APPEALS - CRIMINAL PROCEDURE CODE

 Appeals

"The word "appeal" means the right of carrying a particular case from an inferior court to a superior court with a view to ascertain whether the judgement is sustainable. An appeal is a creature of statute only and a right of appeal exists where expressly given. A right of appeal is neither an inherent right nor a fundamental right. Right to appeal is not merely a procedural right. It is a substantive right as well. This right accrues on the date of lis though it may be exercised later. Section 372 provides that no appeal lie from any judgment or order of a criminal court except as provided for this Code or any other law for the time being in force."

Right of victim to file appeal: In Section 372 a proviso was inserted by Cr.P.C. (Amendment) Act, 2008, provides that the victim shall have a right to prefer an appeal against any order passed by the court

(i) Acquitting the accused; or

(ii) Convicting for a lesser offence; or

(iii) 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 373 provides that an appeal from order requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour under Section 117 and 121 lies to the Court of Session.

Appeal from conviction [Section 374]

Provisions of Section 374 are subject to exceptions constituted by Section 375 [conviction on a plea of guilty), and Section 376 [no appeal in petty cases]. The right of appeal against conviction is vested in the person convicted and such person only may exercise the right .

(1)Trial Court-High Court in exercise of its extraordinary original jurisdiction.

Appellate COURT -Supreme Court

(2) Trial court -Session Judge or Additional Session Judge

Appellate COURT -High Court

(3) (a) TRIAL COURT -Any other court (if the sentence of more than 7 years R. I is passed by such Court)

Appellate COURT -High Court

(b) TRIAL COURT- Any other court (if the sentence passed does not exceed 7 years R.I)

Appellate COURT -Session Judge

(4) TRIAL COURT- Sentence under Section 325 [by C.J.M. on submission of proceedings for severe punishment by Magistrate not empowered to pass sufficiently severe sentence.]

Appellate COURT -Session Judge

(5) TRIAL COURT-Order or sentence by any court under Section 360 (release on probation of good conduct or after admonition)

Appellate COURT -Session Judge

Non-appealable cases [Sections 375-376]

Sections 375-376 provides for cases where no appeal lies.

• High Court-Where conviction is on plea of guilty of accused.
• Court of Session, Metropolitan Magistrate or Magistrate of First Class or Second Class-No appeal lies, except as to the extent or legality of the sentence if the accused pleads guilty [Section 375].
• High Court-Imprisonment for a term not exceeding 6 months or fine not exceeding Rs 100 or both.
• Court of Session, Metropolitan Magistrate-Imprisonment not exceeding 3 months, or fine not exceeding Rs. 200 or both.
• Magistrate of First Class-Only a sentence  fine not exceeding Rs. 100.
• A Magistrate (in summary trial) -Only a sentence of fine not exceeding Rs. 200 [Section 376].

Where any other punishment is combined with the above sentences, an appeal may be brought against such sentence, but such sentence shall not be appealable merely on the following grounds:

1.  That the person convicted is ordered to furnish security for keeping peace, or,
2.  That a direction of imprisonment on the fault of payment of fine is included in sentence, or 
3.  That more than one sentence of fine is passed in the case, if the total amount of fine does not exceed the amount specified in Section 376.

Appeal by the Government against sentence [Section 377]

Section 377 provides that the State Government or the Central Government (where the offence has been investigated by the Delhi Special Police Establishment) may in case of conviction on a trial held by any court other than 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.

The State Government may appeal in cases whether instituted on police report or on complaint of otherwise. The Central Government may appeal only in the cases instituted on police report.

Appeal against acquittal [Section 378]

Section 378 provides that against an order of acquittal passed by the a Magistrate in a cognizable and non-bailable case, the District Magistrate may direct the Public Prosecutor to present appeal to Court of Session. [Section 378 (1) (a)] The State Government may direct the Public Prosecutor to file an appeal in the High Court.

(i) From an order (original or appellate) of acquittal passed by any court other than a High Court.

(ii) From an order of acquittal passed by the Court of Session in revision.

Similarly Section 378(2) provides that the Central Government may also direct the Public Prosecutor to file an appeal in cases in which the offence has been investigated by the Delhi Police Establishment. Leave of the High Court is necessary for entertaining the appeal under Section 378 (1) or 378 (2).

Section 378(4) provides that a complainant may also file an appeal against acquittal with special leave of the High Court. Section 378(5) provides that where complainant is public servant, the limitation period of filing such appeal is 6 months and where he is a private person it is 60 days from the date of order of acquittal.

Effect of death of complainant on appeal:

• Where death occurs before leave to appeal: appeal cannot be filed by anybody else.
• Where death occurs after appeal: the appeal does not abate.
• In case of public servant, his successor can file appeal.

Section 379 provides that where the High Court has on appeal reversed an order of acquittal and convicted and sentenced an accused to death or to imprisonment for life or to imprisonment for a term of 10 years or more he may appeal to the Supreme Court.

Section 380 provides that a non-appealable sentence against an accused person becomes appealable if the judgement against any of the co-accused person tried at the same trial is appealable.

Powers of the Appellate Court [Section 386]

Section 386 provides that an appellate court may exercise following powers:

If there is no sufficient ground for interfering, it may dismiss the appeal.

It may make any amendment or any consequential or incidental order that may be just or proper.

The sentence shall not be enhanced without giving the accused an opportunity of showing cause against such enhancement. The accused shall not be brought up, or required to attend to hear judgement unless the appellate court otherwise directs.

Suspension of sentence pending the appeal; release of appellant on bail [Section 389]

Section 389 provides that the appellate court may suspend the execution of order or sentence during pendency of the appeal and may also release the convicted person on bail or on his own bond Where the accused is convicted of an offence punishable with death, life imprisonment or imprisonment of not les than 10 years he cannot be released on bail or on his own bond without giving opportunity to the Public Prosecutor for showing cause against such release.

Section 389 (3) provides that in the following cases, if the convicting court is satisfied that the person convicted intends to present an appeal, it shall release him on bail for such period as will afford sufficient time to present appeal and to obtain order of the appellate court:-

•  Where convicted person, being on bail, in sentenced to imprisonment for a term not exceeding 3 years or,

•  Where the offence is bailable one and he is on bail.

During the period of such bail, sentence shall be deemed to be suspended.

Section 391 empowers the appellate court for taking further evidence in appeal. Section 392 lays down procedure where the judges of the appellate court are equally divided.

When an appeal is heard by a High Court before a bench of judges and they are divided in opinion, the appeal with their opinion shall be laid before another judge of the High Court, the judgment or order shall follow the opinion of that another judge. Where the appeal is laid before another judge, if that judge so requires, the appeal shall be re-heard and decided by a larger bench of judges.

Section 393 provides that judgements and orders of an appellate court shall be final except in the cases provided for in Section 377, 378, 384 (4) or Chapter XXX.

Abatement of appeals [Section 394]

Section 394 provides that every appeal under Section 377 and 378 finally abates on the death of the accused. Every other appeal (except an appeal from a sentence of fine) finally abates on the death of the appellant.

Where an appeal is against conviction and sentence of death or the imprisonment and the appellant dies during pendency of the appeal, any of his near relatives (i.e. parent, spouse, lineal descendant, brother or sister) may within 30 days of death of the appellant, apply to the court of appeal for leave to continue the appeal and if leave is granted, the appeal shall not abate.