Dr.

Absarul Hasan Kidwai

Department of Law
Aligarh Muslim University

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE (BLLB-901)
B.A.LL.B. (HONS) IXth SEMESTER

UNIT – III
Appeal, Reference, Revision
1. Appeal SS. 372 to 384 Cr.P.C.
a. No Appeal after plea of guilty S. 375
Section 375 reads as under:
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 375 and 376 of the Cr.P.C. deal with cases where the appeal is not allowed in a criminal
proceeding. To understand the basis of the appeal, a brief introduction to the trial procedure is
inevitable. After the investigation is complete, the Charge-Sheet or Final Report is submitted
to the Judicial Magistrate First Class or Metropolitan Magistrate as the case may be. The
Magistrate decides whether the offence is triable by him or it should be transferred (committed)
to the Court of Session. If the accused pleads guilty, s/he can be convicted by the court on this
basis and proceed with the sentence. However, if the accused pleads not guilty, the court can
proceed with the trial and examination of witnesses. After the trial is completed, the court
passes a sentence according to the evidence brought before it. If the parties are not satisfied
with the judgment, they have the right to appeal to superior courts.
Section 375 of the Code states that no appeal lies against orders of conviction if the conviction
is made after the accused pleaded guilty of the offence charged with. The sentence can be
passed by the Magistrate or Court of Session or the High Court after hearing the guilty plea of
the accused. The only condition precedent to the application of this section is that the accused
must plead guilty of the offences he has been charged with.
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

In Barendra Ghosh v. Emperor1, the accused/appellant was convicted for murder by the trial
court and sentenced to death on the basis of the guilty plea of one of the accused persons.

However, the High Court here observed that the guilty plea to disallow an appeal under Section
375 must be voluntarily made and the court must be satisfied that the accused understands the
consequences and effect of such plea. Thus, any guilty plea does not act as a bar to appeal but
the plea must be voluntary, with the knowledge that the plea will result in a conviction and
with the willingness to accept the punishment awarded by the court. The exception to this rule
of no appeal is provided in Section 375 (b). The provision states that appeal can be allowed in
cases where the accused pleads guilty if the appeal relates to the extent or legality of the
sentence imposed by the court.

Moreover, if after pleading guilty, the accused feels that the sentence passed by the trial court
or any other court of the first instance is too harsh, an appeal can be allowed in such
circumstances as well to allow the accused to argue on the extent of the sentence, i.e.
imprisonment or/and fine.

b. Right to Appeal SS. 374 – 377

SECTION 374: APPEALS FROM CONVICTIONS.

Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than seven
years [has been passed against him or against any other person convicted at the same trial];
may appeal to the High Court

Save as otherwise provided in sub-section (2), any person,

 convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class,

1
Barendra Ghosh v. Emperor, AIR 1924 Cal 257
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

 sentenced under section 325, or

 in respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session.

While disposing of appeals from the sentences of the Sessions Court under this Section, the
High Court should specify the reasons for rejection of appeal and should not reject it
summarily. This will enable the Supreme Court to know the view of the High Court, in case
the appellant moves the Supreme Court in appeal. For computing the sentence of imprisonment
for seven years for the purpose of ascertaining the appellate forum under Section 374 (2), the
sentence in default of payment of a fine is not to be added to the substantive sentence of
imprisonment.

An appeal from an order of acquittal must be filed within the period of limitation prescribed
by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of
limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12
of the Limitation Act, 1963 would be useful.

NO APPEAL IN PETTY CASES

According to Section 376 of the Code, an appeal cannot be taken from a criminal case that is
considered petty in the eyes of law as prescribed under Clauses ‘a’ to ‘d’ of Section 376. This
provision is applicable only for appeal against an order of conviction by the accused and not
against an order of acquittal by the government. The following cases are considered to be petty
under Section 376:

 Where the case is taken on appeal to the High court and the High Court, after
due consideration, passes a sentence of imprisonment not exceeding six months
or a fine of INR 1000/- or both.
 Where the case is tried by a Metropolitan Magistrate or Court of Session and
the court after hearing evidence for both the sides convict the accused and pass
a sentence of imprisonment not exceeding three months or fine not more than
INR 200/- or both.
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

 Where an offence is exclusively triable by a Judicial Magistrate First Class and

the court after hearing both the sides and evidence for both sides passes a
sentence of fine not exceeding INR 100/- only.
 Where the case is triable by the Magistrate and is required to be tried summarily
under Section 260 of the Code, and after the trial, the Magistrate passes a
sentence of only fine not exceeding INR 200/-
 Where the imprisonment is of nature as mentioned above and is also
accompanied by an order for payment of security for maintaining peace as
required under Section 105 of the Cr.P.C. or a direction for imprisonment in
default of payment of fine as levied by the appropriate court.
 Where the court has passed a sentence including multiple fines if the total
amount of the fines so imposed does not exceed the amount stated above.
 An appeal under Section 376 cannot be barred if the offence so punished as
aforementioned is combined with some other offence or any other punishment
which is not stated in this provision.

An appeal under Section 376 cannot be barred if the offence so punished as aforementioned is
combined with some other offence or any other punishment which is not stated in this
provision.

APPEAL FOR ENHANCEMENT OF SENTENCE

Section 377 confers right on the Government to file an appeal against the inadequacy of
sentence awarded by any court other than a High court. If the sentence appears to be manifestly
inadequate resulting in failure of justice, the appellate court can interfere with it and can
enhance the sentence. But at the same time, the high court can also exercise its revisional
jurisdiction, suo motto call for the record and enhance the sentence in appropriate cases after
giving an opportunity to the accused.2 The appellate court must pass a speaking order for
enhancing the sentence. A bold statement that the ends of justice demanded enhancement of
sentence was held insufficient by courts.

2
Bachan Singh v. State of Punjab, AIR 1980 SC 267
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

An appeal under Section 377 must be filed by the State within a period of 60 days and the
contention of the State that it was under a mistaken belief that period of limitation is ninety
days would be no excuse for condonation of the delay.

c. Right to Appeal by Government against acquittal SS. 378 Cr.P.C.

1. Save as otherwise provided in Sub-Section (2) and subject to the provisions of Sub-
Sections (3) and (5),

a. the District Magistrate may, in any case, direct the Public Prosecutor to present
an appeal to the Court of Session from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable offence;

b. the State Government may, in any case, direct the Public Prosecutor to present
an appeal to the High Court from an original or appellate order of an acquittal
passed by any Court other than a High Court [not being an order under clause (a)
or an order of acquittal passed by the Court of Session in revision.”;

2. If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of 1946) or by any other agency
empowered to make investigation into an offence under any Central Act other than
this Code, the Central Government may, subject to the provisions of Sub-Section (3),
also direct the Public Prosecutor to present an appeal-

a. to the Court of Session, from an order of acquittal passed by a Magistrate in

respect of a cognizable and non-bailable offence;

b. to the High Court from an original or appellate order of an acquittal passed

by any Court other than a High Court [not being an order under clause (a) or
an order of acquittal passed by the Court of Session in revision.

3. No appeal under Sub-Section (1) or Sub-Section (2) shall be entertained except with
the leave of the High Court.
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

4. If such an order of acquittal is passed in any case instituted upon complaint and the
High Court, on an application made to it by the complainant in this behalf, grants
special leave to appeal from the order of acquittal, the complainant may present such
an appeal to the High Court.

5. No application under Sub-Section (4) for the grant of special leave to appeal from an
order of acquittal shall be entertained by the High 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 acquittal.

6. If, in any case, the application under Sub-Section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no appeal from that order of acquittal
shall lie under Sub-Section (1) or under Sub-Section (2).
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

2. Reference S. 395 Cr.P.C.

The term ‘reference’ means to transfer or send something for the opinion of the receiver on the
matter. In this situation, the reference power of High Courts means that the High Court is
empowered to take cases referred to it by subordinate criminal courts. It means that the Courts
of Magistrates and Sessions Judge may, on fulfilling the requirement under the Cr.P.C., refer
any case to the High Court of the State stating the questions referred.

Section 395 of Cr.P.C deals with the reference powers of the High Courts in a State. Under this
provision, the subordinate courts are allowed to refer a case to the High Court for its opinion if
the subordinate court considers is necessary. The provision entails two situations when the case
can be referred to the High Court:

1. When the validity of an Act, Ordinance or Regulation is doubtful and the court considers it
invalid.

2. When, in any case pending before the subordinate court, the court believes that there is a
question of law that needs to be addressed by the High Court.

The validity of Act, Ordinance or Regulation:

According to Section 395(1) of CrPC, when a case is pending before the trial and it involves a
question with respect to the validity of any law or rules and regulation in the country and in the
opinion of the court such law is invalid but it is not yet declared invalid by the superior courts,
therefore, the trial court can refer the matter to the superior courts to check the validity of such
laws.

The essential requirements for reference under this section are:

The case must be pending before the trial court

It is an essential requirement that the case in which a question of the validity of law must be
pending and not already decided by the court. The provision does not provide for any specific
stage of the proceeding when the case can be referred and thus, the general practice is that a
trial court can refer the matter to High Court at any stage of the proceeding when it considers
it necessary.
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

However, if the trial or case is disposed of, it cannot be then referred by way of reference. It
has to be taken to superior only the parties by way of revision.

It must involve a question that directly or indirectly challenges the validity of a law

The main question before a trial court is always whether the accused person is guilty of the
charged offence or not, the validity of a law is not an issue before the trial court. However,
during the course of the trial, arguments may be raised with respect to the validity of a law or
ordinance under which the person is accused of an offence.

The law must be in the form of an Act, Ordinance or Regulation

The provision does not require a law to specifically be primary legislation. The court can also
refer matters with respect to an Ordinance or a delegated legislation. For instance, the first case
under the Negotiable Instruments (Amendment) Ordinance, 2015, i.e. Dasrathroop Singh
Rathore v. the State of Maharashtra, the objection was raised that the jurisdiction to courts
given under the ordinance is not valid.

The court must believe that such a law is invalid

The court must have reasons to believe that the law is invalid by virtue of it being arbitrary or
discriminatory or otherwise violating the principles of natural justice or any provision of the
Constitution.
The validity of the law must not have been already settled by a High Court or the Supreme
Court.

Case involving Question of Law

According to Section 395(2) CrPC, if a case does not fall under clause 1 or does not fulfil any
or more of the requirements abovementioned, the trial court can still refer the matter to High
Court under clause 2 if the case involves a question of law.

A question of law means which requires the application of certain legal principle and not one
where the existence of a fact is in dispute.
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

3. Revision S. 396 to 405 Cr.P.C.

The word “revision” has not been defined in CrPC, however, as per Section 397 of CrPC, the
High Court or any Sessions Judge have been empowered to call for and examine the records
of any proceeding satisfy oneself:

1. as to the correctness, legality, or propriety of any finding, sentence or order, whether

recorded or passed, and

2. as to the regularity of any proceedings of an inferior court.

Moreover, they have the powers to direct the execution of any sentence or an order to be
suspended. Not just this, but to even direct to release the accused on bail or on his own bond if
the accused is in confinement. They may even order an inquiry subject to certain limitations.3 It
is clearly evident that the appellant courts have been granted such powers so as to obviate any
failure of justice.

The Honourable Supreme Court of India, in the context of this provision, held in the case
of Amit Kapoor v. Ramesh Chander & Anr4 that “the revisional jurisdiction can be invoked
where the decisions under challenge are grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence, material evidence is ignored
or judicial discretion is exercised arbitrarily or perversely.” The same Court, further explaining
this provision, held in the case of State of Rajasthan v. Fatehkaran Mehdu5 that “the object
of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity
which has crept in the proceeding.”

The High Court has the power to take up a revision petition on its own motion i.e. suo moto or
on the petition by an aggrieved party or any other party. The Allahabad High Court held in the
case of Faruk @ Gaffar v. State of U.P.6 that “whenever the matter is brought to the notice of
the Court and the Court is satisfied that in the facts and circumstances of the case, a case is

3
Section 398 of The Code of Criminal Procedure, 1973.
4
(2012) 9 SCC 460
5
Criminal Appeal No. 216 of 2017
6
Criminal Misc. Application No. 227273 of 2012
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

made out for exercising the revisional powers suo motu, it can always do so in the interest of
justice.”

There are certain statutory limitations that have been imposed on the High Court for exercising
its revisional powers as per Section 401 of CrPC, however the only statutory requirement to
exercise this power is that the records of the proceedings are presented before it, after which it
is solely the discretion of the Court:

1. An accused is to be given due opportunity to hear him and on order cannot be passed
unless this is followed.

2. In instances where a person has forwarded a revisional application assuming that an

appeal did not lie in such a case, the High Court has to treat such application as an
appeal in the interests of justice.

3. An application of revision cannot be proceeded with if it has been filed by a party where
the party could have appealed but did not go for it.

The High Court, as well as the Sessions Court, may call for record of any proceeding of any
inferior criminal Court situated within its jurisdiction for the purpose of satisfying itself as to
the correctness, legality of propriety of any finding, sentence, etc. Thus, the Sessions Judge
could examine the question in relation to the inadequacy of sentence in view of the powers
conferred on him by Section 397(1) of CrPC.7

The difference between the powers of the High Court and the Sessions Court being that the
Sessions Judge can only exercise revisional powers which he has called for by himself, whereas
the High Court has the power to take up a revisional matter by itself or when it is brought to its
knowledge. The powers of a Sessions Court are the same as that of the High Court while dealing
with revisional cases. The Madras High Court in the case S. Balasubramaninan v. The State
of Tamil Nadu8 held that “a Sessions Judge can entertain an application in revision against
sentence and enhance the sentence in revision in certain cases.” It has also been previously held
by the Hon’ble Supreme Court in the case Alamgir v. State of Bihar9 that “in respect of

7
Section 399 of The Code of Criminal Procedure, 1973.
8
Crl. Revision Nos.8, 9 of 2009 and Crl.O.P.No.8025 of 2008
9
AIR 1959 SC 436
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

enhancement of sentence in revision the enhancement can be made only if the Court is satisfied
the sentence imposed by the trial Court is unduly lenient, or that in passing the order of
sentence, the trial court has manifestly failed to consider the relevant facts”