Execution of sentence is dealt in the Chapter 32 of Criminal Procedure Code,1973. In awarding sentence, the judge has wide discretion within the statutory limits. There is no guidance for the judge in awarding sentence. Therefore each judge acts in his own discretion and the sentence given by him is based on his own judgment. There are several factors which affect the matter of executing sentence.
Statutory Provisions of Executing Sentence
Section 413 : Execution of order which is passed under Section 368
When a case is submitted for confirmation of sentence of death in the High Court then the Session’s Court receives the order of High Court or the confirmation order and it shall cause such an order for issuing a warrant or for taking necessary steps.
Section 414 : Execution of the death sentence passed by the High Court
In appeal or revision, when a death sentence is passed by the High Court and when the order is received by the Session’s Court they cause the order into effect by issuing a warrant.
Section 415 : Appeal of Supreme Court and postponement of death sentence
1. When a death sentence is passed by the High Court and an appeal of the Supreme Court lies to that order under Section 134 of the Constitution then the High Court shall postpone the execution of such sentence or order until the period for appeal has expired or disposed of.
2. When an application is made by the person sentenced under Article 132 then also the High Court postpones the execution of the death sentence until such application has been disposed of by the High Court or period for application has been expired.
3. When a death sentence is passed by the High Court and the person sentenced presents a petition to a Supreme Court for grant of special leave under Article 136 then the High Court shall postpone such order till a sufficient time for him to present a petition.
Section 416 : Postponement of a capital sentence which is on pregnant women
The High Court shall reduce the death sentence to imprisonment for life if the accused is a pregnant women.
Section 417 : Appoint place for imprisonment
1. The State Government shall appoint or direct in what place any person has to be imprisoned.
2. If any person imprisoned under this code is in confinement in a civil jail then he may be removed to a criminal jail.
3. Person removed under sub section(2) can be sent back to civil jail unless either
4. 3 years have elapsed from his removal
5. if the officer in charge provides a certificate
Section 418 : Execution of sentence of imprisonment
1. When a accused is sentenced to imprisonment for a term or for life except the cases provided under Section 413 then the Court has to send a warrant to that place where he is confined, it can be jail or any place.
Provided that there is no warrant needed if the accused is confined only till the rising of the court.
2. When accused is not present when he is sentenced as in Sub section (1) then the Court shall issue warrant to jail or his place where he is confined and the sentence shall commence on date of the arrest.
Section 419 : Warrant for execution of sentence
The warrant shall be directed to the officer in charge of the jail or the place where he is confined.
Section 420 : Warrant to be lodged
Warrant shall be lodged with the Jailor when the accused is in jail.
Section 421 : Warrant for fine
1. When an offender is sentenced to pay fine then the these actions can be taken for recovery of such fine :
2. issue a warrant for the amount which is to be paid and sell an of the belongings of the offender.
3. issue warrant to the district collector and realize the amount from the land revenue of movable or immovable property of the offender.
4. The State Government shall make rules regarding the warrants mentioned in sub section (1) clause (a).
5. The District Collector under clause (b) of sub section (1) shall recover the amount of fine in land revenues as if such warrant was a certificate issued by law.
Provided that no such warrant shall be executed if the offender is detained in prison.
Section 422 : Effect of such warrant
A warrant issued by the Court can be executed within the local jurisdiction of the Court and if the property of the offender which is going to be sold is out of jurisdiction of such Court then it is endorsed by the District Magistrate of that jurisdiction within which such property is found.
Section 423 : Warrant for fine in such territories where the code does not extend
When an offender is sentenced to levy fine by a Court in a territory where the code does not extend then Court may issue warrant to the District Collector for collecting the land revenue in the territories where the Code extends. Such warrant is deemed to be accepted as a warrant in clause (b) sub section (1) of Section 421.
Section 425 : Who issues the warrant
Judge or the Magistrate or their successor in office issues a warrant.
Section 426 : When the sentence on escaped convict takes effect
When a sentence is passed on the escaped convict then it shall take effect immediately. If the sentence is severer then the which is he was undergone then the new sentence shall take into effect. A rigorous imprisonment is severe than a simple imprisonment.
Section 427 : Sentence on the offender already sentenced
If a offender is undergoing a sentence of imprisonment and subsequently he is sentenced to another sentence for another offence then that sentence may come into effect once the first sentence expires. If the undergoing sentence is life imprisonment then the other sentence of imprisonment may go run concurrently with it.
Section 430 : Return of warrant
With an endorsement certifying the warrant, a officer in charge who executed the warrant shall return it to the Court from where it was issued.
Illustrations
Illustration 1 : Smt. Triveniben & Ors v. State Of Gujarat & Ors on 7 February, 1989[i]
There is no fixed period of delay which could be held to make the death sentence in-executable.
Illustration 2 : K. Kunhammad Haji v. Emperor on 11 October, 1922[ii]
The appellant presented an appeal under Section 420 of Criminal Procedure Code. It is commonly known as Jail Appeal and it was rejected by the Presiding Judge because it was out of time and there was no proper ground for the appeal for excusing the delay. The case is proved against the accused and there was no reason to discredit the prosecution evidence.
Illustration 3 : M. Nagendrappa v. Commercial Tax Officer, (1997)[iii]
For levy of taxes the District Collector can receive the amount from the land revenue and can sell the movable property of the offender as per Sub section (1) of Section 421.
Illustration 4 : Kartar Singh And Others vs State Of Haryana on 26 August, 1982[iv]
Benefit of setting off the period of detention under Section 428 of Criminal Procedure Code is not available for life convicts.
Frequently asked questions
1. Can a Court sentence a pregnant women with capital sentence ?
No, a Court cannot execute a death sentence or capital sentence on a women. It has to be converted to life imprisonment by the Court.
2. What is the meaning of setting period of detention ?
The period of detention during the inquiry, investigation and trial is taken into consideration and such period is deducted from the sentence passed by the Court. If they are not set off then the under-trial prisoners will be subjected to greater punishment.
3. When does the State government and Central government have concurrent powers ?
During the remission and commutation of a death sentence, the State Government and Central Government have concurrent powers.
4. Under what circumstances the execution of sentence is postponed ?
- Under Article 134 of Indian Constitution, an appeal lies to the Supreme Court.
- When a person applies for special leave petition and the High Court is satisfied with it.
- Under Article 132 or 134, a person applies for grant of certificate.
5. What does execution of sentence stayed mean ?
A Stay of execution is an order to suspend the execution of sentence temporarily. Execution of sentence does not mean death sentence, it can be any type of sentence. This is similar to injunction.
Death Penalty in India
Arguments in support of Death Penalty
- A person who is guilty has to be punished equal to the severity of the crime
- In India, death sentence should be there for terrorism.
- It serves as a deterrent for the other criminals who have committed offence.
- It provides closure to victim’s
Arguments against Death Penalty
- It does not serve as deterrent to control the crime that occur in the nation.
- It violates the international human rights laws.
- It is irrevocable so an innocent person can wrongly be executed.
- No uniformity in execution of convicts on death row.
Capital Punishment across the world
100 Countries – abolished it
48 Countries – Used for ordinary crimes and not used it for at least 10 years
40 Countries – Death penalty in both law and practice
7 Countries- Uses death penalty in exceptional cases
The Court in a famous case struck down the Section 303 of IPC which provided for the mandatory death sentence for offender who have committed murder.[v]
Conclusion
The Sessions Court shall get confirmation from High Court to pass a death sentence. There are cases were the death sentence of High Court can be postponed. The High Court shall reduce a death sentence to life imprisonment if the accused is a pregnant women. The State Government shall decide upon the place of imprisonment, an convict can be transferred to a criminal jail from a civil jail. A warrant has to be sent by the Court to the place where the convict is confined. Warrant should be lodged with the jailor if the accused is in jail. Warrant can be executed within the local jurisdiction of the Court and the District Collector shall collect the fine from the convict through land revenue. The warrant shall be returned by an officer in charge who executed the warrant to the Court from where it was issued.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
References :
[i] 1989 AIR 1335
[ii] 72 Ind Cas 599
[iii] 1997 (1) ALT Cri 885
[iv] 1982 AIR 1439
[v] Mithu v. State of Punjab
