Sections 407 to 412 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — previously Sections 366 to 371 of the Code of Criminal Procedure, 1973 (CrPC) — require every death sentence passed by a Court of Session to be submitted to the High Court for confirmation, and forbid execution until the High Court confirms. The chapter is the constitutional safeguard at the apex of the criminal process: a sentence of death is the gravest order any court can pass, and the Code refuses to leave it to a single trial-court determination. The High Court must independently re-examine the entire case, may take additional evidence, and may — where two or more judges hear the reference — sign the order only with the concurrence of at least two of them.

The BNSS retains the substantive architecture but adds two textual changes — the requirement that the proceedings be submitted to the High Court ‘forthwith’ (replacing ‘shall be’), and the express recognition of presence ‘either physically, or through electronic means’ in proceedings under Section 412 BNSS.

Statutory anchor and scheme

The chapter has six sections.

  1. Section 407 BNSS (previously Section 366 CrPC) — sentence of death to be submitted forthwith by the Court of Session for confirmation; the convicted person committed to jail custody.
  2. Section 408 BNSS (previously Section 367 CrPC) — power of the High Court to direct further inquiry or take additional evidence on any point bearing on guilt or innocence.
  3. Section 409 BNSS (previously Section 368 CrPC) — power of the High Court to confirm the sentence, pass any other sentence warranted by law, annul the conviction and convict for any other offence, order a new trial, or acquit.
  4. Section 410 BNSS (previously Section 369 CrPC) — confirmation or new sentence to be made, passed, and signed by at least two judges where the High Court consists of two or more judges.
  5. Section 411 BNSS (previously Section 370 CrPC) — procedure where judges of the Bench are equally divided in opinion.
  6. Section 412 BNSS (previously Section 371 CrPC) — proper officer of the High Court to send the order back to the Court of Session; physical or electronic communication.

The chapter is the bridge between two larger architectures — the substantive death-penalty jurisprudence under Section 393(3) BNSS treated in the judgment form and contents chapter, and the post-confirmation execution regime under Sections 451 to 457 BNSS treated in the execution of sentences chapter. Where a death sentence is confirmed, the convict’s further remedies lie in appeal to the Supreme Court under Article 134 of the Constitution and special leave under Article 136. The full procedural map is set out in the broader Code of Criminal Procedure notes.

Object and constitutional position

The constitutional rationale of the confirmation chapter is that the death penalty is irreversible. Once executed, no appellate or revisional remedy can restore the convict to life. The Code therefore inserts a mandatory two-court structure: the trial court’s satisfaction is necessary but not sufficient; the High Court must independently appraise the evidence and the sentence. The architecture predates the Constitution — Section 374 of the 1898 Code carried the same rule — but acquired sharper constitutional content after Bachan Singh v. State of Punjab, AIR 1980 SC 898 read the ‘rarest of rare’ doctrine into the special-reasons regime.

The Supreme Court in Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438 explained the structural difference between an ordinary appeal and a death-reference. In an ordinary appeal under Sections 415 to 421 BNSS, the appellate court may dismiss the appeal if it considers there is no sufficient ground for interference, after examining the grounds urged. In a death-reference, the High Court is bound to examine the entire case independently; it cannot rely on the trial court’s appraisal alone, and must satisfy itself, beyond reasonable doubt, that conviction and sentence are correct in fact and law. Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 added that no room should be left for any complaint that material points were urged before the High Court but not considered.

Section 407 BNSS — submission of the sentence

Section 407 BNSS (previously Section 366 CrPC) is the trigger. When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court — forthwith under the BNSS, replacing the CrPC’s ‘shall be’ — and the sentence shall not be executed unless it is confirmed by the High Court. The Court passing the sentence shall commit the convicted person to jail custody under a warrant in the prescribed form.

The change from ‘shall be’ to ‘forthwith’ is small in text but consequential in practice. Under the CrPC formulation, the trial court’s submission could be delayed by file-preparation, transcription, and translation work; under the BNSS, the language is peremptory. The High Court’s confirmation jurisdiction begins immediately on submission; any delay in submission must be justified.

The reference under Section 407 BNSS is automatic. The accused need not file an appeal — the trial court itself sends up the case. Where the accused does file an appeal under Sections 415 to 421 BNSS, the appeal and the reference are heard together. The High Court must dispose of the appeal first, before the reference for confirmation can be decided (Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438; the proviso to Section 409 BNSS bars confirmation until the appeal period has expired or, if appeal is presented, until it is disposed of).

The status of the convict pending confirmation has been settled in Kehar v. State, 1987 CrLJ 291 (Del) and Triveniben v. State of Gujarat, AIR 1989 SC 1335. The convict awaiting confirmation is neither an undertrial nor a ‘condemned prisoner’; he is a ‘convicted prisoner’ under Chapter XVII of the Jail Manual. Solitary confinement or any custodial regime more severe than ordinary convict treatment is impermissible until the death sentence is finally executable.

The constitutional dimension of post-sentence custody and delay has been reinforced in Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, which laid down detailed guidelines for safeguarding the rights of death-row convicts — physical and mental health reports before hanging, post-mortem reports, the abolition of solitary confinement, and time-bound disposal of mercy petitions. The Court reaffirmed the Article 21 architecture: a death sentence may be lawfully passed, but its execution must conform to constitutional procedure.

Section 408 BNSS — further inquiry and additional evidence

Section 408 BNSS (previously Section 367 CrPC) is the High Court’s investigative power. Where, on submission, the Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing on the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be taken by the Court of Session. Sub-section (2) lets the High Court dispense with the convict’s presence at such inquiry, unless directed otherwise.

The provision treats the death-reference as a continuation of the trial. The Supreme Court in Jumman v. State of Punjab, AIR 1957 SC 469 read the section as conferring on the High Court the power to take additional evidence and to examine the accused under Section 351 BNSS (previously Section 313 CrPC), because the inquiry continues the trial in fact and in law (Kaliram v. State of Maharashtra, 1989 CrLJ 1625). The structural consequence is that the High Court is not confined to the record before the trial court; it may, if necessary to satisfy itself on guilt-innocence, expand the record. This is a power not available to it in an ordinary criminal appeal under Sections 415 to 421 BNSS.

The companion procedural provision — Section 419 BNSS for trial of an accused who becomes of unsound mind during proceedings (previously Section 329 CrPC) — has been read into the death-reference. Vivian v. State of West Bengal, (1969) 3 SCC 176 held that the High Court should, in its inherent power, postpone the hearing of the confirmation proceedings if the accused is found to be of unsound mind, regardless of whether Section 329 strictly applies to the appellate forum.

Section 409 BNSS — powers of the High Court

Section 409 BNSS (previously Section 368 CrPC) is the operative section. On submission under Section 407, the High Court may:

  1. Confirm the sentence, or pass any other sentence warranted by law (such as life imprisonment).
  2. 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.
  3. Acquit the accused.

The proviso to the section bars any order of confirmation until the period for preferring an appeal has expired, or, if an appeal is presented within that period, until the appeal is disposed of. The proviso is the procedural pre-condition: the appeal must be heard first, the reference disposed of after.

The High Court’s powers under Section 409 BNSS are wider than its ordinary appellate powers. The Supreme Court in Govindaswami v. Government of India, (1986) CrLJ 1326 held that the only limitation is the proviso’s appeal-precedence rule. The High Court is the master of the entire case, independent of the views expressed by the Sessions Judge (Bhupendra Singh v. State of Punjab). It can confirm, alter to life imprisonment, set aside the conviction, order a new trial, or acquit — whichever the record warrants.

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Independent appraisal — the controlling doctrine

The confirming court’s primary task is independent appraisal. The Supreme Court in Balak Ram v. State of Uttar Pradesh, AIR 1974 SC 2165 set the standard: the High Court must examine the entire evidence and make its own appraisal of the material; it must come to an independent conclusion that the death sentence is justified on the evidence, and that death — not life — is the only appropriate sentence on the facts. Rama Shankar Singh v. State of West Bengal, AIR 1962 SC 1239 added the conjunctive nature of the inquiry: the High Court must satisfy itself on conviction and on sentence, and on facts and on law.

The Supreme Court in Ramesh Bhai v. State of Gujarat, (2009) 5 SCC 240 cautioned that ‘greater care and circumspection’ is necessary while exercising the Section 366 CrPC (now Section 407 BNSS) power. Subbaiah Ambaiam v. State of Tamil Nadu, AIR 1977 SC 2046 held that where the High Court fails to consider the evidence afresh and arrive at its own finding, the Supreme Court will set aside the judgment and remand the case for fresh disposal. State of Uttar Pradesh v. Govind Das, (2007) 10 SCC 795 made the same point in stronger terms: a casual or summary disposal of a death-reference invites remand.

A confirmation order based only on precedents and aggravating facts of other cases — without engagement with the mitigating circumstances under Section 393(3) BNSS of the case before the court — is not sustainable (State v. Saheb Rao, 2005 CrLJ 2788 (Bom)). Mitigating factors play a negative role against the positive theory of punishment, and must be addressed even when the prosecution case appears strong.

The Supreme Court’s own jurisdiction on appeal from the High Court’s confirmation order is co-extensive in fact-and-law inquiry, except that concurrent findings of fact ordinarily are not disturbed (Pal Singh v. State of Punjab, (1969) 3 SCC 196; Raj Kishore v. State of Bihar, (1970) 3 SCC 467). The Court has, in exceptional cases, itself confirmed a death sentence under Article 142 read with the confirmation provision — as where the High Court reversed and the Supreme Court restored on further appeal (State of Uttar Pradesh v. Deoman, (1961) 1 SCR 14).

Section 410 BNSS — two-judge signing rule

Section 410 BNSS (previously Section 369 CrPC) requires that, where the High Court consists of two or more judges, the confirmation of the sentence, or any new sentence or order, shall be made, passed, and signed by at least two of them. The provision is the apex procedural safeguard: a death sentence cannot be confirmed by a single judge of a multi-judge High Court.

The Supreme Court in Joseph Peter v. State of Goa, AIR 1977 SC 1812 read the rule strictly. Where a confirmation proceeding is heard by a Bench of two judges, the order must bear the signatures of both. Where the High Court ‘consists’ of one judge only — for instance, the Judicial Commissioner’s Court of a small Union Territory — the section is not attracted; the single judge may confirm. The same principle was applied to the now-replaced Andhra Pradesh High Court’s practice in Satwant v. State, (1986) CrLJ 1352.

The two-judge signing rule reflects an old institutional intuition: irreversible decisions should not rest on a single mind. The constitutional analogue is the Supreme Court’s practice of constituting a Bench of three judges in capital matters — a practice flowing from Article 145 read with the gravity of the sentence rather than from any explicit Code provision.

Section 411 BNSS — difference of opinion

Section 411 BNSS (previously Section 370 CrPC) handles the case where the Bench is equally divided. Where any death-reference is heard before a Bench of judges and they are equally divided, the case shall be decided in the manner provided by Section 433 BNSS (previously Section 392 CrPC) — that is, the case is laid before another judge of the High Court, who delivers his opinion, and the case is then decided according to the opinion that prevails (the majority of the three).

The provision is a structural answer to the two-judge-signing rule of Section 410. Where the two judges who hear the reference do not agree, neither view alone satisfies Section 410, and the Section 411 third-judge mechanism breaks the tie. The third judge’s opinion combined with one of the original two produces the requisite two-judge concurrence.

Section 412 BNSS — communication of the order

Section 412 BNSS (previously Section 371 CrPC) closes the loop. The proper officer of the High Court shall, without delay, after the order of confirmation or other order has been made, send a copy — under the seal of the High Court and attested with his official signature — to the Court of Session. The BNSS adds ‘either physically, or through electronic means’ to the modes of communication, formalising the practice of court-to-court electronic transmission that had grown up during the pandemic and after.

The Court of Session, on receipt of the confirmation order, issues a fresh warrant for execution under Section 451 BNSS (previously Section 413 CrPC). The execution itself is governed by the procedure in the execution chapter, with the constitutional safeguards of Shatrughan Chauhan overlaid: time-bound disposal of any pending mercy petition, due notice of the date of execution, and observance of the post-mortem and procedural safeguards before the rope falls.

Delay in execution — the Article 21 overlay

The Code is silent on the consequences of inordinate delay between confirmation and execution. The Supreme Court has filled the gap. In Madhu Mehta v. Union of India, AIR 1989 SC 2299, the Court held that inordinate delay in disposing of a mercy petition is itself a violation of Article 21; the death sentence may be quashed and substituted by life imprisonment. Triveniben v. State of Gujarat, AIR 1989 SC 1335 added the doctrinal frame: the cumulative delay — from sentence to confirmation, from confirmation to mercy disposal, from mercy disposal to execution — is the relevant measure, and unconscionable delay attracts Article 21 commutation.

The remedy under Article 32 or Article 226 lies even after confirmation. The convict may move the Supreme Court directly under Article 32, or the High Court under Article 226, alleging that the death sentence violates fundamental rights. The remedy is not the confirmation chapter’s remedy — it is the constitutional remedy — but it bears on whether and how the confirmed sentence will be executed.

An appeal to the Supreme Court under Article 134(1)(a) and (b) of the Constitution lies as of right from a death sentence passed by the High Court — the constitutional appeal route that operates in parallel with the Code’s confirmation regime. Special leave under Article 136 is available on constitutional and other grounds (Kehar Singh v. State, AIR 1988 SC 1883).

Special enactments and adapted application

The confirmation chapter applies, with textual substitutions, to special enactments that retain capital-punishment offences. Under enactments such as the now-repealed Terrorist and Disruptive Activities (Prevention) Act, 1985, ‘Court of Session’ was read as ‘Designated Court’ and ‘High Court’ as ‘Supreme Court’, with the consequence that the confirmation jurisdiction lay directly with the Supreme Court rather than the intermediate High Court. The architecture is preserved in present-day enactments where it is constitutionally permissible to bypass the High Court on confirmation; the model has been used sparingly because the constitutional preference is for the High Court’s involvement.

Common reversible errors in death references

Four patterns recur and merit attention.

No independent appraisal. The High Court that defers to the trial court’s appraisal without re-examining the evidence has not satisfied Balak Ram and Bhupendra Singh. The Supreme Court’s standard remedy is remand for fresh hearing.

Confirmation by single judge of multi-judge High Court. Section 410 BNSS requires two judges. A single-judge confirmation order in a multi-judge High Court is invalid (Joseph Peter v. State of Goa).

Reasons by reference to other cases only. A confirmation that draws its reasoning from precedent fact-patterns rather than the case before the court — ignoring mitigating factors specific to the convict — is reversible (State v. Saheb Rao).

Custodial harshness pending confirmation. Treating the convict as a ‘condemned prisoner’ with solitary confinement before the death sentence becomes executable is impermissible (Triveniben; Shatrughan Chauhan). The remedy is constitutional.

BNSS comparison — what changed

The substantive architecture is unchanged. The BNSS additions are textual:

  1. Section 407 BNSS — ‘shall be’ replaced by ‘forthwith’; the submission must be without delay.
  2. Section 412 BNSS — ‘either physically, or through electronic means’ added to the modes of communication.
  3. Sections 408, 409, 410, 411 — no substantive change.

The case law on Sections 366 to 371 CrPC carries forward without amendment to Sections 407 to 412 BNSS — Bhupendra Singh, Masalti, Balak Ram, Rama Shankar Singh, Subbaiah Ambaiam, Joseph Peter, Triveniben, Madhu Mehta, Shatrughan Chauhan, Ramesh Bhai — all good law, with the doctrinal language now anchored in BNSS sections.

Exam-angle takeaways

Five points exam-setters use without fail.

  1. Sentence of death is not executable until confirmed. Section 407 BNSS bars execution; Section 410 requires two-judge concurrence in multi-judge High Courts.
  2. BNSS innovation — submission ‘forthwith’. The textual change in Section 407 BNSS is the most likely BNSS-versus-CrPC banker for this chapter.
  3. Independent appraisal is the controlling doctrine. Balak Ram v. State of Uttar Pradesh and Bhupendra Singh v. State of Punjab are the constant authorities.
  4. Power under Section 408 to take additional evidence. The death-reference is a continuation of the trial; the High Court may expand the record where guilt-innocence is in question.
  5. Article 21 overlay on delay. Triveniben v. State of Gujarat and Madhu Mehta v. Union of India — inordinate delay attracts commutation. The constitutional remedy operates even after confirmation.

The death-sentence confirmation chapter is the apex procedural safeguard of the Indian criminal process. A long-form mains answer should walk through the six-section sequence, highlight the BNSS ‘forthwith’ and electronic-communication innovations, and finish with the Article 21 overlay on delay. A prelims MCQ will pivot on the two-judge signing rule of Section 410 BNSS, the High Court’s power to take additional evidence under Section 408, the appeal-precedence proviso to Section 409, or the convict-status-pending-confirmation rule from Triveniben and Kehar v. State. The companion chapters — the substantive death-penalty jurisprudence under Section 393(3) BNSS, the post-confirmation execution under Sections 451 to 457 BNSS, and the residual revisional jurisdiction under Sections 442 to 444 BNSS — complete the lifecycle of a capital case from pronouncement to execution. The constitutional bypass via the High Court’s Section 528 BNSS inherent power remains the residual remedy where the structural safeguards of this chapter fail.

Frequently asked questions

Why must a death sentence passed by a Sessions Court be confirmed by the High Court?

Section 407 BNSS (previously Section 366 CrPC) requires every death sentence passed by a Court of Session to be submitted forthwith to the High Court for confirmation, and bars execution until the High Court confirms. The constitutional rationale is that the death penalty is irreversible — once executed, no appellate remedy can restore the convict. The Code therefore inserts a mandatory two-court structure: the trial court’s satisfaction is necessary but not sufficient. The Supreme Court in Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438 explained that, unlike an ordinary appeal, the High Court on a death-reference must independently appraise the entire case and satisfy itself, beyond reasonable doubt, that conviction and sentence are correct on facts and law.

What powers does the High Court have on a death-reference under Section 409 BNSS?

Section 409 BNSS (previously Section 368 CrPC) gives the High Court five options: (i) confirm the sentence; (ii) pass any other sentence warranted by law (such as life imprisonment); (iii) annul the conviction and convict the accused of any other offence the Sessions Judge could have convicted him of; (iv) order a new trial on the same or amended charge; or (v) acquit the accused. The proviso bars confirmation until the period for preferring an appeal has expired, or, if appeal is presented, until the appeal is disposed of. The Supreme Court in Bhupendra Singh v. State of Punjab held that the only limitation on the High Court is the proviso’s appeal-precedence rule; otherwise, the entire case is open to it, independent of the Sessions Judge’s view.

What is the two-judge signing rule under Section 410 BNSS?

Section 410 BNSS (previously Section 369 CrPC) requires that, where the High Court consists of two or more judges, the confirmation of the sentence, or any new sentence or order, shall be made, passed, and signed by at least two of them. A single judge of a multi-judge High Court cannot confirm a death sentence (Joseph Peter v. State of Goa, AIR 1977 SC 1812). Where the High Court ‘consists’ of one judge only — for instance, the Judicial Commissioner’s Court of a small Union Territory — the section is not attracted, and the single judge may confirm. Where the two judges who hear the reference are equally divided, Section 411 BNSS sends the case to a third judge whose opinion, combined with one of the original two, supplies the requisite concurrence.

Can the High Court take additional evidence on a death-reference under Section 408 BNSS?

Yes. Section 408 BNSS (previously Section 367 CrPC) lets the High Court, where it thinks a further inquiry should be made or additional evidence taken on any point bearing on guilt or innocence, take such evidence itself or direct the Court of Session to take it. This is a power not available to it in an ordinary criminal appeal. The Supreme Court in Jumman v. State of Punjab, AIR 1957 SC 469 read the section as treating the death-reference as a continuation of the trial; Kaliram v. State of Maharashtra, 1989 CrLJ 1625 held that the ‘inquiry’ includes examination of the accused under Section 351 BNSS (previously Section 313 CrPC). Sub-section (2) lets the High Court dispense with the convict’s presence at such inquiry, unless directed otherwise.

What happens to the convict pending confirmation, and what if confirmation is delayed?

Pending confirmation, the convict is committed to jail custody under Section 407(2) BNSS, with status as a ‘convicted prisoner’ under Chapter XVII of the Jail Manual — not as a ‘condemned prisoner’ or undertrial (Kehar v. State, 1987 CrLJ 291 (Del); Triveniben v. State of Gujarat, AIR 1989 SC 1335). Solitary confinement is impermissible until the sentence is finally executable. On the question of delay, the Supreme Court in Madhu Mehta v. Union of India, AIR 1989 SC 2299 held that inordinate delay in confirmation, mercy disposal, or execution is itself a violation of Article 21; the death sentence may be quashed and substituted by life imprisonment. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 laid down detailed guidelines — physical and mental health reports, post-mortem reports, abolition of solitary confinement, and time-bound mercy disposal.