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The decision of the Court of Session awarding the sentence of death is not final unless it is confirmed by the High Court. Therefore, the Sessions Court is required to make a reference to the High Court for this purpose.
Since death sentence once executed, cannot be revoked, it becomes necessary that a thorough scrutiny of the decision of the trial Court is made and all aspects of the case are examined by the High Court to eliminate any possible error or mistake by the trial Court in reaching that decision.
Therefore, when a case of death sentence comes before the High Court for confirmation under a reference made in accordance with Section 366 (1) of the Code, it is the bounden duty of the High Court to review the entire evidence and make its own assessment about the correctness of the award of death sentence on the basis of the material available before it. The provision of reference under Section 366 (1) is mandatory and it is applicable irrespective of the fact whether appeal has been filed against the sentence by the accused or not.
When the Sessions Court passes a sentence of death against the accused, it has to inform the accused about the period within which he may prefer an appeal against his sentence of death. The Court passing the sentence shall then commit the accused to jail custody under a warrant.
Where the High Court in a reference for confirmation of the sentence of death forms an opinion that there is need for further inquiry into the case or additional evidence to be taken to decide guilt or innocence of the convicted person, it may itself do so or direct it to be made by Sessions Court. The presence of the convicted person may be dispensed with when such inquiry is made or such evidence is recorded.
It may be stated that Sections 369 and 370 further provide for certain precautionary measures to ensure that death sentence of the convicted person is confirmed only after it is thoroughly scrutinized that his guilt is proved beyond any doubt and he deserves to be condemned to death and nothing short of this punishment would serve the ends of justice.
When a case is submitted by the Court of Session to the High Court for confirmation of death sentence, the High Court has three alternatives, namely (i) it may confirm the death sentence or pass any other sentence; or (ii) it may annul the conviction and remand the case back to Sessions Court for re-trial on the same or amended charges; or (iii) it may acquit the accused. However, no order of confirmation of the death sentence shall be made by the High Court until the expiry of the period of appeal or where an appeal is preferred, until its disposal.
The Supreme Court in a catena of cases has reiterated that the proceedings under Section 366 before the High Court are in fact a continuation of the trial on the same or additional evidence. Therefore, High Court can take additional evidence and decide the case after reappraisal of the entire evidence before it. Thus the High Court has to come to its own conclusion regarding the guilt or innocence of the accused independently of the opinion expressed by the Sessions Judge in his judgment.
The Supreme Court, in the case of Triveniben v. State of Gujarat, held that jail custody of the convicted accused under a warrant as contemplated by sub-section (2) neither amounts to punishment of imprisonment in addition to the death sentence nor does it amount to solitary confinement.
Therefore, it is not violative of the provision relating to bar on double jeopardy under Article 20 of the Constitution. In fact, such judicial custody is deemed necessary to keep the accused safe and secure until the execution of his sentence of death.