Tag: criminal law

By: Muskan Sharma

Death Penalty/Death Sentence/Capital Punishment is a state-sanctioned method of homicide in response to the commission of an offence. Death Penalty owes its origin to the Code codified by King Hammurabi of Babylon. In this code, Death Penalty was a punishment for 25 crimes.

At this moment, different nations use the following methods to execute death penalty on convicted persons:

1. Hanging
2. Lethal Injection
3. Shooting
4. Electrocution
5. Beheading
6. Gas inhalation

Earlier, violent methods like burning alive, disembowelment, blood eagle, back-breaking, crushing by animals, brazen bull, poison, suffocation, slow slicing were used. However, the practice of executing death penalty evolved over the time and less violent methods dominated over such inhuman methods. But the practice of death penalty, no matter the method of execution, is an inhuman act in itself.

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Death Penalty v. Human Rights

There is a constant debate whether death penalty is violative of the concept of Human Rights? Some countries have abolished death penalty for being violative of the right to life and dignity whereas other countries do not abolish death penalty believing it has no connection with human rights.

However, in the USA, the concept of human rights is a little alien. In the USA, ‘Civil/Constitutional Rights’ have force, which focuses on securing equality to different groups. Hence, death penalty is not considered as violative of human rights within the territorial limits of the USA.

History of Death Penalty in USA

In England, Death Penalty was a punishment for numerous offences including petty offences like picking pockets or stealing bread. During the 1800s, around 270 offences were punishable with death penalty in England. Michigan abolished death penalty as a punishment in 1845. Later, Wisconsin also adopted the same approach in 1848. Therefore, both England and the USA reduced the number of capital offences and centred their focus on first-degree murders. Public executions also decreased gradually with time.

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Death Penalty for Murder

The USA started doing away with the death penalty as a punishment in the 1950s and 1960s due to public protests against the same. As a result, no execution took place between 1968 and 1976 in USA. One of the landmark cases in the history of death penalty in the USA is Furman v. Georgia[1].

Furman v. Georgia, 408 U.S. 238 (1972)

Facts: The resident woke up in the middle of the night and found Furman committing burglary in the house. During the trial, Furman said that while escaping, he tripped and the weapon fired accidentally which resulted in the death of the victim. Since the weapon was fired during the commission of a felony, Furman was guilty of murder and therefore, subject to death penalty under the then existing laws. Though he was sentenced to death penalty, the same was never executed.

Decision: The Court, with a ratio of 5:4 held that death penalty is a cruel and unusual punishment and violative of the Constitution.

US Supreme Court’s decision in Furman case motivated almost 35 states to modify their laws concerning death penalty. However, two different approaches were adopted to modify the laws while abiding by the suggestions provided in the Furman case.

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In the first approach, the state described which offences are punishable with death penalty along with mitigating and aggravating circumstances. A convicted person can only be sentenced to death penalty if the aggravating circumstances weighed more than the mitigating circumstances. This approach was adopted by Georgia, Texas, and Florida.

In the second approach, the state merely prescribed which offences are punishable with death penalty. Death penalty was mandatory in such prescribed offences and the Court did not need to consider mitigating or aggravating circumstances. This approach was favoured by North Carolina and Louisiana.

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However, another case named Gregg v. Georgia[2] again proved to be a landmark judgment in the jurisprudence of death penalty in USA.

Gregg v. Georgia, 428 U.S. 153 (1976)

Facts: The defendant committed two armed robberies and two murders. Based on the amended laws, the Court heard the matter using the bifurcated procedure. The Georgia Supreme Court came to the conclusion of conviction and awarded death penalty for murder but vacated death penalty for armed robbery. In this case as well, the issue before the Court was whether a law that enables the Court to award death penalty is violative of the Constitution.

Decision: The Supreme Court observed that death penalty does not violate the Constitution. Courts cannot completely do away with the punishment of death penalty and that the statutes ensure that while awarding death penalty, the Court considers the circumstances of the offence, character of the offender, procedure to be followed.

Therefore, in Gregg v. Georgia[3], the decision of Furman case was overruled. US Supreme Court, via the decision in Gregg v. Georgia[4] held that death penalty is not violative of the Constitution. In this case, the Supreme Court went further and observed that the mandatory death penalty approach adopted by North Carolina and Louisiana’s statutes is unconstitutional. Thereafter, legal executions started again but at a slow pace. Only 50 death sentences were executed between 1977 and 1985.

However, one issue pending for a ruling was whether the punishment of death penalty was applied equally. The same was answered in McCleskey v. Kemp[5].

McCleskey v. Kemp, 481 US 279 (1981)

Facts: Warren McCleskey was convicted for committing two robberies and one murder. He was an African-American and he murdered a White Police Officer during the course of one of the robberies. He was sentenced to death penalty due to two aggravating circumstances: first, he committed the murder during the course of a robbery, and second, the victim of murder was a Police Officer engaged in the performance of his duties.

McCleskey preferred an appeal to the Federal Court and based his claim on a study performed by David Baldus, Charles Pulaski, and George Woodworth. The study depicted that the process of awarding death penalty was discriminatory i.e. individuals who murdered whites were likely to be sentenced to death penalty.

Decision: The Court disregarded the statistical study on the ground that it contained no substantial evidence that may justify the reversal of his conviction. The Court concluded that the conviction was right and the lower court applied the Georgia Law properly.

Death Penalty to Juvenile Offenders

After McCleskey v. Kemp[6], another landmark decision was put forward by the US Supreme Court in Roper v. Simmons[7].

Roper v. Simmons, 543 US 551 (2005)

Facts: Simmons (17-year old boy), along with his two friends Benjamin and Tessmer, made a plan to murder Shirley Crook. He planned to break into the house of the victim, commit a burglary, and kill him. However, Tessmer withdrew from the plan at the last moment. Benjamin and Simmon tied her up, covered her eyes, drove her to a state park, and then threw her off from a bridge. Simmon himself confessed to the murder.

Simmon was, therefore, convicted under the charge of murder. He moved to the trial court for setting aside the conviction on grounds of his age, impulsiveness, and troubled background. The trial court rejected his contention. The appeal went to the Supreme Court of Missouri and it concluded the case by awarding life sentence to Simmon with no parole. The decision of the Supreme Court of Missouri was based on the ground that death penalty awarded to juvenile offenders is violative of the eighth amendment of the constitution.

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It was further appealed to the US Supreme Court.

Decision: The US Supreme Court held that awarding death penalty to an offender, who is below 18 years of age, is violative of the Constitution. This decision also overruled Stanford v. Kentucky[8] in which the court upheld the awarding of death penalty to offenders at 16 years of age or older than that.

Rape and Death Penalty

The US Supreme Court in Coker v. Georgia[9] held that death penalty awarded consequent to the rape of an adult woman is unconstitutional i.e. violative of the eighth amendment to the Constitution.

Coker v. Georgia, 433 US 584 (1977)

Facts: Ehrlich Coker escaped prison while he was serving multiple sentences for his conviction for rape, kidnapping, and murder. He broke into a house, raped the woman present in the house, and then stole the vehicle. He was convicted of rape, armed robbery, and other petty offences.

Decision: He was awarded death penalty for committing rape because of two aggravating circumstances, the first being prior conviction for capital offences, and the second being the commission of rape during an armed robbery. The Georgia Supreme Court upheld the death penalty.

But the US Supreme Court held that even though the rape was committed by a hardened offender during the course of another offence, it did not lead to the murder of the victim. It was observed that rape involves injury, physical and psychological, but the injury is not of serious nature. Therefore, the US Supreme Court overturned the death penalty awarded to Coker.

The question whether death penalty should be awarded for raping a child or not is answered in Kennedy v. Louisiana[10].

Kennedy v. Louisiana, 554 US 407 (2008)

Facts: Kennedy was convicted for the offence of raping his minor step-daughter causing serious injuries to her private parts. The Trial Court convicted him for the offence of rape and sodomizing a minor. Death penalty was awarded to him consequently.

On appeal, the Louisiana Supreme Court affirmed the conviction as Louisiana’s statute on Child Rape authorized death penalty.

Kennedy rested to appeal before the Supreme Court of the United States of America invoking the Eighth Amendment of the US Constitution. Eighth Amendment prohibits unusual and cruel punishments or excessive punishments through criminal sentences.

Decision: The US Supreme court reversed and remanded the case to the lower court for resentencing. The Court further observed that it is unconstitutional to impose death penalty for the crime of raping a child when the victim does not die and death was not intended.

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International Law on Death Penalty

The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly, with the aim to abolish death penalty. It has 89 State parties.

Article 1 of the Optional Protocol provides that no person shall be executed within the jurisdiction of any of the State parties to the Optional Protocol.

Article 2 is an exception to what is stated in Article 1 and provides that the State party, may, at the time of accession or ratification, communicate the need for reservation for application of death during wartime. A State party may communicate the need for such reservation only for serious offences of military nature and further, let the Secretary-General know about the provisions concerning warfare within its national legislation along with the beginning and end of a state of war.

Articles 3, 4, and 5 further provide for the wide ambit of powers of the Human Rights Committee with respect to the State parties’ obligations towards the Second Optional Protocol.

Why Death Penalty needs to be abolished?

Abolition of Death Penalty or Capital Punishment in the USA is the need of the hour for the following reasons:

1. The scheme for awarding death penalty to a convict is used in a discriminatory manner. A black or a person of colour is more likely to get death penalty as compared to a white. Also, it depends a lot on the net worth of the party, the attorneys they are financially capable of hiring, and the place where the offence was committed.
2. Death Penalty, in its entirety, failed to serve the purpose of its existence. Death Penalty existed as a method of punishment based on the deterrent theory of punishment. However, numerous surveys have proved that death penalty was not effective in reducing the number of crimes being committed. Therefore, the deterrent theory of punishment needs to be disregarded in totality. Instead, the Rehabilitative theory of punishment must be considered by Judges and Magistrates while awarding punishments to convicted persons.
3. Death Penalty is in itself a cruel and inhuman act. It is violative of the Right to Life and Dignity available to every person in this world. Death Penalty is a relic of early criminal codes and has no place in a country that considers the security of human rights as its top priority.
4. Death Penalty is the abuse of due process of law. A statute that prescribes death penalty as a punishment for any offence, enables Judges and Magistrates to take the life of a person in the name of due process of law.
5. Death Penalty is further violative of the maxim ‘audi alteram partem’ to an extent as the person who is executed, did not get the fair opportunity to represent himself before the Court and justify the reversal of his conviction.
6. The International Law regime also does not support death penalty. Death penalty, as a punishment in the national legislations, disregards the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Though the USA is not a party to the Second Optional Protocol, it will be in the interest of its citizens and will display its commitment to secure human rights within its territorial jurisdiction.

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Conclusion

Death Penalty is nothing less than State-sponsored terrorism. Judges and Magistrates are the authorities responsible to ensure the smooth conduct of State-sponsored terrorism in the name of death penalty.

It’s high-time that all states in the world must become party to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) and denounce the use of death penalty. Death Penalty deserves to be denounced also on the ground that it is cruel and inhuman.

Death Penalty, as a practice, is violative of the basic Right to Life and Dignity. Furthermore, it has served no useful purpose. Awarding death penalty did not work according to the deterrent theory of punishment. It did not aid in reducing the number of crimes being committed.

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[1] 408 U.S. 238 (1972)

[2] 428 U.S. 153 (1976)

[3] Ibid.

[4] Ibid.

[5] 481 US 279 (1981)

[6] Ibid.

[7] 543 US 551 (2005)

[8] 492 U.S. 361 (1989)

[9] 433 US 584 (1977)

[10] 554 US 407 (2008)

By: Muskan Sharma

The Criminal Law regime in India is regulated by the following statutes:

1. The Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
2. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”)
3. The Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”)

The IPC provides for classification between different offences. It also provides the punishment to be awarded to a person convicted of any offence. The CrPC provides for the procedure to be followed during the proceedings to conclude the case. The Evidence Act provides what evidence is admissible and relevant during the trial.

However, studying the IPC, the CrPC, and the Evidence Act separately will not make one understand the gist of Criminal Law. It is pertinent to study these three legislations in their entirety to know about different stages in criminal proceedings in India.

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Following are the different stages in criminal proceedings in India:

1. Commission of an Offence

Criminal proceedings take place only when an offence is committed. This stage is surely not a part of the trial. However, only the commission of an offence can lead to criminal proceedings.

2. Information to the Police
3. Information as to the Commission of a Cognizable Offence

After the commission of an offence, it is pertinent that the Police receive information about it. If the offence is a cognizable offence, then the Police have to act according to Section 154 of the CrPC. Section 154 (1) of the CrPC provides that information relating to the commission of a cognizable offence shall be reduced in writing by the officer-in-charge of the concerned Police Station and must be read over to the informant. The person, who provided such information, must sign on it.

Section 154 (2) provides that a copy of such FIR shall be given free of cost to the informant. In case the officer-in-charge of a Police Station refuses to record such information, the concerned person may then write the substance of such information and post it to the Superintendent of the Police. If the Superintendent of the Police is satisfied that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an officer in subordination to him, to investigate such a case.

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1. Information as to the Commission of a Non-Cognizable Offence

If in case, an officer-in-charge of a Police station receives information about the commission of a non-cognizable offence, he must prepare NCR i.e. Non-Cognizable Report which contains all the information of such offence reduced into writing. In Non-cognizable offences, the Police cannot arrest a person without a warrant. However, if a person is accused of committing a cognizable offence, the police can arrest him even without a warrant.

If the information provided to the officer-in-charge of the Police station discloses that the act of the accused person is partly a cognizable offence and partly a non-cognizable offence, then it will be considered as a Cognizable Offence.

3. Investigation by Police

Chapter XII of the CrPC provides for the investigation of an offence by the Police. Section 156 of the CrPC empowers a police officer to investigate a cognizable case without the order of a Magistrate. Further, Section 156 (2) provides that the no proceedings handled by a police officer in such a case cannot be called into question on the ground that the officer was not empowered to investigate the case under this section. A Magistrate may order the investigation of such a case under Section 190, CrPC.

Section 157 of the CrPC provides for the procedure to be followed for investigation. It states that when the officer-in-charge of a Police Station is empowered under Section 156, he must send a report to the Magistrate empowered to take cognizance of such offence on a report by the Police and either proceed in person or depute any of his subordinate officers to investigate the facts and circumstances of the case. However, provisos to Section 157 (1) provide that an officer-in-charge must refrain from investigating the case if the offence is not of a serious nature or if there is no sufficient ground for entering into the investigation. The concerned officer-in-charge must state reasons for not complying or not investigating the case in his report, as provided by Section 157 (2) of the CrPC.

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The purpose behind the conduct of the investigation by the Police is to obtain the following:

1. Evidence
2. Attendance of Witnesses
3. Interrogation statement of the accused
4. Statement of Witnesses
5. Expert Opinion

However, the procedure to be followed in the course of the investigation may be different in special categories of cases or if the procedure cannot be completed in 24 hours.

4. Anticipatory Bail

Anticipatory bail is a direction from the Court to release a person on bail even before the arrest. In Balachand Jain v. State of MP, the Court has described anticipatory bail as ‘bail in anticipation of arrest’.

In Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court observed that the court must be satisfied that the person invoking Section 438 (1) of the CrPC shall have reasons to believe that he will be arrested for non-bailable offence and his belief must be based on reasonable grounds.

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The Court must provide anticipatory bail after taking into consideration the following factors:

1. The Gravity of the alleged offence.
2. Antecedents of the person applying for anticipatory bail i.e. whether he has been previously convicted of a cognizable offence.
3. If the accused person can flee from justice.
4. Where the accusations are backed by the intention of causing injury or humiliation to the accused.

The Court may also impose the following conditions to be fulfilled by the accused when seeking an order of anticipatory bail:

1. He must be available for interrogation by the police officer, as and when required.
2. He must not, directly or indirectly, induce, give threats, or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer.
3. He must not leave India without the permission of the Court.
4. Arrest of the Accused

The Police officer may arrest the accused person without the warrant if the offence is of cognizable nature. However, the concerned police officer must obtain the approval of the Magistrate in the form of a warrant if the alleged offence is of non-cognizable nature.

6. Production of the Accused to the Magistrate

After the accused person is arrested, the concerned police officer must produce the accused before the Magistrate within 24 hours of the arrest as stated in Article 22(2) of the Indian Constitution. Hence, an arrested person has a fundamental right to be produced before the Magistrate within 24 hours of arrest.

7. Remand

If the accused person is arrested and the investigation cannot be completed within 24 hours, then such person is to be produced before a Magistrate for extension of Police or Magisterial Custody.

8. Closure Report

A closure report is filed when upon the investigation, it is discovered that no offence can be made out. Also, the accused person must be released under Section 169 of the CrPC in such cases.

9. Filing of Charge sheet

However, a Charge sheet must be filed according to Section 173 of the CrPC if, upon the investigation, it is discovered that an offence appears to have been committed. The Charge sheet must contain all the charges to be leveled against the accused person.

10. Cognizance by Magistrate

After a charge sheet is filed under Section 173 of the CrPC, a Magistrate is empowered to take cognizance of such offence under Section 190 of the CrPC. Section 190 (2) further provides that a Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of any such offence within his competence to try.

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11. Service of Summon/Warrant

The Court then serves to summon or warrant to the accused person to present himself before the Court. A Summon or Warrant is issued with the aim to compel the appearance of accused persons under Chapter VI of the CrPC.

Section 61 of the CrPC provides that Summon issued by a Court shall be reduced to writing in duplicate signed by the presiding officer or any such officer prescribed by the High Court, and it must have the seal of the court.

Section 70 of the CrPC describes the form of a warrant of arrest. Every warrant issued shall be in writing, signed by the presiding officer of such Court and must bear the seal of the Court. Such warrant shall remain in force until cancelled by the Court or until executed.

12. Bail Application

A Bail Application is filed before the Court under Form No. 45 of the Second Schedule to release the accused person from custody. The accused person can be granted bail only if he furnishes bond and sureties before the Court.

The procedure to obtain bail is different in bailable and non-bailable offences.

1. Bail in Bailable offences

Section 436 of the CrPC provides for the procedure to obtain bail in bailable offences. Section 436 provides that in case of bailable offences, the accused person can be released on bail. However, such officer or Court may, if deem it reasonable to do so, instead of taking bail, discharge him by executing a bond without sureties for his appearance.

Section 436 (2) further provides that if a person does not comply with any of the provisions of the bail bond regarding the time and place of his attendance, the Court is empowered to refuse to release him on bail. Such refusal shall be considered without prejudice to the powers of the Court to call upon any person bound by the bond to pay penalty under Section 446.

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Further, Section 436A has been inserted in the CrPC in 2005 for the undertrial prisoners. It says that if a person has already completed half of the maximum sentence to be awarded for the alleged offence, then he must be released on personal bond with or without surety.

1. Bail in Non-bailable offences

Where it is alleged that the accused person has committed a non-bailable offence, he may be released on bail.

The Court may refuse to grant the bail in the following cases:

1. There are reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life.
2. The alleged offence is cognizable and the accused person is previously convicted of an offence punishable with death, imprisonment for life, imprisonment for seven years or more, or has been convicted twice or thrice of a non-bailable and cognizable offence. However, the Court may release such an accused person on bail if it is just and proper to do so for any other reason. It has been further provided that identification by witnesses is no sufficient ground for refusal to grant bail if the accused person is otherwise entitled to be released on bail.

Also, the Court may not refuse bail to a person below sixteen years of age, a woman, sick or infirm person.

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Section 437(2) further provides that if there are no reasonable grounds to believe that the accused has committed a non-bailable offence but sufficient grounds for further inquiry into his guilt are there, the accused may be released on bail, subject to Section 446A, or execution of a bond by him without sureties for his appearance.

Section 437 (3) says that a person accused of an offence punishable with imprisonment which may extend to seven years or more in Chapter VI, Chapter XVI, or Chapter XVII of the IPC or abetment of, or conspiracy or attempt to commit such offence, the Court may impose any condition while releasing the person on bail.

13. Plea of Guilty/Not Guilty

The Court, before commencing the trial, must ask the accused person whether he wishes to plead guilty or not guilty. The Court may convict the person on his plea of guilty under Section 253, CrPC. This provision has been inserted in the Criminal Law regime so the speedy delivery of justice can be made effective.

14. Commencement of Trial

The Trial of a case is said to be commenced when it is posted for the examination of witnesses. A Trial may be classified into the following categories:

1. Sessions Trial
2. Warrant Trial
3. Summons Trial
4. Summary Trial
5. Stages of Evidence of Prosecution

The prosecution is required to prove the guilt of the accused through the examination of witnesses and documentary evidence. It involves Examination of Chief, Cross-examination, and re-examination. This whole cycle is known as ‘examination-in-chief’.

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After this, the Court records the statement of the accused person under Section 313 of the CrPC. The accused is given the opportunity of being heard and explain the facts and circumstances of the case. The defence is then, asked to present any evidence before the Court that may support the acquittal of the accused person. Usually, the burden of proof is on the prosecution, the defence is rarely asked to present evidence before the Court.

16. Final Arguments

After examining all the evidence and other relevant facts and circumstances, the court decides upon what questions are to be addressed during the final arguments of the case. The Public Prosecutor and the Defence Counsel both present their arguments to the Court on the disputed issues.

17. Judgment

After hearing final arguments from both sides, the Court has to deliver judgment addressing if the accused is convicted or acquitted, the quantum of punishment if convicted, grounds of conviction/acquittal, etc.

The Judgment must be clear and precise. It should state the facts of the case, arguments presented by the Counsel from both sides, acquittal/conviction of the accused, and grounds for the same.

18. Appeal

After the judgment is delivered by the Court, the aggrieved party may file for an appeal. Before the appellate court, arguments of both sides are placed. The Appellate Court, then decides if the judgment rendered by the subordinate court had any merits or not.

19. Revision

The aggrieved party may alternatively file a Revision petition to prevent a faulty judgment from being enforced.

20. Execution

The last stage is the execution of the orders of the Court. The stage of execution is when all the remedies of appeal, revision, etc. are exhausted and the decision is final.

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