Awarding Death Sentence: Rule or Exception? Reviewing the present stand of the Apex Court of Bangladesh

Estak Ahamad : Punishment is inevitable consequence for commission of any crime in every civilized society. But the forms and method of punishing the perpetrator is not alike in everywhere. Different forms and methods of Punishment are prescribed and awarded on the basis of the nature and gravity of the crimes committed.

As per the Section 53 of the Penal Code, 1860, five forms of Punishment are recognized in Bangladesh. Among them, death sentence is considered as the most severe form of punishment and this punishment is prescribed for committing the most severe and heinous crimes. Penal Code prescribed death penalty as the highest punishment for the offences like of waging war against Bangladesh, abetting mutiny, giving false evidence upon which an innocent person suffers death, murder, assisted suicide of a child, attempted murder of a child and kidnapping under the ten different sections.

Beside the Penal Code, including Arms Act, 1878, Army Act, 1952, Special Powers Act, 1974, Women and Children Repression Prevention Act, 2000, Narcotics Control Act, 2018, almost sixteen different statutes prescribed death penalty as a form of punishment.

Almost everywhere, the law provides alternative punishment along with death penalty which is life imprisonment. For example, section 302 of the Penal Code, 1860 denotes that “whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

According to the provision of this section, a judge may either award death sentence or life imprisonment to a perpetrator for committing murder. Now the question is, if the offence is proved, which sentence a judge shall award on a priority basis as the rule and which shall award in where exceptional circumstances exist? Is it totally dependent on the discretion of the judges or is there any guiding principle in this regard?

The stand of the Supreme Court is conflicting in this regard. Previously, both Division of the Supreme Court took their stand for the principle set in India that the death sentence shall be awarded only in the rarest of the rare case and the life imprisonment would be the common punishment for the offence for which both death sentence and life imprisonment both can be inflicted.

As such, In State vs. Abdul Karim and Others reported in 8BLC (2003)264, The High Court Division Observed in paragraph 37 That “Under Penal Code court has a very wide discretion in the matter of awarding sentence when the offence is punishable with death or in the alternative with Imprisonment for Life. The choice of maximum punishment i.e. death, should be reserved for rarest of rare cases.”

Identical observation is also found in the judgment of State vs. Mir Hossain and Others, 56 DLR (2004) 124. In paragraph 46 the High Court Division contended that the death penalty should be reserved for rarest of rare cases and, also, in cases of extreme depravity and criminality of the offenders.

Apart from the High Court Division, the Appellate Division also took a similar view in the case of The State vs. Anowar Hussain Pinto allias Anowar Hossain And another reported in 61 DLR (2009) 108. In Paragraph 20 the court ruled that, “Since this is not the rarest of the rare cases, ends of justice will be met if the sentence of death of accused Kashem is converted into one of imprisonment for life.”

From the close scrutiny of the above mentioned view of the apex court it seems that the punishment of life imprisonment is the rule and will get priority over the death sentence while awarding punishment where both are prescribed for the offence. On the Contrary, the death penalty only will be awarded in the rarest of rare case where the nature of the offence is in so grave and extreme.

Later on, The Supreme Court was shifted from their previous stand. Henceforth, The Appellate Division took a totally opposite stand in Ataur Mridha and Others. Vs. The State reported in 2017(25) BLT (AD) 130 outweighing the stand taken by the Same Court. In this case, the court opined that, “A sentence of death awarded to an offender under section 302 of the Penal Code is the rule and life imprisonment is an exception. The court may commute death sentence to life imprisonment of a prisoner on extenuating circumstances and in that case it must assign reasons therefore.”

This same view was reflected in The State vs. Oyshe Rahman 12 SCOB [2019] HCD 254. The observed that if an offence of murder is proved beyond reasonable doubt, the capital punishment is the first choice to impose upon the offender and the second option is imprisonment for life imposed if the court finds any mitigating circumstances upon its discretionary power which means that court has to explain the reason why the sentence of death has been commuted to one of imprisonment for life.

Now, let’s examine Section 367 sub section 5 of the Code of Criminal Procedure, 1898 which gives an indication how to proceed for an offence punishable with death or imprisonment for life while writing the judgment. This section denotes that, “When the conviction is for an offence punishable with death or, in the alternative, with transportation for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded.”

As per this sub section, the court is bound to state the reasons in its judgment in all cases whether the death sentence or life imprisonment is awarded. The language of this sub section does not prioritize inflicting death penalty as the first option keeping another as secondary. Rather, the priority of death sentence was curtailed in 1978 by substituting this new sub section for the old one.

Before the Law Reforms Ordinance, 1978, the sub section denoted that, “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.”

So, before 1978, the death penalty was the rule and if the court did not convict anyone with death sentence for which death sentence can be awarded it had to state the reasons why death sentence was not awarded.

Our current provision in this regard is more similar to the Indian one. The current provision of India in this regard is stated in section 354 sub section 3 of the Code of Criminal Procedure, 1967. That sub section states that, “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” The current provision of Bangladesh and India is similar except the last appendage of India’s one which confers the special reasons shall be stated if the death sentence is awarded.

From the above discussion, it can be summed up that the Supreme Court of Bangladesh should review their latest stand and turn back from the proposition that death sentence is a rule to that death sentence shall be awarded in very exceptional cases in compliance with the previous notion to scrap the flood of redundant death penalty. It might be that the full abolition of death penalty is not possible for us despite having immense pressure of human rights organization and activists, but what we can it is to curb the rate of awarding death sentence being within the ambit of the existing legal order and to minimize the agony face by the death row prisoners.

Writer is a Student of LL.M, Department of Law, University of Dhaka.