SUPREME COURT/CONSTITUTIONAL LAW/CRIMINAL LAW

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Criminal Appellate Jurisdiction of the Supreme Court — With Particular Reference to Death Sentence and Life Imprisonment Cases
by Dr R. Prakash1

Cite as : (2003) 2 SCC (Jour) 17

The criminal appellate jurisdiction of the Supreme Court, generally speaking, is invoked as indicated below:

(i) As constitutional right of appeal under Article 134(1) of the Constitution of India.

(ii) By special leave under Article 136(1) of the Constitution of India.

(iii) As statutory right of appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (hereinafter referred to as the 1970 Act).

Appeal lies as of right under Article 134(1) of the Constitution and under the 1970 Act, whereas it is discretionary under Article 136(1) of the Constitution. The discretionary jurisdiction of the Supreme Court under Article 136 in criminal cases extends to all matters except those which fall either under Article 134(1) or under the 1970 Act.

There is at present no right of appeal to a death sentencee if the accused was concurrently convicted by the courts below. The accused has to only try his chances by invoking the discretionary power of the Supreme Court under Article 136. This position emerged from a peculiar situation.

Under Article 134(1) there could be an appeal to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court, if the High Court

(a) has, on appeal, reversed an order of acquittal and awarded sentence of death; or

(b) has withdrawn for trial before itself any case and has in such trial convicted and sentenced the accused to death; or

(c) certified under Article 134(1)(a) that the case is a fit one for appeal to the Supreme Court.

Article 134(2) of the Constitution of India reads as follows:

"134. (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law."

It was in pursuance of this provision, that Parliament enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

While sub-clauses (a) and (b) of Article 134(1) of the Constitution of India confer upon the accused a right of appeal in certain circumstances, clause (c) confers upon the High Court a discretion to grant a certificate to the accused to appeal in cases not falling under sub-clauses (a) and (b). The certificate is granted only where there has been an infringement of the essential principles of justice or there is a substantial question of law or principle involved. The Supreme Court has also held that the conditions prerequisite for the exercise of the discretionary power to grant a certificate under Article 134(1)(c) cannot be precisely formulated but it should be exercised sparingly and not to convert the Supreme Court into an ordinary court of criminal appeal.

It is pertinent to note that the accused may not have the right of appeal even in circumstances mentioned in clauses (a) and (b) of Article 134(1) if the High Court sentences him to life imprisonment or imprisonment of 10 or more years. In such case, his appeal would be admitted in special and exceptional circumstances only either under Article 134(1)(c) or under Article 136 of the Constitution.

When the Constitution came into force in 1950, it provided an appeal as of right to the Supreme Court in civil matters where the amount or the value of the subject-matter of dispute is Rs 20,000 or more or where the claim or question of the property of the like amount or value is directly or indirectly involved, though the case is not a fit one for appeal to the Supreme Court vide Article 133(1) sub-clauses (a), (b) and (c).2 Taking this into account, Parliament enacted the 1970 Act and provided a right of appeal to an accused person whose acquittal is reversed by the High Court and sentenced to 10 or more years or imprisonment for life. Thus, it can be seen that the common thread that runs through Articles 134(1)(a) and (b) and the 1970 Act is that appeal in criminal cases to the Supreme Court becomes a right only if the conviction is for the first time by the High Court. But, in view of the change in the position of law with regard to the imposition of death sentence and enactment of Section 433-A in the Criminal Procedure Code, it is just and proper that all cases of death sentence and all cases of life imprisonment which fall under Section 433-A should also be provided with a right of appeal.

Supreme Court's discretionary jurisdiction in death sentence and life imprisonment cases

There is no right of appeal in criminal cases which do not fall either under Article 134(1) or under the 1970 Act. Such cases fall under the discretionary jurisdiction of the Supreme Court under Article 136(1) of the Constitution of India which reads as follows:

"136. Special leave to appeal by the Supreme Court—(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India."      (emphasis supplied)

(a) Death sentence cases

The Constituent Assembly Debates show that the reason for bringing death sentence cases of concurrent conviction, under Article 136 was that, if right of appeal is given in all death sentence cases, the Supreme Court would be flooded with appeals and strength of judges may not be sufficient to deal with such a situation. It may require more number of judges for which more money was to be spent. When the Constituent Assembly enacted Article 134, Section 367(5) of the Criminal Procedure Code, 1898 required the courts to state special reasons for avoiding death penalty. Section 367(5) of the Criminal Procedure Code, 1898 read as follows:

"367. (5) If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed:"

In 1955, by amendment to Section 367(5), the requirement of giving reasons for not imposing death penalty was deleted. The present state of law is contained in Section 354(3) of the Criminal Procedure Code, 1973 which requires the courts to adduce reasons for imposing death penalty.3

The Indian Penal Code also shows trends of changes in prescribing death sentence, that too as an alternative penalty only in a few sections. They are Sections 120-B, 121, 132, 194, 302, 305, 307 (in certain cases) and 396. In Mithu v. State of Punjab4 a five-Judge Constitution Bench of the Supreme Court struck down Section 303 IPC as unconstitutional since there was no alternative penalty provided by the section. Section 307 which provides for compulsory death sentence in certain cases, though not struck down till now, yet it will also have the same fate like Section 303. Thus, only seven sections in IPC provide for death sentence, that too as alternative penalty. But much of the cases of death sentence arise only under Section 302. In Bachan Singh v. State of Punjab5 the Supreme Court while upholding the constitutional validity of death sentence by a majority of 4 to 1, held that death sentence can be imposed only in rarest of rare cases. Justice Sarkaria laid down the ratio for the majority as follows6:

"A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

Justice Jagannatha Shetty in his concurring judgment in Triveniben v. State of Gujarat7 held that Bachan Singh case5 has narrowly tailored the sentencing discretion of courts as to death sentence and death sentence is now awarded only in miniscule number of cases.

Thus, there is both a legislative and judicial restriction in the imposition of the capital punishment which was not there when Article 134 was enacted by the founding fathers. In view of these developments, the apprehension of the founding fathers that a right of appeal in death sentence cases may flood the Supreme Court with appeals has become infructuous. After the watershed decision of the Supreme Court in Maneka Gandhi v. Union of India8 it is just and proper that there should be a right of appeal to the Supreme Court in all cases where the soul of a human being is at stake. In Kehar Singh v. Union of India9 Chief Justice Pathak, speaking for a unanimous Constitution Bench of the Supreme Court while dealing with the mercy power of the President under Article 72, made the following observations which apply on all fours to the subject under discussion10:

"To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive, and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilized societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinize the validity of the threatened denial of life or the threatened or continued denial of personal liberty." (emphasis supplied)

Background in the enactment of Article 134

Article 110 in the Draft Constitution became Article 132 in the present Constitution. Article 111 in the Draft Constitution became Article 133 and Article 112 in the Draft Constitution became Article 136. In the Draft Constitution, initially there was no specific provision conferring for criminal appellate jurisdiction on the Supreme Court. This was pointed out and criticized by some of the learned members of the Constituent Assembly when Draft Article 110 was discussed and debated. Pandit Thakurdas Bhargava argued in the Constituent Assembly that those persons who are condemned to death cannot be recalled to life if the wrong sentence is carried out. Life is much more important than any amount of civil rights.11 It was Prof. Shibbanlal Saksena, who vehemently argued for a right of appeal in death sentence cases. Prof. Shibbanlal Saksena spoke in the Constituent Assembly as follows:12

"I am not able to find any provision which guarantees to the citizen who has been condemned to death or whose civil liberty has been taken away that he shall have an inherent right of going in appeal to the highest tribunal—the Supreme Court. I have seen many cases where people were condemned to death. I had the misfortune during the 1942 movement to live in a condemned cell for about twenty-six months and about thirty-seven men were hanged in my presence. There were eight cells for condemned prisoners in one block and I occupied one of them. So I was privileged to be with the condemned prisoners, to meet them and to talk and to live with them. Out of the thirty-seven men, seven were acquitted, ten had their sentences reduced to transportation for life and the rest twenty were hanged. I am sure, Sir, that many who were acquitted were real murderers, many who were sentenced to transportation for life were real murderers and many who were hanged were innocent. At least I was convinced in the case of seven persons that they were perfectly innocent. Still they were hanged. I do not say that the Supreme Court will always know by some divine inspiration what is true. That is why I stand for our abolition of capital punishment altogether. But, so long as we do not abolish the death penalty, I feel that the man who is condemned to death must have the right of appeal to the highest tribunal. This must be inherent right and not limited by any conditions. I am fully prepared to accept the advice of Shri Alladi on other subjects. I am prepared to limit the functions of the Supreme Court in hearing appeals in civil cases but, I do wish that the men who are condemned to death should have the inherent right of appeal to the Supreme Court and no man should be hanged unless the Supreme Court has confirmed their death sentence. The other day I was hearing at another place, my learned friend Dr Bakshi Tekchand, when he told us that when he was a Judge of the Lahore High Court, about three hundred cases of murder went to him in appeal every year. Probably the combined Punjab was very turbulent, considering the number of murders there, but the East Punjab and other Provinces are not so violent. I do not think that in the whole of India that the number of murder appeals will exceed seven or eight hundred. I do feel that the people who are condemned to death should have the inherent right of appeal to the Supreme Court and must have the satisfaction that their cases have been heard by the highest tribunal in the country. I have seen people who are very poor, not being able to appeal as they cannot afford to pay the counsel. I see that Article 112 says that the Supreme Court may grant special leave to appeal from any judgment, but it will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves of the benefits of this section. Therefore, in the name of those persons who are condemned to death and who though innocent were hanged in my presence, I appeal to the House that either in this article or in any subsequent article there must be made a provision that those who are condemned to death shall have an inherent right of appeal to the Supreme Court."

Shri Frank Anthony also supported the stand taken by Prof. Saksena and gave his views as follows:

"I confess I cannot understand why the Law Minister and those who think like him feel that this kind of justice must be done to the civil litigants in cases involving property of 20,000 rupees and more, while on the other hand, they say, that where a man has been sentenced to death or has been given transportation for life, it does not involve a denial of liberty or justice sufficient to give him an automatic right of appeal. My friends may say that Article 112 gives a certain amount of discretion to the Supreme Court to allow any appeals in respect of criminal matters, but it is a matter of discretion and it is also qualified by the condition that it must involve a substantial question of law."13

Shri Frank Anthony dismissed the argument of other members who opposed the idea of absolute right of appeal in death sentence cases that, then the Supreme Court will have to have scores of judges. Dr P.K. Sen also supported the view to have a right of appeal to the Supreme Court in all cases of death sentence which was also supported by Dr P.S. Deshmukh. Pandit Lakshmi Kantha Maitra queried the Constituent Assembly that whether or not we are going to place human life much below the value of the property. If for property you would give a constitutional right of appeal, would you deny that in cases where death sentence is imposed?

Even the learned members who opposed the right of appeals in death sentence cases opposed it on the view that more judges will be required which will be evident from the speech of Shri K.M. Munshi who said that conceding a right of criminal appeal to the Supreme Court would mean not less than 100 judges of the Supreme Court and even if it is a question of death sentence, it would require a very large number. The same was the view taken by Shri Krishna Chandra Sharma. Dr Ambedkar in his speech supported abolition of death sentence itself. Thereafter, the Constituent Assembly decided to introduce a separate article providing for criminal appellate jurisdiction to the Supreme Court and new Article 111-A with various amendments by many members of the Constituent Assembly were introduced. The Constituent Assembly made a compromise and provided for limited right of appeal in criminal cases only when the High Court punishes a person with death sentence for the first time and also conferred power on Parliament to enlarge the jurisdiction under which the 1970 Act was passed by Parliament. When Article 111-A was debated, Prof. Shibbanlal Saksena reiterated the stand taken by him when Draft Article 110 was debated, Prof. Saksena spoke as follows14:

"Mr President, the amendment moved by Dr Ambedkar really makes criminal appeals to be on a par with civil appeals. I argued the other day that every man who is sentenced to death should have the right to have his case reviewed by the Supreme Court before the sentence is carried out. I remember the difficulties of the poor men under sentence of death. I have lived in cells with condemned men and I know their feelings. Hardly, one among a score of such people could afford to take their appeal to the Privy Council. It is stated here that if the High Court certifies that the case is fit one for appeal to the Supreme Court, the Supreme Court shall have power to hear it. It would not come to the Supreme Court automatically. I feel that a man who is condemned to death but who may not have the means to file an appeal or to get the necessary certificates should also have his appeal heard by the Supreme Court as of right. Nobody should be hanged unless his case is reviewed by the Supreme Court. According to the present amendment of Dr Ambedkar, only about 100 out of 1000 murder appeals i.e. about 10 per cent will have the right to be heard by the Supreme Court if all the accused are able to bear the expenses thereof. So, the richest men alone will get the right of appeal to the Supreme Court and poor men will be hanged without any hearing by the Supreme Court. Poor men cannot thus get justice even after this amendment is passed. I therefore think that although the amendment is a compromise, the poor condemned prisoners will not get justice even under it."

A reading of the Constituent Assembly Debates shows that those who opposed the right of appeal in criminal cases opposed it only on the ground of requirement of more judges which has lost its value because of the change in the position of law as stated above. Therefore, it is respectfully submitted that there should be a right of appeal in all cases of death sentence even from concurrent findings.

(b) Life imprisonment cases

The 1970 Act was passed enlarging the jurisdiction of the Supreme Court and it provides that if life imprisonment or sentence of 10 or more years is awarded for the first time by the High Court, then statutory appeal lies to the Supreme Court. Here also, there is no right of appeal if the finding is concurrent. In 1978, there was an amendment to the Criminal Procedure Code by the introduction of Section 433-A which makes a convict to undergo compulsory 14 years' imprisonment in two circumstances. They are (1) when a court imposes death sentence which is commuted to imprisonment for life, and (2) when life imprisonment is awarded for an offence which carries death as alternative penalty. When Parliament enacted the 1970 Act, there was no statutory restriction with regard to premature release of convicted prisoners. Due to the enactment of Section 433-A in CrPC in 1978, the power of the Government to release a person on premature release by remission etc., is restricted. Due to the enactment of this section, it is just and proper that all cases of life imprisonment also should have the right of appeal to the Supreme Court.

In view of the foregoing discussion, it is respectfully submitted that Article 134 needs amendment to the effect that there shall be a right of appeal in all cases of death sentence and in all cases of life imprisonment falling under Section 433-A of the Criminal Procedure Code.

1. Advocate-on-Record, Supreme Court of India. Return to Text
2. The amount mentioned in clause (1) of Section 133 was deleted by the Constitution (Thirteenth Amendment) Act, 1972 with effect from 27-2-1973. Return to Text
3. Section 354(3) lays down: "354. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment of a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence." Return to Text
4. (1983) 2 SCC 277 Return to Text
5. (1980) 2 SCC 684 Return to Text
6. Ibid., at p. 751, para 209. Return to Text
7. (1989) 1 SCC 678 Return to Text
8. (1978) 1 SCC 248 Return to Text
9. (1989) 1 SCC 204 Return to Text
10. Ibid., at pp. 210-11, para 7. Return to Text
11. CAD Vol. VIII, p. 599. Return to Text
12. Ibid., pp. 600-01. Return to Text
13. Ibid., p. 601. Return to Text
14. Ibid., at p. 843. Return to Text