Appeal (Section 372-383)

APPEAL (Section- 372-383)

Author: Yukti Gupta

1.    Introduction[1]

Criminal law with an objective to protect society against criminals and lawbreakers consists of both substantive and procedural law. Substantive criminal law, that is, Indian Penal Code 1908 defines offences and prescribes punishment for the same while procedural criminal law, that is, The code of Criminal Procedure (hereinafter referred as ‘the code’)  administers and enforce the substantive law by making the actual offenders suffer the prescribed punishments for their crimes. As the code provides the machinery for the detection of crime, it also provides an aggrieved person a right to appeal to the superior court against the order passed by the court of the first instance on the grounds mentioned in the Code such as the judgment of acquittal, a conviction for a lesser offence or inadequate compensation. The code does not define the term ‘appeal’ but Black’s Law Dictionary (4^th Edn.) defines an appeal as 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. An appeal also denotes a corrective procedure which enables the superior courts to reach a just decision free from plausible errors, prejudices, and mistakes by scrutinizing the decision of the lower courts. Chapter 39 (S. 372-393) of the code deals with the provisions relating to Appeal whereas in this article we shall deal with Sections (372- 383) prescribing circumstances in which appeals can be filed.

2.    No Appeals in Certain cases[2]

A.   No appeal unless provided by law (S. 372)

Section 372 of the Code lays down that an appeal shall not lie from any judgment or order of a Criminal Court except as provided by the code or any other law authorizing an appeal. However, Act 5 of 2009 inserted a proviso to Section 372 which provides that when an order is passed by a Court pertaining to the acquittal of the accused or conviction for a lesser offence or imposition of inadequate compensation, then the victim of such order has a right to file an appeal before the court to which an appeal ordinarily lies against the order passed by a subordinate court. The Hon’ble Supreme Court observed in the case of Akalu Ahir v. Ramdeo Ram[3]that right of appeal and right of hearing are the creation of statute and not the inherent right of a party against whom an order is passed.

B.   No Appeal in petty cases (S. 376)

S. 376 of the Code provides an exception to the general rule laid down in Section 374 and aims to restrict the right of appeal by the exclusion of pretty cases. It lays down that a convicted person shall not file any appeal in any of the following cases, namely-

(i) Where a High Court passes only a sentence of maximum six months imprisonment or a sentence of maximum Rs 100 fine or a sentence of both such imprisonment and fine;

(ii)  Where a Court of Session or a Metropolitan Magistrate passes only a sentence of maximum three months imprisonment or a sentence of maximum Rs 200 fine or a sentence of both such imprisonment and fine;

(iii)   Where a Magistrate of Class I passes only a sentence of maximum Rs 100 fine;

(iv)  Where a Magistrate empowered under Section 260 of the Code to try a case summarily passes only a sentence of maximum Rs 200 fine.

However, the section provides an exception to the substantive enactment which lays down that a convicted person may file an appeal against any of the above sentences if they are combined with any other kind of punishment. But the proviso also provides the following grounds on which such combined sentences shall not be appealable, namely-

(i) when the convicted person is ordered to furnish security to keep the peace

(ii) when the sentence includes the direction for imprisonment in default of payment of fine

(iii)when more than two sentences of fine are passed in a case and the total amount of fine imposed does not exceed the amount mentioned above in respect of the case.

In Durga Prasad Soni v. State of Andhra Pradesh[4], the court held that the bar of Section 376(c) will not apply where along with the imposition of Rs. 100/- fine, the accused was required to pay Rs. 5/- per day till the realization of market fees. Thus, an appeal shall lie.

The Punjab and Haryana High Court held in Rattan Singh v. State of Haryana[5] that an order of conviction is not appealable when a court of session records such order after trying the case and releasing the offender on probation without passing any sentence either of imprisonment or fine or both.

The court in the case of Vedpal Singh v. State[6] held that the accused may file an appeal to the Sessions Judge when a fine of Rs. 200 is imposed on him as the bar to appeal under S. 376(c) is not applicable in the present case.

C.   No Appeal where the accused is convicted on his plea of guilty (S. 375)

When an accused pleads guilty, he does not commit himself to accept the punishment that would be passed against him regardless of its nature and legality. Therefore, he cannot be denied the right to challenge the extent or legality of the sentence in appeal. However, Section 375 of the Code provides an exception to this general rule, that is, when a High Court, Court of Session, Metropolitan Magistrate or Magistrate of Class I or II convicts and sentences an accused person on a plea of guilty and not on the evidence in the case then an appeal is not allowed even as regards the extent or legality of the sentence.

In a prominent case Thippeswamy v. State of Karnataka[7], the Magistrate passed a sentence under S. 304A IPC with fine of Rs. 1,000 against an accused who pleaded guilty and in appeal the Hight Court while acting upon the plea of guilty imposed an additional substantive sentence of one-year rigorous imprisonment on the accused. Later, the accused aggrieved by the High Court Order filed an appeal before the Supreme Court who while remanding the case back to the Magistrate for trial observed that when an accused pleads guilty by reason of plea of bargaining, he let go the opportunity to defend himself against the charge. It is fair obvious that he would not have pleaded guilty if he had known that he would not be let off with a mere sentence of fine but would be sentenced to imprisonment. Therefore, when an accused is induced or lead 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 it would clearly be violative of Article 21 of the Indian Constitution. The court also remarked that the court of appeal or revision should set aside the conviction and sentence of the accused in a case where a disproportionately low sentence is imposed on the accused as a result of plea and it would be unreasonable and unfair to act on the plea of guilty for the purpose of enhancing the sentence. Thereby, when the case is remanded back to the trial court, the accused can, if he so wished, defend himself against the charge and if he is found guilty proper sentence can be passed against him.

3.    Appeal from orders requiring security or refusal to accept or rejecting surety (S. 373)[8]

S. 373 of the Code provides appeals to the court of the session against-

(i)    Orders under S. 117 to give security for keeping the peace of for good behaviour or;

(ii)  An order refusing to accept or rejecting security under S. 121.

However, the above provision shall not apply to persons against whom the proceedings are laid before a Sessions Judge in accordance with the provisions of S.122 (2) or S. 122(4).

The High Court of Patna observed in the case Jamaluddin Shah v. State of Bihar [9] that the code does not specify any provision to enable the appellate court to stay the order passed under Section 117, but the very fact that the power has been vested under S. 373 to admit appeal, it implies that the court may give consequential relief in the shape of stay of execution of bond under S. 386 of the code to do proper justice. The court reasoned that if the court is not able to give consequential relief in appropriate cases then the very purpose for which the appeal has been admitted will become frustrated and shall stand defeated by lapse of time.

4.      Appeals from conviction[10]

A.   Appeal to the Supreme Court (S. 374(1)) (S.379)

S. 374(1) and S. 379 confers a right to appeal to the Supreme Court and besides this, Article 132,134 and 136 of the Constitution also provides for an appeal from a decision of the High Court to the Supreme Court.

(i)    In the interest of finality to the proceedings, S. 374(1) confers a right to any person who has been convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction to appeal to the Supreme Court instead of another bench of High Court in such extremely rare trials.

(ii)  S.379 confers a right to an accused person to appeal to the Supreme Court when the High Court before whom an appeal was filed, reversed an order of acquittal of the accused person and convicted and sentenced him to death or to imprisonment for life or to imprisonment for a term of 10 years or more.

(iii)  Article 132 envisages that if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution then an appeal shall lie to the Supreme Court from any Judgment, Decree, or Final Order of a High Court.

(iv)  Article 134 constitutes the Supreme Court as Court of Criminal Appeal in a limited class of cases only and clearly implies that no appeal lies to it as a matter of course or right except in cases where the High Court–

·       Has on appeal reversed an order of acquittal and sentenced the accused to death;

·       Has withdrawn for trial before itself any case from any Court subordinate to it and in such trial convicted and sentenced the accused to death;

·       Certifies that the case is fit one for an appeal to the Supreme Court.

(v)  Article 136 (1) lays down that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except relating to armed forces (Art. 136(2))

In State of U.P. v. Guru Charan[11], the Hon’ble Supreme Court reiterated that in cases which do not come under Cl (a) (b) of Art. 134(1) or S.379 of Code, an appeal does not lie as of right to the Supreme Court against any order of conviction by the High Court. In such cases, an appeal will lie only when a certificate is granted by the High Court under sub-cl. (c) of Art. 134(1) that the case is fit for an appeal or by way of special leave under Art. 136 when the certificate is refused by the High Court.

B. Appeal to the High Court (S. 374(2))

Sub-Section (2) of Section 374 of the code confers a right of appeal to the High Court to a person or any other person at the same trial against whom a conviction order has been passed by a Sessions Judge or Additional Sessions Judge or by any court which has passed a sentence of more than seven years’ imprisonment. The court in Niranjan Nayak v. Ramesh Kumar Mohapatra [12] has specified that for deciding the forum under S.374(2), the default sentence of imprisonment cannot be added to the substantive sentence of imprisonment. In practice, consecutive sentences can be added up to give the right of appeal while concurrent sentences cannot.

C. Appeal to the Court of Session (S. 374 (3))

Sub-Section (3) of S. 374 lays down a general rule that any person convicted on a trial held by Assistant Sessions Judge, Metropolitan Magistrate or any other Magistrate may appeal to the sessions court with S. 376 as an exception. Also, it confers a right of appeal against the sentence under section 325 or where a case is referred to the competent Magistrate by reason of the fact that the Magistrate referring the case is not empowered to award sentence required in the case of a habitual offender, against an order or sentence passed under section 360. In Kochummini Chettiar v. State of Kerala[13], the court held that an appeal can be said to be properly filed only when in case of delay in filing appeal the application for condonation of delay had been considered by the Sessions Judge but it is not so when he transfers the appeal along with the condonation application to the Assistant Sessions Judge.

D.   Special rights of appeal in certain cases (S. 380)

S.380 of the Code provides where an order which is appealable is passed against one of the accused, then a right to appeal is given to the co-accused on whom non-appealable sentences are passed.

5.    Appeal by Government against sentence (S. 377)

S. 377 of the Code provides that if the state government feels aggrieved by the inadequacy of the sentences passed in a conviction on a trial held by the original court, it can direct the Public Prosecutor to prefer an appeal a) to the Court of Session, if the sentence is passed by the magistrate b) to the High Court, if the sentence is passed by any other court. As held by the Apex Court in Nadir Khan v. State (Delhi Admin) [14] the High Court or the Court of the session itself is empowered to call for the record of the proceeding of any subordinate court, therefore, it can also exercise its revisional jurisdiction under S. 377(1) read with S. 401 or S. 399 of the code respectively by acting suo moto and enhancing the sentence. While exercising its revisional jurisdiction, the High Court or the Court of Session is competent to enhance the sentence, as provided by S. 377(3) the accused has to be given an opportunity of being heard not only against the enhancement of the sentence but also against the conviction itself. This was held by the court in Food Inspector v. K.S. Raphel[15]. Also, Section 377(2) acts as a restriction to S.377(1) and lays down that a case in which the offence has been investigated by Delhi Special Police Establishment or by any other agency empowered to make the investigation into an offence under any Central Act other than this Code and conviction with inadequate sentence has been passed, then the Central Govt. may also direct the Public Prosecutor to prefer an appeal a) to the Court of Session, if the sentence is passed by the magistrate b) to the High Court, if the sentence is passed by any other court. In Eknath Shankarrao Mukkawar v. State of Maharashtra[16], the Apex Court observed that under S.377 of the Code the accused in an appeal can show that he is innocent whereas the prosecution is not entitled to show that he is guilty of a graver offence instead it will only be able to urge that the sentence should be inadequate on the charge as found or even on an altered less grave charge.

6.    An appeal against the order of Acquittal (S. 378)

The Andhra Pradesh High Court in Public Prosecutor v. P. Subhash Chandra Reddy [17] stated that Section 378 deals with appeals in cases of acquittal and does not come into play against an order of discharge. According to the first four subsections of S. 378, an appeal against an order of acquittal can be preferred before High Court only by

a)     The District Magistrate from an order passed by a Magistrate in respect of cognizable and non-bailable offence; [S.378(1)(a)]

b)    The State government from an original or appellate order passed by a court other than High Court; [S.378(1)(b)]

c)      The District Magistrate from an order passed by a Magistrate in respect of cognizable and non-bailable offence; [S.378(1)(a)]

d)    The complainant, from an order passed in a case instituted upon complaint. [S.378(4)]

e)     Also, Section 378(2) acting as a restriction to S.378(1), lays down that a case in which the offence has been investigated by 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 and an order of acquittal has been passed, then the Central Govt. may also direct the Public Prosecutor to prefer an appeal a) to the Court of Session, if the sentence is passed by the magistrate b) to the High Court, if the sentence is passed by any other court. In the case of Lalu Prasad Yadav v. State of Bihar[18], the apex court held that the question as to the authority entitled to make appeals depends on the authority which initiated the prosecution. Therefore, the state of Bihar was not permitted to appeal against the acquittal in the case initiated by CBI.

Secondly, the Hon’ble Supreme Court reiterated in the State of Rajasthan v. Ramdeen [19] the right of such appeal to the High Court can only be exercised after obtaining leave to appeal filed in not more than 90 days from the date of order before the High Court [S.378(3)] and the appeal shall not be entertained and shall stand dismissed if the leave sought for is not granted by the High Court. On the other hand, the complainant under [S.378(4)] can obtain special leave to appeal by filing an application before the High Court a) within six months, in case of public servant b) within Sixty days, in every other case; computed from the date of order of acquittal [S. 378(5)]. It should be noted that subsection (4) and sub-section (5) have to be read together. They are confined in their application to cases instituted upon complaint and the limitation prescribed has no relevance to an application under sub-section (3).

Thirdly, in case the private complainant under sub-section (4) has failed to obtain special leave to appeal, then according to sub-section (6) an appeal by the State under ss. (1) or central govt. under ss. (2) shall be barred to appeal from an order of acquittal before the High Court. The apex court in Suga Ram v. State of Rajasthan[20]explicitly highlighted that the High Court should not refuse the leave to appeal without assigning reasons.

In Manu Sharma v. State (NCT of Delhi)[21], the Hon’ble Supreme Court laid down the situations in which the court can interfere with the order of acquittal, namely-

(i)    Application of law improperly done

(ii)  Substantial omission to consider the evidence existing on record

(iii) View was taken by acquitting court impermissible on the evidence on record

(iv)  Perverse appreciation of evidence by the trial court

(v)  Miscarriage of justice if the order of acquittal allowed to stand.

7.    Petition of appeal and its presentation (S. 382, 383)[22]

S. 382 of the Code prescribes the mode or manner under which a petition of criminal appeal is to be presented and it applies as much similar to jail appeals by a prisoner in jail under Sec. 383 of the code, as to any other appellant. The Delhi High Court laid down in the case Mukund Lal v. State [23] that the rule of attachment of the certified copy of judgment or order appealed against the petition of appeal contained in Sec. 382 is a technical rule, not creating any disability against a person from filing an appeal. The purpose of this rule is to merely give the appellate court an initial idea about the case at the time of the passing of interim orders. In Kapil Deo Shukla v. State of U.P.[24], the court observed that the memorandum of appeal in writing should contain a succinct statement of the grounds upon which the appellant proposes to support the appeal. A Full Bench of the Gujarat High Court has held in the case Lalu Jela v. State of Gujarat [25]  that all or some of the persons convicted together can file one joint petition of appeal with one copy of the judgment in the High Court instead of filing separate appeals. The Code does not provide more than one right of appeal to a convicted person from a conviction however, there is no bar for him to present a jail appeal through the Superintendent of the Jail first and then presenting a represented appeal within limitation. Both the presented appeal can be connected and listed together.

8.    Hearing of Appeals in the Court of Session (S. 381)[26]

An Additional Sessions Judge has jurisdiction to hear all the appeals which lie to the Sessions Judge as well as appeals transferred to it by the Sessions Judge. Additionally, an Assistant Sessions Judge or a Chief Judicial Magistrate can hear and dispose of appeals against a conviction on a trial held by Magistrate Class II.  

However, Subsection (2) of S. 381 restricts the power given to Additional and Assistant Sessions Judge or a Chief Judicial Magistrate to hear appeals, as it does not expressly or by implication, gives them the power to receive directly from the parties and to admit and take such appeals on file.[27] The words of the sub-section empower them to hear ‘only’ such appeals as the High Court may by special order, direct or as the Sessions Judge of the Division make over them. In Kochummini Chettiar v. State of Kerala[28], the High Court gave a reasonable interpretation of Sec. 381(c) by stating that an Additional and Assistant Sessions Judge or a Chief Judicial Magistrate is competent to hear appeals properly filed u/s 374 (3), entertained by Sessions Judge and thereafter transferred to him.

9.    Conclusion

An appeal is a creature of the statute does not confer any vested right to appeal from any judgment or order, unless there is a statutory provision provided for by the law itself. The appeal procedure is importantly useful to inspire the public mind better confidence in the administration of criminal justice by assuring reasonable efforts put in by the superior court to reach a just, error-free, and infallible decision. But in practice it has been observed that such corrective procedure consumes additional time, as well as expenses for the final disposal of the case, therefore, the Apex Court and various High Courts, have time and again while interpreting various provisions relating to appeal, have promoted the notion that in the interest of the state there should be an end to litigation, as well as the judicial decisions, must be accepted as correct.

References

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[1] R.V. Kelkar, Criminal Procedure Revised by Dr. K.N. Chandrasekharan Pillai (6^th edn. 2015) Ch-24 Pg. 649-666)

[2] P. Ramanatha Aiyar’s Code of Criminal Procedure, Seventh Edition

[3] (1973) 2 SCC 583, See National Commission for Women v. State of Delhi (2010) 12 SCC 599 wherein the Hon’ble reiterated the same.

[4] 1991 (2) Crimes 293 (AP)     

[5] 1986 Cr LJ 1436 (P&H)

[6] 1982 Cr LJ (NOC) 119 (All)

[7] 1983 Cr LJ 1271 (SC)

[8] Supra at 1 and 2

[9] 1989 Cr LJ 1104 (Pat).

[10] Supra at 1 and 2

[11] (2010) 3 SCC 721

[12] 1994 Cr LJ 3821 (Ori).

[13] 1977 Cr LJ 1872 (Ker)

[14] (1975) 2 SCC 406

[15] 1981   Cri LJ 1149

[16] (1977) 3 SCC 25

[17] 2003 Cri LJ 4776(AP)

[18] (2010) 5 SCC 1

[19] (1977) 2 SCC 630

[20] (2006) 8 SCC 641

[21] (2010) 6 SCC 1

[22] Supra at 1 and 2

[23] 1979 Cri LJ 105,106 (Del)

[24] AIR 1958 SC 121

[25] 1962 I Cri LJ 714

[26] Supra at 1 and 2

[27] Pasupulati Nanjappa, re, (1961) 2 Cri LJ 611, See Also. Kamleshwar Singh v. Dharamdeo Singh AIR Pat 375 (FB)

[28] 1977 Cri LJ 1872, 1973 (Ker)