Section 409 BNSS: Power of High Court to Confirm Sentence or Annul Conviction
Section 409 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) sets out the powers of the High Court when a case involving a sentence of death is submitted to it under Section 407 BNSS. The provision enables the High Court to confirm or alter the sentence, annul the conviction and take specified consequential action, or acquit the accused.
Current legal position: The BNSS is Act 46 of 2023 and came into force on 1 July 2024, subject to the notified exception concerning the entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023 in the First Schedule.
Text of Section 409 BNSS
409. Power of High Court to confirm sentence or annul conviction.
In any case submitted under section 407, the High Court-
- may confirm the sentence, or pass any other sentence warranted by law; or
- 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
- may acquit the accused person.
Proviso: 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.
What Section 409 BNSS means
A sentence of death passed by a Court of Session does not become executable merely because the Sessions Court has imposed it. Under Section 407 BNSS, the proceedings must be submitted to the High Court for confirmation. Section 409 then identifies the principal orders that the High Court may pass in that confirmation proceeding.
Connection with Sections 407 and 408 BNSS
Section 409 operates within the statutory confirmation procedure for death sentences. The process begins with Section 407, under which a death sentence passed by a Court of Session is submitted to the High Court. Before deciding the matter, the High Court may also use its power under Section 408 BNSS to direct further inquiry or additional evidence where required.
Appeal must be allowed to run its course
The proviso to Section 409 is an important procedural safeguard. The High Court cannot make an order confirming the sentence until the time allowed for filing an appeal has expired. If an appeal is filed within that period, confirmation must await disposal of the appeal.
Order to be signed by at least two Judges
Section 409 should also be read with Section 410 BNSS. Where the High Court consists of two or more Judges, the confirmation of the sentence, or any new sentence or order passed in the submitted case, must be made, passed and signed by at least two Judges.
Corresponding provision under the Code of Criminal Procedure, 1973
Section 409 BNSS corresponds to Section 368 of the Code of Criminal Procedure, 1973, which contained the power of the High Court to confirm a sentence or annul a conviction in a death-sentence reference. For proceedings governed by the BNSS, Section 409 is the current provision to consult.
Key points
- Section 409 applies to a case submitted to the High Court under Section 407 BNSS.
- The High Court may confirm the sentence or impose another sentence permitted by law.
- The High Court may annul the conviction and convict for another offence within the Sessions Court's competence.
- The High Court may order a new trial on the same or an amended charge.
- The High Court may acquit the accused.
- Confirmation cannot be ordered before expiry of the appeal period, or while a timely appeal remains pending.
Legal reference: For authoritative text, consult the Bharatiya Nagarik Suraksha Sanhita, 2023 published by the Government of India. This article is intended for legal information and should be read with the applicable statutory text, notifications and judicial decisions.