A convict is ‘under sentence of death when, and only when the capital penalty inexorably operates by the automatic process of the law without any slip between the lip and the cup.
Section 366 Cr. P.C. has pertinence at this point:
“(1) When the Court of Sessions passes a sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it be confirmed by the High Court.
The Court passing the sentence shall commit the A convicted person to jail custody under a warrant.”
So it is clear that the sentence of death is inexecutable until confirmed by the High Court. A self-acting sentence of death does not come into existence in view of the impediment contained in section 366(1) even though the Sessions Court might have pronounced that sentence.
What if High Court confirm the death sentence?
Let us assume that the High Court has confirmed that death sentence or has de novo imposed death sentence. Even there is quite a likelihood of an appeal to the Supreme Court and the plenary power of the highest court extends to demolition or the death sentence.
Naturally, the pendency of the appeal itself inhibits the execution of the sentence. Otherwise, the appellate power will be frustrated, the man executed and the Supreme Court stultified if it upsets the death sentence later. When an appeal pends against a conviction and sentence in regard to an offence punishable with death sentence, such death sentence even if confirmed by the High Court shall not work itself out until the Supreme Court has pronounced.
Section 415 Cr.P.C. produces this result inevitably.
“(1) Where a person is sentenced to death by the High Court and an appeal from the judgment lies to the Supreme Court under sub-clause (a) or sub-clause (b) of clause (1) of article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or, if an appeal is preferred within that period, until such appeal is disposed of.
(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under article 132 or under sub-clause (c) of clause (l) of article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.
(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.”
Provisions for commutation of death sentence
Article 72 and 161 provide for commutation of death sentence even like sections 433, 434 and 435 Cr.P.C. The rules made under the Prisons Act, taking note of these provisions, provide for a petition for commutation by the prisoner.
Rule 547 and rule 548 framed under the Prisons Act relate to the subject of petitions for mercy:
“(a) Rules framed by the Government of India:
I.- immediately on receipt of a warrant for execution consequent on the confirmation by the High Court of sentence of death, Jail Superintendent shall inform the convict concerned that if he desires to submit a petition for mercy, it should be submitted in writing within seven days of the date of such intimation.
II- If the convicts submit a petition within the period of seven days prescribed by Rule I it should be addresses both to the local Government and to the Governor-General in Council, and the Superintendent of Jail shall forthwith despatch it, in duplicate, to the Secretary to the local Government in the Department concerned. together with a covering letter reporting the date fixed for the execution and shall certify that the execution has been stayed pending receipt of the orders of the Governor in Council and the Governors General in Council on the petition if no reply is received within 15 days from the date of the despatch of the petition the Superintendent shall telegraph to the Secretary to the local Government drawing attention to the fact, but he shall in no case carry out the execution before the receipt of the local Government’s reply.”
It follows that during the pendency of a petition for mercy before the State Governor or the President of India the death sentence shall not be executed. Thus, until rejection of the clemency motion by these two high dignitaries it is not possible to predicate that there is a self-executory death sentence. Therefore, a prisoner becomes legally subject to a self-working sentence of death only when the clemency application of prisoner stands rejected.
Sunil Batra case
In Sunil Batra case, this question came before the court that whether a prisoner who is sentenced death, may be confined in solitary confinement as per Section 30(2) of the prisoner act, even though his appeal is pending?
Section 30(2) said that,
“(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard.”
The court answered that,
“The conclusion inevitably follows that Batra, or, for that matter, others like him, cannot be classed as persons “under sentence of death”. Therefore, he cannot be confined apart from other prisoner. Nor is he sentenced to rigorous imprisonment and so cannot be forced to do hard labour. He is in custody because the Court has, pending confirmation of the death sentence, commanded the Prison Authority to keep the sentence in custody. The concrete result may be clearly set out. Condemned prisoner like Batra shall be merely kept in custody and shall not be put to work like those sentenced to rigorous imprisonment.
These prisoners shall not be kept apart or segregated except on their own volition since they do not come under section 30(2). They shall be entitled to the amenities of ordinary inmates in the prison like games, books, newspapers, reasonably good food, the right to expression, artistic or other, and normal clothing and bed.
In a sense, they stand better than ordinary prisoners because they are not serving any term of rigorous imprisonment, as such. However, if their gregarious wishes induce them to live in fellowship and work like other prisoners they should be allowed to do so. To eat together, to sleep together, to work together, to live together, generally speaking, cannot be denied to them except on specific grounds warranting such a course, such as homosexual tendencies, diseases, violent proclivities and the like. But if these grounds are to be the basis for revocation of advantages to the prejudice of the sentence he should be given a hearing in brief in essential compliance with the canons of natural justice.”
Thus, the expression “prisoner under sentence of death” in the context of sub-s (2) of s. 30 can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure.
In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority.
Cases on the finality of death sentence
In a slightly different context in State of Maharashtra v. Sindhi @ Raman, it was said that the trial of an accused person under sentence of death does not conclude with the termination of the proceedings in the Court of Sessions because of the reason that the sentence of death passed by the Sessions Court is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is passed by a competent court.
In the context of s. 303 of the Indian Penal Code it was said in Shaik Abdul Azeez v. State of Karnataka, that an accused cannot be under sentence of imprisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under s. 401, Cr. P.C.”
Therefore. the prisoner can be said to be under the sentence of death only when the death sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority.
Till then the person who is awarded capital punishment cannot be said be a prisoner under sentence of death in the context of s. 30, sub-s. (2).
What if session court sentence death but appeal of the convict is pending?
The question arises what then is the nature of confinement if a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till this sentence becomes automatically executable?
Section 366(2) of the Cr. P.C. enable the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting sub-s. (2) of s. 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. After the sentence becomes executable he may be kept in a cell apart from other prisoners with a day and night watch.
But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company. If the prisoner under sentence of death is held in jail custody, punitive detention cannot be imposed upon him by jail authorities except for prison offences.
Constitutional safeguard against solitary confinement
When a prisoner is committed under a warrant for jail custody under s. 366(2) Cr.P.C. and if he is detained in solitary confinement which is a Punishment prescribed by s. 73, IPC, it will amount to imposing punishment for the same offence A more than once which would be violative of Article 20(2).
Article 21 guarantees protection of life and personal liberty. Though couched in negative language it confers the fundamental right to life and personal liberty. To the extent, assuming sub-s. (2) of s. 30 permits solitary confinement, the limited personal liberty of prisoner under sentence of death is rudely curtailed and the life in solitary confinement is even worse than in imprisonment for life.
The scope of the words “life and liberty” both of which occur in Vth and XIVth Amendments of the U.S. Constitution, which to some extent are the precurser of Article 21, have been vividly explained by Field J. in Munn v. Illinois To quote:
“By the term “life” as here used something more is meant than mere animal existence. The inhibition against’ its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world….by the term liberty, as wed in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison”.
This statement of law was approved by a Constitution Bench of this Court in Kharak Singh v. State of U.P.
Sunil Batra Etc vs Delhi Administration; 1978 AIR 1675, 1979 SCR (1) 392
  3 SCR 574
 303. Punishment for murder by life-convict. —Whoever, being under sentence of imprisonment
for life, commits murder, shall be punished with death.
  3 SCR 393.
 73. Solitary confinement. —Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say—
a time not exceeding one month if the term of imprisonment shall not exceed six months; a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year a time not exceeding three months if the term of imprisonment shall exceed one year.
  94 US 113 at 142
  I SCR 332 at 347.