Appeal (Section 384-394)

Author: Ritika Sharma

APPEAL (SECTIONS 384-394)

Introduction

The importance of “Fair Trial” is the very facet of a justified judicial system. There are a lot of provisions that ensure a Fair Trial, still, there is always the scope of mistakes and errors. The appeal is the concept that gives a chance to review the orders by the superior courts. It is the inherent right to appeal and can only be filed when the statute expressly provides for it. Chapter XXIX (Sections 372- 394) of the Code of Criminal Procedure, 1973 contains the provisions regarding Appeal. In this article, we will deal with Section 384 to 394 of CrPC.

Petition of Appeal and its presentation (Sections 382 and 383)

Before understanding the Summary dismissal of Appeal, it is necessary to brief about the provisions under Sections 382 and 383. Section 382 lays down that the appeal should be in the form of a petition with the attached copy of judgment or order. Further, Section 383 specifies the provision of appeal for the people who are in jail. According to which, the petition of appeal and the attached copy of order or judgment should be presented to the officer in charge of jail who would forward the same to the Appellate Court.

Summary dismissal of Appeals

• Summary dismissal of Appeals means the informal manner of dismissing the appeal, without any delay of the formal proceedings. Section 384 expressly specifies that appeals made under Section 382 cannot be dismissed without giving the reasonable opportunity of being heard to the appellant or pleader. While appeals made under Section 383 can be dismissed without hearing the appellant when the court is of the view that the appeal is frivolous or it would be inconvenient to produce the accused in custody before the court.
• The court has the discretion to call for the record of the case while dismissing the appeal under this Section.
• If the Court of Session or Chief Judicial Magistrate is dismissing the appeals then they have to record the reasons for the same. In Dandiba v. State of Maharashtra^[1], SC observed that a person can file a petition of special leave to SC when aggrieved by the orders of High Court so it is essential that High Court should give some reasons that why no arguable case was made out on a perusal of the documents and should dismiss the appeal by just one word “dismissed”.
• Further Section 384(4) says that in case the appellant’s appeal has been dismissed under Section 383 and appeal was also made by him/ her under Section 382 then the court may dismiss such appeal subject to the provisions of Section 393.

Procedure for hearing appeals not dismissed summarily

In case the appeal is not dismissed under Section 384, the court shall give the particulars regarding date and time to the appellant or officer appointed in this behalf or complainant or accused in case appeal is under section 377 or 378.

If the record of the case is not available then the Court can send for the records but in case of appeal regarding the legality of the sentence, the court has the discretion to dispose of the appeal without sending for the record. As per Section 385(3), the court shall not hear any other ground of appeal when the only ground is of the severity of the sentence.

In many cases, the court has to ensure the production of the accused. In Mahendra Harijvan Luhar v. State of Gujarat[2], the elder brother of the accused was produced in the place of the real accused in the appeal against his acquittal. It was only at the stage of imposing punishment did he represent that he was not the real accused. It was doubted whether it could happen without the collusion of the police. So the court, in this case, issued directions, one of which says that in all acquitted appeals, the accused is to be cross verified with the photographs and marks of identification.^[3]

Powers of the Appellate Court

Section 386 vividly lays down the powers of the Appellate court in appeals under Section 377 or Section 378. Following are such powers:

• Appeal against acquittal- In case of appeal against acquittal, Appellate Court has the following powers:
• to reverse such order;
• to direct that further inquiry be made;
• order the re-trial;
• to pass orders on him according to law.

In Kishan Lal Sethu v. Jagan Nath^[4], the deceased who died of burn injuries gave a dying declaration in the presence of the responsible Judicial Officer and doctor that she caught fire accidentally and was not burnt by her in-laws. It was held by SC that there were no substantial or compelling reasons, therefore, the High Court cannot interfere in the case of an appeal against acquittal.

• An appeal against conviction- In this case, as per Section 386(b), the court has the following powers:
• reverse the finding and sentence and acquit or discharge the accused;
• order him to be re-tried by the subordinate court; alter the finding,
• maintaining of the sentence;
• alter the nature or the extent of the sentence.

In State of Haryana v. Janak Singh and others^[5], it was held that when an appeal against conviction was not pressed on merits but only on sentence, the court has yet to see whether the conviction was proper or not.^[6]

• The appeal of enhancement of sentence- For the appeal of enhancement of sentence, court can have the following powers under clause (c):
• reverse the finding and sentence, acquit/ discharge the accused and order him to be re-tried;
• alter the finding maintaining the sentence;
• alter the nature or extent of the sentence.
• Amending of order- Clause (e) says that the Court can make any amendment or make any order that is just and proper. The exception to this is the cases in which offence under Section 302 of IPC is committed and the minimum sentence is life imprisonment, where the court cannot reduce the sentence.

Powers of Appellate court to grant bail

Only Appellate Court can exercise powers under Section 389 where an appeal is being made. According to this provision, the court can make the orders of suspension of execution of the sentence or in case the person is in confinement, the order of convict’s release on bail or on his own bail, and the reasons are to be recorded in writing. In Anil Ari v. State of West Bengal[7], it was observed that mere grant of bail during trial and that the convicted person has not misused it, is not the only factor which is to be considered before the suspension of sentence pending appeal. Other relevant factors are also to be considered while passing the said order. In Central Bureau of Investigation, New Delhi v. M.N. Sharma^[8], the respondent was convicted for the offence of corruption and the court suspended the conviction without recording the reasons. SC held that the order of suspension is improper as no reasons were mentioned.

Following are some conditions for Appellate Court in case of release of a convicted person on bail:

• In case person is punished with death or life imprisonment for life or imprisonment for a term of not less than ten years, then opportunity is to be provided to Public Prosecutor to show cause in writing against the appeal;
• In case the convicted person is released on bail, the Public Prosecutor can file an application for the cancellation of bail.

In Navjot Singh Sidhu v. State of Punjab^[9], it was held that in case of a request for suspension of conviction the appellant has to draw specific attention of the Court to consequences that follow his conviction. The Court has to exercise this power under Section 389(1) in rare cases depending on special facts of the case.^[10]

Section 389(3) mentions that when a person is sentenced to imprisonment for a term of maximum 3 years or where the person has committed a bailable offence and he/ she is on bail, then the court shall release him/ her on bail. But if there are special reasons for refusing the bail then the court may not order the same.

It should also be noted that the time during which the person has been released on bail is not considered while calculating the term of sentence.

Section 390 talks about the arrest of accused in an appeal from acquittal. When there is an appeal under Section 378 then the High Court has the power to issue a warrant in order to arrest the accused.

Power of Appellate Court to obtain further evidence

In the case of appeals, Appellate Court has the power to take additional evidence which it thinks is essential after recording the reasons. The Appellate Court can take such evidence itself, or direct the Magistrate. After taking the additional evidence, the court or Magistrate has to certify that “the court shall thereupon proceed to dispose of the appeal”.

The example of “further evidence” can be illustrated with the case named Raghunandan v. State of U.P.^[11]. In this case, it was held that if the counsels have not put the medical witness, examined at the trial, or the post mortem reports in the context of a murder case, the High Court can take further evidence.

Procedure where Judges of Court of Appeal are equally divided

Section 392 makes the provision in case the appeal is before the High Court and the Bench of judges are equally divided in opinion, in such cases, according to this section, the appeal shall be laid before another judge of that Court and that Judge can give his/ her opinion for the same.

Also, any of the judges of the Bench or the Judge to whom the case is presented under this Section can direct that the appeal should be re-heard.

Rules regarding judgment of subordinate Appellate Court

According to Section 387, the rules contained in Sections 353 to 365 are to be applied to the judgment in the appeal of a Court of Session or Chief Judicial Magistrate to the extent they are practicable. Also, the accused shall not be brought up, or required to attend or hear judgment delivered, unless the Appellate Court otherwise directs.

In Alijan Nanhe Pehalwan Qureshi v. State of Maharashtra^[12], it was held by the Supreme Court that although Section 387 is not applicable in respect of judgment in the appeal of the High Court, the High Court must indicate in a reasoned judgment that it has supplied its mind to the material questions of fact and law. A judgment may be brief, not a blank, especially in case of appeals against the order of conviction for the serious offence^[13]

Further, Section 388 specifies that in case the appeal was made to the High Court, the order or judgment is to be certified by the court against whose order or judgment, the appeal was made.

Finality of Judgments and orders on appeal

Section 393 says that except in the cases under Section 377, 378, 384(4) or in Chapter XXX, the orders of Appellate Court shall be final. Some exceptions to the final disposal of appeal by Appellate Court are as under:

• When the appeal is against acquittal under Section 378;
• When the appeal is for the enhancement of sentence under Section 377.

The remedy to challenge the decision of the Appellate Court is only by filing a revision.

Abatement of Appeals

Section 394 highlights that the appeal under Sections 377 or 378 shall finally abate on the death of the accused and all other appeals except the appeal from a sentence from fine abate on the death of the appellant. When the appeal is against conviction and sentence of death or of imprisonment, then after the death of the appellant, his/ her near relatives have to apply to the Court within 30 days of the death. The main motive of this is to give an opportunity to the relatives of the deceased to get rid of the odium.

Conclusion

The appeal procedure has been specified in a comprehensive manner in the Code so that justice can be delivered to the society and the real culprits are behind the bars. Article 21 of the Constitution also requires the appeal mechanism to be “reasonable, just and fair”. Legal aid is also provided to the appellant or respondent in the cases of appeal when due to poverty or indigence, they are unable to engage one. The main objective has always been to set up a just system through which laws can be implemented without any kind of discrimination scope of error.

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^[1] AIR 1976 SC 1151

^[2] 1999 CriLJ 3025 (Guj)

^[3] K.N. Chandrashekharan Pillai, Criminal Procedure 673 (Eastern Book Company, 6th Edn., 2016)

^[4] 1990 Cr. L.J. 1500 (S.C.)

^[5] (2013) 3 Cri.L.J. 3317 (S.C.)

^[6] S.N. Misra, The Code of Criminal Procedure, 1973 573 (Central Law Publications)

^[7] (2009) 2 Cr. L.J. 1328 (S.C.)

^[8] (2009) 1 Cr.L.J. 1116 (S.C.)

^[9] 2007 Cr. L.J. 1427 (S.C.)

^[10] Supra note 6 at 584

^[11] AIR 1974 sc 463

^[12] (1981) 1 SCC 415

^[13] Supra note 3 at 687