Bombay High Court
The State Of Maharashtra vs Rahimuddin Mohfuz Shaikh @ John Anthony ... on 3 January, 2019
Bench: A.S.Oka, A.S.Gadkari
SKN 1/5 1.17-conf.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 1 OF 2017
The State of Maharashtra. ... Appellant.
V/s.
Rahimuddin Mohfuz Shaikh @ John Anthony
D'Souza @ Babu @ Baba and another. ... Respondents.
Ms.M.H.Mhatre, APP for the appellant- State.
CORAM : A.S.OKA AND A.S.GADKARI, JJ.
DATE : 3rd January 2019.
P.C. :
In terms of sub-section (1) of section 366 of the Criminal Procedure Code, 1973 (for short "Cr.PC"), the Sessions Judge has submitted the proceedings of this case to this Court as the accused Nos.1 and 2 have been sentenced to death for the offence punishable under section 302 read with section 34 of the Indian Penal Code. Sub-section (1) of section 366 provides that when a Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.
Powers of the High Court while dealing with such reference under section 366 are very wide as can be seen from section 367 and 368 which read thus:
"367. Power to direct further inquiry to be made or additional evidence to be taken.--(1) If, when such ::: Uploaded on - 10/01/2019 ::: Downloaded on - 10/01/2019 23:19:33 ::: SKN 2/5 1.17-conf.doc proceedings are submitted, the High Court thinks that a further inquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session. (2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court.
368. Power of High Court to confirm sentence or annul conviction.--In any case submitted under Section 366, the High Court--
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which the Court of Session might have convicted him, or order a new trial on the same or on amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of."
This Court has even power to acquit the accused persons who have been sentenced to death. Section 366 and other provisions of Chapter XXVIII of Cr.PC do not contemplate hearing as to admission of a reference under sub-section (1) of section 366 as the mandate of law is that the High Court will have to hear the reference.
2. Rule 12 of Chapter XXVI of the Bombay High Court (Appellate Side) Rules, 1960 (for short "the said Rules") reads thus:::: Uploaded on - 10/01/2019 ::: Downloaded on - 10/01/2019 23:19:33 :::
SKN 3/5 1.17-conf.doc "12. Procedure in regard to preparation of confirmation cases for hearing. -- Immediately on receipt of the reference for confirmation of a Sentence of death, the Office shall issue notice to the District Magistrate where the reference is from the mofussil and to the Public Prosecutor, Greater Bombay. where the reference is from Greater Bombay. The Office shall also immediately make a requisition for printing, within three weeks [45] copies of the paper-book including the memo of appeal, if any, by the condemned prisoner. The paper-books shall be printed in the form prescribed for paper-books by the Supreme Court.
Immediately after the receipt of the printed paper-books, an order shall be taken from the senior Judge sitting on the Bench hearing criminal appeals for placing the Confirmation Case on Board of hearing.
Notwithstanding anything contained in these rules, the Confirmation Case together with the Appeal, if any, shall be placed on the top of the Daily Board subject to a part-heard case, if any, as ordered by the senior Judge. Two copies of the printed paper-book shall be supplied free of charge to the Government Pleader and one copy thereof shall be supplied free of charge to the Advocate appearing for the condemned prisoner. If the Government Pleader or the Advocate for the condemned prisoner required additional copies, each additional copy shall be paid for at the rate of 25 paise per page and Re.1 per plan or map and the amount payable shall be collected by means of Court-fee stamps affixed to the application for such copies."
3. In this case, at this stage, we are not entering into the question whether the rule needs amendment with the passage of time or the rule is directory in nature. However, the rule requires the registry to immediately commence preparation of paper books. The rule further ::: Uploaded on - 10/01/2019 ::: Downloaded on - 10/01/2019 23:19:33 ::: SKN 4/5 1.17-conf.doc requires that notwithstanding anything contained in the said rule, the confirmation case together with appeal shall be placed on the top of the daily Board subject to the part-heard cases, if any, as ordered by the Senior Judge of the concerned Division Bench. Apart from the rights of the accused under Article 21, the rule is very clear which requires very expeditious hearing of the reference and the appeal, if any, preferred by the accused.
4. Perusal of the record in this case shows that though printed paper books have been received (total 30 copies), the reference was never placed before the Court and, therefore, notice of reference has not been served to the respondents- accused. In fact, simultaneously with the commencement of preparation paper book as contemplated by Rule 12 of Chapter XXVI of the said Rules, the confirmation case ought to have been placed before the Court for direction so that notice could have been issued to the accused.
5. We, therefore, direct the Registrar (Judicial-I) to ensure that as soon as the proceedings are received from a Sessions Court under sub- section (1) of section 366 of Cr.PC, the same shall be immediately placed before the concerned Division Bench under the caption of direction so that not only the notice can be issued to the accused but also the concerned Bench can monitor the preparation of paper book.
6. Issue notice to the respondents in this case, returnable on 1 st February 2019. The Registry shall forward the notice for effecting service ::: Uploaded on - 10/01/2019 ::: Downloaded on - 10/01/2019 23:19:33 ::: SKN 5/5 1.17-conf.doc to the Officer In-charge of the concerned police station. The Registry will also ensure that one more notice is directly sent at the prison where the respondents have been imprisoned. Copies of the notice shall be directly sent by the Registry to the Jail Superintendent of the concerned central prison for effecting service.
7. The Registrar (Judicial-I) will issue a circular in writing instructing the concerned departments to ensure that as soon as proceedings are received under sub-section (1) of section 366 of Cr.PC, the same are immediately placed before the concerned Division Bench so that delay in issuing notice can be avoided. The Registrar (Judicial-I) shall also place a copy of this order before the Hon'ble the Chief Justice so that a practice note can be issued under the directions of the Hon'ble the Chief Justice.
(A.S.GADKARI, J.) (A.S.OKA, J.)
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