Criminal Procedure Code (LL342)

Unit – VII
Appeal, Revision, Reference

Dr. Sumanta Meher

Assistant Professor
Meaning and the Provisions of Appeal under
CrPC
Meaning
• An appeal is a challenge to a previous legal determination.
• An appeal is a complaint to a superior court of an injustice
done or error committed by an inferior one, whose
judgment or decision the court above is called upon to
correct or reverse.

CrPC - Chapter XXIX – Sections 372 to 394

 Object of Appeal
Human judgment is not infallible.

Despite all the provisions for ensuring a fair trial and a just decision, mistakes are possible and errors cannot be ruled
out.

Appeal is one of the two important of the review procedure.

An appeal is creature of statute, and there can be no inherent right of appeal from any judgement or determination
unless an appeal is expressly provided for by the law itself.

Correcting procedures are therefore importantly useful to inspire in the public mind a better confidence in the
administration of criminal justice.
M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544
 No appeal in certain cases
No appeal unless provided by law.[Sec. 372]

No appeal in petty cases.[Sec. 376].

The proviso to section 376 explain that an appeal may be brought against the
abovementioned non appealable sentence if any other punishment is combined with it.

No appeal where the accused is convicted on his plea of guilty. [Section 375]

• Thippaswamy V State Of Karnataka(1983)1 SCC 194

• It would be violative of art. 21 of constitution to induce or lead an accused to plead guilty under a promise or
assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. In this
situation such person can exercise his right to appeal.
Appeals from convictions

Appeal to the supreme court

• any person convicted “on trial held by” high court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.[Section 374(1)]
• where the high court has, on appeal, reverse an order of acquittal of an accused person
and convicted and sentenced him to the death or life imprisonment for a term of 10 year
or more, he may appeal as of right to Supreme Court (section 379)
• The constitution provide that an appeal shall lies to the Supreme Court from any
judgment, decree or final order of a high court. If high court certifies that the case involve
a substantial question of law as to interpretation of constitution.[Article 132(1)]
• However the above rule shall not apply to any judgement, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law relating to
the armed forces.[Article136(2)]
Conti…

Appeal to the High Court .[Section 374(2)]

• Any person convicted on a trial held by session judge or an additional session judge or on trial held
by any other court in which sentence of imprisonment for more then seven year has been passed
against him or against any person convicted at the same trial may appeal to the high court

Appeal to the Court of Session [section 374(3)]

• Convicted on a trial by metropolitan magistrate or assistant session judge or magistrate of first class,
or of second class.
• Sentence under section 325.
• In respect of whom an order has been made or sentence has been passed under section 360 by any
magistrate.
Special right of appeal in certain cases- section 380
Appeal by government against sentence (Sec 377)

The State Government may, in any case of conviction on trial held by any Court other than a High
Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its
inadequacy.

If such conviction is in a case in which the offence has been investigated by the Delhi Special Police
Establishment or by any other agency empowered to make an investigation into an offence under
any Central Act other than this Code, the Central Government may also direct the Public
Prosecutor to present an appeal against the sentence on the ground of its inadequacy.

The accused will be given a reasonable opportunity to show cause against such enhancement, and
while showing cause, the accused may plead for his acquittal or for the reduction of the sentence
Appeal against the order of acquittal

Section 378 deals with appeal in case of acquittal.

The court can interfere with the order of acquittal in the following circumstances.
[State of Maharashtra v. Jagannath Kisan Mane, 2005 Indlaw Bom 186]
• The appreciation of the evidence by the trial court is reversed or the conclusion drawn by it can not
be drawn on any view of the evidence.
• Where the implication of law is improperly done.
• Where the substantial evidence existing on record for the commission of offence.
• The view taken by the court for acquitting the offender impermissible on the evidence on record.
• If the order of acquittal is allowed to stand, it will result in a miscarriage of justice.
Petition of appeal and its presentation

Section 382 of the criminal procedure code makes provision for it.
• The rule contained in section 382 is a technical rule, it requires an aggrieved
person filing an appeal to attach a copy of the judgement appealed against.

Section 383 - Jail appeals

• 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.
Hearing of appeals in Court of Session
Section 381 makes provision for the proper distribution of appellate work in the court
of session.

Section 381 (2) restricts the jurisdiction conferred on additional session judges,
assistant session judges, or chief judicial magistrates. It does not empower the
additional session judge or the assistant session judge to receive appeals direct from
parties and to admit them and take them on file.

The reasonable interpretation of section 381(2) appears to be that an additional

session judge, assistant session judge or a chief judicial magistrate is competent to
appeal properly here only filed under section 374(3), entertained by the session judge
and thereinafter transferred to him.
 Summary dismissal of appeals (Section 384 )

Petition of appeal and copy of the judgement to be examined, if upon examining the petition of appeal and copy of judgement received under
section 382 or section 383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.

Before dismissing the appeal summarily, the court may call for the record of the case[section 384(2)]

no appeal shall be presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being
heard in support of the same

where the appellate court dismissing an appeal under this section is a court of the session or CJM, it shall record its reason for doing so.[Section
384(3)]

the order of summary dismissal of the appeal as passed by the appellate court are liable to be revised by the high court.

Summary dismissal of jail appeal is no bar to hearing a regular appeal.[Section 384(4)]

Procedure for hearing appeals not dismissed
summarily
Where the appeal is admitted, section 385 prescribed the further step, non-
compliance with section 385 may amount to a violation of the principle of natural
justice.

Section 385(2) requires the appellate court to send for the record of the case.

If the appellant himself says that the appeal should be allowed on the finding
recorded by the session judge and the respondent has not raised any objection to
this, then the non-summoning of the record can not be considered as fatal to the
case.
Powers of appellate court to grant bail

Sections 389 and 390 deal with the suspension of sentence pending the
appeal, the release of the appellant on bail, the arrest of the accused in
the appeal from acquittal and his release on bail.

Power of appellate court to obtain further evidence. [Section 391]

• The object of this section evidently is to ensure that justice is done between the
prosecutor and the person prosecuted. It is well known that additional evidence can not
be tendered at appellate stage as of right and the appellate court has to exercise
discretion vesting in it to permit additional evidence on sound judicial principal. Clearly it
is not arbitrary discretion as it manifested by the provision “shall record its reason”.
Powers of the appellate court in disposing of
appeals
Section 386 confers adequate power to the appellate court for the proper disposal of a different kind of appeal. These power
are exercised only after satisfying two essential conditions.

1. Before deciding to exercise any of the power, the court must pursue the record of the case as mentioned in section 385(2).

2. The appellate court must hear the appellant or his pleader, if it appears, and the public prosecutor, if it appears, and in
case of an appeal by the state government against sentence under section 377, or of an appeal in case of acquittal under
section 378, the accused, if he appears.

In an appeal from a conviction, the appellate court may

• A- reverse the finding of the sentence and acquit or discharge the accused.
• B- alter the finding, maintaining the sentence
• C- with or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence, but not so enhance the same. [Section 386(b)]
Finality of judgments and orders on appeal
• Section 393 — Judgments and orders passed by an Appellate Court upon an appeal shall
be final.
• Except for an appeal against the order of acquittal under Section 378 or an appeal by the
government for enhancement of sentence under Section 377.

Abatement of appeals
• An appeal shall finally abate on the death of the accused.
• Every other appeal under this Chapter (except an appeal from a sentence of fine) shall
finally abate on the death of the appellant.
• Provided that where the appeal is against a conviction and sentence of death or of
imprisonment, and the appellant dies during the pendency of the appeal, any of his near
relatives may, within thirty days of the death of the appellant, apply to the Appellate
Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Reference (Sec 395 and 396)
Reference to High Court (Sec 395 and 396)
Every court subordinate to the High Court is required to make a reference to the High
Court under sub-section (1) above, if the following conditions are satisfied:-
• The court is satisfied that a case pending before it involves a question of the constitutional validity of
any Act, ordinance or regulation or any provision contained therein. A mere plea raised by a party
challenging the validity of the Act is not sufficient to make a reference to the High Court. What is
required is the satisfaction of the court that a real or substantial question regarding the validity of the
Act is involved.
• The court is also satisfied that the determination of the question of the validity of the Act etc., is
necessary for the disposal of the case before it.
• The court is of the opinion that the Act, ordinance or regulation etc. is invalid or inoperative but has not
been so declared by the High Court to which that court is subordinate or by the Supreme Court.
• Before making a reference to the High Court, the court shall state a case setting out its opinion and the
reasons therefor.

Disposal of case according to decision of High Court

Revision (Sections 397 to 405)
Power to call for and examine the record of
any proceeding before subordinate court
Section 397

The High Court or the Sessions Court is empowered to call for and examine the record of any
proceedings before any inferior court.

Satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded
or passed, and as to the regularity of any proceedings of such inferior Court.

Direct that the execution of any sentence or order be suspended and if the accused is in
confinement, that he be released on bail or on his own bond.

All Magistrates, whether Executive or Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions Judge
Power to order inquiry - Section 398
• The High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the
Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any
subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under
Section 203 or sub-section (4) of Section 204 or into the case of any person accused of an offence who has
been discharged.

Sessions Judge’s powers of revision - Section 399

• In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may
exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of
Section 401.
• Where any application for revision is made by or on behalf of any person before the Sessions Judge, the
decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding
by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

Powers of revision of Additional Sessions Judge – Sec 400

• An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this
Chapter in respect of any case which may be transferred to him by or under any general or special order of
the Sessions Judge.
High Court’s powers of revision - Section 401
The powers of revision and the limitations on such powers of the High Court are contained in Section 401

The Revisional power of the High Court under Section 401 is entirely discretionary.

The High Court may exercise any of the powers conferred on a court of appeal

No order under this section shall be made to the prejudice of the accused or other person unless he has had an
opportunity of being heard either personally or by a pleader in his own defence.

Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction.

Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained
at the instance of the party who could have appealed.
Sheetala Prasad & Ors vs Sri Kant (2010) 2 SCC 190

The Supreme Court reiterated that Revisional jurisdiction can be exercised

by the High Court at the instance of a private complainant in exceptional
cases:
• (1) where the trial court has wrongly exclude evidence which the prosecution wished to
produce,
• (2) where the admissible evidence is wrongly ignored as inadmissible,
• (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused,
• (4) where the material evidence has been overlooked either by the trial court or the appellate
court or the order is passed by considering irrelevant evidence and
• (5) where the acquittal is based on the compounding of the offence which is invalid under the
law.
TRANSFER OF CRIMINAL CASES
Chapter XXXI of the Code contains the provisions for transferring criminal cases
from Section 406 to 411.

Significant grounds for transfer of cases:

• Fair and impartial trial

• Difficulty in getting evidence
• Convenience of parties
• Pending related cases
• Local influence or prejudice
• The court's pecuniary jurisdiction
• The nature and gravity of the offence
The Supreme Court's authority to move cases from one state to another (Sec 406)

A state's High Court has the authority to transfer matters from one court to another with equal or
superior jurisdiction, or to itself. (Sec 407)

The authority of the Sessions Judge to move matters from one court in his Sessions Division to
another court (Sec 408)

A Sessions Judge's authority to revoke cases from Additional Sessions Judges, Assistant Sessions
Judges, or the Chief Judicial Magistrate ( Sec 409)

Any magistrate under his command has the Chief Judicial Magistrate's authority to withdraw a case.
(Sec 410)

The ability of executive magistrates, including district and sub-district magistrates, to dismiss the
case. (Sec 411)