“Special Reasons” for Death Penalty under Section 354(3) of Code of Criminal Procedure

Under Section 354(3) of the Code of Criminal Procedure, 1973 (“Code”), the court has to provide ‘special reasons’ before death sentence can be awarded to a convict. In a recent case (Deepak Rai v. State of Bihar), a three-judge bench of the Supreme Court of India (“Supreme Court”) has clarified as to what constitutes “special reasons” under the Code. In the instant case, the appellant-accused, along with other accused, burnt seven persons alive which included a man, his wife and his five children. The incident took place when the deceased man, along with his wife and children, was sleeping at his house. Though the deceased man was burnt alive by putting kerosene over him, his wife and children were fire trapped inside the room which they were sleeping in. It had been pointed out in the judgment that the appellant had committed the crime after the deceased man refused to withdraw a theft case against him.

(Image Source: Fatih University MUN Website)

In this post, I am culling out the relevant part wherein court has discussed Section 354(3) of the Code. The judgment is fairly long and it discusses a number of cases where death penalty has been awarded and rejected. The case involved two main issues: (i) whether the reasons assigned the courts below, for awarding death sentence, are ‘special reasons’, and (ii) whether the impugned matter falls into the category of ‘rarest of rare crimes’. In this post, it is the first issue which I am dealing with.

Scope of Article 136 of the Constitution of India vis-a-vis ‘Special Reasons’

After discussing the history behind the enactment of new Criminal Code in 1973, court first dealt with the scope of jurisdiction under Article 136 vis-a-vis ‘special reasons’ under Section 354(3) of the Code. It was stated by the court that it is settled law that an appeal by special leave under Article 136 is a continuation of the original proceedings. However, court also noted that this continuation of original proceedings does not mean that the jurisdiction of the court, under Article 136, is restricted by the rules criminal procedure. In other words, the jurisdiction under Article 136 is not limited to mere confirmation or rejection of an appeal. Court held that:

                                       “......This Court while considering the question of correctness or otherwise of the sentence awarded by the Courts below has exercised discretionary jurisdiction under Article 136 and hence can not only examine the reasons  so  assigned  under  Section 354(3) but also substantiate upon the same, if need so be.”

‘Special Reasons’ for awarding Death Penalty under Section 354(3) of CrPC

Having dealt with the scope of jurisdiction under Article 136 of the Constitution of India, 1950 (“Constitution”), the court discussed the issue pertaining to ‘special reasons’ under section 354(3) of the Code. Under Code of Criminal Procedure, 1898 (“Old Code”), imposition of death penalty was not an exception. But, under the Code (1973 CrPC), where the offence provides for the punishment of life imprisonment or death penalty, life imprisonment has become the rule and death penalty an exception. Accordingly, under Section 354(3) of the Code, it was provided that ‘special reasons’ must be given before awarding the sentence of death penalty. Explaining the legislative mandate, court stated that:

                                       “.....The legislative mandate of assigning “special reasons” assures that the imposition of the capital punishment is well considered by the Court and that only upon categorization of the case as “rarest of rare”, thus leaving no room for imposition  of a less harsh sentence, should the Court sentence the accused person to death.”

While explaining that the length of discussion would not be the factor for determining the correctness of a decision, it was emphasised by the Supreme Court that an “independent conclusion” should be something which a court, while determining the sentence, should reach at. Further, where a court omits to assign elaborate reasons for awarding death penalty, the same can be elaborated by the higher court. In any case, before a court comes to any conclusion, it should provide the accused an opportunity to be heard on the question of sentence [Section 235(2) of the Code].

Precedents on “Death Penalty”: For one looking for precedents on death penalty and their applicability, this judgment may be quite helpful. The judgment, apart from discussing the issue as regards Section 354(3) of the Code, extensively discusses precedents on ‘Death Penalty’. The cases, where death penalty has been affirmed and rejected, have been discussed separately. 

(For downloading the judgment, click here. For queries, send an e-mail to abhinav.s@nujs.edu)