May 14, 2020

Death Sentence, Life Imprisonment & Levy of fine.

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DEATH SENTENCE, LIFE IMPRISONMENT & LEVY OF FINE.

Author: Akanksh Deekonda, NLIU-Bhopal

INTRODUCTION

India is a country having different statutory or constitutional provisions to the convict to commute, remit, and suspend sentences. The constitution of India provides that A president or a Governor can grant pardon. Suspend, remit, or commute the sentence. This can be done under articles 161 or Article 72. The entire chapter XXXII of the Criminal Procedure Code, 1973 deals with the aspects with regard to Remission, Commutation, or Suspension of the given sentence.

Nature of the Punishment

The Commutation, Suspension, and Remission of any punishment are usually exercised by the state. This could be done by the way of mercy that is to be exercised on the convict. The basic purpose of such actions to reduce punishment is an act of showing mercy towards the convict. This is also done to account for certain aspects during the proceedings which do not arise in due course of law.

When A Death Sentence is Executed?

Execution of order passed under Section 368

It is established by Section 366, CrPC of 1973 that a session judge, without the confirmation of the High Court, cannot execute a Death Sentence. The person can be in Jail Custody until the proceeding is done as in Section 366.

Section 368 of the CrPC gives the following powers to the High Court:

Confirms the death sentences which are issued by the lower courts as per the procedure.
Can support the conviction which was sentenced by the lower court. It can even order the court to initiate fresh proceedings with the same or altered charges.
The High court can even acquit the person during the appeal which has not lapsed or disposed of.
The order issued by the High Court can be direct against any direction or order of the session’s court. This can be under Section 413 of the Criminal Procedure Code.

Execution of the Death Sentence by the order of High court

Section 414, CrPC gives the High Court to pass the death penalty in appeal or review, a warrant must be given by the Session Court to carry out the order.

The Session Judge would give a warrant to the Director of Jail from where the prisoner was initially convicted until the High Court certifies to the Sessions Judge some details about the clarification, annulment of the accused’s charges in the case which was submitted by way of an appeal or review. When the prisoner is transferred to another facility, Subsequently, the Facility Superintendent will return the warrant to the Judges of the Sessions, who in turn must send the warrant to the Jail Superintendent in whom the prisoner is transferred.

During any case of appeal or revision by the appeal court altering the charges, the same would be notified to the jail superintendent to whom the prisoner is being committed. Also in the event of the prisoner’s involuntary release from custody, the Sessions Judge will inform the Jail’s Inspector by means of a summons. After such execution, the superintendent shall give the original warrant, duly filled in, to the magistrate of the district where the trial was held.

When can the execution of “Death Sentence” be Postponed?

Under the Principles of Constitution.

Under Section 415 of the CrPC, Any case which goes for the Supreme court by an appeal under the constitutional provisions like exercising Article 134 of the constitution, the death sentence given by the lower court is to be postponed for the requisite time. This period of time should be until the duration of the appeal whether granted or dismissed.

If the death penalty has been upheld by the High Court, the person so sentenced can, by way of a request for a certificate under Article 134 or 132 of the Indian Constitution, can appeal a Higher Court. The death sentence execution must be postponed by the High Court until such a request is either granted or disposed before the time of the Supreme Court’s consideration.

Once the High Court upheld the death penalty but the High Court is pleased that the person so convicted wishes to apply a Special Leave Petition to the Supreme Court pursuant to Article 136 of the Constitution of India. The High Court must require that the execution of the death penalty be delayed until the time that is appropriate for the convicted person to file such an appeal before the Supreme Court.

In the case of A pregnant Women

The woman who has to be found pregnant during her sentence, commutation should be done by the way of reduction or suspension in the sentence for the requisite time. This has been established by Section 416 of the CrPC.

What Could be the scope of imprisonment?

The CrPC provides certain powers to the state governments to direct the place for imprisonment to any convicted person.

Nevertheless, if the person convicted under the provisions of the CrPC is confined to the city jail, then the judge of the court shall order that the person so convicted be moved to a penal institution. Nevertheless, if the inmate transferred from the civil prison to the criminal prison is returned back to the civil prison before three years have passed, in this case, the person shall be released in compliance with Section 58 of the CPC, 1908 or Section 23 of the Provincial Insolvency Code.

For Sentences of Imprisonment.

Section 418 of the code allows for a person jailed for life or on conditions other than those referred to in this clause. The location where the person is confined must always be issued a warrant since the person is restricted to that spot. This will, therefore, be the person who is detained until the court rises, otherwise, there is no reason to forward a summons to the jail and the person is held in compliance with the order of the trial.

Section 418(2) of the code also provides that the accused’s absence in the court during the period of his sentence or imprisonment, the court has to direct the arrest of such person. This must be done by the way of an arrest warrant, by forwarding him to jail or any other place to confine or sentence him from the time of this person’s arrest. The court always ensures a duty for proper Execution of this sentence until the accused is proven guilty.

The Arrest warrant issued in this case is a non-bailable one. It also empowers the authority to arrest the person when the warrant was issued. It is also necessary that the sentence is to be pronounced during the accused’s absence.

A warrant for the purpose of executing the sentence of imprisonment is to be issued under section 419 of the CrPC. This has to be directed to the “in-charge” of the prison or it can be of any place in which the accused can be confined. However, if the person sought to be confined to the prison, then this warrant should be given to the prison authorities.

For the sentences involving fine

If the court is ordering the defendant to levy the fine, it will collect it by one of both of these forms. The problem of the warrant for the amount levied by adding the offender’s movable properties.

Issuing a summons to the district collector and ordering him to recover it as an arrear of land tax from a movable or immovable property or equivalent. In this situation, the collector shall collect the income arrears in compliance with the prevalent laws relating to income collection in the country. The warrant here merely serves a certificate intent.

It is necessary to note that, if it is claimed that incarceration exists in the event of default of bail, even if the defendant has already completed the default penalty, no court shall issue any warrant, unless there are exceptional conditions to be reported in writing or an application for bail of the fine occurring under the terms of Section 357.

The state legislature would make guidelines as to how the fines will be enforced and the summary statements submitted by an individual other than the criminal himself will be treated accordingly. No such warrant shall be executed by the person being charged or detained in jail.

Effect of such warrant

A warrant for the levy of a fine imposed by a judge in any jurisdiction of which this Code would refer Because the defendant was ordered to pay the penalty in the jurisdiction where the Code applies. The judge will grant a warrant to the District Collector in the area where the Code extends and order the defendant to recover the penalty by means of revenue arrears. This warrant shall be handled as though it were issued pursuant to Section 421 of the Code and all the terms will apply as necessary.

There would be default imprisonment in case of non-payment of a fine. However, This Sentence of imprisonment can be suspended when the accused has only been sentenced with a fine.

The judge can issue an order regarding the payment of fine or payment of the first installment within 30 days of such order. He can also issue the order regarding the suspension of imprisonment when the offender gives a bond with sureties. However, this depends upon the judge. He can even order an immediate Imprisonment for the term for which the installments have not been paid. This imprisonment can even be the case when the order for the money-payment is made for the non-recovery. When the person fails to furnish a bond for the payment of the fine, the court can order the immediate execution of the imprisonment.

Who may issue a warrant?

Under Section 425, A warrant is issued by the Magistrate or a judge/ Magistrate who has passed the sentence. This can even be a successor in charge.

What would be the sentence for an escaped convict?

There should be an execution of an immediate sentence when the sentence passed is of types like issuing the death sentence or sentence of Life Imprisonment. There might be a possibility where the judge can issue a new sentence. But, this sentence has to be more than that of the actual sentence given for the escaped convict.

However, if the judge decides to give him a term which is less than the actual punishment, such term should be given of Rigorous or more severe than that of the previous term. The judge can even order a concurrent punishment when the punishment is imprisonment of life or severe imprisonment.

It should also be observed that if a person sentenced to imprisonment by order pursuant to Section 122 in default of furnishing protection is sentenced to imprisonment for an offense committed before making that order, the latter sentence shall begin immediately. However, when the person has already been sentenced to life imprisonment where later is punished for life imprisonment or for a term, then the sentences could run concurrently.

The Period of detention suffered by the accused against a sentence of imprisonment Where the accused serves a sentence other than that imposed on the default of payment of the fine and the period of detention suffered by the accused during the investigation and trial of the same case, the term imposed on him by that conviction shall be offset. The person shall be responsible only if the sentence of imprisonment is granted to him for the time of imprisonment remaining. However, if the sentence is given under Section 433Aof CrPC, the period of detention shall be made against fourteen years as referred according to the provision. This has also been with regard to Section 426 and Section 427 which make an excuse to the accused from the term for which he has been sentenced in either of his former or subsequent convictions.

If an imprisonment reward in lieu of payment of a fine is attached to a substantive imprisonment sentence and the person serving the punishment is sentenced to another substantive penalty or substantive imprisonment punishment until it is completed. In this situation, the offender can only serve the sentence accruing to the default on the payment of the fine after he has endured the resulting sentences.

When can there be a Suspension and remission of sentences?

The suspension is a case where there is a stay or a postponement in the execution of the sentence. However, Remission means the duration in which a sentence is reduced by actually not changing the nature of this sentence. However, these two are quite different. In remission, there is no change in the nature of the sentence but there will be a reduction in the duration.

For e.g., when a person sentenced for a term of three years, his/her sentence now could be reduced to one/two year(s). This effect of the remission is where the prisoner to be given a certain date on which he shall be imprisoned form the eyes of the law where he would become a free man. Breach of condition may lead to the cancellation of any remission or suspension.

Constitutional provisions

The Indian constitution vests a large amount of sovereign power in the head of the executive i.e. governor or a president. This has been evidentiary from articles 72 or 161 where this head can commute, suspend, remit, or pardon any sentence. However, Pardon is an exclusive exercise that can be only exercised by the president, and no one else in the country.

Cases where the punishment is a death sentence.

Cases, where punishment is a death sentence, are dealt with by the Executive heads with their Mercy power. The power of the President depends upon the consultation of ministers and it is not absolute. The present constitution neither promotes this process nor provides for any mechanism to decide the legality of the decision which was taken by the President or the Governor during their exercise of mercy power. This mercy power is subjected to judicial review to rule out any sort of arbitrariness.

Cases where there are other types of sentences

Section 432 of CrPC, 1973 deals with the procedure regarding the other types of cases. The opinion of the court which gave the sentence would be questioned by the government. The government after listening to the court reverts, could either reject or grant the application of suspension or remission. The defendant can, if at large, be arrested without a warrant by any police officer and shall be sentenced to an unexpired portion of the sentence. Remission control is solely an administrative function. There is no statute as usual to challenge the legitimacy of this practice, but the authority can be exercised equally by the government and not unilaterally. The court will, however, consider the restriction provided for in section 433A of the CrPC 1973. The right of parole and revocation will in no way conflict with the court’s decision, it will influence the sentence’s execution.

When can a sentence be commuted?

Commutation is the only punishment that could be interfered with without altering nature, unlike Remission or suspension. It changes the nature of the punishment and then, converts it into a less severe punishment. Section 433 of the code, lays a proper power on the appropriate government to commute a sentence. Even A death sentence can be commuted.

The death sentence could be commuted to any other punishment provided by the IPC. The Imprisonment for life could be converted to any imprisonment for less than fourteen years or fine. The Sentence of rigorous imprisonment could be converted for simpler imprisonment or with a fine. Most of the convicts who got sentenced with death would turn them to a sentence of 14 years of Imprisonment of Life with respect to the provisions of CrPC.

Section 433A of the CrPC imposes a limit on the authority of the President and the Governor not to commute the death penalty to a life term of fewer than 14 years. In the absence of any order pursuant to section 51 of the IPC or section 433A of the CrPC, the convicts are not released except after 14 years imprisonment has elapsed.

Section 432 imposes a condition to granting remission temporarily. The additional term for granting such remission could be done according to the Jail manual or Statutory Rules. This can be even done when the imprisonment of 20 years granted for the accused seems arbitrary.

There are some offenses mentioned under Section 435 of the code which says that Commutation, Suspension or Remission for such offenses could only be provided by the State government with the aid of the Central Government. This is specially mentioned for Issuing Death Sentence under Section 434.

Conclusion

The sentence which is awarded to an offender by the courts may be passed out, deferred or commuted by the executive order. The Constitution and Code of Criminal Procedure, 1973, grant the President and the Governor different rights to change the punishment granted to the convict. This executive authority may not have any procedural safeguards but a limited opening for judicial oversight became possible after the first court trials.

Remission simply means the act to reduce the time period of the term of the sentence. The suspension means an act to postpone the sentence with no change in the time period. These two acts never interfere with the actual nature of the sentence. In contrast, Commutation means an act to change the nature of the punishment by turning it into a lesser kind. The CrPC also deals with various special types of provisions to deal with the persons like Escaped convicts or Pregnant women etc. It also provides for the federal structure where the state acts in consultation with the center.

The 41^st Law Commission of India (LCI) report states that there are some matters on which the center would be given more autonomy or power in the matters of the State government. It is, therefore, necessary for the state government to have those matters with the consultation of the Central Government. This should be done for a better administration of law and in the justice system without any friction.

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