appeals
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This article is written by Mehar Verma, a 3rd-year law student from Jindal Global Law school. In this article, the author talks when and how an appeal can be filed under CrPC.

Introduction

An appeal is a tool given to the parties of a case to ensure justice is served and all the parties are satisfied by the judgment. After hearing all the parties in a case, a competent court pronounces the judgment and if the parties are not satisfied with the judgment they have a right to appeal to a higher court. Such an appeal would give the aggravated party another opportunity to present their case to a higher authority or the Appellate Court who would judge the case with a fresh perspective and if there are any wrongdoings, they would be corrected. When the verdict is unreasonable or not supported by evidence, or when there is miscarriage of justice on any grounds, then such a verdict can be appealed.

Object and scope of appeals

Even though Criminal Procedure Code (CrPC), does not define appeal, legally it is to be understood as judicial review done by a higher court of a decree, order or judgment passed by a subordinate court. The Cambridge dictionary defines appeal as “a request made to a court of law or to someone in authority to change a previous decision.” 

As per the hierarchy, a judgment passed by the trial court is appealed in the High Court which may further be appealed in the Supreme Court of India. Being the highest court of appeal, orders passed by the Supreme Court are final except in certain cases. The extensive discretionary powers enjoyed by the Supreme Court are governed by the Constitution of India, CrPC and the Supreme Court Act, 1970.

As an appeal is not a vested right, it cannot lie from all judgments, but only when there is a statutory provision under CrPC or any other law in force at that time. Even the first appeal is subject to statutory limitations and this principle is primarily derived from the three legal maxims. Firstly, “nemo debet bis vexari pro una et eadem causa”, i.e a defendant should not be vexed for the same case again and again, secondly, “interest reipublicae ut sit finis litium” which means it is in the interest of the state if  there is an end to the litigation and thirdly, “res judicata pro veritate accipitur” that implies that a judicial decision must be accepted as correct. However, under special circumstances, these include the judgment of acquittal, conviction for a lesser offence or inadequate compensation, the victim has the right to appeal against any order or decree passed by the subordinate court. In Satya Pal Singh v State of Maharashtra, the judgment of acquittal of the accused was questioned and thus the victim was allowed to appeal under Section 372.

No appeal in certain cases

In order to ensure that cases that do not require further judicial review are not appealed again and again the statute explicitly provides that for such cases no appeal can lie. These provisions are laid down in Section 375 and Section 376 of CrPC. The object of not allowing appeal under these situations is to bring an end to the litigation, and not increase the pile of cases in front of the superior courts when it is not required.

In case accused pleads guilty

Section 375 of the code provides that if the conviction for any offense is made after the accused had pleaded guilty of the crime he or she was charged with then no appeal lies against the order of conviction. After the accused has pleaded guilty, the sentence of conviction may be passed by the Magistrate, Session Court or High Court and Section 375 of CrPC would apply as long as the condition of pleading guilty is satisfied. 

In Barendra Ghosh v Emperor, the court held that the right to appeal is taken away under Section 375 only when the accused pleads guilty voluntarily and with full knowledge of the consequences of his actions. The accused must also be willing to accept the punishment prescribed by the court.

Section 375(b) provides an exception to this rule and states that if the legality of the sentence is questioned then an appeal may be allowed in this case as well. As per Section 29 of the code, the Magistrate is not competent to pass a punishment of imprisonment exceeding 3 years whereas Chief Judicial Magistrate cannot pass a sentence exceeding 7 years. If and when these authorities exceed their prescribed powers while giving the judgments, it would amount to illegality and is covered under the exception of Section 375. Furthermore, if after the sentence is pronounced, the accused is of the opinion that the punishment is unfair or too harsh, he may appeal to the extent of the sentence.

In the case of petty cases

Petty or small cases are not appealable, according to Section 376 of the code. However, the interpretation of petty is not open as the code provides what is to be considered petty under clause ‘a’ to ‘d’ of Section 376:

  1. When an appeal was made to the High Court and such court after due consideration prescribes imprisonment not exceeding 6 months or a fine of INR 1,000 or both;
  2. When the Metropolitan Magistrate or Court of Session after due process pass a sentence for imprisonment for a period not exceeding three months or fine not more than INR 200 or both;
  3. When a case is exclusively triable by a Judicial Magistrate of First Class and the court passes a decree of fine not exceeding INR 100;
  4. When the case is triable by a Magistrate under Section 260 of the code and after the trial, the Magistrate prescribes a fine not exceeding of INR 200 and an order for payment of security;

When the court passes multiple orders, the cumulative of all the orders should not exceed the amount stated above, to be considered as a petty crime. Further, an appeal cannot be barred under Section 376 if the punishment is combined with other punishments or offences, not covered by the said section.

In case of no law for appeal

As already discussed appeal is neither an inborn right nor a vested right, but one which is given by the statue itself. If there is no provision allowing an appeal for a case, then such an appeal would not be allowed.

Appeals from convictions

Defendants convicted of an offence are not always satisfied with the judgment and may think they have been wrongfully convicted. In such circumstances, they may ask a higher court to review the judgment or order passed under Section 374 of the code. The typical hierarchy of the state consists of:

  1. The Trial Court or Court of Session;
  2. The High Court;
  3. The Supreme Court.

Appeal to the Court of Session

As per Section 374(3), when an order or decree for conviction is made in a trial conducted by Metropolitan Magistrate or Assistant Session Judge or Magistrate of the first class or Magistrate of the second class, then the convicted may appeal to the Court of Session.

If a sentence for conviction is made under Section 325 of the code, i.e after referring to the Chief Judicial Magistrate, then such conviction can also be appealed to the Court of Session.

Lastly, when a convict is released on probation of good conduct or after admonition under Section 360 of the code, the order may be appealed to the Court of Session.

Appeal to the High Court

According to Section 374(2) of the Code, any person convicted may appeal to the High Court against a judgment passed by the Sessions Judge or an Additional Sessions Judge or on a trial held by any other court wherein a sentence of imprisonment for 7 years or less was passed. For instance, when a judgment is passed by the Sessions Judge, imprisoning the defendant for 5 years, then such a defendant can appeal to the High Court if he thinks the judgment was unfair.

Appeal to the Supreme Court

Section 374(1) of the Code, allows any person convicted by the High Court in its extraordinary original criminal jurisdiction to appeal for the same in the Supreme Court of India.

According to Section 379 of the Code, where the High Court on appeal, reverse an order of acquittal of the defendant and convicted him with imprisonment for not less than 10 years, life imprisonment or death penalty, the convict may appeal to the Supreme Court.

As per Article 132(2) of the Constitution of India, if the High Court is satisfied that there is a substantial question of law which is in question, then an appeal can be made to the Supreme Court from any judgment, decree or final order from any High Court within the territory of India.

Appeal by the government against sentence

Under Section 377 of the Code, the State Government may direct the public prosecutor to present an appeal against the sentence passed by any court except the High Court on the grounds of inadequacy. The appeal may be made to:

  • The Court of Session, if the sentence in question was passed by the Magistrate and
  • The High Court, if the sentence is passed by any other court.

If the offence is investigated by any special agency empowered to do such an investigation under any Central Act, such as the Delhi Special Police Establishment, which comes under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the public prosecutor to present an appeal on the grounds of inadequacy to:

  • The Court of Session, if the sentence was passed by the Magistrate and
  • The High Court, if the sentence was passed by any other court.

When an appeal is made under Section 377 of the Code, the High Court may enhance the sentence only after giving a reasonable opportunity to the accused to show his cause. The accused has the opportunity to either plea for his acquittal or the reduction of his sentence.

An appeal against the order of acquittal

Section 378 of the Code deals with the appeal against the order of acquittal. According to Section 378(1)(a), the District Magistrate with the leave of the High Court can direct the Public Prosecutor to present an appeal to the Court of Session when an order of acquittal is given by a Magistrate in respect of a cognizable and non-bailable offence. Section 378(1)(b) allows the State Government with the permission of the High Court, to direct the Public Prosecutor to present an appeal to the High Court against an order of acquittal passed by any court other than a High Court. However, the order in question should not be passed under Section 378(1)(a).

According to Section 378(2), if an order for acquittal is passed for any offence which is investigated by any special agency empowered to do such an investigation under any Central Act, such as the Delhi Special Police Establishment, which comes under the Delhi Special Police Establishment Act, 1946, the Central Government may direct the Public Prosecutor to present an appeal to:

  • The Court of Session, if the sentence was passed by the Magistrate in respect to nan-bailable, cognizance offense, and
  • The High Court, if the sentence was passed by any other court.

As per Section 378(4) of the Code, if an order of acquittal is made under any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Such special leave shall be entertained only if it is presented within six months from the date of order of acquittal in case of public servants and sixty days in every other case.

As appeal in case of acquittal is considered as an extraordinary remedy, the High Court while deciding the appeal must be extremely diligent and give consideration to very substantial and compelling reasons. Substantive and compelling reasons exist when:

  1. The trial court failed to ascertain the facts in a correct manner;
  2. Trial court’s interpretation of law was incorrect;
  3. Trial court’s judgment would result in grave miscarriage of justice;
  4. Trial court’s judgment and reasoning were unreasonable;
  5. Trial court ignored some material facts for evidence while ascertaining the judgment;
  6. The above list is illustrative and not exhaustive.

Petition of appeal and its presentation

According to Section 382 of the Code, all appeals are to be presented by the appellant or his pleader in the form of a written petition and every such petition shall be accompanied by a copy of judgment or order appealed against.

Hearing of appeals in Court of Sessions

According to Section 381, an appeal made to the Court of Sessions is heard by Sessions Judge or by an Additional Sessions Judge when a general order is made to such judges by the Session Judge or High Court through special or general order. When an appeal is made against the conviction by a Magistrate of the second class, then such an appeal may be held and disposed of by an Assistant Sessions Judge or Chief Judicial Magistrate.

Summary disposal of appeals

Section 384 of the code states that if after careful examination of the petition before the Court, such Court is of the opinion that there is no sufficient ground for interfering, it may dismiss the appeal summarily.

However, no appeal shall be dismissed:

  1. If the appellant was not given a reasonable opportunity to be heard;
  2. If the appellant is in jail at the time being and was not given an opportunity to be heard. Provided that the Appellant Court that the petition to appeal files is frivolous or the court of the opinion that the accused cant be presented before the court without causing inconvenience;
  3. If the appellant is in jail and the period for applying for appeal has not expired yet.

Before dismissing an appeal the Court may call for the record of the case and record the reasons for ordering such dismiss.

Procedure for hearing appeals not summarily dismissed

If an appeal is not dismissed, under Section 385 of the code, it shall give notice of time and place where such appeal is to be heard:

  1. To the appellant, his pleader or any one of them;
  2. To any officer that may be appointed by the State Government on his behalf;
  3. To the complainant, if an appeal from judgment were in the case was instituted by the way of a complaint.

According to Section 385(2), if the appeal is not only to the extent or the legality of the sentence, then the record of the case must be sent to the Appellate Court and both the parties are heard.

According to Section 385(3), if the ground for appeal is regarding the alleged severity of the sentence, the appellant shall not be heard on any other ground, except on the leave of the court.

In State of Madhya Pradesh v. Parasaram, the case was disposed of under Section 385 of CrPC, and the Supreme Court held that since the judgment given by the High Court was not in accordance with the law, it is to be sent back to the High Court for a fresh consideration of the appeal.

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Powers of Appellate Court

Section 386 of the Code lays down the power of the Appellate Court. This section specifies and provides that after hearing the parties may dismiss the appeal, allow the appeal, or pass any other necessary order which serves justice.

Clause (a) of the above Section, provides that if there is an appeal from an order of acquittal, the Appellate Court may:

  1. Reverse such order;
  2. Direct further inquiry;
  3. Conduct re-trial;
  4. Find the accused guilty and pass a sentence accordingly.

Clause (b) provides if there is an appeal from an order of conviction, the court may:

  1. Reverse the findings and acquit or discharge the accused;
  2. Order retrial by a subordinate competent court;
  3. Alter the extent or the nature of the sentence given by the subordinate Court.

Clause (c) provides if there is an appeal for enhancement of sentence, the court may:

  1. Reverse the findings and acquit or discharge the accused;
  2. Order retrial by a subordinate competent court;
  3. Alter the extent or the nature of the sentence given by the subordinate Court.

In an appeal from any other order, the court can alter or reverse the decision or judgment given by the subordinate court.

No order enhancing the punishment of the accused should be passed unless the accused was given a fair and reasonable opportunity to be heard.

Power of Appellate Court to obtain further evidence

Section 391 of the Code gives the Appellate Court the power to obtain further evidence or direct it to be taken. The court after recording the reasons for demanding necessary reasons can either take such evidence itself or can direct the Magistrate and when the Court of Appellate is High Court, then such direction can be given to Court of Session or a Magistrate.

While the additional evidence is procured the accused has the right to be present and the evidence when taken by the Court of Session or the Magistrate, he shall certify such evidence to the appellate Court.

Procedure where Judges of Court of appeal are equally divided

Section 392 of CrPC provides that when a Bench of Judges of the High Court heard an appeal and thereafter they are divided in opinion, then the appeal with their opinion is to be laid before an independent Judge of that Court, who after hearing the case as he thinks fit, shall deliver his opinion and such opinion would be final.

Order of the High Court on appeal to be certified to lower court

According to Section 388 of the Code, whenever an appeal is made to the High Court, the High Court certify its judgment to the court whose orders were appealed. If such a Court is that of a judicial magistrate, the High Court’s judgment or order shall be sent through the Chief Judicial Magistrate and if the court is that of an Executive Magistrate, the High Court’s judgment or order shall be sent through the District Magistrate.

Rules regarding the judgment of subordinate Appellate Court

Section 387 of CrPC deals with the judgment of subordinate Appellate Court and thereby provides that similar rule as to the judgment of a Criminal Court of original jurisdiction shall apply as far as it is practicable. Thus the judgment:

  1. Shall be pronounced in an open Court immediately after the completion of the trial or some subsequent time of which notice is to be given to all the parties;
  2. Shall contain all points and reasons for the decision taken and shall be recorded in the language of the Court;
  3. Shall specify the offence and the relevant sections of IPC or any other law;
  4. If acquitted, shall specify the offence of which the accused is acquitted.

The finality of judgments and orders on appeal

According to Section 393 of the Code, the decision of the Appellate Court is to be the final one on the matter presented before the court except in cases when an appeal is made by the State Government against conviction under Section 377, when an appeal is made in case of acquittal under Section 378, in the case of reference and revision made under chapter 30 of the code, or when an appeal is made under Section 384(4) of CrPC.

Abatement of appeals

The provision regarding abatement of appeals is governed under Section 394 of the code. Any appeal by the State Government against conviction or any appeal in case of acquittal shall finally abate on the death of the accused. Every other appeal made under this code shall abate on the death of the appellant. In case the appeal was against conviction and sentence of death or imprisonment and the appellant died during the pendency of such appeal, the appeal can be continued if an application is made by any of the close relatives of the deceased within thirty days of the death of the accused.

Legal aid in appeal cases

When due to the financial position of one, the party is unable to afford legal representation, the same is provided free of cost to the party in the name of legal aid. Legal aid schemes were started to ensure that no one is denied the right to be heard and to a fair trial due to economic, political, social and other disabilities. Further, free and competent legal services to the weaker sections of the society to ensure equal access to justice for all citizens of India. It is on these same principles that Section 304 of CrPC was laid down.

The said section provides that where the accused does not have any legal representative or where it appears to the court that the accused does not have enough means to appoint a legal representative, the court shall assign a pleader for his defense at the expense of the State.

The High Court with the approval of the State Government makes rules with respect to the legal representative provided by the way of legal aid to any weaker section of the society. Rules regarding the following provisions are made:

  1. The mode of selecting pleaders;
  2. The facilities to be allowed to such a pleader by the courts;
  3. The salary or remuneration to be paid to such pleaders.

The decisions regarding the pleader may be informed to the Courts in the State by the State Government through a notification containing all the required details.

Conclusion

In order to ensure that any factual or legal error made in judgment is corrected, the right to appeal is to be rightfully maintained. However, appeals under criminal law are not a vested right and, appeals against judgments, decrees or orders are maintainable only when such is allowed under the Criminal Procedure Code or any other law in force. In general, the right to appeal is at the discretionary of the judiciary and in certain cases like petty cases and when the accused pleads guilty, such right is altogether denied. The appeals are always filed in form of petition and in accordance with the hierarchy, i.e first the Court of Session, then the High Court and finally the Supreme Court.

The Appellate Court on receiving an appeal can summarily dispose of such an appeal, or after hearing the parties, reverse the order passed by the subordinate court, order additional evidence, a retrial or an alteration in the sentence. Just like the judgment passed by the Court of original jurisdiction, a judgment passed by the Appellate Court should also have the reasons for the decision and should be pronounced in an open court.

To ensure that all citizens including the economically, politically and socially deprived citizens are also given an equal opportunity to justice, CrPC provided a provision dealing with legal aid in appeal cases.

References

  1. Code of Criminal Procedure, 1973
  2. Satya Pal Singh v State of Maharashtra
  3. Barendra Ghosh v Emperor
  4. State of Madhya Pradesh v. Parasaram

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