scope and rationale of appeal

8/18/2019 Scope and Rationale of Appeal

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SCOPE AND RATIONALE

OF APPEAL

Submitted To – MR Sanjeev Sir Submitted By- Soumil Goyal

Roll no - 97/13

Section - 6t Sem Sec B

Rights of Appeal



ACKNOWLEDGEMENT

The present project on the “Rationale and Scope of Appeal” has been able to get itsnal shape with the support and help of people from various quarters. M sincere

than!s go to all the members without whom the stud could not have come to its

present state. " am proud to ac!nowledge gratitude to the individuals during m

stud and without whom the stud ma not be completed. " have ta!en this

opportunit to than! those who genuinel helped me.

#ith immense pleasure$ " e%press m deepest sense of gratitude to Mrs &angeeta

bhalla.$ 'acult for (riminal )aw$ *niversit "nstitute of )egal &tudies for helping me

in m project. " am also than!ful to the whole *niversit "nstitute of )egal &tudiesfamil that provided me all the material " required for the project. +ot to forget

than!ing to m parents without the co,operation of which completion of this project

would not had been possible.

" have made ever e-ort to ac!nowledge credits$ but " apologies in advance for an

omission that ma have inadvertentl ta!en place. )ast but not least " would li!e to

than! Almight whose blessing helped me to complete the project.

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INDEX

!ntroduction""""""""""""""""""""# ""$a%e &

Meanin% o' ())eal"""""""""""""""""""##$a%e 7

Ri%t* o' ())eal""""""""""""""""""""$a%e 1+

())eal 'rom ,onviction"""""""""""""""""#$a%e 1&

S)ecial ri%t o' a))eal in *)ecial ca*e*"""""""""""##$a%e 1

())eal a%ain*t order o' ac.uittal"""""""""""""###$a%e

0ter ri%t* o' ())eal"""""""""""""""""###$a%e 3&

,onclu*ion""""""""""""""""""""""$a%e 36

Biblio%ra)y"""""""""""""""""""""##$a%e 3

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"nTR0*(T"0+

2uman judgment is not infallible. espite all the provisions for ensuring a fair

trial and a just decision$ mista!es are possible and errors cannot be ruled

out. The code therefore provides for 3appeals4 and 3revisions4 and thereb

enables the superior courts to review and correct the decisions of the lower

courts. Apart from its being a corrective device$ the review procedure serves

another important purpose. The ver fact that the decision of the lower court

is dul scrutini5ed b a superior court in 6appeal7 or 6revision7 gives certain

satisfaction to the part 3aggrieved4 b that decision. The review of the case

b superior courts$ in a wa$ assures the aggrieved part that all reasonable

e-orts have been made to reach a just decision free from plausible errors$

prejudice and mista!es. Review procedures are therefore importantl useful

to inspire in the public mind a better condence in the administration of

criminal justice.

The &upreme (ourt has observed8

30ne component of fair procedure is natural justice. 9enerall

spea!ing and subject to just e%ceptions$ at least a single right of appeal on

facts$ where criminal conviction is fraught with loss of libert$ is basic to

civili5ed jurisprudence. "t is integral to fair procedure$ natural justice and

normative universit save in special cases li!e the original tribunal being a

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high bench sitting on a collegial basis. "n short$ a rst appeal; as provided in

the (riminal Procedure (ode$ manifests this value upheld in Article 141

Appeal is one of the two important review procedures.

An appeal is a complaint to a superior court of an injustice done or error

committed b 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 an judgment or determination unless an appeal is e%pressl

provided for b the law itself./

The appeal as a corrective procedure would obviousl be far less relevant in

cases where the chances of error in the judgment of the trial court are ver

remote. 'urther$ the review of the case in appeal means pett cases where

the possible error in the decision of the lower court is more li!el to be of

insignicant nature$ it would be ine%pedient to allow appeals in such cases.

These considerations have found e%pression in the provisions of the code. "n

cases where the accused has been convicted on the order of conviction$ but

fairl permits under certain circumstances an appeal as to the e%tent or

1 M.2.2os!ot v. &tate of Maharashtra <1=>?@ / &(( ::

Blac!7s )aw ictionar$ :th Cdn.$ p. 1:

/ urga &an!ar Mehta v. Raghuraj &ingh$ A"R 1=: &( D




legalit of the sentence passed on the accused person. "t will further be seen

that the code does not generall favour a second appeal.

The appeal would consider the circumstances in which appeals can be led

against the orders of convictions or of acquittals and also the conditions in

which the 9overnment can appeal on the ground of inadequac of the

sentence passed on the accused person$ form of appeal$ the procedure for its

ling$ the manner in which it is heard$ the power of the appellate court in

disposing of an appeal$ the abatement of appeal under certain

circumstances$ and other ancillar matters.

A right of appeal carries with it a right of rehearing on law as also on facts.

9enerall there is no right of hearing on facts or appreciation of evidence in

a revision.: A rehearing of the case could$ however$ be ordered in e%ercise of

revisional power.

: &tate of Eerela v. &ebastian$ 1=?/ (ri)F :1G$ :1? <Eer@

T.H. 2ameed$ "n re$ 1=?G (ri)F 1DD1 <Eer@

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Appeal - Meaning

0ne component of fair procedure and natural justice is the provision for

reviewing the decisions of criminal courts for the purpose of correcting

possible mista!es and errors in such decisions. The reviewing process not

onl provides for a corrective mechanism against real errors but it is also

useful to inspire better condence in the public mind regarding the

administration of justice. The reviewing of a decision can be made b the

ver court which gave the decision or it can be done b the superior courts.

0bviousl$ it is more e%pedient if the reviewing is done b a superior court.

The (ode provides for a review either b wa of an 6appeal7 or b wa of a

6revision7. Appeal and revision are remedies open to a part aggrieved with

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the judgment of a criminal court. These remedies are moved b the parties

themselves$ but reference is an act of the court.

The provisions of the (ode which confer the right of appeal and prescribe the

procedure for the same are both substantive and procedure.

According to Blac!7s )aw ictionar$ an appeal is a complaint to a superior

court of an injustice done or error committed b an inferior one$ whose

judgment or decision the court the above is called upon to correct or reverse.

)egall$ the word 6appeal7 means the right of carring a particular case from

an inferior to a superior court with a view to ascertain whether the judgment

is sustainable. An appeal is a creature of statute onl and a right of appeal

e%ists where e%pressl given.

There can be no inherent right of appeal from an judgment unless an appeal

is e%pressl provided for b the law itself.G

The right of appeal is governed b

the statute in conformit with which a particular o-ence is tried.>

The right of appeal is neither a fundamental nor an inherent rightI it is a

creature of the statute$ a statutor right.?

G urga &han!ar Mehta v. Raghuraj &ingh$ A"R 1=: &( D

> &alig Ram v. Cmperor$ A"R 1=:/ All. G <'.B.@

? 2. Parvathamma 2iremeth v. &tate of Msore$ A"R 1=G Ms. 1I

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The appeal as a corrective device would obviousl be less relevant in caes

where the chances of error are remote. 'urther$ appeal means additional

time and e%pense in the nal disposal of the case. Therefore$ though the

right of appeal is integral to fair procedure$ natural justice and normative

universalit=$ the (ode$ as a polic$ prefers to allow the right in the specied

circumstances onl.

Diference between Revision an Appeal

Appeal lies on both facts and law whereas revision lies on the point of law

onl$ but facts ma also be considered in certain e%ceptional cases.

Appeal is a statutor right to the appellant which he can demand from (ourt

whereas in revision$ the appellant has no statutor right beond inviting the

attention of the (ourt <court has its discretion@.

"n appeal from conviction$ sentence can be enhanced and also the 2igh

(ourt can convert an acquittal into conviction and in revision$ the sentence

can be enhanced but it cannot convert acquittal into conviction.

"n appeal$ there is no pardon whereas in revision$ pardon is possible.

Appeal has onl one stage whereas revision has two stages$ preliminar

stage and nal stage.

= &ee the observations of the &upreme (ourt in Madhav v. &tate of Maharashtra$

<1=>?@ / &(( ::I 1=>? &(( <(ri@ :G? at p. :>GI 1=>? (ri )F 1G>?

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The scope of appeal is limited onl to certain specied orders and sentences

whereasI scope of revision is wider and e%tends to an proceeding before a

court. The legalit and propriet as well as an order passed therein on an

nding given.

R!G"T# O$ A%%EAL

No appeal in certain cases

#EC &'( J +o appeal to lie otherwise provided8

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No appeal shall lie from any judgment or order of a Criminal Court

except as provided for by this Code or by any other law for the time

being in force.

According to &ection />$ no appeal shall lie from an judgment or order of a

criminal court e%cept as provided b the (ode or b an other law for the

time being ion force. "t is$ therefore$ necessar to bear in mind that an

appeal is a creature of statute and that there is no inherent right of appeal.1D

#EC &') J +o appeal in pett cases8

Notwithstanding anything contained in section 374, there shall be

no appeal by a convicted person in any of the following cases,

namely!

"a# $here a %igh Court passes only a sentence of imprisonment for

a term not exceeding six months or of &ne not exceeding one

thousand rupees, or of both such imprisonment and &ne'

"b# $here a Court of (ession or a )etropolitan )agistrate passes

only a sentence of imprisonment for a term not exceeding three

months or of &ne not exceeding two hundred rupees, or of both

such imprisonment and &ne'

1D &ee observations of the &upreme (ourt in A!alu Ahir v. Ramdeo Ram$ <1=>/@

&(( ?/I 1=>/ &(( <(ri@ =D/$ =DI 1=>/ (ri )F 1:D:$ 1:D

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"c# $here a )agistrate of the &rst class passes only a sentence of

&ne not exceeding one hundred rupees' or

"d# $here, in a case tried summarily, a )agistrate empowered to

act under section *+ passes only a sentence of &ne not exceeding

two hundred rupees

-rovided that an appeal may be brought against any such sentence

if any other punishment is combined with it, hot such sentence shall

not be appealable merely on the round!

"i# hat the person convicted is ordered to furnish security to /eep

the peace' or

"ii# hat a direction for imprisonment in default of payment of &ne is

included in the sentence' or

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"iii# hat more than one sentence of &ne is passed in the case, if the

total amount of &ne is imposed does not exceed the amount

hereinbefore speci&ed in respect of the case.

"t ma be recalled here that according to section /1</@$ for the purpose of

appeal b a convicted person$ the aggregate of the consecutive sentence of

imprisonment passed against him at one trial shall be deemed to be a single

sentence.

#EC &'* J +o appeal in certain cases when accused pleads guilt8

Notwithstanding anything maintained in section 374, where an

accused person has pleaded guilty and has been convicted on such

plea, there shall be no appeal.

"a# 0f the conviction is by a %igh Court' or

"b# 0f the conviction is by a Court of (ession, )etropolitan

)agistrate or )agistrate of the &rst or second class, except as to

the extent or legality of the sentence.

The rationale behind the above section /> is that a person who deliberatel

pleads guilt cannot be aggrieved b being convicted. #hen a person is

convicted b an court on the basis of his own plea of guilt$ he cannot and

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should not have an grouse against the conviction and hence is not entitled

to appeal from such a conviction. The accused can be said to have pleaded

guilt onl when he pleads guilt to the facts contributing ingredients of the

o-ence without adding anthing e%tra to it.11 2owever$ if the plea of guilt is

not a real one and is obtained b tric!er$ it is not a plea of guilt for the

purposes of the above rule.1 "t is onl when there is a genuine plea of guilt

made freel and voluntaril that the bar under section /> would appl.1/ "n

T+ippaswa, v. #tate o. Karnata/a01$ the &upreme (ourt observed that

it would be violation of Article 1 of the constitution to induce or lead an

accused to plead guilt under a promise or assurance that he would be let o-

lightl and then in appeal or revision$ to enhance the sentence. A person$ b

pleading guilt$ does not commit himself to accept the punishment that

would be passed against him irrespective of its nature and legalit.

Therefore$ he is not denied the right to challenge the e%tent or legalit of the

sentence. 2owever$ this is subject to one e%ception. That is$ where a high

court would su-er from a serious inrmit in respect of the e%tent or legalit

of the sentence.1

11 &tate of 9ujrat v. inesh (handra

1 Prafulla Eumar Ro v. Cmperor$ A"R 1=:: (al 1DI : (ri )F 1>$ 1?

1/ &tate of Eerela v. 9opinath Pillai$ ")R <1=>?@ Eer G>I 1=?D (ri )F /= <Eer@ <+0(@

1: <1=?/@ 1 &(( 1=:$ A"R 1=?/ &( >:>

1 &ee :1st Report$ p. =$ para /1.11

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Appeals .ro, conviction

Appeal to t+e #2pre,e Co2rt




An appeal lies to the &upreme (ourt under section />:<1@ and section />=.

Besides this$ an appeal from a decision of the 2igh (ourt to the &upreme

(ourt is also provided for under articles 1/$ 1/: and 1/G of the (onstitution.

#EC &'1 J Appeals from conviction8

"1# 2ny person convicted on a trial held by a %igh Court in its

extraordinary original criminal jurisdiction may appeal to the

(upreme Court.

&ubject to the restrictions on appeals$ an person convicted 3on a trial held

b4 a high court in its e%traordinar original criminal jurisdiction ma appeal

to the &upreme (ourt. &ince such trials are e%tremel rare$ it was felt that$ in

the interests of nalit to the proceedings appeal should lie direct to the

&upreme (ourt and not to another bench of the same high court.1G

#EC &'3 J Appeals against conviction b 2igh (ourt in certain cases8

$here the %igh Court has, on appeal reversed an order of acuittal

of an accused person, 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 (upreme Court.

1G &ee :1st Report$ p. =$ para /1.1D

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#here 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 ears or more$ he

ma appeal as of right to the &upreme (ourt. B this section />= the

provision of the &upreme (ourt <Cnlargement of (riminal Appellate

Furisdiction@ Act$ 1=>D have been incorporated in the (ode.

Article 0&(4 0&1 an 0&) o. Constit2tion

*nder Article 1/$ an appeal lies to the &upreme (ourt from an judgment$

decree or nal order of a 2igh (ourt whether in a civil$ criminal or other

proceeding$ if the 2igh (ourt certies that the case involves a substantial

question of law as to the interpretation of the (onstitution.

Article 1/: constitutes the &upreme (ourt as (ourt of (riminal Appeal in a

limited class of cases onl$ and clearl implies that no appeal lies to it as a

matter of course or right e%cept in cases where the 2igh (ourt$

(a) has on appeal reversed an order of acquittal of an accused

person and sentenced him to deathI or

(b) has withdrawn from trial before itself an case from an court

subordinate to its authorit and has in such trial convicted the accused


(c) certies that the case is a t one for appeal to the &upreme (ourt.

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Article 1/G<1@ las down that the &upreme (ourt ma$ in its discretion$ grant

special leave to appeal from an judgment$ decree$ determination$ sentence

or order in an cause or matter passed or made b an court or tribunal in

the territor of "ndia.

Article 1/G<@ provides that nothing in clause <1@ shall appl to an

judgment$ determination$ sentence or order passed or made b an court or

tribunal constituted b or under an law relating to the Armed 'orces.

The (onstitution provides that an appeal shall lie to the &upreme (ourt from

an judgment$ decree or nal order of a high court$ if the high court certies

that the case involves a substantial question of law as to the interpretation of

the constitution Article 1/<1@. 'urther$ where the high court has refused to

give such a certicate the &upreme (ourt ma$ if it is satised that the case

involves a substantial question of law as to the interpretation of the

constitution$ grant special leave to appeal from such a certicate is given$ or

such leave is granted$ an part in the case ma appeal to the &upreme

(ourt on the ground that an such question as aforesaid has been wrongl

decided and$ with the leave of the &upreme (ourt$ on an other ground

Article 1/</@.

Article 1/:<1@ of the constitution$ inter alia provides that an appeal shall lie

to the &upreme (ourt from an judgment$ nal order or sentence in a

criminal proceeding proceeding of a high court$ if the high court8,

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a. 2as withdrawn for trial before itself an case from an court

subordinate to its authorit and has in such trial convicted the accused


b. (erties that the case is a t one for appeal to the &upreme (ourt.

Article 1/G<1@ of the (onstitution provides that the &upreme (ourt ma$ in its

discretion$ grant special leave to appeal judgment$ decree$ determination$

sentence or order in an cause or matter passed or made b an court or

tribunal.

2owever the above rule shall not appl to an judgment$ determination$

sentence or order passed or made b an court or tribunal constituted b or

under an law relating to the armed force Article 1/G<@.

"t has been reiterated b the &upreme (ourt that in cases which do not come

under clauses <a@ and <b@ of Article 1/:<1@ or under the Act of 1=>D or section

/>= of the code an appeal does not lie an of right to the &upreme (ourt

against an order of conviction b the high court. "n such appeal will lie onl

if a certicate is granted b the high court under sub,clause <c@ of Article

1/:<1@ certifing that the case is t one for appeal to the &upreme (ourt or

b wa of &pecial )eave under Article 1/G when the certicate is refused b

the high court.1>

1> (handra Mohan Tiwari v. &tate of M.P.$ <1==@ &(( 1D$ 11/,11:I 1== &((

<(ri@ I 1== (ri )F 1D=1

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Appeal to t+e "ig+ Co2rt


"*# 2ny person convicted on a trial held by a (essions udge or an

2dditional (essions udge or on a trial held by any other court in

which a sentence of imprisonment for more than seven years 1 5has

been passed against him or against any other person convicted at

the same trial6' may appeal to the %igh Court.

&ubject to the restriction on appeals$ an person convicted on a trial held b

a session Fudge or an Additional &ession Fudge or on a trial held b an other

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court in which a sentence of imprisonment for more than seven ears has

been passed against him or against an other person convicted at the same

trial ma appeal to the high court under section />:<@. And in that case the

judgment can be staed suspended pending appeal.1?

"n a case where the trial is held b an Assistant &ession Fudge and during the

trial the Fudge is invested with the power of the Additional &ession Fudge or

of the &ession Fudge$ a question might arise as to whether an appeal from an

order of conviction in such a trial shall lie to the high court. (ourts are not

unanimous on this point. "n a case where the Assistant &ession Fudge$ after

he had recorded the evidence in court and heard the arguments but before

he had written and delivered the judgment was invested with the power of

an Additional &ession Fudge$ the Allahabad high court held that an appeal

from conviction in the case would lie to the &ession Fudge and not to the high

court as the accused was convicted 3on a trial held b4 an Assistant &ession

Fudge and not b an Additional &ession Fudge. The fact that the Assistant

&ession Fudge had become the Additional &ession Fudge when he wrote and

delivered the Fudgment would not a-ect the position.1=

"n a case tried and acquitted b the magistrates court on appeal b the

state$ the high court recorded conviction and sent the case to the trial court

for awarding sentence. The accused appeal of sentence b the trial court$ to

1? H. &undararamireddi v. &tate$ 1==D (ri )F 1G> <All@I &.M. Mali! v. &tate$ 1==D (ri )F

1=1= <el@

1= Ba!shi Ram v. Cmperor$ A"R 1=/? All 1DI <1=/?@ /= (ri )F /:




the &ession (ourt was held not maintainable as the 6conviction part7 was

non,appealable to the &ession (ourt.D

Appeal to t+e Co2rt o. #ession


"3# (ave as otherwise provided in sub!section "*#, any person, !

D (. 9opinathan v. Erishnan Aappan 1==1 (ri )F >>? <Eer@




"a# Convicted on a trial held by a )etropolitan )agistrate or

2ssistant (essions udge or )agistrate of the &rst class or of the

second class, or

"b# (entenced under section 3*, or

"b# 0n respect of whom an order has been made or a

sentence has been passed under section 3+ by any

)agistrate,

may appeal to the Court of (ession.




#pecial rig+ts o. appeal in #pecial Cases

#EC &56 J &pecial Rights of appeal in certain cases8

Notwithstanding anything contained in this Chapter, when more

persons than one are convicted in one trial, and an appealable

judgment of order has been passed in respect of any of such

person, all or any of the persons convicted at such trial shall have a

right of appeal.




b. o the %igh Court, if the sentence is passed by any other

Court.

"*# 0f such conviction is in a case in which the o9ence has been

investigated by the :elhi (pecial -olice ;stablishment, constituted

under the :elhi (pecial -olice ;stablishment 2ct, 1<4+ "* of 1<4+#,

or by any other agency empowered to ma/e investigation into an

o9ence under any Central 2ct other than this Code, the Central

8overnment may also direct the -ublic -rosecutor to present an

appeal to the %igh Court against the sentence on the ground of its

inadeuacy =

"a# to the court of (ession, if the sentence is passes by the

)agistrate' and

"b# to the %igh Court, if the sentence is passed by the any

other Court.

"3# $hen an appeal has been &led against the sentence on the

ground of its inadeuacy, the Court of (eesion or, as the case

maybe, the %igh Court shall not enhance the sentence except after

giving to the accused a reasonable opportunity of showing cause

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against such enhancement and while showing cause, the accused or

for the reduction of the sentence.

Carlier an appeal for enhancement of sentence on the ground of it

inadequac could onl be entertained b the 2igh (ourt. 2owever$ as per the

present scheme of &ection />> an appeal on the ground of inadequac of

sentence can also be entertained b the court of sessions in certain

circumstances. An appeal for enhancement of sentence passed b a

Magistrate would now lie to the &essions court. This will not onl ma!e it

easier for the administration to prefer appeals against undul lenient

sentences b Magistrates but will also deter the latter from passing

sentences that are grossl inadequate.

The right to appeal against inadequac of the sentence has been given onl

to the state and not to the complainant or an other person. 2owever that

does not mean that the complainant or an other person cannot move the

2igh (ourt <or (ourt of &ession@ in revision for this purpose. The 2igh (ourt

or the (ourt of &ession in an appropriate case ma$ in e%ercise of its

revisional jurisdiction$ decide to act suo motu ns enhance the sentence. 1

1 +adir Ehan v. &tate <elhi Admn.@$ <1=>@ &(( :DGI 1=> &(( <cri@ G$ G:I

1=>G (ri )F 1>1$ 1>I Bachan &ingh v. &tate of Punjab$ <1=>=@ : &(( >:I 1=?D

&(( <(ri@ 1>:I 1=?D (ri )F 11I 'ood "nspector$ Mangalore Municipalit v. E.&.

Raphael$ 1=?1 (ri )F 11:= <Eant@I Prabhudal (hhanganlal v. Babubhai Hirabhai

Miseria$ 1=>> (ri )F 1GGG <9uj@I C!nath &han!arrao Mu!!awar v. &tate of

Maharashtra$ <1=>>@ / &(( I 1=>> &(( <(ri@ :1D$ :1/I 1=>> (ri )F =G:I &tate v.

Babaji &ahoo$ 1=>> (ri )F 1=1 <0ri@

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The provisions under &ection /== and :D1 dealing with the respective

revisional powers of the (ourt of &ession and of the 2igh (ourt when read

with &ection /?G<c@<iii@ are clearl supplemental to those under &ection />>.

The e-ect of reading &ections />>$ /?G and :D1 ma however be noted.

#hile in the e%ercise of the revisional jurisdiction the 2igh (ourt or the (ourt

of &ession is competent to enhance the sentence$ the accused has to be

given an opportunit of being heard not onl against the enhancement of the

sentence but also against the conviction itself.

"n a case where both the appeal and a petition for enhancement of sentence

were heard b the 2igh (ourt it was ruled that there was no need to hear

the appellant as he could be permitted to lead evidence while hearing the

appeal. Moreover$ the (ourt noted$ the appellant have had opportunit of

being heard unless &ection /<@ at the time of conviction./

#hile the accused in an appeal under the &ection />> can show that he is

innocent of the o-ence$ the prosecution is not entitled to show that he is

guilt of a graver o-ence and on that basis the sentence should be

enhanced. The prosecution will onl be able to urge that the sentence is

inadequate on the charge as found or even on an altered less grave charge.:

'ood "nspector$ Mangalore Municipalit v. E.&. Raphael$ 1=?1 (ri )F 11:=

<Eant@Isee also *.F.&. (hopra v. &tate of Bomba$ A"R 1= &( G//I 1= (ri )F 1:1D

/ &iraj!han Buddin Ehan v. &tate of 9ujarat$ 1==: (ri )F 1D <9uj.@

: C!nath &han!arrao Mu!!awar v. &tate of Maharashtra$ <1=>>@ / &(( I 1=>>

&(( <(ri@ :1D$ :1/I 1=>> (ri )F =G:I

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"n a case where the conviction os recorded b the trial court but instead of

awarding sentence of imprisonment the convict is released on probation

under the provisions of relevant special law then it is a case where no

sentence at all has been awarded and as such the provisions of &ection

/>><1@ are not attracted.

The 2igh (ourt or the (ourt of &ession$ while e%ercising the power of

enhancing the sentencing passed b the trial court must counter b clear

ratiocination the reasons given b the trial court in passing the sentence.G

&tate of *.P. v. +and Eishore Misra$ 1==1 &upp <@ &(( :>/I 1==1 (ri )F :G

G )ingaIa Hija Eumar v. Public Prosecutor$ <1=>?@ : &(( 1=G8 1=>? &(( <(ri@ >=$

?/I K=>? (ri )F 1>.

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Appeal against t+e orer o.

ac72ittal

#EC &'5 J Appeal in case of acquittal8

"1# (ave as otherwise provided in sub!section "*# and subject to the

provisions of subsections "3# and "#, the (tate 8overnment may, in

any case, direct the -ublic -rosecutor to present an appeal to the

%igh Court from an original or appellate order of acuittal passed

by any court other than a %igh Court 15or an order of acuittal

passed by the Court of (ession in revision6.

"*# 0n such an order of> acuittal is passed in any case in which the

o9ence has been investigated by the :elhi (pecial -olice

;stablishment constituted under the :elhi (pecial police

;stablishment 2ct, 1<4+ "* of 1<4+# or by any other agency

empowered to ma/e investigation into all o9ence under any Central

2ct other than this Code, the Central 8overnment may also direct

the -ublic -rosecutor to present an appeal, subject to the

-rovisions subsection "3#, to the %igh Court from the order of

acuittal.

Rights of AppealPage /D



"3# No appeal under subsection "1# or subsection "*# shall be

entertained except with the leave of the %igh Court.

"4# 0f such an order of> acuittal is passed in any case instituted

upon Complaint and the %igh Court, on an application made to it by

the complainant in this behalf, grants, special leave to appeal from

the order of acuittal, the complainant may present such an appeal

to the %igh Court.

"# No application under subsection "4# for the grant of special

leave to appeal from an order of acuittal shall be entertained by

the %igh 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 acuittal.

"+# 0f in any case, the application under sub!section "4# for the grant

of special leave to appeal from an order of acuittal is refused, no

appeal from that order of acuittal shall lie under sub!section "1# or

under subsection "*#.

Rights of AppealPage /1



Appeal against an order of acquittal is an e%traordinar remed. #here the

initial presumption of innocence in favour of the accused has been dul

vindicated b 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 jeopard. Therefore the restrictions on the preferring of an appeal

against acquittal as envisaged b &ection />? are intended to safeguard the

interests of the accused person and to save him from personal

vindictiveness.

According to the rst four sub, sections of &ection />?$ an appeal against an

order of acquittal can be preferred onl <i@ b the 9overnment$ and <ii@ in a

case instituted upon complain$ b the 9overnment as well as b the

complainant. &econdl$ the right of such appeal can be e%ercised onl after

obtaining the leave if the 2igh (ourt. Thirdl$ whether the order of acquittal

is passed b an magistrate or b an &essions Fudge$ and whether the

o-ence of which the accused is acquitted is a major or a minor o-ence$ the

appeal in ever case of such acquittal could be made onl to the 2igh (ourt.

'ourthl$ according to sub,section <G@ an appeal b the &tate under sub,

section <1@ or sub,section <@ is barred in case the private complainant has

failed to obtain special leave to appeal under sub,section <:@.

'ifthl$ the application for grant of leave to appeal must be led within the

time prescribed b the sub,section <@I and the appeal must be led within




theperiod of limitation prescribed b Article 11: of the schedule of the

)imitation Act$ 1=G/.

The methodol of ling an appeal lied with the state$ and the 2igh (ourt has

no authorit or jurisdiction to issue a directive to the state to le appeals

against persons acquitted.>

&ection />? deals with appeals in cases of acquittals. "t does not come into

pla against an order of discharge.? +or does itappl to cases where the

proceedings are dropped as being found to be barred b the prescribed

period of limitation or on account of lac! of jurisdiction. An order of acquittal

contemplates the complete e%oneration of the accused of the o-ence with

which he was charged.

"n an appeal against acquittal a court has to remind itself of set of cardinal

rules. The are that8

<i@ There is a presumption of innocence in favour of the accused

which has been strengthened b the acquitted of the accused b

the trial courtI<ii@ "f two views are possible$ a view favourable to the accused

should be ta!enI<iii@ The trial judge had the advantage of loo!ing at the demeanour of

the witness$ and

> war!a as v. &tate of 2arana$ DD/ (ri )F :1: <&(@

? Alim v. Tauq$ 1=? (ri )F 1G: <All.@I Public Prosecutor$ 2igh (ourt of A.P. v. P.

&ubhash (handra Redd$ DD/ (ri )F :>>G <AP@

Rights of AppealPage //



<iv@ The accused is entitled to a reasonable benet of doubt$ a doubt

which a thin!ing man will reasonabl$ honestl and consciousl

entertain.=

The court can interfere with the order of acquittal onl when8

<i@ The appreciation of evidence b the trial court in perverse or the

conclusion drawn b it cannot be drawn on an view of the

evidenceI<ii@ #here the application of law is improperl doneI<iii@ #here there is substantial omission to consider the evidence

e%isting on recordI<iv@ The view ta!en b the acquitting the court is impermissible on the

evidence on recordI or<v@ "f the order of acquittal is allowed to stand it will result in the

miscarriage of jusitice./D

The appellate court should see! an answer to the question whether the

ndings of trial court are palpabl wrong$ manifestl erroneous or

demonstrabl unsustainable. "f the appellate court answers the above

questions in the negative the order of acquittal is not to be distributed.

(onversel$ if the appellate court holds$ for reasons to be recorded$ that the

order of acquittal cannot at all be sustained in view of an of the above

= &tate v. Ha5ir 2a!!i$ DD (ri )F >1= <Bom.@

/D &tate of Maharashtra v. Fagannath Eisan Mane$ DD "nd. )aw Bom 1?G

Rights of AppealPage /:



inrmities it can then and then onl reappraise the evidence to arrive at its

own conclusion. /1

"n the matter of preferring appeals against acquittal$ appeals b the &tate

9overnment or the (entral 9overnment have been treated di-erentl from

appeals b a complainant. This is obvious from the wording of sub,section </@

and <:@ of &ection />?. "n the case of an appeal preferred b the &tate

9overnment or the (entral 9overnment under sub,section <1@ or sub, section

<@ of &ection />?$ the (ode does not contemplate the ma!ing of an

application for leave under sub,section </@ thereof$ while in the case of an

appeal b a complainant$ the ma!ing of an appeal b a complainant$ the

ma!ing of an application for grant of 6special leave7 is a condition precedent

for the grant of 6special leave7 to a complainant. Therefore$ the &tate

9overnment or the (entral 9overnment ma$ while preferring an appeal

against an acquittal under &ection />?<1@ or the &ection />? <@$ incorporate

a praer in the memorandum of appeal for grant of leave under &ection />?

</@$ but the ma!ing of such an application is not a condition precedent of a

&tate appeal./ "t is not necessar as a matter of law$ that an application for

leave to entertain an appeal should be lodged rst and onl after the grant of

leave b the 2igh (ourt appeal ma be preferred against an order of

/1 Ramesh Babulal oshi v. &tate of 9ujarat$ <1==G@ = &(( I 1==G &(( <(ri@ =>

/ &tate of M.P. v. evadas$ <1=?@ 1 &(( I 1=? &(( < (ri@ >$ ?1I =? (ri )F

G1:$ G1=




acquittal.// 2owever$ while refusing leave to appeal against an order of

acquittal$ the 2igh (ourt is required to adduce suLcient reasons for the

same./:

*nder Article 1:: of the )imitation Act$ in an appeal from an order of

acquittal b the &tate$ the period of limitation is ninet das from the date of

the order appealed fromI whereas in an appeal from an order of acquittal$ in

an case instituted upon complaint$ the period is thirt das from the date

from the date of the grant of special leave. Thus there is a clear distinction

between the two tpes of appeals with regard to terminus a quo under

Article 11:. "t is$ therefore$ not necessar to wait until the grant of leave b

the 2igh (ourt to present a memorandum of appeal against acquittal at the

instance of the &tate. Thus$ an appeal can be led b the &tate within ninet

das from the date of the order of acquittal and a praer ma be included in

that appeal for entertaining the appeal under section />?</@. "f the leave

sought for it7s not granted b the 2igh (ourt$ the appeal is not entertained

and stands dismissed./

"t ma further be noted that even if the &tate had in its capacit as the

complainant conducted the proceedings in the trail court$ et it has an

// &tate of Rajasthan v. Ramdeen$ <1=>>@ &(( G/D

/: &uga Ram v. &tate of Rajasthan$ DDG (ri )F :G:/I Reema Aggarwal v. Anupam$

DD: (ri )F ?= <&(@I &tate of Punjab v. Bhag &ingh$ DD: (ri )F =1G <&(@

/ <1==>@ &(( G/DI 1=>D &(( <(ri@ )F /=/$ /=>

Rights of AppealPage /G



independent right as the &tate to prefer an appeal under &ection />?<1@. This

right of the &tate cannot be trammeled b the provisions contained in sub,

sections <:@ and <@ of the &ection />?. This is a right which is independent of

the right given to the complainant$ whether the complainant in the trail court

was the &tate or a public servant or an other private individual. The wide

amplitude of phraseolog used in &ection />? <1@ clearl shows that the

&tate has a right to approach the 2igh (ourt to challenge an order of

acquittal passed in an case in the lower court. 0ne restriction that is

pleased upon this right of appeal is that leave of the 2igh (ourt under

&ection />? </@ has to be obtained. The other restriction is contained in

&ection />?<G@./G

The power to go in appeal against an order of acquittal should ordinaril be

used b the 9overnment in such cases onl where there appears to be a

serious miscarriage of justice.

/>

The 9overnment can review or recall its

decision under &ection />? to prefer an appeal against an order of acquittal

before the appeal is actuall presented in the 2igh (ourt but not thereafter. /?

The provisions regarding the leave of the 2igh (ourt to le an appeal against

acquittal were found desirable and e%pedient against the somewhat arbitrar

/G &tate of Maharashtra v. eepchand Ehushalchand Fain$ 1=?/ (ri )F G1$ G>

<Bom@

/> Eing,Cmperor v. 9anpati A"R 1=:: +ag 1/G

/? )al &ingh v. &tate of Punjab$ 1=?1 (ri )F 1DG=$ 1D>> <P 2@ <'B@

Rights of AppealPage />



'or the purposes of &ection />?<1@$ the Public Prosecutor is a person

appointed as such under &ection :<1@. "t has been held that simpl because

the rules framed b the &tate 9overnment under Article 1G provided that

the Advocate, 9eneral shall represent the 9overnment in the 2igh (ourt in

important civil and criminal proceedings$ it will not give him the status and

clothe him with the powers of a Public Prosecutor of the 2igh (ourt as

appointed under &ection :<1@ of the (ode.:1

"t is interesting to note that accepting the letter of the grandfather of the

victim as petition an acquittal recorded b the &essions court came to be

reviewed and set aside b the 2igh (ourt which remanded the case to pass a

fresh judgment after hearing or if need be$ to hold a retrial. The &upreme

(ourt o!aed the orders of the 2igh (ourt though the acquittal was

challenged b the grandfather who was not the de facto complainant in the

case.

:

"t has been observed that if a convict7s appeal is out of time it is the practice

of the 2igh (ourt to condone the dela as no right could be said to vest in

the &tate to have the conviction of an innocent person upheld$ but if the

&tate itself is negligent in the presentation of an appeal against acquittal a

ver clear right comes to vest in the accused person and he is entitlement to

:1 &tate of Eerela v. Eolarveettil Erishnan$ 1=? (ri )F /D1$ /D

: Ealpan &ingh v. &tate of M.P$ <1==>@ G &(( 1?

Rights of AppealPage /=



claim that$ save in e%ceptional circumstances$ dela in ling the appeal

should not be condoned.:/

"t has been opined that when the &tate has not appealed against acquittal$

the complainant could invo!e revisional jurisdiction of the &essions (ourt.::

Ot+er Rig+ts o. Appeals

#EC 113 J Appeal from orders under &ection ::G:8

:/ &tate v. ittu Ram Pritam ass$ A"R 1= Punj 1G:

:: +iranjan Eumar as v. Ranadhar Ro$ 1==D (ri )F G?/ <9au@

: &ec ::G J procedure when bond has been forfeited8 <1@ #here a bond under this

(ode is for appearance$ or for production of propert$ before a court and it is proved to thesatisfaction of that court or of an court to which the case has subsequentl been

transferred$ that the bond has been forfeited$ or where in respect of an other bond under

this (ode$ it is proved to the satisfaction of the court b which the bond was ta!en$ or of an

court to which the case has subsequentl been transferred$ or of the court of an Magistrate

of the rst class$ that the bond has been forfeited$ the court shall record the grounds of such

proof$ and ma call upon an person bound b such bond to pa the penalt thereof or to

show cause wh it should not be paid.

C%planation, A condition in a bond for appearance$ or for production of propert$ before a

court shall be construed as including a condition for appearance$ or as the case ma be$ for

production of propert before an court to which the case ma subsequentl be transferred.

<@ "f suLcient cause is not shown and the penalt is not paid$ the court ma proceed to

recover the same$ as if such penalt were a ne imposed b it under this (ode8

NProvided that where such penalt is not paid and cannot be recovered in the manner

aforesaid$ the person so bound as suret shall be liable$ b order of the court ordering the

recover of the penalt$ to imprisonment in civil jail for a term which ma e%tend to si%

months.O

Rights of AppealPage :D



2ll orders passed under section 44+ shall be appealable, !

"i# 0n the case of an order made by a )agistrate, to the (essions

udge'

"ii# 0n the case of an order made by a Court of (essions, to the court

to which an appeal lies from an order made by such court.

#EC 1*1 8 Appeals against orders under section ::G

or :/:>

8

</@ The court ma$ at its discretion$ remit an portion of the penalt mentioned and enforce

pament in part onl.

<:@ #here a suret to a bond dies before the bond is forfeited$ his estate shall be discharged

from all liabilit in respect of the bond.

<@ #here an person who has furnished securit under section 1DG or section 11> or section

/GD is convicted of an o-ence the commission of which constitutes a breach of the

conditions of his bond$ or of a bond e%ecuted in lieu of his bond under section ::?$ a

certied cop of the judgment of the court b which he was convicted of such o-ence

mabe used as evidence in proceedings under against his suret or sureties$ and$ if such

certied cop is so used$ the court shall presume that such o-ence was committed b him

unless the contrar is proved.

:G &C( :8 0rder for disposal of propert at conclusion of trial8<1@ #hen an inquir or

trial in an (riminal (ourt is concluded$ the court ma ma!e such order as it thin!s t for the

disposal$ b destruction$ conscation or deliver to an person claiming to be entitled to

possession thereof or otherwise$ of an propert or document produced before it or in its

custod$ or regarding which an o-ence appears to have been committed$ or which hasbeen used for the commission of an o-ence.

<@ An order ma be made under sub,section <1@ for the deliver of an propert to an

person claiming to be entitled to the possession thereof$ without an condition or on

condition that he e%ecutes a bond with or without sureties$ to the satisfaction of the court$

engaging to restore such propert to the court if the order made under subsection <1@ is

modied or set aside on appeal or revision.

Rights of AppealPage :1



"1# 2ny person aggrieved by an order made by a court under section

4* or section 43, may appeal against it to the court to which

appeals ordinarily lie from convictions by the former court.

"*# ?n such appeal, the 2ppellate Court may direct the order to be

stayed pending disposal of the appeal, or may modify, alter or annul the order and ma/e any further orders that may be just.

"3# he powers referred to in sub!section "*# may also be exercised

by a court of appeal, con&rmation or revision while dealing with the

case in which the order referred to in sub!section "1# was made.

Concl2sion

</@ A (ourt of &ession ma$ instead of itself ma!ing an order under sub,section <1@$ direct

the propert to be delivered to the (hief Fudicial Magistrate$ who shall thereupon deal with it

in the manner provided in sections :>$ :? and :=.

<:@ C%cept where the propert is livestoc! or is subject to speed and natural deca$ or

where a bond has been e%ecuted in pursuance of sub,section <@$ an order made under sub,

section <1@ shall not be carried out for two months$ or when an appeal is presented$ until

such appeal has been disposed of.

<@ "n this section$ the term propert includes$ in the case of propert regarding which an

o-ence appears to have been committed$ not onl such propert as has been originall in

the possession or under the control of an part$ but also an propert into or for which the

same ma have been converted or e%changed$ and anthing acquired b such conversion or

e%change$ whether immediatel or otherwise.

:> &C( :/ , Pament to innocent purchaser found on accused8#hen an person is

convicted of an o-ence which includes$ or amounts to$ theft or receiving stolen propert$

and it is proved that an other person bought the stolen propert from him without !nowingor having reason to believe that the same was stolen$ and that an mone has on his arrest

been ta!en out of the possession of the convicted person$ the court ma$ on the application

of such purchaser and on the restitution of the stolen propert to the person entitled to the

possession thereof$ order that out of such mone a sum not e%ceeding the price paid b

such purchaser be delivered to him.




Thus it is rightl understood that An appeal is a petition for review of a case

that has been decided b a court of law. The petition is made to a higher

court for the purpose of overturning the lower courtQs decision.

The specic procedures for appealing$ including even whether there is a right

of appeal from a particular tpe of decision$ can var greatl from countr to

countr. The nature of an appeal can var greatl depending on the tpe of

case and the rules of the court in the jurisdiction were the case was

prosecuted. There are man tpes of standard of review for appeals$ such as

de novo and abuse of discretion.

An appellate court is a court that hears cases on appeal from another court.

epending on the particular legal rules that appl to each circumstance$ a

part to a court case who is unhapp with the result might be able to

challenge that result in an appellate court on specic grounds. These

grounds tpicall could include errors of law$ fact$ or procedure <in the *nited

&tates$ due process@.

"n di-erent jurisdictions$ appellate courts are also called appeals courts$

courts of appeals$ superior courts$ or supreme courts.

Appellate review is the general term for the process b which courts with

appellate jurisdiction ta!e jurisdiction of matters decided b lower courts. "t

is distinguished from judicial review$ which refers to the courtQs overriding

constitutional or statutor right to determine if a legislative act or

Rights of AppealPage :/

http://en.wikipedia.org/wiki/Jurisdiction

http://en.wikipedia.org/wiki/Appellate_court

http://en.wikipedia.org/wiki/Court

http://en.wikipedia.org/wiki/Court_case

http://en.wikipedia.org/wiki/Law

http://en.wikipedia.org/wiki/Fact

http://en.wikipedia.org/wiki/Due_process



http://en.wikipedia.org/wiki/Judicial_review_(theory)

http://en.wikipedia.org/wiki/Appellate_court


http://en.wikipedia.org/wiki/Court_case

http://en.wikipedia.org/wiki/Law

http://en.wikipedia.org/wiki/Fact

http://en.wikipedia.org/wiki/Due_process



http://en.wikipedia.org/wiki/Judicial_review_(theory)




administrative decision is defective for jurisdictional or other reasons <which

ma var b jurisdiction@.

"n most jurisdictions the normal and preferred wa of see!ing appellate

review is b ling an appeal of the nal judgment. 9enerall$ an appeal of

the judgment will also allow appeal of all other orders or rulings made b the

trial court in the course of the case. This is because such orders cannot be

appealed as of right. 2owever$ certain critical interlocutor court orders$

such as the denial of a request for an interim injunction$ or an order holding

a person in contempt of court$ can be appealed immediatel although the

case ma otherwise not have been full disposed of.

Therefore$ the right of appeal is integral to fair procedure$ natural justice and

normative universalit.

Rights of AppealPage ::

http://en.wikipedia.org/wiki/Legal_judgment

http://en.wikipedia.org/wiki/Court_order

http://en.wikipedia.org/wiki/Injunction

http://en.wikipedia.org/wiki/Contempt_of_court

http://en.wikipedia.org/wiki/Legal_judgment

http://en.wikipedia.org/wiki/Court_order

http://en.wikipedia.org/wiki/Injunction

http://en.wikipedia.org/wiki/Contempt_of_court



B"B)"09RAP2

1 Criminal Procedure Code (Cr.P.C.) Tandon, revised by

Shailender Malik

18th

edition,reprint !1

2 Criminal Procedure Code, 1"#$ (%or &&.'.,udicial *mination + eneral Practice)

S.-.Malik !!"

3 Criminal Procedure Code (Theory ith/.0.)

0shok -.ain &atest

4 Criminal Procedure Code, 1"#$ (n 2ols.) 3ur4a 3as 'asu 5th edition,!16

5 &a relatin4 to Criminal Procedure Code 3r. 7. Maheshara 1st edition,!15

6 Code o Criminal Procedure (in 2ols.) '.'.Mitra, revisedby ustice S.9.9oy

!11

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scope and rationale of appeal

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