CHAPTER : 16

APPEAL, REVISION, REVIEW

 APPEAL

 The word “appeal” has not been defined in The Code of Criminal Procedure,

1973, (hereinafter CrPC), however, it can be described as the judicial

examination of a decision, given by a lower court, by a higher court. The

Merriam-Webster dictionary defines appeal as “a legal proceeding by which

a case is brought before a higher court for review of the decision of a lower

court”.

 It needs to be pointed out that except for the statutory provisions laid down

by CrPC or any other law which is in force, an appeal cannot lie from any

judgment or an order of a criminal court.

 Thus, there is no vested right to appeal as such as even the first appeal will

be subjected to statutory limitations. The justification behind this principle is

that the courts which try a case are competent enough with the presumption

that the trial has been conducted fairly. However, as per the proviso, the
 victim, has a right to appeal against any order passed by the Court under

special circumstances comprising of a judgment of acquittal, conviction for

lesser offence or inadequate compensation.

 In the case of Satya Pal Sigh vs State of Madhya Pradesh, the Hon’ble

Supreme Court held that the father of the deceased has a locus standi to

present an appeal to the High Court under the proviso of Section 372, as he

falls within the definition of “victim”, to question the correctness of

judgment and order of an acquittal of accused.

 Generally, same sets of rules and procedures are employed to govern the

appeals in the Sessions Courts and High Courts (highest court of appeal in a

state and enjoys more powers in matters where appeal is permissible). The

highest court of appeal in the country is the Supreme Court and hence, it

enjoys the most extensive discretionary and plenary powers in the cases of

appeals. Its powers are largely governed by the provisions laid down in

CrPC, Indian Constitution, and the Supreme Court (Enlargement of Criminal

Appellate Jurisdiction), 1970.

 The law provides a person who has been convicted of a crime to appeal to

the Supreme Court or the High Court or the Sessions Court as per the

circumstances.

 In the case of Arun Kumar vs. State of Uttar Pradesh, the Honourable

Supreme Court held that if the High Court found that the view taken by the

Sessions Judge to acquit the appellants was manifestly wrong, moreover, it

even led to miscarriage of justice, therefore, the High Court was correct in

setting aside this acquittal and convicting them.

 The State Government has been empowered to direct the Public Prosecutor

to appeal against the sentence on the grounds of inadequacy to either the

sessions court or the High Court, however in only those cases where the trial

for conviction has not been held by the High Court.

 This shows that this right to appeal against sentences on the grounds of

inadequacy has not been granted to the victims or the complainants or any

other person. Moreover, it is mandatory for the Court to give the accused a

reasonable opportunity to show cause against any enhancement of the

 sentence in the interest of justice. The accused has the right to plead for his

acquittal or a reduction in the sentence while showing cause.

 Similarly, the District Magistrate, and the State Government have the

powers to direct the Public Prosecutor to present an appeal in case of an

acquittal to Court of Sessions, and the High Court, respectively, subject to

certain conditions.

 A two-Judge bench of the Hon’ble Supreme Court held in the case of Satya

Pal Singh vs State of Madhya Pradesh, that the victim cannot file an

appeal against an order of acquittal without obtaining the leave of the High

Court.

 The accused has been given the right to appeal to the Supreme Court against

the judgment of the High Court if the High Court has reversed an order of

his acquittal on appeal by convicting him, thereby, sentencing him to

imprisonment for life or for ten years or more, or to death.

 Understanding the relevance of a criminal appeal being made to the Supreme

Court, the same law has also been laid down in Article 134(1) of the Indian
 Constitution under the appellate jurisdiction of the Supreme Court. The

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970,

has also been passed by the legislature in consonance with Article 134(2) of

the Indian Constitution to confer additional powers on the Supreme Court to

entertain and hear appeals from the High Court under certain conditions.

 A similar right to appeal has been granted to one or all accused persons if

more than one persons have been convicted in a trial and such order has

been passed by the court.

 However, there are certain circumstances under which no appeal shall lie.

These provisions have been laid down under Section 265G, Section 375 and

Section 376 of the CrPC.

 As to the finality of the judgments and orders passed on appeal, CrPC makes

them final except in some cases.

 R

ION

 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:

(i) as to the correctness, legality, or propriety of any finding, sentence or

order, whether recorded or passed, and

(ii) 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. 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 vs Ramesh Chander & Anr 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 vs

Fatehkaran Mehdu, 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 vs

State Of U.P., 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 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:

► An accused is to be given due opportunity to hear him and on order cannot

be passed unless this is followed.

► 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.

► 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.

 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 vs The State of Tamil Nadu, 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 vs State of Bihar, that “in

respect of 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”.

 Prerequisites to the Exercise of Revisionary Powers

► Calling of Records of Case

The court, first of all, must call for the records of the case which is to be revised

from the court which previously heard the matter. The records contain the FIR
or Complaint, the Witness Statements recorded under Section 161 CrPC, the

Confession recorded under Section 164 CrPC (if any), the deposition of

witnesses before the court, their examination-in-chief and cross-examination,

any documents brought on record and lastly, the original or certified copy of the

judgment of the court from which the revision is intended.

► The Party must be Unsatisfied.

Revision of judgment, like appeal, can be brought by either party to a case who

is unsatisfied by the findings of the court which rendered prior judgment.

However, the court can revise the judgment only on procedural aspects and not

on its merits.

► Discretionary Power

Section 401 states that the court may “in its discretion” exercise revisionary

powers to grant relief to a party. The term discretion awards wide powers upon
the courts to accept or refuse the revision of the judgment. The courts are

required to use this discretion wisely and to ensure that justice is not hampered.

Revisionary powers allow the court to interfere with the decision of a lower and

to rectify any error caused by it and it, therefore, is the first step to acquire the

faith of people in the judiciary. If this power is misused or abused, the only

remedy left is an appeal which requires huge time and expense of the parties.

► Available Remedies under Revisionary Jurisdiction

The courts, in their revisionary jurisdiction, are entitled to use all powers and

grant all remedies as provided under Section 386, 389, 390 and 391 of the

CrPC. These remedies can be listed as follows:

1. If the revision petition is filed by the Prosecutor against an order of acquittal,

the revisionary court may reverse the order of acquittal into conviction or

order that the case is further investigated and if any evidentiary material is

found, the accused be retried.

2. If the revision is for an order of conviction filed by the accused person, the

court may acquit the accused or order that a retrial is conducted and due

procedure of law be followed.

3. The court, in a revision from conviction order, may also inquire upon the

findings of the lower court on which the sentence is decided and may alter

such sentence if necessary.

4. The court may, in an order of conviction, change the nature of the sentence

imposed upon the accused by the lower court. It means that the revisionary

court may alter a sentence of rigorous imprisonment to simple

imprisonment.

5. If the revision is filed for the augmentation of the sentence imposed by the

lower court, the court may change the sentence and enhance it according to

the materials available.

6. When a person has filed an appeal against the conviction order of the lower

court before an appellate court, the revisionary court may suspend the
 sentence of the accused till the appeal is disposed of and may enlarge the

accused on bail.

7. If the revision is against an order of acquittal, the revisionary court may

order to arrest the accused who was earlier released by the lower court. In

such arrest, the accused have all the rights of an arrested person as

guaranteed by the Crpc.

 REFERENCE POWERS OF HIGH COURT

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.

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.

For instance, in the Shopian case, the accused were military officers

empowered to search and seize under the Armed Forces Special Powers Act

(AFSPA) who were charged for rape and murder. The power of the officers was

challenged by the Prosecutor claiming that the AFSPA is invalid and

unconstitutional.

 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.

For instance, say a case is based on the extra-judicial confession given by the

accused person to his friend who informs the police and deposes before the

court. Here, the question whether the confession was true and voluntary is a
question of fact and whether the court can convict the accused based on such

confession is a question of law.

 CHAPTER: 17

TRANSFER OF CRIMINAL CASES

Gurucharan Das Chadha v. State Of Rajasthan on 24 November, 1965

Reasonable apprehension of the party that the justice will not be done to the case is

important for a transfer of case. A petitioner is not required to demonstrate that the
justice will not be met and the case is inevitably fail. It is one of the principle for

administration of justice. A mere allegation of apprehension that justice cannot be

met then the Court should decide whether such apprehension is reasonable or not.

Surendra Kumar v. Vijayan on 7 October, 2005

Under Section 408(1), the power conferred on the Session Judge to transfer a case

which is pending in the Court of additional Sessions Judge to another, whether the

hearing has commenced or not, it is concluded to be independent judicial power

and it is not subject to any bar imposed by Section 409 (2) on its administrative

powers for recalling a case after the trial or hearing of the case has commenced.

Ali Hussain And Anr. v. Emperor on 25 May, 1932

The court held that the High Court when they exercise the power of revision , they

are not bound by Section 412 of the Criminal Procedure Code. But it may examine

the record for the purpose of seeing whether a fair trial has been held and the

decision taken as based on proper facts.

Food Inspector v. K.P. Alavikutty on 11 February, 1987

The magistrate posted the case for trial after considering the plea of not guilty.

Then on re-organization of the jurisdiction of courts, the case has been transferred

to another Magistrate under the Section 410. The Magistrate to whom it has been

transferred is bound to the order of the predecessor and cannot go behind pre-

cognizance stage.

► Can FIR be transferred ?

Concept of Zero FIR has been introduced after an amendment in Criminal

Procedure Code. When a person lodges complaint in any police station and it is in

the territorial jurisdiction then the will transfer it to the police station which has

jurisdiction. A registered FIR cannot be transferred.