PLD 2021 SC 600
Normally, the High Courts hear and decide the appeal filed by the convicted person and the reference sent by the trial court for confirmation of the death sentence, together. It has been noticed that while doing so the learned Judges of the High Courts sometimes, as it appears to have done in the present case, remain content with examining and deciding only the arguments and contentions advanced in appeal, and do not by themselves scrutinize the whole material available on record of the case. Apart from deciding those arguments and contentions, it is incumbent upon the High Courts, in discharge of their statutory duty under sections 375 and 376 of the Code of Criminal Procedure, 1898 (“CrPC”), to read and appraise each and every piece of evidence, and to examine also whether any evidence has been improperly admitted or excluded, or has been misread or non-read by the trial court. Even non-filing of appeal or withdrawal of appeal by the convicted person, or any concessional statement by the state counsel does not relieve the High Court from performing its duty of reappraising the whole evidence available on record. Ordinarily, in a criminal appeal against conviction, the appellate Court, under section 423 of the CrPC, 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 purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified. The position is, however, different 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 section 374 of the CrPC. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with sections 375 and 376 of the CrPC and the provisions of these 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 trial court is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person.
Section 374 of the CrPC provides that when the Court of Session passes 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. As the death sentence passed by the trial court, i.e., the Court of Session, cannot be executed without being it confirmed by the High Court, proceedings before the High Court on reference under section 374, CrPC is yet another tier of judicial assessment of the evidence to examine “any point bearing upon the guilt or innocence of the convicted person.” The High Court has been given very wide powers to prevent any possible miscarriage of justice. The proceedings are a reappraisal and reassessment of the entire facts of the case and of the law applicable. This extensive power actually casts an onerous duty on the High Court to ensure safe administration of criminal justice by considering in the reference proceedings all aspects of the case and coming to an independent conclusion, apart from the view expressed by the Court of Session. The High Court has to decide on reappraisal of the whole evidence whether the conviction is justified and, having regard to the circumstances of the case, whether the sentence of death is appropriate.
As back as in the year 1921, Madgaonkar, A.J.C., while exploring the scope of power of High Court in confirmation proceedings under Section 374 in the case of Gul v. Empror, observed that the worth and sanctity of human life are a test and mark of civilized societies, and are increasingly reflected in the criminal jurisprudence. The Legislature has provided, he noted, in confirmation proceedings a final safeguard and has laid this duty upon the High Court. The duty of judgment is laid in the first instance upon the trial Judge. But equally and with all that weight, the High Court in confirmation proceedings must finally weigh for itself the whole evidence, and is to confirm the conviction and sentence or make any other order according to its own final conclusion on the guilt or innocence of the sentenced person in the discharge of the duty laid upon it by law. These significant observations of the learned Judge become more nuanced when viewed in the constitutional context. Right to life and liberty, right to fair trial and right to dignity are fundamental rights guaranteed under Articles 9, 10A and 14 of the Constitution. The importance of human life goes to the heart of these fundamental rights, the rigorous two-tiered process of appraisal, assessment and examination under section 374 CrPC also meets the test of these fundamental rights. The duty cast on the High Court in deciding a murder reference under section 374 CrPC is a heavy one and can only be discharged once the entire evidence is reappraised to fully exhaust all the points having a bearing upon the guilt or innocence of the convicted person.
The High Court, in the present case, has made only a general and cursory reference to the prosecution evidence in its judgment, and has failed to reappraise it thoroughly. In such a situation, we would have ordinarily remanded the matter to the High Court to hear and decide the case afresh, but in the present case much water has flown under the bridge. Remand will entail further delay and hardship, besides, the points of law noted above also require a clear determination by this Court. We, therefore, decided to answer those points of law and to reappraise the prosecution evidence ourselves for safe administration of criminal justice.
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