APPEALS

(Ss.372 – 394)

BRIEF OUTLINE
INTRODUCTION
 Object & Scope.
 Meaning of Appeal.

CASES WHERE NO APPEAL LIES

 S.372 – Not provided by Law.
 S.376 – Petty Cases.
 S.375 – Plea of Guilt by the Accused.

APPEALS FROM CONVICTION

 To Supreme Court. [S.374(1), S.379, A.132, A.134, A.136]
 To High Court. [S.374(2)]
 To Court of Sessions. [S.374(3)]
 Special right of Appeal in cases where more than one person is convicted. [S.380]

APPEAL FROM ACQUITTAL – S.378

 Scope & Object.
 General Provisions.
 Rules to be followed by High Court.
 Factors to be considered.
 Duty of the High Court.
 Role of Public Prosecutor.
 Application for leave to appeal.
 Limitation.

SUMMARY DISPOSAL & HEARING OF APPEALS NOT DISMISSED SUMMARILY

 Summary Disposal of Appeal – Meaning. – S.384
 Examination of Petition of Appeal & Judgment.
 Calling for the Case Record.
 Reasonable opportunity of being heard.
 Procedure regarding Jail Appeals.
 Recording of reasons.
 No dismissal for non-appearance of the appellant.
 Procedure when the appeal is not dismissed summarily – S.385

POWERS OF THE APPELLANT COURT IN DISPOSING OF APPEALS – S.386

 Two Essential Conditions/Duties.
 No interference needed – Summarily dismissed.
 Appeal from Order of Acquittal.
 Appeal from order of conviction.
 Appeal for enhancement of Sentence.
 Power to pass consequential or incidental orders.
 No Dismissal in default.

ANCILLARY/MISCELLANEOUS PROVISIONS
 S.382 – Petition in appeal and its presentation
 S.391 – Power to obtain further evidence.
 S.392 – Opinion of Third Judge, when the Bench is equally divided.
 S.388 – Order of the High Court to be certified to the Trial Court.
 S.393 – Finality of Judgments & Orders of Appeal.
 S.394 – Abatement of Appeals.
 S.389 – Power of the Appellate Court to grant bail.

1
 INTRODUCTION

OBJECT & SCOPE

 The Judgments are pronounced by judges who are human beings, therefore the possibility
of bona fide human error cannot be rules in judgments as well.
 Therefore, it is of paramount importance to provide for review procedures of judgments
which are passed by subordinate courts.
 This helps in upholding public confidence in the judicial system and ensures that justice
is brought to the maximum number of people.
 It is pertinent to note that the right of appeal and review upholds the inherent values of
Article 21.

MEANING OF APPEAL
 Appeal is a complaint to a superior court of an injustice done or error committed by an
inferior court, whose judgement or decision the Court calls upon to correct or reverse.
 Appeal is statutory right and no one has an inherent right to appeal.
 If the statute does not provide for an appeal then no appeal would lie in such case.

CASES WHERE NO APPEAL LIES

NO APPEAL UNLESS PROVIDED BY LAW – S.372

 Appeal is not a matter of right.
 An aggrieved person can only appeal if the same provided by the law under some
statutory provision.

NO APPEAL IN PETTY CASES – S.376

 The following types of cases are considered as petty cases:
a. High Court – Sentence - 6 months Imprisonment or Fine upto Rs. 1,000/-
b. Court of Sessions – Sentence – 3 months Imprisonment or Fine upto Rs. 200/-
c. Magistrate of 1st Class – Sentence – Fine upto Rs. 100/-
 An appeal can be brought against the abovementioned sentences if they are combined
with other sentences which are appealable.
 For the purpose of appeal aggregate of consecutive sentence has to be seen.
NO APPEAL IN CASE OF CONVICTION ON PLEA OF GUILT – S.375
 The person who deliberately pleads guilty cannot be aggrieved by being convicted.
 It means that such person does not have a grouse against the conviction.
 Therefore, the question of appeal against such order of conviction does not arise at all.
 However, the way in which the Court obtained the plea of guilt has to be scrutinized.

2
  If the accused was threatened or induced into pleading his guilt then such order of
conviction would be bad in law.

APPEAL FROM CONVICTION

APPEAL TO SUPREME COURT

An appeal to the Supreme Court can be filed in the following instances and under the following
provisions:

S.374(1) – Trial by the High Court.

 In case of a conviction upon the trial by a High Court, the aggrieved party can appeal
against such order of conviction before the Supreme Court.
 Although such trials are very rarely held.

S.379 – Reversal of order of Acquittal and sentenced to Death or Life Imprisonment by

High Court.
 If the High Court reveres the order of Acquittal and sentence the accused to Death or
imprisonment for life.
 In such scenario, the aggrieved person is entitled to appeal against such conviction
before the Supreme Court.

Article 132 – Appeal if the case involves substantial question of law.

 If the High Court certifies that a case involves a substantial question of law, then upon
obtaining such certificate the appeal can be filed before the Supreme Court.
 Even if the High Court refuses to grant the certificate the Supreme Court can grant
leave to appeal.

Article 134 – Certificate of Appeal by the High Court

An appeal under article 134 lies to the Supreme Court in two cases:
a. When the High Court has withdrawn for trial a case from lower court before itself
or
b. When the High Court certifies that a case is fit for appeal.

Article 136 – Special Leave Petition

 The Supreme Court may grant special leave to appeal from any judgment, order or
sentence passed by the High Court or a Tribunal.

3
APPEAL TO THE HIGH COURT – S.374(2)
An appeal to the High Court would lie from the order, sentence or judgment of the following
courts:
a. Sessions Judge; or
b. Additional Sessions Judge; or
c. Any Other Court – passing sentence of imprisonment for more than seven years.

APPEAL TO THE COURT OF SESSIONS – S.374(3)

An appeal to the Court of sessions lies in case of conviction by the following Courts:
a. Metropolitan Magistrate; or
b. Assistant Sessions Judge; or
c. Magistrate of 1st Class; or
d. Magistrate of 2nd Class

SPECIAL RIGHT OF APPEAL IN CASE WHERE MORE THAN ONE PERSON IS

CONVICTED – S.380
Section 380 contemplates the following conditions to be fulfilled before an appeal can be filed in
a case where more than one person is convicted:
a. Conviction of more than one person; and
b. Appealable order or judgment passed in respect of any of them; and
c. All or any one may file an appeal.

4
 APPEAL AGAINST ACQUITTAL
(S.378)

SCOPE & OBJECT

 Appeal against an order of acquittal is an extraordinary remedy.
 Appealing against an order of acquittal means that the interests of the accused are once
again in serious jeopardy.
 Section 378 therefore tends to safeguard the interests of the accused who has been
acquitted by the trial court.
 The decision of the Government to prefer an appeal or not is an administrative decision.
 The Government has the same right of appeal as a convict has against his conviction.

GENERAL PROVISIONS U/S. 378

 Who May prefer an Appeal u/s. 378
The following persons may file an appeal under section 378:
a. Government; or
b. Complainant. (in case of a case constituted upon complaint)
 The right to file an appeal can only be exercised after obtaining the leave of the High
Court.
 Appeals lies before – The appeal against acquittal shall lie before the High Court
regardless of the fact whether the order/judgment has been passed by the Session Judge
or the Magistrate.
 In a case instituted upon private complaint the appeal can only be filed once the High
Court grants leave to appeal.
 The application for seeking leave to appeal shall be filed within the prescribed period of
limitation.

FACTORS TO BE CONSIDERED BEFORE INTERFERING WITH THE ORDER OF

ACQUITTAL
 Application of law;
 Grounds taken by the trial judge while acquitting the accused;
 Any substantial omission while considering the evidence;
 Appreciation of evidence.

RULES TO BE FOLLOWED BY THE HIGH COURT

 Presumption of innocence is strengthened by order of acquittal.
 The trial judge had the opportunity to observe the demeanor of the witnesses.

5
  If two views are possible, the one favorable to the accused shall be taken.
 The accused is entitled to a reasonable benefit of doubt.
 The High Court shall arrive at its own conclusion after pursuing the evidence on record.

DUTY OF THE HIGH COURT

 The High Court has to examine the case from its own independent view point;
 It has to see if the order of the trial judge was palpably wrong, manifestly erroneous or
demonstrably unsustainable.
 It has to examine if there are any infirmities so blatant that the order has to be reversed.
 The Court must exercise its discretion judicially and scrutinize the evidence in minute
detail.

ROLE OF THE PUBLIC PROSECUTOR

 The State shall engage the Public Prosecutor to file an appeal against the order of
acquittal.
 The object is to ensure that the State takes the legal opinion of the PP before filing the
appeal.
 If the State does not file the appeal through the public prosecutor then the appeal will be
invalid.
 However, the above-mentioned requirement can be waived off in case the appeal has to
be filed in urgency and the Public Prosecutor is not available.
 The Public Prosecutor can only file an appeal upon the directions of the State
Government and he has no suo moto powers to do the same.

APPLICATION FOR GRANT OF LEAVE TO FILE APPEAL & LIMITATION

 The general rule provides that the application for leave to appeal shall be filed within 60
days of passing of the orders.
 An appeal from an order of acquittal in a case instituted upon a complaint must be
presented within 30 days.
 However, in cases of complaints by public servants the limitation can be extended to
six months on account of administrative exigencies.
 Upon proving a sufficient cause for delay the Court may condone the delay in filing the
appeal.
 In such case the accused has a right to oppose the delay and the application.

SUMMARY DISPOSAL & HEARING OF APPEALS NOT DISMISSED

SUMMARILY
(Ss. 384 – 385)

SUMMARY DISPOSAL OF APPEAL – S.384

6
  Dismissing the appeal in a summary manner means dismissing it in an informal manner
without delay of formal proceedings after perusal of the petition and the judgment.
 When the case is prime facie arguable in such case the appeal shall not dismissed
summarily.

Examination of Petition of Appeal & Judgment

 If the appellate court upon examination of the appeal petition and the judgment is of the
opinion that there is no ground to interfere with order/judgment it may dismiss it
summarily.
 However, the accused must be given an opportunity of being heard.
 If substantial and arguable points are raised then the appeal shall not be dismissed
summarily.
 The grounds for dismissal shall be recorded as well.

Calling for the Case Record

 It is not mandatory for the appellate court to call for the case record before exercising
powers u/s. 384.

Reasonable opportunity of being heard

 Reasonable opportunity of being heard shall be given to the accused.
 What amounts reasonable opportunity depends on the facts and circumstances of the
case.

Procedure regarding Jail Appeals

 The accused shall be brought before the Court in case he has filed the appeal while he is
in jail. (S.383 – Jail Appeal)
 However, if the Court deems fit that the appeal is completely false and frivolous then in
such case it may dismiss it without calling the accused before the Court.

Recording of Reasons
 The Supreme Court has laid stress on the need to pass a reasoned order, as the dismissed
order is open for review of the higher courts, therefore if it is reasoned order, then the
court reviewing the same would be able to decipher the reasoning for the same.

No Dismissal for Non-Appearance of the Appellant

 It is to be noted that an appeal cannot be merely dismissed because of the non-appearance
of the appellant.

7
  The Court has to peruse the petition and the relevant case record and render it decision on
the basis of the same.
 The following guidelines have been passed by the Supreme Court in this regard:
 The Court cannot dismiss the appeal without examining the merits of the case.
 The court is not bound to adjourn the matter in absence of both the counsels.
 In case the appellant is in jail, then it is advisable to adjourn the matter as he
cannot come to the Court on his own.

No Withdrawal of the Appeal

 Once an appeal has been filed then the Court cannot allow the same to be withdrawn at
the instance of the party.
 It is the duty of the Court to decide the matter regardless of the fact whether the appellant
wants to follow it up or not.

PROCEDURE WHEN THE APPEAL IS NOT DISMISSED SUMMARILY – S.385

 Notice of Motion.
 Furnish a copy of grounds of appeal.
 Call for the record of case – Mandatory.
 No additional grounds after filing of the appeal.
 Production of the accused.

8
 POWERS OF THE APPELLANT COURT IN DISPOSING OF APPEALS
(S.386)

TWO ESSENTIAL CONDITIONS/DUTIES

Once the appellant Court receives the appeal it is bound to carry out the following two duties:
A. Peruse the Record of the Case – In order to enable the Court to adjudicate upon the
correctness or otherwise of the order or judgment appealed against not only with
reference to the judgment but with reference to the records which will be basis on which
the judgment is founded.
B. Hearing of Parties – The appellant, public prosecutor, shall be given an opportunity of
being heard. A notice to the parties shall be given specifying the date of hearing.

NO INTERFERENCE NEEDED – SUMMARILY DISMISSED

 In case the appeal is dismissed after fulfilling the above mentioned conditions the
Appellant Court will not interfere with the decision of the Court.

APPEAL FROM ORDER OF ACQUITTAL

 The Court Appellant Court can uphold the order or reverse the acquittal into that of
conviction.
 However before doing so the following principle shall be followed:
 The entire evidence shall be considered;
 The views of the trial judge shall be considered;
 The statements of witnesses shall be considered;
 The accused shall be given benefit of doubt;
 The appellant court must pass reasoned order.
 The appellant court may order further enquiry.

APPEAL FROM ORDER OF CONVICTION

 The general provisions regarding appeal from an order of acquittal shall apply to the
appeal from an order of conviction.
 The Appellant has the following powers:
a. Acquit the accused;
b. Uphold the order of conviction;
c. Alter the sentence.
 A retrial can be ordered in exceptional circumstances only.
 The accused can be convicted for different offence which arises of the same facts and
circumstances. For e.g., 302 converted to 304.
APPEAL FOR ENHANCEMENT OF SENTENCE
 In case of appeal for enhancement of sentence, the Court cannot inflict a greater sentence
than what has been ordered by the trial judge.

9
  There can be two scenarios in an appeal for enhancement of sentence:
a. Sufficient punishment has been imposed;
b. Inadequate punishment has been imposed.
 Powers of the Court:
a. Reverse the finding and acquit the accused;
b. Alter the findings;
c. Alter the nature of sentence;
d. Order retrial.

POWER TO PASS CONSEQUENTIAL OR INCIDENTAL ORDERS

 To ensure adequate punishment for all offences the appellant court along with the main
order may pass additional order.
 For example, along with conviction for S.304-A, the Court convict the accused for S.279
as well.
 Such order has to be consequential or incidental to the primary order.

NO DISMISSAL IN DEFAULT
 Once the case is admitted, the Court has to pass a reasoned order before disposing it.
 It cannot dismiss the appeal in default.

10
 ANCILLARY/MISCELLANEOUS PROVISIONS

PETITION IN APPEAL – S.382

 The appeal shall be accompanied by a written petition and the judgment of the Court.
 The several accused can file a joint appeal under one petition.
 The petition shall mention the grounds of appeal.
 The appeal presented to jail authorities is a jail appeal by the accused in jail custody.

POWER TO OBTAIN FURTHER EVIDENCE – S.391

 The appellant has no right to tender additional evidence at the appellant stage.
 However, the court may order to obtain further evidence in case of an exigency.
 Such obtaining of further evidence shall not cause prejudice to the accused.

OPINION OF THIRD JUDGE, WHEN THE BENCH IS EQUALLY DIVIDED - S.392

 The appeal is to be heard by the division bench of the High Court.
 In case the division bench is equally divided, then the matter is to be heard by a third
judge.
 The opinion of the third judge shall be final.

ORDER OF THE HIGH COURT TO BE CERTIFIED TO THE TRIAL COURT - S.388

 The High Court shall cause the order of the appeal to be certified to the trial court against
whose order/judgment the Court.
 This provision helps in informing the trial court about the decision of the case in appeal.

FINALITY OF JUDGMENTS & ORDERS OF APPEAL - S.393

 The appellant court including the High Court cannot review its own judgment passed in
an appeal.
 The law does not provide for any appeal against the decision of the appellant court except
an appeal against the order of sentence u/s. 377 or u/s. 378.

S.394 – ABATEMENT OF APPEALS.

 An appeal u/s. 377 or 378 shall abate on the death of the accused.
 However, an appeal against a conviction shall not abate if the appellant dies during the
pendency of the appeal.
 The nexus behind the same is that the family of the accused would be discharged from
the stain of conviction on their family member.

11