Zinat Sultana Zerin: In Bangladesh, a death sentence passed by a Court of Session cannot be executed immediately. Under section 374 of the Code of Criminal Procedure, 1898, the trial court must send the case record to the High Court Division for confirmation. This proceeding is known as a death reference. It is mandatory because the High Court Division must examine the sentence even if the condemned prisoner does not file an appeal. The purpose is to ensure that no person is executed because of an error in evidence, investigation, legal procedure or judgment.
A death reference is different from an ordinary criminal appeal. The reference is sent by the trial court, while the convicted person may separately file a criminal appeal or jail appeal under the relevant provisions of the Code. In practice, the High Court Division generally hears the death reference together with the prisoner’s appeal. The court then independently examines the evidence, including eyewitness testimony, confession, medical reports, forensic materials, the investigation record and the trial court’s reasoning. The High Court is not required to accept the trial judge’s decision automatically.
Under sections 375 and 376 of the Code, the High Court Division may confirm the death sentence, reduce it to life imprisonment or another lawful punishment, annul the conviction, acquit the accused or order a retrial. Before confirming death, the court must be satisfied that the prosecution proved the charge beyond reasonable doubt and that the accused received a fair trial. If the evidence contains serious contradictions, the confession is doubtful, the investigation is defective or reasonable doubt exists, the accused must receive the benefit of that doubt. A death sentence should not be imposed merely because the crime has shocked the public; the court must examine the evidence and the circumstances of the offender as well as the seriousness of the offence.
The importance of this procedure can be understood from the case of Milon Mondal. After the Sessions Court imposed a death sentence for murder, the case was sent to the High Court Division as a death reference under section 374. The prisoner also filed a criminal appeal and jail appeal. The High Court considered the reference and appeals together and examined whether the conviction was supported by reliable evidence and whether the death sentence was legally justified. This demonstrates that confirmation is not a formal approval; it is an independent judicial review of both the conviction and the punishment.
A similar principle appears in State v. Lutfuzzaman alias Babu and others, where the Supreme Court emphasised the need for legally admissible and trustworthy evidence in capital cases. The prosecution must establish guilt through credible evidence, and a person should not be sent to the gallows on the basis of suspicion, weak evidence or an unreliable confession. In several cases, the High Court Division and the Appellate Division have reduced death sentences to life imprisonment where mitigating circumstances or weaknesses in the evidence made execution inappropriate.
If the High Court Division confirms the death sentence, the convicted person has a constitutional right of appeal to the Appellate Division under Article 103(2)(b) of the Constitution of Bangladesh. The Appellate Division may uphold the conviction, reduce the sentence, acquit the accused or order a new trial. After the appeal, the prisoner may file a review petition under Article 105 of the Constitution. A mercy petition may also be submitted to the President under Article 49. The appeal and review are judicial remedies, while mercy is a constitutional executive remedy.
The main weakness of the present system is delay. Death-reference cases may remain pending for years because of incomplete records, repeated adjournments, shortage of judges, unavailable witnesses and delays in appointing legal-aid lawyers. This creates suffering for both sides. The victim’s family waits for final justice, while the condemned prisoner lives under continuous fear and uncertainty. Delay may also weaken evidence and make a fair decision more difficult.
The answer is not to abolish mandatory confirmation. Instead, Bangladesh needs a faster and more effective death-reference system. Case records should be sent to the High Court without delay, condemned prisoners should receive competent legal aid, unnecessary adjournments should be avoided and capital cases should receive priority hearings. Judges should give clear reasons for confirming death or reducing the sentence. Since execution is irreversible, every reasonable legal safeguard must be properly used.
The mandatory confirmation rule under section 374 is therefore both a protection and a challenge. It protects the right to life by requiring a second judicial examination, but delay can turn that protection into prolonged mental suffering. A fair system must combine caution with speed. The real purpose of an appeal in a death sentence case is not merely to confirm punishment; it is to ensure that no innocent person is executed and that the harshest penalty is imposed only when guilt is proved with the highest level of legal certainty
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