Death Warrant

DEATH   WARRANT     

INTRODUCTION:

India is a developing country with an increasing rate of crime. There are various laws in India to regulate or stop crimes, even after having these laws the crime rate in India is still increasing because the punishments are not sufficient for the crimes. All the punishments have some motive behind them one is that imposing punishment on persons who commit a crime can help in discouraging others from doing the same and other one is that the person who committed a crime should suffer. There are various kinds of punishments based on the degree of the offence like the death penalty, imprisonment for life, imprisonment, imprisonment with fine, and fine. The death penalty or Capital punishment is an important part of the Indian Justice system. The death penalty is a process in which the person who has committed capital crime or offences are put to death by the state. In other words, Death penalty means that the wrongdoer sentenced to death by the court of law for the most grievous crime committed by him. The day on which death penalty is awarded to any wrongdoer a Death Warrant or Black Warrant is issued by a court which identifies the convict who has been sentenced to death, the case under which he/she is tried, the day on which sentence is executed, and the court that awarded the punishment. Thus, a Death warrant is a legal notice having the date and time of execution of sentence of death against the convict who has been awarded with the punishment.

Who can issue Death warrant:

The Session court has the power to issue Death warrant Under Section 413 and 414 of Criminal Procedural Code,1973.

When a Death Warrant is issued:

• A Session Court may pronounce death sentence against an accused if found guilty of an offence punishable with death in this regard the Session court needs to submit the necessary proceedings to the High court Under Section 366 of Criminal Procedural Code, 1973.
• The High court has the power to grant the confirmation or to dismiss the death sentence passed by the Session court Under Section 368 of Criminal procedure code, 1973.
• Under sec 413 of Criminal Procedural Code, After having the confirmation of High court the Session court can issue a warrant for the execution of the sentence of death.
• Section 413 of Criminal Procedural Code, 1973 states that when a sentence of death is passed by the High court in an appeal or revision, on receiving order of High court the Session court shall issue a warrant of death against an offender.
• After passing the order or receiving the confirmation of the High court the convict can appeal before the Supreme court, in such case the issuance of warrant postpones until such appeal gets exhausted.
• When a woman who has been sentenced to death after passing such orders if found to be pregnant, in such case the High court shall reduce the said sentence to life imprisonment Under Section 416 of Criminal Procedural Code, 1973.

How Death warrant is issued?

The proceedings for Death Warrant starts just after the exhaustion of the Mercy petition filed by the convicts. A prisoner can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors, have the power “to grant pardons, reprieves, respites or remissions of punishment. 

As we all can see in the case of Delhi gang rape and murder case the Mercy petition of one of the convicts, Vinay Sharma has been rejected by both the State Government and the Governor. Later the four convicts in Delhi gang rape and murder case (2012) were hanged to death on 20 March 2020.

History of Death Penalty in India:

Along with Nirbhaya case there were many other cases where the death penalty has been awarded to the convict. Prior to Nirbhaya case In the year 2015, Yakub Memon was hanged to death on 30 July 2015. He was convicted of the Mumbai Bomb Blast in 1993.

Muhammad Afzal was also hanged to death on 8 February 2013 for plotting the 2001 Parliament attack.

Mohammed Ajmal Amir Qasab was hanged on 20 November 2012, he was convicted under the 2008 Mumbai Terror attack.

Developments in the Death penalty in India:

There are many human rights movements in India which says that death penalty is immoral in nature, they also said that it violates one person’s right i.e, Article 21 of Indian Constitution “protection of his life and personal liberty” the Article says that “No person shall be deprived of his life or personal liberty except as according to the procedure established by the law.”

The Death penalty puts this fundamental right into danger. The Constitutionality of the death penalty was first raised in the case of Jagmohan singh v. State of U.P in this case the counsel of petitioner challenges the Constitutionality of sec 302 of Indian Penal Code, 1860. On the ground alleging that it violates fundamental rights provided under Article 14,19 and 21 of Indian Constitution. In this case, the court does not consider the plea and upheld the Constitutionality of the death penalty.

Later the unconstitutionality of the death penalty was raised in the case of Bachan Singh V. State of Punjab where the Supreme court says that the death penalty should be given only in the rarest of rare cases. 

In Mithu V. State of Punjab, the Supreme court struck down Sec. 303 of Indian Penal Code, 1860 which provides compulsory death for the convicts. 

What is Form No. 42:

The offender “be hanged by the neck until he is dead”. This  phrase is derived from the exactly three sentences written on the Code of Criminal Procedure’s Form No. 42, popularly known as the Death Warrant or Black Warrant. The Form No. 42 of the Code of Criminal Procedure (Cr.P.C) is essentially an order for the execution of a wrongdoer who has been sentenced to death.

WARRANT OF EXECUTION OF A SENTENCE OF DEATH

To the Officer in charge of the Jail at ______________ (name of jail)

WHEREAS ________________ (name of the prisoner), the ___ (1st, 2nd, 3rd, as the case may be) Prisoner in case No. ________ (case number) of the Calendar for 20__ at the Session held before me on the __ day of ______ (month), 20__, has been by a warrant of the Court, dated the __ day of _______, committed to your custody under sentence of death; and whereas the order of the High Court at _________ (place of the high court) confirming the said sentence has been received by this Court;

This is to authorize and require you to carry the said sentence into execution by causing the said _________ (name of the prisoner) to be hanged by the neck until he be dead, at _______________ (time and place of execution), and to return this warrant to the Court with an endorsement certifying that the sentence has been executed.

Dated, this __ day of ________, 20__.

(Seal of the Court) (Signature)

CONCLUSION:

The death penalty has always been a topic for debate. In India, it has been practiced since ancient times, though many countries have abolished the death penalty. When we look at the statistics there is a rapid increase in crime, even the death penalty can not deter people from committing crimes. Thus, we need to reform our laws and award such punishments that are rigorous in nature and can set an example for others and bars them to commit such crimes in the future.

References:

# Jagmohan v. State of U.P. {1973 SCC [CRI] 169}

# Bachan Singh vs. State of Punjab (1980) SCC 898

# Mithu V. State of Punjab (1980) 2 SCC 684

# Death Sentence in India – IPC – Death penalty – Legal Service India available at http://www.legalserviceindia.com/articles/dsen.htm , last seen on 28/03/2020.

# Article 21, Constitution of India, 1950.

# Code of Criminal Procedure, 1973

# A CRITICAL STUDY ON CAPITAL PUNISHMENT IN INDIA 1M.SWATHI,2K.ROJA

# Gupta, Subhash C. Capital Punishment in India. 1986.