Section 341 of Criminal Procedure Code provides for the meaning of appeal. The right to appeal is made against a complaint and not against the findings of inquiry which incidental to it. Until a complaint is made under Section 340 of Criminal Procedure Code, there is no right to appeal to the party against whom the order is made because the prosecution is incomplete. When the lower court refuses to make a complaint then the person on whom the application the court has refused to make a complaint has the right to appeal. When the order of lower Court is reversed then the Appellant Court has to give reasons for why it considers that discretion has not been properly met by the Lower Court.
Section 372 to section 394 of Criminal Procedure Code
Section 372 :
No appeal should lie unless otherwise it is provided. No appeal shall lie from any judgment or order of a Criminal Court except it has been provided by the code or any other law which is being in force at that time.
Provided that the victim shall have the right to appeal against any order passed by the Court in which the accused is been acquitted or convicted for a lesser sentence or he has got inadequate compensation. Such appeal shall lie only to the Court where that appeal ordinary lies against order of conviction of such Court.
Section 373 :
Appeals from orders which require security/refusal to accept or reject surety for keeping good behavior and peace.
Any person :
1. who has been order under Section 117 for giving security for good behavior and peace.
2. who is aggrieved by order which is refused or accept or rejected a surety under Section 121 , they may appeal against such order to the Court of Session.
Provided that nothing in this section shall apply to persons where the proceedings against such person has been laid down before the Sessions Judge in accordance with the provisions of Sub section (2) or Sub section (4) of Section 122.
Section 374 : Appeals from Conviction’s
1. Any person convicted by the High Court in its original criminal jurisdiction may appeal to the Supreme Court.
2. Any person convicted by the Sessions Judge or Additional Judge or any other court in which a sentence of imprisonment for more than 7 years has been given shall appeal to the High Court.
3. Any person can appeal to the Court of Session if he satisfies the following :
• Convicted by the Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of first class or the second class
• sentenced under 325
• Order or sentence passed under Section 360 by any Magistrate.
4. When an appeal has been passed against an order under Section 376, Section 376A, Section 376AB, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E of Indian Penal Code , it shall be disposed of within a period of 6 months from the date of filing such appeal.
Section 375 : No appeal in cases in which the accused pleads guilty
When an accused has pleaded guilty and has convicted on such plea then there shall be no appeal, if the conviction is by :
1. High court, or
2. Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent of the sentence or order.
Section 376 : No appeal in petty cases
Notwithstanding anything contained in Section 374, there shall be no appeal against these cases:
1. When High Court passes a sentence of imprisonment for a term not exceeding 6 months or only fine not exceeding 1000 rupees.
2. When Court or Session or a Metropolitan Magistrate passes a sentence of imprisonment not exceeding 3 months or fine not exceeding 200 rupees.
3. When Magistrate of first class passes a sentence of fine not exceeding 100 rupees, or
4. When a case is tried summarily and the Magistrate passes a sentence of fine not exceeding 200 rupees under Section 260.
Provided that appeal can be brought if any other punishment is combined with it, but such sentence shall not to be appealable on these grounds:
1. The person convicted is ordered to furnish security to keep peace, or
2. Direction for imprisonment due to default of payment is also included in the sentence
3. More than 1 sentence of fine has been passed in the case and the total amount of fine passed by the court does not exceed the amount specified before.
Section 377 : Appeal against a sentence by the State Government
1. The State Government in any case held by any court other than the High Court shall direct the Public Prosecutor to present an appeal against the sentence or order on the ground of inadequacy to the :
• Court of Session, if the sentence was passed by the Magistrate
• High Court, if the sentence was passed by any other Court.
2. If the offence has been investigated by the Delhi Special Police Establishment or any agency empowered by the Central Act then the Central Government may also direct the Public prosecutor to present an appeal to High Court on the ground of inadequacy.
3. On the ground of inadequacy an appeal has been filed then the High Court shall not enhance the sentence except after giving reasonable opportunity of showing cause and the accused may plead for his acquittal or for any reduction in his sentence.
4. The appeal shall be disposed of within 6 months from the date of filing such appeal if the appeal has been filed under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E of Indian Penal Code.
Section 378 : Appeal in case of acquittal
1. If the case is cognizable and non-bailable offence and the acquittal is passed by the Magistrate then the District Magistrate direct the Public Prosecutor to present an appeal to the Court of Session. If the acquittal is passed by any other court other than High Court or the Court of Session in revision then the State Government may direct the Public Prosecutor to present an appeal.
2. If the offence has been investigated by the Delhi Special Police Establishment or any agency empowered by the Central Act then the Central Government may also direct the Public prosecutor to present an appeal to :
• Court of Session in respect of cognizable or non-bailable offence
• High Court for an order passed by any other court other than High Court or an acquittal passed by Court of Session in revision.
3. Except with the leave of High Court no appeal shall be entertained under Sub section (1) or Sub section (2).
4. If such an order of acquittal is passed and on application made by the complainant, the High Court can grant special leave to appeal and the complainant may present such appeal to High Court.
5. No application under Sub section (4) shall be entertained by the High Court after the expiry period of 6 months and the complainant is a public servant and 60 days in every other case from the date of the order of acquittal.
6. If the application under Sub section (4) for grant of special leave to appeal has been refused then no appeal shall lie in Sub section (1) or (2).
Section 379 : Appeal against conviction by High Court
A person can appeal to Supreme Court when an appeal is reversed an order of acquittal of an accused person in the High Court and convicted him and sentenced him to imprisonment for life or death or imprisonment for a term.
Section 380 : Special right of appeal
When more than one person is convicted and an appealable judgment of order is passed then the person convicted shall have right of appeal.
Section 381 : Appeal to Court of Session
1. Subject to sub section (2), an appeal to the Court of Session is heard by the Session judge or by the Additional Sessions judge.
Provided that an appeal can be disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate if the appeal in trial is held by the Magistrate of second class.
2. The judges mentioned in sub section (1) shall hear appeals only by general or special order by the Sessions Judge of the division or by the High Court.
Section 382 : Petition of Appeal
Every appeal shall be presented by the appellant of the pleader in a form of petition and if the court directs then it shall be accompanied by a copy of judgment appealed against.
Section 383 : Procedure to be followed if the appellant is in the jail
Appellant has to present his petition and copies to the officer in charge of the jail if the appellant is in jail. The officer shall forward such petition to proper Appellant Court.
Section 384 : Summary dismissal of Appeal
1. After examining the appeal, if there is no sufficient ground for interfering then the Appellate Court may dismiss the appeal summarily
Provided that :
a) Reasonable opportunity of being heard should be given to the appellant or the pleader.
b) Appellate Court should considers the appeal is frivolous and production of accused before the court will cause inconvenience.
c) No appeal can be dismissed summarily until the period for such appeal is expired.
2. the court may call for record of the case before dismissing the appeal.
3. the court shall record the reasons for dismissing the appeal.
4. When the appellate Court finds another petition of appeal presented by the same appellant which has not been considered, the Court may, notwithstanding anything in Section 393,in the interest of justice hear and dispose such appeal.
Section 385 : Procedure for hearing appeals which are not been dismissed summarily
1. The Appellate Court shall cause notice of the time and place at which the appeal is heard to :
a) Appellant or his pleader
b) Officer of State Government who is appointed
c) To the complainant if the judgment is in form of conviction instituted upon complaint
d) It shall be sent to the accused, officer, complainant with the copy of grounds of appeal if the appeal is under Section 377or 378.
2. Record of notice shall be sent by the Appellate Court if it not already available
Provided that if appeal is only to the legality of the sentence then the court may dispose the appeal without sending it to the record
3. When the only ground is alleged severity o the sentence then the appellant shall not be heard in support of any other ground except with the leave of the Court.
Section 386 : Powers of the Appellate Court
1. Appeal from an order of acquittal :
Reverse such an order and direct further inquiry or the accused be re-tried.
2. Appeal from a conviction :
a) reverse the finding and sentence or be re-tried by a subordinate Court
b) alter the finding or the sentence
c) alter the nature and extent of the sentence without altering the finding.
3. Appeal for enhancement of sentence
a) reverse the finding or be re-tried by a competent court
b) alter the finding or the sentence
c) alter the nature and extent of the sentence without altering the finding.
4. Appeal from any other order then alter or reverse it
5. Make any amendment that may be just or proper.
Provided that the accused had showing cause against such enhancement.
Provided further that Appellate Court shall not inflict a greater punishment that might have inflicted by the Court passing the order under the appeal.
Section 387 : Judgment of Subordinate Appellate Court
The rules contained in Chapter XXVII to the judgment of Criminal Court shall apply to the appeals in Court of Session or Chief Judicial Magistrate.
Provided that unless the Appellate court directs the accused is not required to attend or hear the judgment which is delivered.
Section 388 : Order of High Court on appeal which shall be certified to lower court
1. When a case is decided on appeal by the High Court, it shall certify its judgment and sent through the Chief Judicial Magistrate or through the district magistrate depending on the court.
2. The Court to which the judgment is certified can make such orders conformable to the judgment if it is necessary and the record shall be amended.
Section 389 : Suspension of sentence and release of appellant on bail
1. The appellant court on any pending appeal can order the execution of sentence be suspended and be released on bail or on his own bond.
Provided that the Appellate Court shall give opportunity to the public prosecutor for showing the cause in writing if the offence is punishable with death or imprisonment for life or a term more than 10 years
Provided further It shall be open for the public prosecutor to file for an application for cancellation of bail.
2. The power conferred here can be exercised by the High Court in a case of the court subordinate to it.
3. When the convicted person satisfies the Court and intends to present an appeal, the court shall:
a) where such person being sentenced for a term not exceeding 3 years and he is on bail.
b) where the offence is bailable and he is on bail
4. The time during which he is so released shall be excluded in calculating the term for which is sentenced.
Section 390 : Arrest after acquittal
The High Court may issue warrant that the accused be arrested when an appeal is presented and the court before which he is brought may dispose the appeal or grant him bail.
Section 391 : When the appellate Court may take further evidence
1. If the Court thinks additional evidence is necessary them either they shall take such evidence or direct the Magistrate.
2. If it is taken by the Magistrate then the evidence shall be certified.
3. Right to present is available with the accused or his pleader when the additional evidence is take.
4. Taking of evidence shall be subject to Chapter XXIII.
Section 392 : When judges of the Court of appeal are equally divided
When an appeal is heard before the High Court it is divided into opinion , the appeals are with the opinions and it shall be laid before another Judge of the Court. If he thinks it fit he shall deliver his opinion and the order following it.
Provided that when the appeal is laid before another judge it shall be re-heard and decided by a larger bench of judges.
Section 393 : Finality of judgments
Judgments passed by the Appellate Court shall be final except in cases:
• Section 377
• Section 378
• Sub section (4) of Section 384 of Chapter XXX
Provided the Appellate Court may hear and dispose of the cases:
• Appeal against acquittal under Section 378
• Appeal for enhancement under Section 377
Section 394 : Abatement of appeals
On death of the accused, every appeal under Section 377 or Section 378 shall be abate except an appeal of sentence of fine.
Provided that in the appeal against sentence of death or imprisonment and the appellant dies during the pendency of the appeal, within 30 days any of his near relative shall apply to Appellate Court for leave to continue the appeal and if the leave is granted then appeal shall not abate.
Illustration 1: Satya Pal Sigh v. State of Madhya Pradesh
The appellant in this case is the father of the deceased and he has a locus standi to represent the appeal to the High Court against the order of acquittal under proviso of Section 372 because he falls within the meaning of victim. It can be done without obtaining the leave of the High Court as required under Sub section (3) of Section 378 of Criminal Procedure Code. The victim is the legal heir and he has the right of questioning the correctness of the judgment.
Illustration 2: Chandrashekhar S/O Khushalrao v. The State Of Maharashtra on 3 July, 1991
Section 377 of Criminal procedure Code gives power to appeal against the sentence to the State Government and provisions are in respect of appeal in case of acquittal. Sub section(2) of Section 394 of Criminal Procedure Code speaks that every appeal except for the sentence of fine shall be finally abate on death of the appellant. In this case, the deceased preferred an appeal under Section 374 so it comes under Sub section (2) of Section 394 of Criminal Procedure Code.
Illustration 3: Durga Prasad Soni And Anr. v. State of Andhra Pradesh on 21 June 1990
Section 372 lays down that there is no appeal for a judgment or order of Criminal Court except as provided by the Code or any other law which in force at that time. It is clear from that the right to appeal is a statutory right. Section 373 deals with orders against securities.
Illustration 4 : Jagdish And Anr. v. The State Of Rajasthan on 8 January, 1992
The appeal was not maintainable because of Section 376 of Criminal Procedure Code, no appeal has been provided in petty cases. The submission is that the accused has to furnish security to keep good behavior and peace under Section 4 of Probation of Offenders Act and no appeal lies under Section 376 and Section 374 of Criminal Procedure Code. The order should be treated as an order in revision and the second revision is not permissible.
Frequently asked questions
1. How many times can a person appeal a conviction ?
A person can only appeal once from a judgment of conviction but that one appeal can have different stages, Appeals usually go back and forth from one court to another court.
2. Who can appeal in criminal case and civil cases ?
In a criminal case, the appeal is heard only if the defendant is granted permission from Appellant Court. Criminal defendants who have been convicted has absolute right to appeal in the court. In civil cases, the either party the defendant or the plaintiff ( winner or loser ) may appeal a lower court’s judgment before a High Court.
3. Can a person introduce a new evidence on appeal ?
In general, a person cannot introduce a new or additional evidence at their appeal. they must rely only on the evidence that they have submitted in their previous proceedings. However, they can introduce new evidence with leave or permission from the division hearing the appeal which is usually 3 judges.
4. What is the difference between an appeal and review ?
An appeal is a plea for the order to be judged again. It requests a higher court to change the decision of a lower court but a review is applied to the same court where the original decision was taken and it is requested to consider the legality of the ruling.
An appeal is the creature of power and jurisdiction of Appellant Court. Appeal makes the higher court to reverse the judgment or order of the lower court. The respondent usually files a responsive brief encountering the arguments. The appellant can encounter that arguments with his final brief. Appeals from orders requires security such as good behavior and peace of the appellant. Victim can file appeal against acquittal without seeking leave or permission to appeal. Appeal is an important remedy for person’s dissatisfaction with the judgment or the order of trial court. Appeal to the court of session should be heard by the session’s judge. If the appellant is in jail then he may present his appeal to the officer in charge of jail. Pending of an appeal by accused ,the Appellate Court can suspend the execution of sentence and the person in confinement be released on bail.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje