constitute the first

appeal on facts. Hence, as against an order of confirmation of death sentence passed under S. 368 of the Code, there is and there can be no

further right of first appeal on facts to the Supreme Court unless the High Court in exercise of its powers under Art. 134(l)(c) grants leave to

appeal to !the Supreme Court, or, the Supreme Court h-rants special leave under Art. 136(1) of the I Constitution for an appeal being preferred.

The High Court, while acting as a court of reference under Chapt. XXVIII, does not constitute a trial court; nor is the confirmation of death

sentence made by it, the first sentence of death imposed on the accused, As such there is no scope for contending that as against a confirmation a

death sentence made by a High Court, there should be a right of first appeal on facts to the Supreme Court and the absence of such. a provision

will amount to violation of Art. 21.

The powers exercisable by the High Court under Ss. 367 and 368 are appealable in character and not synonymous with the powers of a trial

court.

After a Bench of the High Court has pronounced judgment in a referred trial case, heard along with a criminal appeal filed by the accused A

any preferred or, heard all by itself when no appeal is preferred, the judgment constitutes a judgment of the entire High Court and thereafter,

neither the validity nor the correctness of the judgment can be questioned; nor can any modification of the sentence (including a modification of the

sentence of death into one of imprisonment for life) be sought for and no petition under Art. 226 of the Constitution will lie for issue of a writ,

direction or order to the learned Judges, who constituted the Bench, as they are not amenable to the writ jurisdiction of the Court. As-a sequel to

this position, no writ, direction or order can also be sought for against any executive authority to carry out a sentence awarded by the court in its

earlier judgment-in a manner different than the one prescribed in the judgment.

In the light of these findings, we have to hold that the ratio laid down by the Division Bench in Vivekananda''s case, W.P. 11886 of 1983, is

not good law. It therefore follows that this petition, which has been filed mainly relying on the ratio laid down by the Division Bench in

Vivekananda''s case and on the basis of certain Other contentions, which have also been examined by us and found to be devoid of merit,

deserves to fail and will accordingly stand dismissed and the rule will stand discharged .However, then will be no order as to costs.

By reason of the dismissal of the main writ petition W.M.P. No. 13918 of 1985 will also stand dismissed and the order of stay granted therein

will stand vacated,

54.Petition dismissed.