Special Right to appeal and Legal Aid in appeal

Special Right to appeal and Legal Aid in appeal

Chapter XXXIX of The Criminal Procedure Code 1973, deals with “appeals”.The term “appeal” is not defined in the Code but in a simple way of explanation, an appeal is a reconsideration of a verdict or decision which is given from lower court to the superior court. From Section 372 – 394 of CrPC, states about the appeals and the procedure regarding it. The right of appeal is not a natural or inherent right hence it is a statutory right and it must be expressly provided by the statute.

In a common view, the appeal is a legal right that implied upon the parties, but it is not a right as such because it is not defined in the Code. According to Section 372, there cannot be an appeal that lies from any judgement or any order of a criminal court except for the statutory provisions described by CrPC or any other law. Thus, the right to appeal is subjected to statutory limitations.[i]

As per the proviso of Section 372, the victim has the right to appeal against the order passed by Court under special circumstances comprising of a judgement of acquittal or conviction for a lesser offence. In the case, Satya Pal Sigh v. Madhya Pradesh [ii] , the court held that the father of the accused can present an appeal to superior court under the proviso of Section 372, as he comes within the definition of “victim”, to a reconsideration of judgement and order of acquittal.

Recently the Parliament has amended the Section 372 stating that victims have the right to order for appeal in any judgements made by the court that means for the convicting in offences which are less offensive or imposing inadequate fine. In Mast Ram Tiwari v. State of U.P and 3Others [iii]it is stated that there is no period of time for filing of appeal under Sec372 CrPC.

Section 380-Special Rights to Appeal:

Section 380 of CrPC which is the important part of the Code that defines the special rights regarding the appeal. This section defines that when more than one person is convicted in a trial, and an order is passed by a court in respect of such person, then all the persons or any of the persons convicted in that trial shall have the right to appeal. [iv]

Illustration 1: Shingara Singh v. The State of Haryana [v] , here the High Court has convicted both father and son under Section 304 read with Section 34 of Indian Penal Code. The son has filed a criminal appeal and father filed a special right of appeal. And it was held that with the provisions of Section 380, Cr.P.C, the judgement passed by the High Court was appealable and both the father and son can exercise the right to appeal other than the Special Leave Petition.

Legal Aid Meaning and History:

Legal aid is legal assistance provided to the people who are not able to afford a lawyer and access to the court. In 1952, the Government of India brought the idea of legal aid and in 1960 some guidelines were introduced with the Legal Aid Scheme that was handled by Legal Aid Boards, Societies and Law Departments. In 1980 a committee was formed to look after the legal aid programmes throughout the country under the Chairmanship of Hon.Mr.Justice P.N.Bhagwati.The Committee was named as Committee for Implementing Legal Aid Schemes.

After the formation of the committee, Lok Adalats were introduced which helped the litigants for the settlement of the disputes.In1987  an act was enacted known as the Legal Services Authorities Act. This was passed to bring uniformity for the legal service programmes across the country. The act came into force on 9th November 1995 after amendments introduced in the Amendment Act of 1994. Justice Krishna Iyer was appointed as the Chairman of Committee of Legal Aid that was formulated in the year 1972. And his contribution towards this was higher.

National Legal Services Authority was formed in 1995.Hon. Dr Justice A.s Anand initiated more methods to function up the National Legal Service Authority. By 1998 February NLSA started functioning. The National Legal Services Authority is the apex body of the Central Authority. In every state, there is a State Legal Services Authority which works for the NLSA.

District Legal Service Authority formed in every district with many schemes and programmes regarding legal aid. And the Taluk Legal Service Committee was also formed in each taluk for organizing the legal activities.

Right To Legal Aid A Constitutional Right:

The free legal service is an important fundamental right provided by the Constitution of India. It is the basis of fair, reasonable and liberty under Article 21 of the Constitution. Article 39A of the Constitution provides free legal aid to the citizens of the country who are belonging to the poor or weaker section. This is to ensure justice on equal opportunity.

Illustration 2: Hussainara Khatoon v. The State of Bihar [vi] in this case, it was held that importance of “Article 21” of the Constitution of India over the right to free legal aid.

Legal Aid To Appeal:

Legal aid is the assistance provided to the weaker section who are not able to appoint a legal representative or to the people who are not able to get court access. Under the Legal Services Authorities Act,1987 a person who requires legal aid at the time of appeal must attain the eligibility of Section 12 of the Act. It means, if the person is eligible under Section12 of the Act then the person will be provided with free legal aid.

If the person is eligible under Section 12 of the Legal Services Authorities Act,1987, then he can make an application to avail the free legal aid service to appeal.

Criteria For Legal Aid:

Section 12 of the Legal Services Authorities Act provides the following criteria for giving legal aid to eligible persons:

  • A member who belongs to Scheduled Caste or Scheduled Tribe;
  • A victim of human trafficking as referred in Article 23 of the Constitution.
  • A woman and child
  • A mentally ill person or a disabled person.
  • A person under certain circumstances of underserved wants
  • An industrial worker
  • In custody person
  • A person with the annual income less than Rs.1 lakh. [vii]

Frequently Asked Questions

What is Appeal?

According to the dictionary meaning, an appeal is the review or reconsideration of a decision which is given from a lower court to the higher court. Section 372 – 394 of Criminal Procedure Code deals with the appeal.

What is legal aid?

Legal aid is the assistance provided to the weaker section who are not able to appoint a legal representative or to the people who are not able to get court access.

“The views of the authors are personal

Reference

[i] Section 372 of The Criminal Procedure Code.

[ii]  Criminal Appeal No.547 of 2013.

[iii] Criminal MISC. Application U/S 372 CR.P.C. (Leave to appeal) No. – 351 of 2017

[iv] Section 380 of the Criminal Procedure Code.

[v] (2004) Cri.L.J. 828 (S.C.).

[vi] AIR 1979 SC 1369.

[vii] Section 12 Legal Service Authorities Act,1987.

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My name is Malavika P and I am from Nehru Academy of Law Kerala ,pursuing BBA LL.B(Hons.).I am interested in Criminal Laws,Constitutional Laws and Media Laws.During my free time I used to research on new topics and learn about it.I spend my time mostly watching thriller movies and also reading classic fictions.I would love to try new food and I am passionate about cooking, it is really a great experience that makes me happy always.