MODULE – VII

a) Procedure for Execution

Section 453 – 477 of Chapter XXXIV of BNSS deals with the Execution, Suspension,
Remission and Commutation of Sentences.

 Execution in Death Sentences

- Execution of Sentence of Death (section 453) - The process of executing a death
sentence involves intricate steps outlined in the Criminal Procedural Code. Section
407 explicitly mandates that a session judge cannot execute a death sentence without
the High Court’s confirmation. The High Court, under Section 409, can confirm the
sentence, annul the conviction, or order fresh proceedings. Any order from the High
Court must be executed by the Session Court through the issuance of a warrant.
- Execution of Sentence of Death Passed by High Court (section 454) - Section 454
further specifies that if the High Court passes a death sentence on appeal or revision,
the Session Court is obligated to carry out the order by issuing a warrant. The jail
superintendent plays a crucial role in conveying information regarding confirmation
or annulment to the Sessions Judge.
- Postponement of Execution of Death Sentence (section 455) - In cases of appeal to
the Supreme Court, Section 455 allows the High Court to order the postponement of
the execution of a death sentence until the Supreme Court appeal is disposed of. This
provision safeguards the rights of the accused during the appellate process.

- Postponement of Capital Sentence on a Pregnant Woman (section 456) - Section

456 provides the High Court with the authority to postpone or commute the sentence
of a pregnant woman, showcasing a compassionate approach to specific cases.

 Execution of Imprisonment
- Place of Imprisonment (section 457) - The State Government holds the power to
direct the place of imprisonment for individuals convicted under the Criminal
Procedural Code. The Code also addresses the transfer of prisoners between civil and
criminal jails, emphasizing specific conditions for such transfers.
- Execution of Sentences of Imprisonment (section 458) - Section 458 details the
execution process for sentences of imprisonment. The court must issue a warrant
 specifying the place of confinement, and in cases where the accused is absent during
sentencing, the court can order their arrest to initiate the sentence.
- Warrant for the Execution of Sentence of Imprisonment (section 459) - Section
459 outlines the issuance of warrants for the execution of sentences of imprisonment,
directing them to the in charge of the jail or the jailor, depending on the place of
confinement.
 Execution of Fine
- Fine Levy Warrant (Section 461) - Courts recover fines with warrants, attaching
property or instructing the district collector. A warrant is issued for non-payment
leading to imprisonment, except in special circumstances or with Section 395
compensation orders. State governments establish rules for fine recovery, excluding
arrest or detention from warrant execution.
- Effect of Warrant (Section 462) - The court may order property attachment within
its jurisdiction or, if endorsed by the District Magistrate, outside its limits.
- Warrant in Non-Applicable Territory (Section 463) - If the code doesn’t apply, the
court issues a warrant to the District Collector for fine collection as arrears of
revenue.
- Suspension of Imprisonment (Section 464) - For fine-only sentences, the court may
suspend imprisonment if the offender furnishes a bond for payment, with conditions
specified.
 General Provisions on Execution

- Execution of Sentence on Escaped Convict (Section 466) - Immediate execution if

the new sentence is more severe, or the remaining term of the previous sentence if less
severe.
- Warrant Issuance Authority (Section 465) - Warrants for execution are issued by
the Magistrate, Judge, or their successors.
- Return of Warrant (Section 470) - Once a sentence is fully executed, the officer
returns the warrant to the issuing court, specifying the execution method.

b) Types of punishments
c) Procedures for remission and commutation of sentences
Under Article 72 and Article 161 of the Constitution, the President and the Governor
possess sovereign powers to pardon, remit, suspend, or commute sentences. The
constitutional provisions differentiate the pardoning powers of the President and the
Governor, with specific limitations.

- Power to suspend or remit sentences (section 473) - BNSS outlines the procedure for
remission and suspension. The government seeks the court’s opinion, which provides the
sentence, and decides based on proper records. The power of remission is executive,
lacking a specific legal challenge avenue.

In Maru Ram v. Union of India (1980), the Supreme Court emphasised that remission
should not be used arbitrarily or for political gains. The court ruled that while the
executive has the power to grant remission, it must be exercised within the framework of
the law and for the purpose of achieving justice.

Remission may be granted for various reasons, including:

 Good Conduct: A convict who demonstrates good conduct during incarceration

may be eligible for remission of a portion of the sentence.
 Rehabilitation: If the convict shows signs of rehabilitation and reintegration into
society, remission may be granted to facilitate early release.
 Special Occasions: Governments may declare remission of sentences on special
occasions, such as national holidays or anniversaries.
 Humanitarian Grounds: Remission may also be granted on humanitarian
grounds, such as the advanced age of the convict or serious health issues.

- Commutation of Sentence (section 474) – The appropriate government can commute

the sentenced person for,
1. a sentence of death, for imprisonment for life
2. a sentence of imprisonment for life, for a term not less than 7 years
3. a sentence of imprisonment for seven years or more, for a term not less than 3
years
4. a sentence of imprisonment for less than 7 years, for fine
5. a sentence of rigorous imprisonment, for simple imprisonment.
 In Kehar Singh v. Union of India (1989), the Supreme Court examined the President’s
power to commute sentences under Article 72. The court held that the President’s decision
to commute a sentence is subject to judicial review, but the scope of this review is limited
to ensuring that the power is exercised fairly and without malice.

Another landmark case is Swami Shraddananda v. State of Karnataka (2008), where

the Supreme Court commuted a death sentence to life imprisonment without the
possibility of remission, creating a new category of punishment for heinous crimes.

- Nature Alteration in Commutation - Commutation differs from suspension and

remission by changing the punishment’s nature into a less severe form. Section 474 of the
BNSS grants the government the power to commute sentences, including death sentences.

- Eligible Sentences for Commutation - Various sentences, such as death sentences, are
eligible for commutation under Section 474 of the BNSS. This can lead to a reduction in
the sentence to 14 years of life imprisonment.

- Restrictions on Remission and Commutation Powers (section 475) - Section 475 of

the BNSS imposes restrictions, preventing the President and Governor from commuting
death sentences to less than 14 years of life imprisonment. In the absence of orders under
Section 51 of the BNS or Section 4 of the BNSS, convicts remain incarcerated even after
14 years.

- Concurrent Power of the Central Government in Case of Death Sentences (section

476) - Section 476 grants the Central Government the authority to exercise powers under
Section 473 and Section 474 in the case of death sentences.

- State Government to Act After Concurrence with the Central Government in

Certain Cases (section 477) - Section 477 emphasizes the consultation between the state
government and the Central Government in matters involving the investigation made by
an agency under the central act, misappropriation of Central government property, or
offences committed by individuals working under the Central government.

d) Provisions for suspension of sentences

 Under Article 72 and Article 161 of the Constitution, the President and the Governor
possess sovereign powers to pardon, remit, suspend, or commute sentences. The
constitutional provisions differentiate the pardoning powers of the President and the
Governor, with specific limitations.

- The BNSS provides for the suspension of sentences under various circumstances. Section
430 of the BNSS allows the appellate court to suspend the execution of a sentence
while the appeal is pending. This is particularly relevant in cases where the convict
seeks bail during the appeal process.
In the case of K.M. Nanavati v. State of Maharashtra (1961), the Supreme Court
upheld the suspension of Nanavati’s sentence pending the appeal, highlighting the
judiciary’s discretion in such matters. The case exemplifies how the suspension of a
sentence can be a crucial legal tool to ensure justice is not only done but also seen to be
done.

- Section 464 of the Criminal Procedure Code (BNSS) deals with suspending the
execution of a sentence of imprisonment. When an offender is sentenced to both a fine
and imprisonment (with the imprisonment being in default of payment of the fine) and the
fine is not paid immediately, the court has the discretion to order that the fine be paid in
full or in instalments within a specified period (usually not more than 30 days from the
date of the order. The court can suspend the execution of the sentence of imprisonment
and release the offender on executing a bond or bail bond as the court thinks fit.
- Power to suspend or remit sentences (section 473) - BNSS outlines the procedure for
remission and suspension. The government seeks the court’s opinion, which provides the
sentence, and decides based on proper records. The power of remission is executive,
lacking a specific legal challenge avenue.

e) Procedures for review of judgments

Write the answer of Revision for Review both are the same.

f) Provision for transfer of cases

Chapter XXXIII deals with the transfer of criminal cases under BNSS. This chapter
comprises Sections 446 to 452, which outline the rules and procedures for transferring
criminal proceedings.
Section 446 – Power of Supreme Court to Transfer Cases and Appeals
Section 446 of the Criminal Procedure Code grants the Supreme Court the discretionary
power to transfer cases and appeals. The Supreme Court’s power to transfer cases and
appeals under Section 446 is purely discretionary, and the applicant is not required to
conclusively prove their reasons for seeking the transfer. The applicant must submit an
affidavit or an affirmative motion in the prescribed format under Section 446 unless the
applicant is the country’s Advocate General or Attorney General.
An application seeking the transfer of a case or appeal pending in a High Court can be
filed with the Supreme Court by:
 1. Individuals who fear injustice in court proceedings.
 2. Individuals who believe they won’t receive fair justice in the court where the case
is currently being heard.
 3. The Attorney General or Advocate General of India.
The Supreme Court’s authority to transfer cases and appeals also extends to cases pending
before any subordinate court in the country. This provision allows for the transfer of cases
and appeals from the Supreme Court to another High Court or from one High Court to
another. The transfer of cases under BNSS can occur if it is deemed in the interest of
justice.
In Sukhdev Singh Sodhi vs. The Chief Justice and Judges of The PEPSU High
Court, the court clarified that the power to transfer cases to the Supreme Court does not
extend to the transfer of any pending contempt proceedings in the High Court.
In the case Suman Gambhir v. State of Rajasthan & Ors., the complainants and
accused are based in Delhi, the civil suit between them is pending in Delhi, and the state
has no objection to transferring the case from Rajasthan to Delhi.
Section 447 – Power of High Court to Transfer Cases and Appeals
Section 447 of the Criminal Procedure Code confers the power on High Courts to transfer
cases and appeals. The circumstances under which the High Court may order the transfer
of a case or appeal are as follows:
 When the High Court is satisfied that the right to a fair and impartial hearing
guaranteed under Article 21 of the Constitution of India cannot be ensured if
subordinate courts try the case.
 When there are extraordinary difficulties related to the questions involved in
the case pending before the court.
 When the transfer of the appeal or case is necessary due to any provision
under the Criminal Procedure Code.
  When the transfer order is for the general convenience of the parties or
witnesses involved in the lawsuit.

Transfer applications can be made by affidavits or confirmation:

 By the report of the lower court.
 By an interested party.
 The High Court may also initiate the transfer on its own.
In the case of Pal Singh & Anr. v. Central Bureau of Investigation & Ors., the
Supreme Court stated that a criminal case or appeal may be transferred from one district
court to another within the same jurisdiction. There is no provision for inter-state transfer
of cases in BNSS. Additionally, when a case is in its final stages of trial, and most
witnesses have already been examined, a transfer may not be appropriate.
In the case of Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors., the
Supreme Court rejected the plea to transfer criminal cases from Jammu to Srinagar, as
most of the witnesses were from Srinagar and the court found no need for the transfer
since all the witnesses from Jammu were already examined.
Section 448 – Power of Sessions Judge to Transfer Cases and Appeals
Section 448 of the Criminal Procedure Code empowers the Sessions Judge to transfer
cases and appeals within their Sessions Division if deemed appropriate in the interest of
justice.
Subsection 1 of Section 448 states that the Sessions Judge can transfer cases under BNSS
from one criminal court to another criminal court within the jurisdiction of their Sessions
Division to serve the ends of justice.
Subsection 2 of Section 448 provides instances where the Sessions Judge can transfer
cases under BNSS. This includes cases where a report is filed by the lower court
requesting the transfer and cases where an interested party or the court files an application
for transfer at its own discretion.
The provisions of subsection (3), (4), (5), (6), (7), and (9) of Section 447 also apply to the
Sessions Judge when making any order related to the authority while exercising the
provisions referred to under subsection 1 of Section 447. These provisions apply to the
Sessions Judge in the same manner as they apply to the High Court.
The Sessions Judge may exercise this power:
1. At their discretion.
2. Based on a report filed by the lower court.
 3. In response to an application made by a party.
If a person is found to be filing fraudulent transfer applications, they may be ordered to
pay compensation up to Rs. 1000 by the High Court or Rs. 250 by the Sessions Judge to
any party who opposed the application.

g) Provision for reference and revision by the High Court

Chapter XXXII of the Code of Criminal Procedure deals with two important jurisdictions,
which are:

 Reference

Under Section 436 reference jurisdiction can be invoked by any court of Session
Judge. It confers the right to the subordinate criminal courts to refer cases to the High
Court. The Section provides that the subordinate courts may approach the High Court
of the respective states where they are located and may refer a case to the High Court
so approached in order to obtain its opinion. The right of the subordinate courts can be
exercised in two situations, which are as follows:

1. When the validity of the Act, ordinance or any regulation is in question and the
court thinks that the validity of such Act, ordinance or any regulation is doubtful;

2. When in any case there is a question of law involved that the court thinks requires
the interpretation of the High Court.

Prerequisites for Reference under Section 436

i. The case should be pending before the court

ii. The case should necessarily involve a question of law
iii. The law which is in question must be in the form of an Act, ordinance or
regulation
iv. The courts must believe that the law in question is invalid.

In Mahesh Chand v. State of Rajasthan, the court subordinate to the High Court
made reference to the High Court about a bail application which by the time the
reference was made was already disposed of and therefore, the High Court refused to
entertain declined to make any reference since there was no matter pending before the
 court and therefore, no reference could be made for the matter which has already been
disposed of.

 Revision

Section 440 and Section 442 of the Code of Criminal Procedure confers the
revisionary jurisdiction to the Sessions Court and High Court respectively. Section
440 of the Code states that the revisional jurisdiction is the same as that of the High
Court under Section 442. The revisional jurisdiction on the other hand under Section
438 can be invoked either by:

- High Court; or

- Sessions judge.

Besides the appellate jurisdiction, the authority possessed by the High Courts over the
other courts is the power of superintendence guaranteed to the High Courts by Article
227 of the Indian Constitution.

The objectives of revisionary jurisdiction are as follows:

 Higher courts can keep a check on whether the legal principles, procedures
and jurisdiction are duly complied with or not by the subordinate court.

 To keep the lower court within the bounds of their authority and make
them work in accordance with the rule of law.

Essentials for Revisional Jurisdiction

i. Calling for records of the case

ii. Unsatisfaction of parties on the court’s judgement