Appeal as mentioned in Criminal Procedure Code

FOR GENERAL INFORMATION

1. REVIEW PROCEDURE APPEAL Adwitiya Prakash Tiwari

2. OBJECT AND SCOPE HUMAN JUDGEMENT IS NOT INFALIABLE,DESPITE ALL PROVISION FOR FAIR TRIAL AND JUST DECISION MISTAKE ARE POSSIBLE AND ERROR CAN NOT BE RULLED OUT. APPEAL IS ONE OF THE TWO IMPORTANT OF THE REVIEW PROCEDURE. APPEAL IS AN COMPLAINT TO SUPERIOR COURT OF AN INJUSTICE DONEOR ERROR COMMITTED BY AN INFERIOR COURT,WHOSE JUDGEMENT OR DECISION THE COURT ABOVE IS CALLED UPON TO CORRECT OR REVERSE. AN APPEAL IS CREATURE OF STATUTE, AND THERE CAN BE NO INHERENT RIGHT OF APPEAL FROM ANY JUDGEMENT OR DETERMINATION UNLESS AN APPEAL IS EXPRESSLY PROVIDED FOR BY THE LAW ITSELF.

3. NO APPEAL IN CERTAIN CASES NO APPEAL UNLESS PROVIDED BY LAW.[SECTION 372] NO APPEAL IN PETTY CASES.[SECTION 376 + SECTION 31(3)] THE PRIVISIOTO SECTION 376 EXPLAIN THAT AN APPEAL MAY BE BROUGHT AGAINST THE ABOVEMENTIONED NON APPELABLE SENTENCE IF ANY OTHE R PUNISHMENT IS COMBINED WITH IT. NO APPEAL WHERE THE ACCUSED IS CONVICTED ON HIS PLEA OF GUILTY. [SECTION 375] IN THIPPASWAMY V STATE OF KARNATAKA (1983)1 SCC 194 IT WOULD BE VIOLATIVE OF ART. 21 OF CONSTITUTION TO INDUCE OR LEAD AN ACCUSED TO PLEAD GUILTY UNDER A PROMISE OR ASSURENCE THAT HE WOULD BE LET OFF LIGHTLY AND THEN IN APPEAL OR REVISION, TO ENHANCE THE SENTENCE. IN THIS SITUATION SUCH PERSON CAN EXERCISE HIS RIGHT TO APPEAL.

4. APPEAL FROM CONVICTION APPEAL TO THE SUPREME COURT A - ANY PERSON CONVICTED “ON TRIAL HELD BY” HIGH COURT IN ITS EXTRAORDINARY ORIGINAL CRIMINAL JURISDICTION MAY APPEAL TO THE SUPREAM COURT.[SECTION 374(1)] B - WHERE THE HIGH COURT HAS, ON APPEAL, REVERSE AN ORDER OF ACQUITTAL OF AN ACCUSED PERSON AND CONVICTED AND SENTANCED HIM TO THE DEATH OR LIFE IMPRISONMENT FOR A TERM OF 10 YEAR OR MORE, HE MAY APPEAL AS OF RIGHT TO SUPREAM COURT (SECTION 379) C - THE CONSTITUTION PROVIDE THAT AN APPEAL SHALL LIES TO THE SUPREAM COURT FROM ANY JUDEGEMENT DECREEE OR FINAL ORDER OF A HIGH COURT. IF HIGH COURT CERTIFIES THAT THE CASE INVOLVE A SUBSTANTIAL QUESTION OF LAW AS TO INTERPRATATION OF CONSTITUTION.[ARTICLE 132(1)] HOWEVER THE ABOVE RULE SHALL NOT APPLY TO ANY JUDGEMENT,DETERMANIATION,SENTENCE OR ORDER PASSED OR MADE BY ANY COURT OR TRIBUNAL CONSTITUTED BY OR UNDER ANY LAW RELATING TO THE ARMED FORCES.[ARTICLE136(2)]

5. APPEAL FROM CONVICTION 2- APPEAL TO THE HIGH COURT ANY PERSON CONVICTED ON A TRIAL HELD BY SESSION JUDGE OR AN ADDITIONAL SESSION JUDGE OR ON TRIAL HELD BY ANY OTHER COURT IN WHICH SENTENCE OF IMPRISONMENT FOR MORE THEN SEVEN YEAR HAS BEEN PASSED AGAINST HIM OR AGAINST ANY PERSON CONVICTED AT THE SAME TRIAL MAY APPEAL TO THE HIGH COURT.[SECTION 374(2)] 3- APPEAL TO THE COURT OF SESSION CONVICTED ON A TRIAL BY METROPOLITAN MAGISTRATE OR ASSISTANT SESSION JUDGE OR MAGISRATE OF FIRST CLASS, OR OF SECOND CLASS. SENTENCE UNDER SECTION 325. IN RESPECT OF WHOME AN ORDER HAS BEEN MADE OR SANTENCE HAS BEEN PASSED UNDER SECTION 360 BY ANY MAGISTRATE. MAY APPEAL TO THE COURT OF SESSION UNDER SECTION 374(3) 4- SPECIAL RIGHT OF APPEAL IN CERTAIN CASES- SECTION 380

6. Appeal by government against sentence Section 377 Earlier an appeal for enhancement of sentence on the ground of its inadequacy could only entertained by the high court. Now appeal on this ground can also be entertained by court of session.(in case when it I passed by magistrate) Only state are capable not complainant or any other person can file suit for this purpose. On the basis of complainant appeal high court may exercise its revision jurisdiction.(under section 399 and 401 r/w section 386(c)iii) In this proceeding where sentence enhanced the appellant have had opportunity of being heard under section 235(2) at the time of conviction.

7. APPEAL AGAINST THE ORDER OF ACQUITTAL SECTION 378 DEAL WITH APPEAL IN CASE OF ACQUITTAL.IT DOES NOT COME INTO PLAY IN ORDER OF DISCHARGE. THE COURT CAN INTERFERE WITH THE ORDER OF ACQUITTAL ONLY WHEN. THE APPRECIATION OF THE EVIDENCE BY THE TRIAL COURT IS PREVERSE OR THE CONCLUSION DRAWN BY IT CAN NOT BE DRAWN ON ANY VIEW OF THE EVIDENCE. WHERE THE IMLICATION OF LAW IMPROPERLY DONE. WHERE THE SUBSTANTIL OMMISSION TO CONSIDER THE EVIDENCE EXISTING ON RECORD. THE VIEW TAKEN BY ACQUITTING COURT IS IMPERMISSIBLE ON THE EVIDENCE ON RECORDE IF THE ORDER OF ACQUITTAL IS ALLOWED TO STAND IT WILL RESULT IN THE MISCARRIAGE OF JUSTICE.

8. PETITION OF APPEAL AND IT’S PRESENTATION SECTION 382 OF CRIMINAL PROCEDURE CODE MAKE PROVISION FOR IT. THE RULE CONTAINED IN SECTION 382 IS A TECHNICAL RULE, IT REQUIRE AN AGGREVIED PERSON FILLING AN APPEAL TO ATTACH A COPY OF JUDGEMENT APPELEAD AGAINST. IF THE APPELANT IS IN THE JAIL HE MAY PRESENT HIS PETITION OF APPEAL AND THE COPIES ACCOMPANYING THE SAME TO THE OFFICER IN CHARGE OF THE JAIL , WHO SHALL THERUPON FORWARD SUCH PETITION AND COPIES TO THE PROPER APPLEATE COURT [SECTION 383]

9. HEARING OF APPEAL IN COURT OF SESSION SECTION 381 MAKE PROVISION FOR PROPER DISTRIBUTION OF APPELATE WORK IN THE COURT OF SESSION. SUB SECTION 2 OF SECTION 381 RESTRICT THE JURISDICTION CONFERRED ON ADDITIONAL SESSION JUDGE, ASSISTANTE SESSION JUDGE, OR CHIEF JUDICIAL MAGISTRATE, IT DOES NOT EMPOWER THE ADDITIONAL SESSION JUDEGE OR THE ASSISTANT SESSION JUDGE TO RECIVE APPEAL DIRECT FROM PARTIES AND TO ADMIT THEM AND TAKE THEM ON FILE. THE REASONABLE INTERPRETATION OF SECTION 381(2)APPEAR TO BE THAT AN ADDITIONAL SESSION JUDEGE, ASSISTANT SESSION JUDEGE OR A CHIEF JUDICIAL MAGISTRATE IS COMPITENT TO HERE ONLY APPEAL PROPERLY FILED UNDER SECTION 374(3), ENTERTAINED BY THE SESSION JUDGE AND THERINAFTER TRANSFERRED TO HIM.

10. Summary dismissal of appeal Petition of appeal and copy of judgement to be examined, if upon examining the petition of appeal and copy of judgement received under section 382 or section 383 the appellate court consider that there is no sufficient ground for interfering it may dismiss the appeal summarily. Before dismissing the appeal summarily the court may call for record of the case[section 384(2)] No appeal shall be 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 Where appellate court dismissing an appeal under this section is a court of session or CJM it shall record its reason for doing so.[section 384(3)] The order of summary dismissal of appeal as passed by appellate court are liable to be revised by High Court. Summary dismissal of jail appeal is no bar to hearing a regular appeal.[section 384(4)] No power to allow to withdrawal of appeal

11. Procedure for hearing appeal not dismissed summarily Where the appeal is admitted section 385 prescribed the further step, non compliance with section 385 may amount to violation of principal of natural justice. Section 385(2)require the appellate court to send for the record of the case. If the appellant himself says that the appeal should be allowed on the finding recorded by the session judge and the respondent has not raised any objection to this then the non summoning of the record can not considered as fatal to the case . This irregularity will be curable under section 465.

12. Power of appellate court to grant bail Section 389 and 390 deal with the suspension of sentence pending the appeal, release of appellant on bail, arrest of the accused in appeal from acquittal and his release on bail. Power of appellate court to obtain further evidence. [ Section 391] the object of this section evidently is to ensure that justice is done between the prosecutor and the person prosecuted. It is well known that additional evidence can not be tendered at appellate stage as of right and the appellate court has to exercise discretion vesting in it to permit additional evidence on sound judicial principal. Clearly it is not arbitrary discretion as it manifested by the provision “shall record its reason”.

13. Power of appellate court in disposing of appeal Section 386 confer the adequate power on the appellate court for the proper disposal of different kind of appeal. These power are exercised only after satisfying two essential condition. Before the deciding to exercise any of the power the court must pursue the record of the case as mentioned in section 385(2). The appellate court must here the appellant or his pleader, if the appear , and the public prosecutor, if appear, and in case of an appeal by the state government against sentence under section 377, or of an appeal in case of acquittal under section 378, the accused, if he appear. In appeal from conviction the appellate court may A- reverse the finding of the sentence and acquit or discharge the accused. B- alter the finding, maintaining the sentence C- with or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence, but not so enhance the same. [Section 386(b)]