The article is written by Nikhil Thakur, a student of Manav Rachna University. The author through this article has attempted to explain and brief about the post-trial stage in criminal law.
Table of Contents
Introduction
Under criminal law, chiefly 3 key stages are the Pre-trial, Trial, and Post-trial stages. The post-trial stage is stipulated as the 3rd stage in criminal law, woefully, the same has not been explicitly mentioned under the Code of Criminal Procedure, 1973 (CrPC). But to give a simple definition of post-trial it means a stage where the trial has been concluded and the judge has articulated the judgment/ verdict. According to Merriam Webster “post-trial” means happenings that take place after the conclusion of the trial stage.
Under the purview of the post-trial stage, there are 3 main categories such as:
- Appeal (Section 372 to 394)
- Revision application (Section 397)
- Execution of the judgment
Appeal
The appeal in its literal meaning has not been stipulated under the CrPC, 1973. According to Merriam Webster “appeal” refers to a stage of proceedings where the matter has been brought before the higher jurisdiction. Or it can also be defined as a stage where the aggrieved party inquires the higher court to reverse the decision of the lower court.
After the verdict has been pronounced by the lower court and the same has been entered in the records, the aggrieved party may file a “notice of appeal” before the appellate court and may request the appellate court for transcription or other records of the lower court to be submitted. Along with this, the appealing party shall provide suitable reasoning for overturning the verdict administered by the lower court.
Once an appeal has been made at that stage “no new evidence” shall be conceded except the lawful contentions.
Predominantly, there are two categories in appeal:
- Appeal on behalf of the victim or;
- Appeal on behalf of the accused.
Appeal on behalf of the victim
Complying with Section 372 of the CrPC, 1973 which states that “no appeal shall take place against any judgment or order except the procedure as stipulated in the 1973 Act or any other law for the time being”. The said Section stipulates that the distressed do not have the vested right to appeal till the time the appellate believes that the lower court has executed/ conducted all the proceedings honestly without any violation or infringement.
Fortunately, the victim has the right to appeal against the judgment/ verdict of the lower court if the same has:
- Acquitted the accused;
- Convicted the accused for lower offence or;
- Accused has been imposed lesser/ inadequate compensation.
Appeal on behalf of the accused
- In compliance with Section 374(1) of the CrPC, 1973 if the High Court has convicted the accused, then as a matter of right the convicted may file an appeal before the Supreme Court of India under the extraordinary original criminal jurisdiction.
- According to Section 374(2) of the CrPC, 1973 if the accused has been sentenced by the session judge or additional session judge or any other court who is competent to pass a sentence of 7 years or more shall have the right to file an appeal before the High Court.
- Following Section 374(3) of the CrPC, 1973 any person who is accused of an offence and has been convicted by the metropolitan magistrate or assistant session judge or magistrate of the first class or second class shall have the right to appeal before the court of session.
- Moreover, under Section 379 of the CrPC, 1973 if the High Court has reversed the decision of the trial court and has convicted the accused to death or life imprisonment or imprisonment for more than 10 years the accused shall as a matter of right file an appeal before the Hon’ble Supreme Court of India.
- Lastly, following Section 380 of the CrPC, 1973 in case there are more than one accused and all of them were convicted before the lower court but eventually, an appealable order has been passed concerning any one of the accused then all such accused who were convicted shall as a matter of right file an appeal before the higher jurisdiction.
When no appeal can be made
There are few cases where no appeal can be filed and the provisions dealing with them are as follows:
When accused plead guilty as per Section 375 of the CrPC, 1973
If the accused has been convicted on pleading guilty in such a situation no appeal can be made if:
- The conviction was made by the High Court or;
- Made by the Session Court or metropolitan magistrate or magistrate of the first class or the second class.
When the nature of the case is petty as according to Section 376 of the CrPC, 1973
Section 376 enumerates few more grounds when no appeal shall be made which are as follow:
- When the High Court has convicted the accused of imprisonment of not more than 6 months and a fine not exceeding 1,000 rupees or both.
- When the Session Court or the Metropolitan Magistrate has passed the imprisonment for not more than 3 months and fine not exceeding 200 rupees or both.
- When the magistrate of the first-class has passed the sentence of fine of not more than 100 rupees.
- When the case was being tried summarily, the magistrate pronounced a sentence for a fine of not more than 200 rupees.
When the judgment has been finalized as per Section 265G of the CrPC, 1973
If the Hon’ble court has pronounced the verdict, it shall be final and against which no appeal shall be made in any court whatsoever. But, an appeal can be made to the higher jurisdiction via Special Leave Petition (SLP) under Article 136 or through writ appeal under Articles 226 and 32 of the Indian Constitution.
Revision application
Similar to appeal, revision application has not been articulated under the CRPC, 1973. But, it can be defined as a re-examination of the case.
Following Section 397 of the CRPC, 1973 the Session judge or the High Court may call for and look at the records of any proceeding before any inferior criminal court to satisfy itself as to:
- Correctness,
- Legality,
- Proprietary of any finding,
- Sentence or order, and
- As to irregularities of any inferior court.
The Court after calling on the records believes that if the accused is in confinement then he/ she shall be released on a bail bond and the court may suspend the sentence so passed by the lower jurisdiction.
The prime objective behind revision is to anticipate and dodge any miscarriage of equity/ justice committed by the inferior court. The Code of Criminal Procedure empowers the Session Court as well as the High Court to call for and look at the records of any procedure present before the lower criminal court as per Section 399 and 401.
The Supreme Court of India under the Alamgir v. State of Bihar (1959), observed that while determining the enhancement of punishment under revision application the court who is augmenting the punishment shall provide reasonable ground for such an alteration. The reason can be:
- That the lower court imposed inadequate punishment on the accused or the punishment imposed was very less for the offence the accused has committed; or
- That the lower court has failed to acknowledge the crucial facts and circumstances of the case and without considering them has pronounced the punishment.
Further, a revision application is basically filed when the subordinate court has pronounced the verdict and it goes against the aggrieved party and there is no provision as to appeal, in such a situation the aggrieved may file a revision application before the higher jurisdiction.
Like in appeal, the aggrieved as a matter of right may file an appeal before higher jurisdiction while in revision the aggrieved has no statutory right, and acceptance of revision application is the discretionary power of the higher court. But there are a few exceptions when this discretionary power cannot be enjoyed by the court.
- Following Section 397(2) of the CrPC, 1973 the court cannot enjoy its discretionary power in case the interlocutory order, an interim order was passed in an appeal, trial, etc.
- According to Section 397(3), if the same application was made under Section 397(1) before the High Court and the Session Judge then no further application shall be entertained.
Execution of sentence
Execution of sentence is the final play which generally comes after the verdict. Under the CRPC, 1973 the provisions specifically dealing with execution are enshrined under Section 413 to 424.
Chiefly, there are three categories under the execution of sentence namely:
Death sentence (Section 413 – 416)
Execution of order passed under Section 368
- According to Section 366 of the CrPC, 1973 the session court is not capable enough to execute a sentence of death without the confirmation of the High Court, and till the time High Court does not give the approval the accused shall remain in jail.
- Hence, following Section 413, upon receiving the orders from the High Court the session court shall execute the same via issuance of a warrant.
Execution by High Court
In compliance with Section 414, once the sentence of death has been issued by the High Court whether in appeal or in revision the same shall be forwarded to session court who shall execute the same through the issuance of a warrant.
Postponement of the execution if appeal made to the Supreme Court
If the accused file an appeal under Article 134 of the Indian Constitution before the Supreme Court of India against the death sentence passed by the High Court or the accused sentenced makes an application before the High Court concerning the grant of certificate under Article 132, in these circumstances the High Court shall postpone the said execution until:
- The period which was allowed for the appeal has expired; or
- Such appeal has been disposed of by the Supreme Court.
The High Court is of the opinion that the accused may file an SLP under Article 136 before the Supreme Court, it shall postpone the said execution for such period which is suitable for the accused to file a petition.
Postponement due to pregnancy
Following Section 416, if a woman who has been sentenced to death by the High Court was pregnant in such a case the High Court shall commute/ lower the death sentence to life imprisonment.
Imprisonment (Section 417- 420)
- According to Section 417(1), the State Government shall prescribe the place where the accused who is sentenced for imprisonment be kept or confined.
- Further, in compliance with Section 417(2) if the accused who is liable to be imprisoned under the CRPC, 1973 but is confined in a civil jail shall be migrated to a criminal jail.
Execution of sentence
- According to Section 418, the accused who has been sentenced to imprisonment, the court which has pronounced such sentence shall issue a warrant to the jail authority where the convicted shall be confined. There is no need for a warrant if the convicted is already in jail.
- In case the court has pronounced the sentence of imprisonment, but the accused was not present at the court, the court shall issue an arrest warrant.
- According to Section 419, the warrant issued by the court concerning the sentence of imprisonment shall be submitted before the officer in charge of the jail. Further, following Section 420, the warrant shall be submitted before the jailor, where the prisoner has to be confined.
Levy of fine (Section 421- 424)
Warrant for levy of fine
When the court has sentenced the accused to a fine, the court may take appropriate actions to realize the fine in compliance with Section 421(1).
- Issue a warrant concerning levy of fine.
- Sale of any belonging to the offender.
- Issue a warrant to the district collector for the said purpose.
Exceptions to levy of fine
- If due to default in payment of fine, the offender has been imprisoned; or
- If the court has ordered the payment of compensation out of the fine as per Section 357.
As per Section 421(2), the state government may provide the procedure/ method in which the warrant issued to be executed or following Section 421(3), where the district collector was issued a warrant concerning the realization of fine, the collector may execute the same in accordance with the law concerning recovery of arrears of land revenue. Most importantly, the warrant so issued shall not be executed via arrest of the offender as the case may be.
Effect of warrant (Section 422)
A warrant issued by the court as per Section 421(1)(a) shall be executed:
- Within the locale jurisdiction of that court, or
- May extend outside its jurisdiction, if authorized the sale of any belonging to the offender.
When the warrant was issued to the district magistrate, the execution shall be extendable up to the local jurisdiction of the property so found.
References
- https://legislative.gov.in/sites/default/files/A1974-02.pdf
- http://legislative.gov.in/sites/default/files/COI-updated.pdf
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