SCOPE AND RATIONALE RATIONALE OF APPEAL
Submitted To – MR Sanjeev Sir
Rights of AppealPage 1
Submitted By- Soumil Goyal Roll no
- 97/13
Section
- 6t Sem Sec B
ACKNOWLEDGEMENT
The present present project project on the “Rationale and Scope of Appeal” has been able to get its nal 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 &tudies famil 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.
Rights of AppealPage
ACKNOWLEDGEMENT
The present present project project on the “Rationale and Scope of Appeal” has been able to get its nal 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 &tudies famil 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"""""""""""""""""" !ntroduction"""""""" """"""""""""# ""# ""$a%e & Meanin% o' o ' ())eal""""""""""""""""""" ())eal"""""""""""""""""""##$a%e ##$a%e 7 Ri%t* o' ())eal""""""""""""""""" ())eal""""""""""""""""""""$a%e """$a%e 1+ ())eal 'rom ,onviction"""""""" ,on viction"""""""""""""""""#$a%e """""""""#$a%e 1& S)ecial ri%t o' a))eal in *)ecial ca*e*"""""""""""##$a%e 1 ())eal a%ain*t order o' ac.uittal"""""""""""""###$a%e ac.uittal"""""""""""""###$a%e 0ter ri%t* o' ())eal"""""""""""""""""###$a%e ())eal"""""""""""""""""###$a%e 3& ,onclu*ion""""""""""""""""""" ,onclu*ion""""""""" """""""""""""$a%e """$a%e 36 Biblio%ra)y""""""""""""""""""" Biblio%ra)y"""""""" """""""""""""##$a%e ""##$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 (ourt has observed8 30ne 0ne comp compon onen entt of fair fair proc proced edur ure e is natu natura rall just justic ice. e. 9ene 9enerrall all 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 Rights of AppealPage :
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 14 1 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 Rights of AppealPage
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?
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 Rights of AppealPage >
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 Rights of AppealPage ?
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
= &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>? Rights of AppealPage =
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
Rights of AppealPage 1D
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 Rights of AppealPage 11
"c# $here a )agistrate of the &rst class passes only a sentence of &ne not exceeding one hundred rupees' or
"d# $here, in a case tried summarily, a )agistrate empowered to act under section *+ passes only a sentence of &ne not exceeding two hundred rupees
-rovided that an appeal may be brought against any such sentence if any other punishment is combined with it, hot such sentence shall not be appealable merely on the round!
"i# hat the person convicted is ordered to furnish security to /eep the peace' or
"ii# hat a direction for imprisonment in default of payment of &ne is included in the sentence' or
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"iii# hat more than one sentence of &ne is passed in the case, if the total amount of &ne is imposed does not exceed the amount hereinbefore speci&ed in respect of the case.
"t ma be recalled here that according to section /1
#EC &'* J +o appeal in certain cases when accused pleads guilt8
Notwithstanding anything maintained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal.
"a# 0f the conviction is by a %igh Court' or
"b# 0f the conviction is by a Court of (ession, )etropolitan )agistrate or )agistrate of the &rst or second class, except as to the extent or legality of the sentence.
The rationale behind the above section /> is that a person who deliberatel pleads guilt cannot be aggrieved b being convicted. #hen a person is convicted b an court on the basis of his own plea of guilt$ he cannot and Rights of AppealPage 1/
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/a 01$ 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 /=
:> 1 &ee :1st Report$ p. =$ para /1.11 Rights of AppealPage 1:
Appeals .ro, conviction Appeal to t+e #2pre,e Co2rt
Rights of AppealPage 1
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 Rights of AppealPage 1G
#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
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 person and sentenced him to deathI or (c) certies that the case is a t one for appeal to the &upreme (ourt.
Rights of AppealPage 1>
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/
Rights of AppealPage 1?
a. 2as withdrawn for trial before itself an case from an court subordinate to its authorit and has in such trial convicted the accused person and sentenced him to deathI or 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 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
1> (handra Mohan Tiwari v. &tate of M.P.$ <1==@ &(( 1D$ 11/,11:I 1== &(( <(ri@ I 1== (ri )F 1D=1 Rights of AppealPage 1=
Appeal to t+e "ig+ Co2rt
#EC &'1 J Appeals from conviction8
"*# 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
Rights of AppealPage D
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>
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
#EC &'1 J Appeals from conviction8
"3# (ave as otherwise provided in sub!section "*#, any person, !
D (. 9opinathan v. Erishnan Aappan 1==1 (ri )F >>?
"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.
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#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.
Rights of AppealPage :
Appeal b Govern,ent against #entence
Before &ection />> dealing with such appeals was enacted$ it was considered somewhat unsatisfactor to invo!e the revisional powers of the 2igh (ourt for correcting an error in sentencing. (onsidering the frequent occurrence of inadequate sentences$ there seemed no reason wh the &tate government should now be able to appeal against the inadequate sentence.
#EC &'' J Appeal b the &tate 9overnment against sentence8
"1# (ave as otherwise provided in sub!section "*#, the (tate 8overnment may in any case of conviction on a trial held by any Court other than a %igh Court, direct the -ublic prosecutor to present an appeal to the %igh Court against the sentence on the ground of its inadeuacy!
a. o the court of (ession, if the sentence is passed by the )agistrate' and
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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# $hen an appeal has been &led against the sentence on the ground of its inadeuacy, the Court of (eesion or, as the case maybe, the %igh Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause
Rights of AppealPage G
against such enhancement and while showing cause, the accused or for the reduction of the sentence.
Carlier an appeal for enhancement of sentence on the ground of it inadequac could onl be entertained b the 2igh (ourt. 2owever$ 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
1
1 +adir Ehan v. &tate <elhi Admn.@$ <1=>@ &(( :DGI 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:= > (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@ Rights of AppealPage >
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>. 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:= >@ / &(( I 1=>> &(( <(ri@ :1D$ :1/I 1=>> (ri )F =G:I Rights of AppealPage ?
"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>. Rights of AppealPage =
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
;stablishment
been
investigated
constituted
by
under
the the
:elhi :elhi
(pecial (pecial
-olice 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
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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
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 "f two views are possible$ a view favourable to the accused
should be ta!enI 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: >G
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
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 #here the application of law is improperl doneI #here there is substantial omission to consider the evidence
e%isting on recordI The view ta!en b the acquitting the court is impermissible on the
evidence on recordI or "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=
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 ?. "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 ?<1@ or the &ection />? <@$ incorporate a praer in the memorandum of appeal for grant of leave under &ection />?
/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= Rights of AppealPage /
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 />?
// &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 />? ? 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> Eing,Cmperor v. 9anpati A"R 1=:: +ag 1/G /? )al &ingh v. &tate of Punjab$ 1=?1 (ri )F 1DG=$ 1D>>
e%ercise of the e%ecutive power of the government to le such appeals. *nder the sub,section ?<1@$ the appeal b the &tate against the order of acquittal is to be presented in the 2igh (ourt b the Public Prosecutor upon the direction of the &tate 9overnment. The object of this provision seems to be that the &tate should associate the Public Prosecutor in the matter of preferring an appeal against acquittal. #here there is a Public Prosecutor but the &tate has not associated him in preferring the appeal$ the act of ling the appeal will be invalid. &ection />? is thus mandator. Cven though &ection /? allows the appeal to be presented in the form of a petition b the appellant or his lawer$ that section does not override the special requirement of &ection />? in respect if an appeal b the &tate. 2owever$ in a situation where it is impossible to have a Public Prosecutor for presenting an appeal on behalf of the &tate$ it would be legitimate to invo!e the ma%im Lex non cogit ad impossbillia which means dispensing performance of what is prescribed when performance of it is impossible. :D
/= &tate of Maharashtra v. Hithal Rao Pritirao (hawan$ <1=?1@ : &(( 1= :D F.M. Almeida v. &tate$ 1=?D (ri )F 1:$ 1D <9oa@ 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 the satisfaction 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
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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
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 has been 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.
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"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
$ :? 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 !nowing or 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.
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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
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administrative decision is defective for jurisdictional or other reasons
Therefore$ the right of appeal is integral to fair procedure$ natural justice and normative universalit.
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