The confirmation of Death Sentence by High Court was under challenge in Masalti v. State of Uttar Pradesh, AIR 1965 SC 202. Chief Justice Gajendragadkar, speaking for a Four Judge Bench, observed:

“It may be conceded, if a point of fact which plainly arises on record, or a point of law which is relevant and material and can be argued without any further evidence being taken, was urged before Trial Court and after it was rejected by it was not repeated before High Court, it may, in a proper case, be permissible to ask this Court to consider that point in an appeal under Article 136. After all in criminal proceedings of this character where Sentences of Death are imposed, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground they were not urged before High Court.”

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We find it just to raise the ground of jurisdiction before us. Allowing the ground to be raised would not require submission of additional evidence since it is a pure question of law and strikes at the heart of the matter.

– Hon’ble Justice Dr. D.Y. Chandrachud, Saurav Jain v. M/s. A.B.P. Design, [Civil Appeal No. 4448 of 2021].