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• CHAPTER XXIX
• APPEALS
•
372. No appeal to lie unless otherwise provided.
•
373. Appeal from orders requiring security or refusal to accept or rejecting
surety for keeping peace or good behaviour.
•
374. Appeals from convictions.
•
375. No appeal in certain cases when accused pleads guilty.
•
376. No appeal in petty cases.
•
377. Appeal by the State Government against sentence.
•
378. Appeal in case of acquittal.
•
379. Appeal against conviction by High Court in certain cases.
•
380. Special right of appeal in certain cases.
•
381. Appeal to Court of Session how heard.
•
382. Petition of appeal.
•
383. Procedure when appellant in jail.
•
384. Summary dismissal of appeal.
•
385. Procedure for hearing appeals not dismissed summarily.
•
386. Powers of the Appellate Court.
•
387. Judgments of Subordinate Appellate Court.
•
388. Order of High Court on appeal to be certified to lower Court.
•
389. Suspension of sentence pending the appeal; release of appellant on bail.
•
390. Arrest of accused in appeal from acquittal.
•
391. Appellate Court may take further evidence or direct it to be taken.
•
392. Procedure where Judges of Court of Appeal are equally divided.
•
393. Finality of judgments and orders on appeal.
•
394. Abatement of appeals.
Introduction
•
An appeal is a complaint to a superior court of an injustice done or error
committed by an inferior one, whose judgment or decision the court above is
called upon to correct or reverse.
•
An appeal is a creature of statute and there can be no inherent right of appeal
from any judgment or determination unless an appeal is expressly provided for
by the law itself.
•
The appeal as a corrective procedure would obviously be far less relevant in
cases where the chances of error in the judgment of the trial court are very
remote. Further, the review of the case in appeal means additional time and
expense for the final disposal of the case. Therefore in petty cases where the
possible error in the decision of the lower court is more likely to be of
insignificant nature, it would be inexpedient to allow appeals in such cases.
These considerations have found expression in the provisions of the Code. In
cases where the accused has been convicted on his own plea of guilty, the Code
justifiably disallows any appeal against the order of conviction, but fairly
permits under certain circumstances an appeal as to the extent or legality of
the sentence passed on the accused person. It will further be seen that the
Code does not generally favour a second appeal.
•
The chapter would consider the circumstances in which appeals can be filed
against the orders of convictions or of acquittals and also the conditions in
which the government can appeal on the ground of inadequacy of the sentence
passed on the accused person.
•
The chapter further deals with the form of appeal, the procedure for its
filing, the manner in which it is heard, the powers of the appellate court in
disposing of an appeal, the abatement of appeal under certain circumstances,
and other ancillary matters.
• Appeals: Synopsis
• Nature of right of appeal
•
Statutory right & not inherent right
• Where no appeal
•
(1) No appeal unless provided by law.—Section 372
•
(2) No appeal in petty cases.—Section 376
•
(3) No appeal where the accused is convicted on his plea of guilty. — S. 375
• Who can file appeal; when can appeal be
filed; Forum of appeal
• Appeal by accused:
•
Appeal against conviction: S. 374
•
Except S. 375, 376
•
Appeal against sentence only where conviction on plea of guilty
• Appeal by State Govt.
•
Appeal for enhancement of sentence; S. 377
•
Appeal against acquittal; S. 378
• Appeal by Complainant
•
Appeal against acquittal; S. 378(4), (5) (leave of high court is required)
• Appeal by Victim; S. 372 proviso
•
Appeal against acquittal
•
Against conviction for lesser offence
•
Against inadequate compensation
• Powers of Appellate Court;
• S. 386 Cr.P.C; Powers
of the Appellate Court.
• S. 389 Cr.P.C; Suspension of sentence
pending the appeal; release of appellant on bail.
• S. 390 Cr.P.C; Arrest of accused in appeal
from acquittal.
• S. 391 Cr.P.C; Appellate Court may take
further evidence or direct it to be taken.
• Procedure and other ancillary matters;
•
Petition of Appeal (S.382 & 383)
•
Appeal to COS how heard (S.381)
• By Session Judge, Addl. Session Judge
•
In case of trial by JMIIC - by Asst. Session Judge or CJM
•
Addl. Session Judge, Asst. Session Judge or CJM can hear appeal only when
Session Judge make over the appeal by general or special order.
•
Procedure in case of summary dismissal of appeal (S.384)
•
Procedure in case where appeal not dismissed summarily (S.385)
•
Other Ancillary Matters
•
S.387 Judgments of subordinate appellate courts (Chapter 27 applicable)
•
S.388 Order of High Court on appeal to be certified to lower Court.
• S.392
Procedure where Judges of Court of Appeal are equally divided.
•
S.393 Finality of judgments and orders on appeal.
•
S.394 Abatement of appeals
•
No power to allow withdrawal of appeal
•
No dismissal of appeal for default or appeal becoming infructuous.
•
Legal aid in appeal cases; Hussainara
Khatoon v. State of Bihar 1979 AIR 1369
•Where no appeal
•
No appeal in certain cases
•
(1) No appeal unless provided by law.—Section 372
•
(2) No appeal in petty cases.—Section 376
•
(3) No appeal where the accused is convicted on his plea of guilty. — S. 375
• 372. No appeal to lie unless
otherwise provided.—
•
No appeal shall lie from any judgment or order of a Criminal Court except as provided
for by this Code by any other law for the time being in force:
•
[Provided that the victim shall have a right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for a lesser offence
or imposing inadequate compensation, and such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of such Court.]
• 376. No appeal in petty cases.—
•
Notwithstanding anything contained in section 374, there shall be no appeal by
a convicted person in any of the following cases, namely:—
•
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding
six months or of fine not exceeding one thousand rupees, or of both such
imprisonment and fine;
•
(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence
of imprisonment for a term not exceeding three months or of fine not exceeding
two hundred rupees, or of both such imprisonment and fine;
•
(c) Where a Magistrate of the first class passes only a sentence of fine not exceeding
one hundred rupees; or
•
(d) where, in a case tried summarily, a Magistrate empowered to act under section
260 passes only a sentence of fine not exceeding two hundred rupees:
• Provided that an
appeal may be brought against such sentence if any other punishment is combined
with it, but such sentence shall not be appealable merely on the ground—
•
(i) that the person convicted is ordered to furnish security to keep the peace;
or
•
(ii) that a direction for imprisonment in default of payment of fine is
included in the sentence; or
•
(iii) that more than one sentence of fine is passed in the case, if the total amount
of fine imposed does not exceed the amount hereinbefore specified in respect of
the case.
• 375. No appeal in certain cases when
accused pleads guilty.—
•
Notwithstanding anything contained in section 374, where an accused person has
pleaded guilty and has been convicted on such plea, there shall be no appeal,—
•
(a) if the conviction is by a High Court; or
•
(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate
of the first or second class, except as to the extent or legality of the sentence.
•Who can file appeal?
• Accused
· Against
acquittal
· If
convicted on plea of guilty – against sentence
• State Government: 377
& 378(1), (2), (3)
•
Against acquittal
•
For enhancement of sentence
• Complainant: 378 (4), (5)
•
Victim: Section 372 proviso
• Appeals from convictions by accused –
Forum of Appeal
•
(1) Appeal to the Supreme Court [S. 374(1)]
•
(2) Appeal to the High Court.— [S. 374(2)]
•
(3) Appeal to the Court of Session.—[S. 374(3)]
•
(4) Special right of appeal in certain cases.— (S. 380)
• 374. Appeals from convictions.—
•
(1) Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
•
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other court in which a sentence of imprisonment
for more than seven years [has been passed against him or against any other
person convicted at the same trial], may appeal to the High Court.
•
(3) Save as otherwise provided in sub-section (2), any person,—
•
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant
Sessions Judge or Magistrate of the first class, or of the second class, or
•
(b) sentenced under section 325, or
•
(c) in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate,
•
may appeal to the Court of Session.
• (1) Appeal to the Supreme Court [S.
374(1)]
•
(1) Any person convicted on a trial held by a High Court in its extraordinary
original criminal jurisdiction may appeal to the Supreme Court.
•
Since such trials are extremely rare, it was felt that, in the interests of
finality to the proceedings appeal should lie direct to the Supreme Court and
not to another bench of the same High Court.
•
Where the High Court has, on appeal, reversed an order of acquittal of an accused
person and convicted and sentenced him to death or to imprisonment for life or
to imprisonment for a term of ten years or more, he may appeal as of right to
the Supreme Court. [S. 379]
• 379. Appeal against conviction by
High Court in certain cases.—Where the High Court has, on appeal,
reversed an order of acquittal of an accused person and convicted him and
sentenced him to death or to imprisonment for life or to imprisonment for a
term of ten years or more, he may appeal to the Supreme Court.
•
By this Section 379 the provisions of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970 have been incorporated in the Code.
•
Criminal appellate Jurisdiction of Supreme Court
•
The Constitution provides that an appeal shall lie to the Supreme Court from any
judgment, decree or final order of a High Court, if the High Court certifies that
the case involves a substantial question of law as to the interpretation of the
Constitution. [Art. 132(1)]
•
Further, where the High Court has refused to give such a certificate the Supreme
Court may, if it is satisfied that the case involves a substantial question of
law as to the interpretation of the Constitution, grant special leave to appeal
from such judgment, decree or final order. [Art. 132(2)]
•
if such a certificate is given, or such leave is granted, any party in the case
may appeal to the Supreme Court on the ground that any such question as aforesaid
has been wrongly decided and, with the leave of the Supreme Court, on any other
ground. [Art. 132(3)]
•
Article 134(1) of the Constitution, inter alia provides that an appeal shall
lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court, if the High Court:
•
(i) has withdrawn for trial before itself any case from any court subordinate
to its authority and has in such trial convicted the accused person and
sentenced him to death; or
•
(ii) certifies that the case is a fit one for appeal to the Supreme Court.
•
Article 136(1) of the Constitution provides that the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or
tribunal.
• Appeal to the High Court
•
S. 374(2) Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other court in which a sentence of
imprisonment for more than seven years [has been passed against him or against
any other person convicted at the same trial], may appeal to the High Court.
• Appeal to the Court of Session
•
(3) Save as otherwise provided in sub-section (2), any person,—
•
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant
Sessions Judge or Magistrate of the first class, or of the second class, or
•
(b) sentenced under section 325, or
•
(c) in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate,
•
may appeal to the Court of Session.
• 380. Special right of appeal in
certain cases.—
•
Notwithstanding anything contained in this Chapter, when more persons than one
are convicted in one trial, and an appealable judgment or order has been passed
in respect of any of such persons, all or any of the persons convicted at such
trial shall have a right of appeal.
• 377. Appeal by the State Government
against sentence.—
•
(1) Save as otherwise provided in sub-section (2), the State Government may, in
any case of conviction on a trial held by any Court other than a High Court, direct
the Public Prosecutor to present [an appeal against the sentence on the ground
of its inadequacy—
•
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
•
(b) to the High Court, if the sentence is passed by any other Court.]
•
(2) If such conviction is in a case in which the offence has been investigated
by the Delhi Special Police Establishment, constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, [the
Central Government may also direct] the Public Prosecutor to present [an appeal
against the sentence on the ground of its inadequacy—
•
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
•
(b) to the High Court, if the sentence is passed by any other Court].
•
(3) When an appeal has been filed against the sentence on the ground of its inadequacy,
[the Court of Session or, as the case may be, the High Court] shall not enhance
the sentence except after giving to the accused a reasonable opportunity of
showing cause against such enhancement and while showing cause, the accused may
plead for his acquittal or for the reduction of the sentence.
•
The right to appeal against inadequacy of the sentence has been given only to the
State and not to the complainant or any other person. However that does not
mean that the complainant or any other person cannot move the High Court {or
Court of Session) In revision for this purpose.
• S. 386 (c) in an appeal for
enhancement of sentence—
•
(iii) with or without altering the finding, alter the nature or the extent, or,
the nature and extent, of the sentence, so as to enhance or reduce the same;
• 401. High Court's powers of
revision.—
•
(1) In the case of any proceeding the record of which has been called for by
itself or which otherwise comes to its knowledge, the High Court may, in its
discretion, exercise any of the powers conferred on a Court of Appeal by sections
386, 389, 390 and 391 or on a Court of Session by section 307, and, when the
Judges composing the Court of Revision are equally divided in opinion, the case
shall be disposed of in the manner provided by section 392.
•
*****
• 378. Appeal in case of acquittal.—
•
(1) Save as otherwise provided in sub-section (2), and subject to the
provisions of sub-sections (3) and (5),—
•
(a) the District Magistrate may, in any case, direct the Public Prosecutor to
present an appeal to the Court of Session from an order of acquittal passed by
a Magistrate in respect of a cognizable and non-bailable offence;
•
(b) the State Government may, in any case, direct the Public Prosecutor to
present an appeal to the High Court from an original or appellate order of
acquittal passed by any Court other than a High Court [not being an order under
clause (a)] or an order of acquittal passed by the Court of Session in
revision.]
•
(2) If such an order of acquittal is passed in any case in which the offence
has been investigated by the Delhi Special Police Establishment constituted
under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any
other agency empowered to make investigation into an offence under any Central Act
other than this Code, the Central Government may, subject to the provisions of
sub-section (3), also direct the Public Prosecutor to present an appeal—
•
(a) to the Court of Session, from an order of acquittal passed by a Magistrate
in respect of a cognizable and non-bailable offence;
•
(b) to the High Court from an original or appellate order of an acquittal
passed by any Court other than a High Court [not being an order under clause
(a) or an order of acquittal passed by the Court of Session in revision].
•
(3) [No appeal to the High Court] under sub-section (1) or sub-section (2)
shall be entertained except with the leave of the High Court.
•
(4) If such an order of acquittal is passed in 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.
•
(5) No application under sub-section (4) for the grant of special leave to
appeal from an order of acquittal shall be entertained by the High Court after
the expiry of six months, where the complainant is a public servant, and sixty
days in every other case, computed from the date of that order of acquittal.
•
(6) If, in any case, the application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal is refused, no appeal from
that order of acquittal shall lie under sub-section (1) or under sub-section
(2).
• Appeal against an order of acquittal
•
Appeal against an order of acquittal is an extraordinary remedy. Where the
initial presumption of innocence in favour of the accused has been duly
vindicated by a decision of a competent court, an appeal against such a
decision of acquittal means putting the interests of the accused once again in serious
jeopardy. Therefore the restrictions on the preferring of an appeal against acquittal
as envisaged by Section 378 are intended to safeguard the interests of the
accused person and to save him from personal vindictiveness.
•
According to the first four sub-sections of Section 378,
•
an appeal against an order of acquittal can be preferred only i) by the
government, and ii) in a case instituted upon complaint, by the government as
well as by the complainant.
•
Secondly, the right of such appeal can be exercised only after obtaining the
leave of the High Court.
•
Thirdly, whether the order of acquittal is passed by any Magistrate or by any
Sessions Judge, and whether the offence of which the accused is acquitted is a
major or a minor offence, the appeal in every case of such acquittal could be
made only to the High Court.
•
Fourthly, according to sub-section (6) an appeal by the State under sub-section
(1) or sub-section (2) is barred in case the private complainant has failed to
obtain special leave to appeal under sub-section (4).
•
Fifthly, the application for grant of leave to appeal must be filed within the
time prescribed by sub-section (5); and the appeal must be filed within the
period of limitation prescribed by Article 114 of the Schedule of the
Limitation Act, 1963. In an appeal against acquittal a court has to remind
itself of set of cardinal rules. They are that
•
(i) there is a presumption of innocence in favour of the accused which has been
strengthened by the acquittal of the accused by the trial court:
•
(ii) if two views are possible, a view favourable to the accused should be
taken;
•
(iii) the trial judge had the advantage of looking at the demeanour of the
witnesses, and
•
(iv) the accused is entitled to a reasonable benefit of doubt, a doubt which a
thinking man will reasonably, honestly and consciously entertain. The court can
interfere with the order of acquittal only when:
•
a. the appreciation of evidence by the trial court is perverse or the
conclusion drawn by it cannot be drawn on any view of the evidence;
•
b. where the application of law is improperly done;
•
c. where there is substantial omission to consider the evidence existing on
record;
•
d. the view taken by the acquitting court is impermissible on the evidence on
record; or
•
e. if the order of acquittal is allowed to stand it will result in the
miscarriage of justice.
•
The appellate court should seek an answer to the question whether the findings
of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.
If the appellate court answers the above questions in the negative the order of
acquittal is not to be disturbed. Conversely, if the appellate court holds, for
reasons to be recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities it can then and then only reappraise
the evidence to arrive at its own conclusion.
• Chandrappa and Ors. vs. State of Karnataka,
(2007) 4 SCC 415
•
In an appeal against acquittal a court has to remind itself of set of cardinal rules.
They are that
•
“(1) An appellate court has full power to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is founded.
•
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of law.
•
(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good
and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring
mistakes’, etc. are not intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such phraseologies are more in the nature
of ‘flourishes of language’ to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
•
(4) An appellate court, however, must bear in mind that in case of acquittal, there
is double presumption in favour of the accused.
•
Firstly, the presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law.
•
Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial
court.
•
(5) If two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the
trial court.”
• Kallu alias Masih and Ors. vs. State
of M.P., (2006) 10 SCC 313,
•
it held that;
•
“While deciding an appeal against acquittal, the power of the Appellate Court is
no less than the power exercised while hearing appeals against conviction. In both
types of appeals the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the trial court is based on
evidence and the view taken is reasonable and plausible. It will not reverse
the decision of the trial court merely because a different view is possible.
The appellate Court will also bear in mind that there is a presumption of
innocence in favour of the accused and the accused is entitled to get the benefit
of any doubt. Further if it decides to interfere, it should assign reasons for
differing with the decision of the trial Court”.
•
Under Article 114, Limitation Act, in an appeal from an order of acquittal by the
State, the period of limitation is 90 days from the date or the order appealed
from; whereas in an appeal from an order of acquit- tad in any case Instituted
upon complaint, the period Is 30 days from the date of the grant of special
leave. Thus there is a clear distinction between the two types of appeals with
regard to terminus a quo under Article 114. It is, therefore, not necessary to
wait until the grant of leave by the High Court to present a memorandum of
appeal against acquittal at the instance of the State. Thus, an appeal can be
filed by the State within 90 days from the date of the order of acquittal and a
prayer may be included in that appeal for entertaining the appeal under Section
378(3). If the leave sought for is not granted by the High Court, the appeal is
not entertained and stands dismissed.
• VICTIM’s Right to appeal
• 372. No appeal to lie unless
otherwise provided.—
•
No appeal shall lie from any judgment or order of a Criminal Court except as provided
for by this Code by any other law for the time being in force:
•
[Provided that the victim shall have a right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for a lesser offence
or imposing inadequate compensation, and such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of such Court.]
• Section 2(wa) Cr.P.C. defines a
victim thus –
•
“Victim” means a person who has suffered any loss or injury caused by reason of
the act or omission for which the accused person has been charged and the expression
“victim” includes his or her guardian or legal heir.
•
The text of the proviso to Section 372 Cr.P.C. is as follows :
•
“Provided that the victim shall have a right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for a lesser offence
or imposing inadequate compensation and such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of such court”.
•
The proviso gives right to a victim to prefer an appeal against an order in the
following eventualities:
•
Against an order of acquittal;
•
Against an order of conviction for a lesser offence; and
•
Against an order of imposition of inadequate compensation.
• Mallikarjun Kodagali (Dead) through Lrs.
v. State of Karnataka 2019 CRI. L. J. 532
• A
three Judge Bench comprising Justice Madan B. Lokur ,Justice S. Abdul Nazeer
and Dipak Gupta was considering the following questions;
•
1.Whether a ‘victim’ as defined in the Cr.P.C. has a right of appeal in view of
the proviso to Section 372 of the Cr.P.C. against an order of acquittal in a
case where the alleged offence took place prior to 31st December, 2009 but the order
of acquittal was passed by the Trial Court after 31st December, 2009?
•
2.Whether the ‘victim’ must apply for leave to appeal against the order of acquittal?
•
The majority answered the first question in the affirmative and second question
in the negative.
• Background
•
Kodagali, a victim of attack filed, FIR. The Sessions court, after trial,
acquitted the accused. He preferred appeal before the High court under the
proviso to Section 372 of the Cr.P.C. but it was dismissed as not maintainable
on the ground that the proviso to Section 372 of the Cr.P.C. came into the
statute book with effect from 31st December, 2009 but the incident had occurred
well before that date. He then filed another appeal under the provisions of
Section 378(4) of the Cr.P.C. This was also dismissed as not maintainable as
the appeal was not filed in a case instituted upon a complaint before a
Magistrate. He assailed both these orders before the Apex court.
•
The majority judgment takes note of decisions of various High courts (full bench
and division bench) and observed: “The view expressed by the High Courts is that
if the judgment of the Trial Court is delivered after the proviso came into
force, that is, after 31st December, 2009 then, irrespective of the date of the
offence, the victim can avail a right of appeal. In some of the decisions it
has been held that the right of appeal is not an absolute right conferred on
the victim, but it is subject to an application seeking special leave to
appeal.”
•
Victim can file appeal against acquittal order passed after 31 Dec 2009
•
The judgment breaks the ice in the beginning itself when it said: “Whether a ‘victim’
as defined in the Cr.P.C. has a right of appeal in view of the proviso to Section
372 of the Cr.P.C. against an order of acquittal in a case where the alleged
offence took place prior to 31st December, 2009 but the order of acquittal was
passed by the Trial Court after 31st December, 2009? Our answer to this
question is in the affirmative.
The
next question is: Whether the ‘victim’ must
apply for leave to appeal against the order of acquittal? Our answer to this question
is in the negative.”
•
It added: “The significant date is the date of the order of acquittal passed by
the Trial Court. In a sense, the cause of action arises in favour of the victim
of an offence only when an order of acquittal is passed and if that happens
after 31st December, 2009 the victim has a right to challenge the acquittal, through
an appeal. Indeed, the right not only extends to challenging the order of acquittal
but also challenging the conviction of the accused for a lesser offence or imposing
inadequate compensation. The language of the proviso is quite explicit, and we
should not read nuances that do not exist in the proviso.”
• Victim entitled to file appeal against
acquittal
•
The majority judgment reached the following conclusion: “On the basis of the
plain language of the law and also as interpreted by several High Courts and in
addition the resolution of the General Assembly of the United Nations, it is quite
clear to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be
entitled to file an appeal before the Court to which an appeal ordinarily lies
against the order of conviction.”
• 378(4) CrPC has no effect on 372 CrPC
•
On the aspect of necessity of seeking Leave from the High court to file appeal,
the majority said: “The language of the proviso to Section 372 of the Cr.P.C.
is quite clear, particularly when it is contrasted with the language of Section
378(4) of the Cr.P.C. The text of this provision is quite clear and it is
confined to an order of acquittal passed in a case instituted upon a complaint.
The word ‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers
to any allegation made orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR, and therefore it is not
at all necessary to consider the effect of a victim being the complainant as
far as the proviso to Section 372 of the Cr.P.C. is concerned.”
•
The bench also said that decision rendered in National Commission for Women by
two judge bench of the Apex court has been misunderstood and misinterpreted and
is clearly distinguishable on facts and is was only an obiter not binding upon
a three judge bench. It also said that Section 372 of the Cr.P.C. must also be
given a meaning that is realistic, liberal, progressive and beneficial to the
victim of an offence. It then set aside the High court order of dismissal of
appeals and directed it to hear and decide the appeal filed by Kodagali.
POWERS OF APPELLATE COURT
1. Power to grant bail; Sections
389 and 390 deal with suspension of sentence pending the appeal, release of
appellant on bail, arrest of the accused in appeal from acquittal and his
release on bail etc.
2.
Power of the appellate court to obtain further evidence Section
391
3.
Powers of the appellate court in
disposing of appeals Section 386
389. Suspension of sentence pending the
appeal; release of appellant on bail.—
(1)
Pending any appeal by a convicted person, the Appellate Court may, for reasons
to be recorded by it in writing, order that the execution of the sentence or
order appealed against be suspended and, also, if he is in confinement, that he
be released on bail, or on his own bond:
[Provided
that the Appellate Court shall, before releasing on bail or on his own bond a
convicted person who is convicted of an offence punishable with death or
imprisonment for life or imprisonment for a term of not less than ten years, shall
give opportunity to the Public Prosecutor for showing cause in writing against
such release:
Provided
further that in cases where a convicted person is released on bail it shall be
open to the Public Prosecutor to file an application for the cancellation of
the bail.]
(2)
The power conferred by this section on a Appellate Court may be exercised also
by the High Court in the case of an appeal by a convicted person to a Court
subordinate thereto.
(3)
Where the convicted person satisfies the Court by which he is convicted that he
intends to present an appeal, the Court shall,—
(i)
Where such person, being on bail, is sentenced to imprisonment for a term not exceeding
three years, or
(ii)
where the offence of which such person has been convicted is a bailable one,
and he is on bail, order that the convicted person be released on bail, unless
there are special reasons for refusing bail, for such period as will afford
sufficient time to present the appeal and obtain the orders of the Appellate
Court under sub-section (1); and the sentence of imprisonment shall, so long as
he is so released on bail, be deemed to be suspended.
(4)
When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment
for life, the time during which he is so released shall be excluded in
computing the term for which he is so sentenced.
Suspension meaning
•
“Suspension” means to take or withdraw the sentence for the time being. It is an
act of keeping the sentence in abeyance at the pleasure of the person who is
authorised to suspend the sentence, and if no conditions are imposed, the
person authorised to suspend the sentence has the right to have the offender
rearrested and direct that he should undergo the rest of the sentence without
assigning any reason.
•
Section 389 (1) and (2) of Cr.P.C. deals with a situation where convicted person
can get a Bail from appellate court after filing the criminal appeal. Section
389 (3) deals with a situation where the trial court itself can grant a bail to
convicted accused enabling him to prefer an appeal
• Suspension may be
•
Of Sentence
•
Of Conviction
• Navjot Singh Sidhu v. State of Punjab and
Anr AIR 2007 SC 1003
•
The appellant a sitting Member of Parliament was convicted under S. 304, Part II
of IPC and sentenced to imprisonment to 3 years R.I. Immediately after the pronouncement
of judgment by the High Court, he resigned from the membership of the Lok
Sabha. The appellant filed special leave petition in which leave has been
granted on 12-1-2007 and he has been released on bail and thus the execution of
the sentence imposed upon him has been suspended. The appellant also moved an application
for suspending the order of conviction passed against him by the High Court. It
is stated in the application that for maintaining probity and moral values in
public life he resigned from the membership of the Lok Sabha after his
conviction. However, he wants to remain in public life and, therefore, wants to
contest the election again and face the electorate in the changed scenario.
•
The reason for seeking a stay or suspension of order of conviction arises on account
of S. 8(3) of The representation of the People Act, 1951 by operation of which
he has incurred a disqualification for being chosen as, and for being, a member
of either House of Parliament. The incident in question happened all of a
sudden without any pre-meditation. The deceased was wholly unknown to the
appellant. There was no motive for commission of the crime.
Blows
by fist were alleged to be given to deceased and no weapon was used. The
incident has no co-relation with the public life of the appellant which he entered
much later after the incident. The medical evidence does not conclusively
establish that the death occurred due to blow given on the head by the
appellant. In the FIR no role of causing injury on head of deceased was ascribed
to appellant. These features which touch upon the culpability of the appellant,
prima facie appear to be in his favour.
•
Under the provisions of Representation of the People Act it was not necessary for
the appellant to have resigned from the membership of the Parliament as he
could in law continue as M.P. by merely filing an appeal within a period of 3 months
and had he not adopted such a course he could have easily avoided incurring any
disqualification at least till the decision of the appeal. However, he has
chosen to adopt a moral path and has set high standards in public life by
resigning from his seat and in seeking to get a fresh mandate from the people.
In the event prayer made by the appellant is not granted he would suffer
irreparable injury as he would not be able to contest for the seat which he
held and has fallen vacant only on account of his voluntary resignation which
he did on purely moral grounds. The order of conviction passed by the High
Court deserves to be suspended.
390. Arrest of accused in appeal from
acquittal.—When an appeal is presented under section
378, the High Court may issue a warrant directing that the accused be arrested
and brought before it or any Subordinate Court, and the Court before which he
is brought may commit him to prison pending the disposal of the appeal or admit
him to bail.
391. Appellate Court may take further
evidence or direct it to be taken.—
(1)
In dealing with any appeal under this Chapter, the Appellate Court, if it
thinks additional evidence to be necessary, shall record its reasons and may either
take such evidence itself, or direct it to be taken by a Magistrate or, when
the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2)
When the additional evidence is taken by the Court of Session or the Magistrate,
it or he shall certify such evidence to the Appellate Court, and such Court
shall thereupon proceed to dispose of the appeal.
(3)
The accused or his pleader shall have the right to be present when the additional
evidence is taken.
(4)
The taking of evidence under this section shall be subject to the provisions of
Chapter XXIII, as if it were an inquiry.
386.
Powers of the Appellate Court. - After perusing such
record and hearing the appellant or his pleader, if he appears, and the Public
Prosecutor, if he appears, and in the case of an appeal under Section 377 or
Section 378, the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering, dismiss the
appeal, or may -
(a)
in an appeal from an order of acquittal, reverse such order and direct that
further inquiry be made, or that the accused be re-tried or committed for
trial, as the case may be, or find him guilty and pass sentence on him
according to law;
(b)
in an appeal from a conviction -
(i)
reverse the finding and sentence and acquit or discharge the accused, or order
him to be re-tried by a Court of competent jurisdiction subordinate to such
Appellate Court or committed for trial, or
(ii)
alter the finding, maintaining the sentence, or
(iii)
with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, but not so as to enhance the same;
(c)
in an appeal for enhancement of sentence -
(i)
reverse the finding and sentence and acquit or discharge the accused, or order
him to be re-tried by a Court competent to try the offence, or
(ii)
alter the finding maintaining the sentence, or
(iii)
with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, so as to enhance or reduce the same;
(d)
in an appeal from any other order, alter or reverse such order;
(e)
make any amendment or any consequential or incidental order that may be just or
proper :
Provided that the
sentence shall not be enhanced unless the accused has had an opportunity of
showing cause against such enhancement:
Provided further
that the Appellate Court shall not inflict greater punishment for the offence
which in its opinion the accused has committed, than might have been inflicted
for that offence by the Court passing the order or sentence under appeal.
|
•
S. 386 CrPC Powers of the Appellate Court. · dismiss the appeal, · in an appeal from an order of
acquittal o reverse
such order and direct that further inquiry be made, or o that
the accused be re-tried or committed for trial, as the case may be, or o find
him guilty and pass sentence on him according to law; · in an appeal from a conviction o (i)
reverse the finding and sentence and acquit or discharge the accused, or
order him to be re-tried by a Court of competent jurisdiction subordinate to
such Appellate Court or committed for trial, or o (ii)
alter the finding, maintaining the sentence, or o (iii)
with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, but not so as to enhance the same; · in an appeal for enhancement of
sentence - o (i)
reverse the finding and sentence and acquit or discharge the accused, or
order him to be re-tried by a Court competent to try the offence, or o (ii)
alter the finding maintaining the sentence, or o (iii)
with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, so as to enhance or reduce the same; · in
an appeal from any other order, alter or reverse such order; · make
any amendment or any consequential or incidental order that may be just or
proper : |
•PROCEDURE & OTHER ANCILLARY
MATTERS
•
Petition of Appeal (S.382 & 383)
•
Appeal to COS how heard (S.381)
•
By Session Judge, Addl. Session Judge
•
In case of trial by JMIIC - by Asst. Session Judge or CJM
•
Addl. Session Judge, Asst. Session Judge or CJM can hear appeal only when
Session Judge make over the appeal by general or special order.
•
Procedure in case of summary dismissal of appeal (S.384)
•
Procedure in case where appeal not dismissed summarily (S.385)
•
Other Ancillary Matters
•
S.387 Judgments of subordinate appellate courts (Chapter 27 applicable)
•
S.388 Order of High Court on appeal to be certified to lower Court.
•
S.392 Procedure where Judges of Court of Appeal are equally divided.
•
S.393 Finality of judgments and orders on appeal.
•
S.394 Abatement of appeals
•
No power to allow withdrawal of appeal
•
No dismissal of appeal for default or appeal becoming infructuous.
•
Legal aid in appeal cases; Hussainara Khatoon v. State of Bihar 1979 AIR 1369
382. Petition of appeal.—Every
appeal shall be made in the form of a petition in writing presented by the
appellant or his pleader, and every such petition shall (unless the Court to
which it is presented otherwise directs) be accompanied by a copy of the
judgment or order appealed against.
383. Procedure when appellant in jail.—If
the appellant is in jail, he may present his petition of appeal and the copies
accompanying the same to the officer in charge of the jail, who shall thereupon
forward such petition and copies to the proper Appellate Court.
381. Appeal to Court of Session how
heard.—
(1)
Subject to the provisions of sub-section (2), an appeal to the Court of Session
or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions
Judge:
Provided
that an appeal against a conviction on a trial held by a Magistrate of the
second class may be heard and disposed of by an Assistant Sessions Judge or a
Chief Judicial Magistrate.
(2)
An Additional Sessions Judge, Assistant Sessions Judge or a Chief Judicial Magistrate
shall hear only such appeals as the Sessions Judge of the division may, by
general or special order, make over to him or as the High Court may, by special
order, direct him to hear.
384. Summary dismissal of appeal.—
(1)
If upon examining the petition of appeal and copy of the judgment received under
section 382 or section 383, the Appellate Court considers that there is no sufficient
ground for interfering, it may dismiss the appeal summarily:
Provided
that—
(a)
no appeal presented under section 382 shall be dismissed unless the appellant
or his pleader has had a reasonable opportunity of being heard in support of
the same;
(b)
no appeal presented under section 383 shall be dismissed except after giving
the appellant a reasonable opportunity of being heard in support of the same,
unless the Appellate Court considers that the appeal is frivolous or that the
production of the accused in custody before the Court would involve such
inconvenience as would be disproportionate in the circumstances of the case;
(c)
no appeal presented under section 383 shall be dismissed summarily until the
period allowed for preferring such appeal has expired.
(2)
Before dismissing an appeal under this section, the Court may call for the record
of the case.
(3)
Where the Appellate Court dismissing an appeal under this section is a Court of
Session or of the Chief Judicial Magistrate, it shall record its reasons for
doing so.
(4)
Where an appeal presented under section 383 has been dismissed summarily under
this section and the Appellate Court finds that another petition of appeal duly
presented under section 382 on behalf of the same appellant has not been
considered by it, that Court may, notwithstanding anything contained in section
393, if satisfied that it is necessary in the interests of justice so to do,
hear and dispose of such appeal in accordance with law.
385. Procedure for hearing appeals not
dismissed summarily.—
(1)
If the Appellate Court does not dismiss the appeal summarily, it shall causenotice
of the time and place at which such appeal will be heard to be given—
(i)
to the appellant or his pleader;
(ii)
to such officer as the State Government may appoint in this behalf;
(iii)
if the appeal is from a judgment of conviction in a case instituted upon
complaint, to the complainant;
(iv)
if the appeal is under section 377 or section 378, to the accused, and shall
also furnish such officer, complainant and accused with a copy of the grounds
of appeal.
(2)
The Appellate Court shall then send for the record of the case, if such record is
not already available in that Court, and hear the parties:
Provided
that if the appeal is only as to the extent or the legality of the sentence,
the Court may dispose of the appeal without sending for the record.
(3)
Where the only ground for appeal from a conviction is the alleged severity of the
sentence, the appellant shall not, except with the leave of the Court, urge or be
heard in support of any other ground.
•
Other Ancillary Matters
•
S.387 Judgments of subordinate appellate courts (Chapter 27 applicable)
•
S.388 Order of High Court on appeal to be certified to lower Court.
•
S.392 Procedure where Judges of Court of Appeal are equally divided.
•
S.393 Finality of judgments and orders on appeal.
•
S.394 Abatement of appeals
•
No power to allow withdrawal of appeal
•
No dismissal of appeal for default or appeal becoming infructuous.
•
Legal aid in appeal cases; Hussainara Khatoon v. State of Bihar 1979 AIR 1369
387. Judgments of Subordinate Appellate
Court.—The rules contained in Chapter XXVII as to the judgment
of a Criminal Court of original jurisdiction shall apply, so far as may be
practicable, to the judgment in appeal of a Court of Session or Chief Judicial
Magistrate: Provided that, unless the Appellate Court otherwise directs, the
accused shall not be brought up, or required to attend, to hear judgment
delivered.
388. Order of High Court on appeal to
be certified to lower Court.—
(1)
Whenever a case is decided on appeal by the High Court under this Chapter, it
shall certify its judgment or order to the Court by which the finding, sentence
or order appealed against was recorded or passed and if such Court is that of a
Judicial Magistrate other than the Chief Judicial Magistrate, the High Court's judgment
or order shall be sent through the Chief Judicial Magistrate, and if such Court
is that of an Executive Magistrate, the High Court’s judgment or order shall be
sent through the District Magistrate.
(2)
The Court to which the High Court certifies its judgment or order shall there upon
make such orders as are conformable to the judgment or order of the High Court;
and if necessary, the record shall be amended in accordance therewith.
392. Procedure where Judges of Court of
Appeal are equally divided.— When an appeal under this
Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their
opinions, shall be laid before
another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion,
and the judgment or order shall follow that
opinion:
Provided that if
one of the Judges constituting the Bench, or, where the appeal is laid before
another Judge under this section, that Judge, so requires, the appeal shall be
re-heard and decided by a larger Bench of Judges.
393. Finality of judgments and orders
on appeal.—
Judgments
and orders passed by an Appellate Court upon an appeal shall be final, except
in the cases provided for in section 377, section 378, sub-section (4) of
section 384 or Chapter XXX:
Provided that
notwithstanding the final disposal of an appeal against conviction in any case,
the Appellate Court may hear and dispose of, on the merits,—
(a)
an appeal against acquittal under section 378, arising out of the same case, or
(b)
an appeal for the enhancement of sentence under section 377, arising out of the
same case.
394. Abatement of appeals.—
(1)
Every other appeal under section 377 or section 378 shall finally abate on the
death of the accused.
(2)
Every other appeal under this Chapter (except an appeal from a sentence of fine)
shall finally abate on the death of the appellant:
Provided
that where the appeal is against a conviction and sentence of death or of
imprisonment, and the appellant dies during the pendency of the appeal, any of
his near relatives may, within thirty days of the death of the appellant, apply
to the Appellate Court for leave to continue the appeal; and if leave is
granted, the appeal shall not abate.
Explanation.—In
this section, "near relative" means a parent, spouse, lineal descendant,
brother or sister.
• No power to allow withdrawal of
appeal
•
Once an appeal has been entertained by the appellate court, the appellate court
has no power to allow it to be withdrawn. It is the duty of the appellate court
to decide the appeal irrespective of the fact that the appellant either does
not choose to prosecute it or is unable to prosecute it for any reason. An appeal
can abate only on the death of the accused and not otherwise.
• No dismissal of appeal for default or
appeal becoming infructuous.
•
It is the duty of the appellant and his lawyer to remain present on the
appointed day, time and place when the appeal is posted for hearing. However, a
criminal appeal cannot be dismissed on the ground that no one appeared to
support it. The appellate court must consider whether there is sufficient ground
for interfering which implies judicial consideration on the merits. It has also
been pointed out that the right to dismiss criminal appeals for default for
appearance and then to restore the same, are not at all available to the
criminal appellate courts subordinate to the High Court, which are solely
governed by Section 386 and are devoid of ail inherent powers.
• Bani Singh v. State of U.P. {1996) 4 SCC
720
• (disposal of appeals when the
appellant or his counsel is not present)
1.
That the High Court cannot dismiss an appeal for non-prosecution simpliciter
without examining the merits;
2.
That the court is not bound to adjourn the matter if both the appellant and his
counsel/lawyer are absent;
3.
That the court may, as a matter of prudence or indulgence, adjourn the matter
but it is not bound to do so;
4.
That it can dispose of the appeal after perusing the record and judgment of
trial court;
5.
That if the appellant is in jail and cannot, on his own, come to court, it
would be advisable to adjourn the case and fix another date to facilitate the
appearance of the appellant-accused if his lawyer is not present, and if the
lawyer is absent and the court deems it appropriate to appoint a lawyer at the
State expense to assist it, nothing in law would preclude the court from doing
so; and
6.
That if the case is decided on merits in the absence of the appellant the
higher court can remedy the situation.
• Legal aid in appeal cases; Hussainara
Khatoon v. State of Bihar 1979 AIR 1369
•
it will be necessary to provide at State expense, a lawyer to an indigent accused
person, be he the respondent or the appellant, if he is unable to engage one
due to his poverty or indigence. If legal aid to an indigent accused person is
an essential component of “reasonable, fair and just” procedure in trial
proceedings, it is equally, if not more, so in appellate proceedings.
•
Firstly, it is not easy for a layman to understand all the legal implications
of the judgment of the trial court in the context of the appellate proceedings.
•
Secondly, in such proceedings, quite often, intricate questions of law and fact
are involved. They would require the skilful and careful handling by a
competent lawyer.
•
Thirdly, the State is represented in appeals by well qualified and experienced
Public Prosecutors.
•
Therefore, for the proper and just working of the adversary system at the appellate
stage, it is necessary that the indigent accused person is represented by a
competent lawyer.
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