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CRIMINAL CODE OF PROCEDURE

PROJECT

POWERS OF THE
APPELLATE COURT

SUBMITTED BY : NIHARIKA ANAND


ROLL NUMBER : 17910303811
CLASS : 3-B

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S.NO. TOPIC PAGE NUMBER
1. SECTION 386 3.
POWERS OF THE APPELLATE COURT

2. PROCEDURE FOR DEALING WITH 6.


APPEAL

3. SECTION 381 6.
HEARING OF APPEAL IN COURT OF
SESSION

4. SECTION 382 6.
PETITION OF APPEAL AND ITS
PRESENTATION

5. SECTION 383 7.
PROCEDURE WHEN APPELLANT IN
JAIL

6. SECTION 389 7.
POWER OF APPELLATE COURT TO
SUSPEND SENTENCE

7. SECTION 390 9.
POWER OF APPELLATE COURT TO
GRANT BAIL

8. SECTION 391 10.


POWER OF APPELLATE COURT TO
OBTAIN ADDITIONAL EVIDENCE

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SECTION 386 IN THE CODE OF CRIMINAL PROCEDURE,
1973

386. Power of the Appellate Court. After perusing such record and hearing the appellant or
his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal
under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry
be made, or that the accused be re- tried or committed for trial, as the case may be, or find
him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-
tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed
for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, but not so as to enhance the Same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-
tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper;
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of
showing cause against such enhancement: Provided further that the Appellate Court shall not
inflict greater punishment for the offence which in its opinion the accused has committed,
than might have been inflicted for that offence by the Court passing the order or sentence
under appeal.

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Section 386 of the CrPC is of importance for the purposes before us. It requires the Appellate
Court to peruse the records, and hear the Appellant or his pleader if he appears; thereafter it
may dismiss the appeal if it considers that there is insufficient ground for interference. In the
case of an appeal from an order of acquittal (State Appeals in curial parlance) it may reverse
the order and direct that further inquiry be carried out or that the accused be retried or
committed for trial. Even in the case of an appeal from an order of acquittal the Appellate
Court is competent to find him guilty and pass sentence on him according to law. The proviso
to this Section prescribes that the sentence shall not be enhanced unless the accused has had
an opportunity of showing cause against such a proposal, thereby mandating that an accused
must be present and must be heard if an order of acquittal is to be upturned and reversed. It is
thus significant, and so we reiterate, that the Legislature has cast an obligation on the
Appellate Court to decide an appeal on its merits only in the case of Death References,
regardless of whether or not an appeal has been preferred by the convict.

Anyone convicted of a crime has the right to appeal that conviction if they believe a legal
error has occurred. If you have been convicted of a crime and plan to appeal, you are no
longer known as the defendant, you are now the appellant in the case.

In criminal cases, an appeal asks a higher court to look at the record of the trial proceedings
to determine if a legal error occurred that may have affected the outcome of the trial or the
sentence imposed by the judge.

The Supreme Court has identified the powers of appellate courts while dealing with an appeal
against an order of acquittal thus1: -

1. An appellate court has full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded;

2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on


exercise of such power and an appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law;

3. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient
grounds’, ‘very strong circumstances’, distorted conclusions’, ‘glaring mistakes’, etc. are not
intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance
of an appellate court to interfere with acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.

1
Ramappa Halappa Pujar v. State of Karnataka , Cr. App. No. 1344 of 2005

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4. An appellate court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of innocence available to him
under the fundamental principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the presumption of his innocence is further
reinforce, reaffirmed and strengthened by the trial court.

5. If two reasonable conclusions are possible on the basis of the evidence on record, the
appellate court should not disturb the finding of acquittal recorded by the trail court.

The appellate court being the final court of fact is fully competent to re-appreciate, reconsider
and review the evidence and take its own decision – Law does not prescribe any limitation,
restriction or condition on exercise of such power and the appellate court is free to arrive at
its own conclusion keeping in mind that acquittal provides for presumption in favour of the
accused – If two reasonable views are possible on the basis of the evidence on record, the
appellate court should not disturb the findings of acquittal.2

Persons competent to lodge petition—A petition of appeal or revision on behalf of a person


convicted by a Criminal Court or an application for transfer shall not be admitted by a
Criminal Court, unless it is either submitted through the jail authorities, or is presented by the
convicted person himself, or by some person authorised by a duly stamped power of attorney
to present it on his behalf; and a petition for revision by a complainant shall not be admitted
unless it is presented by the complainant or by some person authorised by a duly stamped
power of attorney to present it on behalf of the complainant:

Appointment or a pleader by a jail prisoner—Provided that a person confined to jail shall be


allowed to appoint his pleader, whether falling under class (1) or (2) of Section 4(r) of the
Code of Criminal Procedure [See Section 2(q) of new Code], by means of a printed
form,signed by him, and attested by the Superintendent of the Jail, and that no stamp shall be
required on this form.

2
State of M.P. v. Ramesh and Anr. [2011] 5 S.C.R 12

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PROCEDURE FOR DEALING WITH APPEAL [ SECTION
381- 383]

SECTION 381
HEARING OF APPEAL IN COURT OF SESSION

An appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an
Additional Sessions Judge. An appeal against a conviction on a trial held by a Magistrate of the
second class may be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial
Magistrate.

An Additional Sessions Judge, Assistant Sessions Judge or a Chief Judicial Magistrate shall
hear only such appeals as the Sessions Judge of the division may, by general or special order,
make over to him or as the High Court may, by special order, direct him to hear.

SECTION 382

PETITION OF APPEAL AND ITS PRESENTATION

Every appeal shall be made in the form of a petition in writing presented by the appellant or his
pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be
accompanied by a copy of the judgment or order appealed against.

Though the Code does not specifically require that the petition of appeal is to specify the grounds on
which the appeal is based , yet the memorandum of appeal should contain a succinct statement of
that .3

Where several persons are convicted at one trial , all or some of them can present one joint appeal. 4

3
Kapil Deo Shukla v State of U.P. AIR 1958 SC 121
4
Lalu Jela AIR 1962 Guj 125

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SECTION 383
PROCEDURE WHEN APPELLANT IN JAIL

If the appellant is in jail, he may present his petition of appeal and the copies accompanying the
same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the
proper Appellate Court.

SECTION 389
POWER OF APPELLATE COURT TO SUSPEND SENTENCE

389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded
by it in writing, order that the execution of the sentence or order appealed against be suspended
and, also, if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High
Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to
present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three
years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,
order that the convicted person be released on bail, unless there are special reasons for refusing
bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the
Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so
released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for
life, the time during which he is so released shall be excluded in computing the term for which he is
so sentenced.

By passing an order under Section 389 , the sentence is not set aside , but is merely suspended i.e.
kept in abeyance. The order of conviction still remains in existence and disqualification due to
conviction continues to be in operation . However, an order of conviction may be suspended in
exceptional cases e.g. when prima facie no case is made out . 5

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Rama Narang (1995) 2 SCC 513

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Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:

Under this section, the appellate Court can exercise power to grant bail to a convicted person
pending his appeal. The Appellate Court can also order suspension of sentence of the
convicted person if in confinement.

The High Court of Madhya Pradesh has emphatically stressed that an application for bail and
suspension of sentence pending appeal is maintainable as an integral part of the appeal under
Section 389 of the Code. The Appellate Court may grant bail even without going into the
merits of the case under this section. It also has inherent power to order stay of realization of
fine, if any, under this section. It must, however, be stated that though the Appellate Court
has been given the power to suspend the sentence of the accused person or its execution but it
does not have power to suspend conviction under this section except in very exceptional
cases.

The conviction of the accused person pending appeal cannot be suspended by the Appellate
Court even under Section 482 of the Code or under any other provision of the Code. In fact
there is no provision under any law for suspension of the conviction pending an appeal. It,
therefore, follows that since the order of conviction remains in existence, the disqualification
due to conviction continues to remain in operation. The High Court, also has the power under
Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction)
and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and
committal to custody in jail.

The High Court reiterated that suspension of conviction could be allowed in a very
exceptional case and specifically stated that suspension could not be extended for offences
under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an
exceptional case, there was no reason to stay the conviction by vacation of the order dated
11th January, 2005 or to review the same under Section 389, Cr. P.C.

Summarising the legal position in regard to application of provisions of Section 389, the
Supreme Court in this appeal observed that “though the power to suspend an order of
conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of
Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a
convicted person files appeal challenging his conviction, the Court should not suspend
conviction. The Court has a duty to look at all aspects including ramifications of keeping
such conviction in abeyance.” The Court further held that the High Court has inherent powers
to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore,
High Court’s order declining to recall its own judgment was liable to be set aside.

Reiterating the need for granting bail or suspension of sentence under Section 389, the
Supreme Court inter-alia, observed that so long as the Appellate Court is not in a position to
hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless
there are cogent grounds for refusing bail. The reason being that in the event the accused is
ultimately found to be innocent, he would have not to remain in jail for unduly long time. It
must, however, be stated that an order of release of the convicted person (appellant) on bail
under this section does not set aside his sentence, but it is merely suspended and as such, the

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appellant remains a convict for all the practical purposes. The Appellate Court has to record
reasons in writing for the suspension of the sentence of the appellant. The power of the High
Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of
the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act
empowers the High Court to exercise similar power subject to the limitations laid down under
Section 37 of that Act.

SECTION 390

POWER OF APPELLATE COURT TO GRANT BAIL

Arrest of accused in appeal from acquittal –

When an appeal is presented under section 378, the High Court may issue a warrant directing that the
accused be arrested and brought before it or any subordinate Court, and the Court before which he is
brought may commit him to prison pending the disposal of the appeal or admit him to bail.

This section ensures that an accused ( especially in a capital case ) , against whom an appeal has been
filed may not abscond during the pendency of an appeal .

The object of this section is not to extend protection to the person who is convicted in a
capital case but to ensure that he does not have an opportunity to abscond during the
pendency of his appeal. An order of acquittal passed in favour of the accused against whom a
capital charge was made, does not alter his status as an accused, when an appeal against his
acquittal has been filed in the High Court. Therefore, where an appeal has been presented
under Section 378 against the accused, the High Court has the power to issue a warrant
directing the arrest of the accused and he be brought before it or any subordinate Court, and
the Court before which he is brought may commit him to prison during the pendency of his
appeal or admit him on bail. The idea is that an accused who was involved and charged for a
capital offence, should not be allowed to be at large during the period an appeal against his
acquittal is pending before the High Court.

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SECTION 391
POWER OF APPELLATE COURT TO OBTAIN ADDITIONAL EVIDENCE

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional
evidence to be necessary, shall record its reasons and may either take such evidence itself, or
direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court
of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he
shall certify such evidence to the Appellate Court, and such court shall thereupon proceed to
dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence
is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter
XXIII, as if it were an inquiry.

Additional evidence at appellate stage allowed:

Where some documents were sought to be brought on record at the appellate stage. Such
documents were only public documents and opposite party could get opportunity to rebut it
either at the time of argument or by other legal method. As such, the rejection of application
for additional evidence was set aside.

Additional evidence—Application rejected for producing affidavit of four witnesses:

Where the said affidavit had been directly filed by the witnesses in Supreme Court in a matter
pending before it. Held that application if allowed would amount to capricious exercise of
powers of High Court in favour of prosecution to fill up the lacuna. As such, the application
was rejected.

Appellate Court may take further evidence or direct it to be taken:

This section embodies an exception to the general rule that an appeal must be decided on the
evidence on record and allows the Appellate Court to take additional evidence, if necessary.
The Appellate Court can take additional evidence under this section in any appeal whether it
is against conviction or against acquittal. However, the power under this section should be
exercised by the Appellate Court sparingly and only in suitable cases.

The Appellate Court may itself take additional evidence under this section directly or order it
to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of

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Session or a Magistrate who shall promptly comply with the order of the Appellate Court.
The accused and/or his pleader shall have a right to be present when such additional evidence
is being recorded by the Appellate Court.

The section is not intended for filling the laches left in the prosecution case or for allowing
the prosecution to indulge in fishing evidence. It is also not meant to make out a case
altogether different from the one already on record.

The provisions of this section do not permit the prosecution to tender additional evidence as
of right and the discretion in this regard solely vests in the Appellate Court which has to be
exercised judicially in the interest of justice.

The High Court of Patna has held a view that the power to take additional evidence should be
exercised by the Appellate Court when it is otherwise not possible to pronounce the judgment
without such evidence.

In the case of A. Hasan Bava v. P. V. Upadhya, the accused had failed to lead evidence on
account of his travel to foreign country. He could not plead his inability to lead evidence and
also cannot ask for adjournment of proceedings on that ground because he failed to turn up
even on subsequent dates when he was available. Therefore, permission to him to lead
evidence was rightly rejected.

In an appeal involving gold-smuggling the prosecution prayed for additional evidence of


Mint Master to specify the purity of gold. The High Court rejected the prayer as the report of
the Mint Master has already been placed on record as evidence. In appeal, the Supreme Court
declined to interfere holding that the said report of Mint Master had completely supported the
case of the prosecution that the gold was of specified purity.

The Supreme Court held that it is open to Appellate Court to call for further evidence before
appeal is disposed off . The object of Section 391 is to subserve the ends of justice and to get
the truth .

it was held that if the lapse or omission is committed by the investigating agency or because
of negligence theprosecution evidence is required to be examined de hors such omissions to
find out whether the said evidence is reliable or not. The contaminated conduct of officials
should not stand on the way of evaluating the evidence by the courts; otherwise the designed
mischief would be perpetuated and justice would be denied to the complainant party.6

As was observed in another case , if primacy is given to such designed or negligent


investigation, to the omission or lapses by perfunctory investigation or omissions, the faith
and confidence of the people would be shaken not only in the Law enforcing agency but also
in the administration of justice.7

6
Paras Yadav &ors. V. State of Bihar 1999 (2) SCC 126
7
Ram Bihari Yadav v. State of Bihar &Ors. 1999 (4) SCC 517

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In the “Best Bakery” case , it is a case with horror and terror oriented history. In this case the
star eye- witness had not stated truthfully before the trial court and was later on willing to
speak the truth infront of the appellate court on the basis of affidavit. It was held rejecting the
application for additional evidence by Appellate court by merely branding the witness is
improper.

The underlying object which the court must keep in mind is the very reason for which the
court exist i.e. to find out the truth and dispense justice impartially and ensure also that the
very process of Courts is not employed or utilized in a manner which gave room to unfairness
or lend themselves to be used ats instruments of oppression and injustice . 8

8
Zahira Habibulla H. Sheikh v. State of Gujarat 2004 Cri.L.J. 2050 (SC)

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BIBLIOGRAPHY

Indianlegalservices.com

Indiankanoon.com

Criminal code of Procedure , Bare Act, 1973

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