Section 368 CrPC: High Court Power to Confirm Death Sentence or Annul Conviction
Section 368 of the Code of Criminal Procedure, 1973 explains the High Court's powers when a Sessions Court submits a death sentence for confirmation. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 409.
Section 368 CrPC - Statutory provision
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 an 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.
Section 409 BNSS, 2023 - Corresponding law
Section 409 of the BNSS is titled "Power of High Court to confirm sentence or annul conviction". It applies to death sentence proceedings submitted under Section 407 BNSS, which corresponds to Section 366 CrPC. The High Court may confirm the sentence, impose another lawful sentence, annul the conviction and make a legally permissible alternative finding, order a fresh trial, or acquit the accused. The appeal-period safeguard continues under the BNSS.
The operative powers and the requirement to await expiry of the appeal period, or disposal of an appeal filed in time, are substantively retained. Read the BNSS text published by the Bureau of Police Research and Development and the Ministry of Home Affairs new criminal laws portal.
What powers does the High Court have?
1. Confirm or change the sentence
The High Court may confirm the death sentence or substitute another sentence permitted by law. A Sessions Court's death sentence cannot be executed merely because it has been pronounced; High Court confirmation is required.
2. Annul the conviction or order a new trial
The High Court may set aside the conviction, convict for an offence of which the Sessions Court could lawfully have convicted the accused, or direct a new trial on the existing or an amended charge. These alternatives depend on the evidence, applicable law and procedural safeguards.
3. Acquit the accused
Where the legal and evidentiary requirements for conviction are not met, the High Court may acquit the accused.
4. Respect the appeal safeguard
The proviso prohibits an order confirming the death sentence before the time allowed for an appeal has expired. If an appeal is filed within that period, confirmation must await its disposal. The section itself does not prescribe a universal number of days for filing an appeal.
How death sentence confirmation works
- The Court of Session pronounces a death sentence and submits the proceedings to the High Court under Section 407 BNSS (formerly Section 366 CrPC).
- The High Court reviews the case and may direct further inquiry or additional evidence under Section 408 BNSS (formerly Section 367 CrPC).
- The High Court exercises the powers under Section 409 BNSS, subject to the appeal safeguard.
- Further requirements regarding signatures of judges and communication of the High Court's order are addressed in Sections 410 to 412 BNSS.
CrPC and BNSS section references
| Subject | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Submission of death sentence for confirmation | Section 366 | Section 407 |
| Further inquiry or evidence | Section 367 | Section 408 |
| Power to confirm sentence or annul conviction | Section 368 | Section 409 |
| Confirmation signed by two judges | Section 369 | Section 410 |
| Difference of opinion | Section 370 | Section 411 |
Frequently asked questions
Can the High Court reduce a death sentence?
Yes. Under Section 409 BNSS, it may pass another sentence warranted by law instead of confirming the death sentence.
Can the High Court acquit the convicted person?
Yes. Acquittal is expressly among the available outcomes under Section 368 CrPC and Section 409 BNSS.
Is High Court confirmation mandatory for a Sessions Court death sentence?
Yes. Under Section 407 BNSS, a death sentence passed by a Court of Session cannot be executed unless confirmed by the High Court.
Does the High Court have to wait for an appeal?
The High Court cannot confirm the sentence before the permitted appeal period expires. If an appeal is filed within that period, confirmation must await its disposal.
Official legal references
For the current statutory wording and commencement information, consult the BPR&D new criminal laws resource and the Ministry of Home Affairs. Application to an individual case depends on the governing procedural law, transitional provisions and relevant judicial decisions.