APPEAL UNDER CONSTITUTION : A MAJOR RIGHT

ABSTRACT?

The process of criminal justice has some serious consequences on an individual’s life, ?primarily on the right to life and personal liberty. Each and every institution built by humans ?is prone to fallibility, therefore, this applies to the decisions rendered by courts as well. ?Resultantly, there should be specific provisions in place so as to scrutinise the decisions of ?lower courts in order to obviate the scope of miscarriage of justice. Realizing this aspect, ?there are certain provisions which have been included in the criminal procedure on appeal ?against a judgment or order of criminal courts. code of criminal procedure contains elaborate ?provisions on appeals starting from Section 372 to Section 394.?

KEYWORDS?

Revision , conviction, Suo-moto , acquittal, miscarriage of justice?

INTRODUCTION :-?

Appeal is an effective safeguard provided in the administration of justice , be it civil,? criminal, revenue or otherwise against possible error in human judgment . As we know that? human judgment is not infallible. Despite all precautions and detailed procedural law for? ensuring just and fair trial the possibility of mistakes or errors in the judgments’ of the courts? cannot be ruled out and therefore like other procedural laws the code of criminal procedure? also provides for appeal or revision so that the parties aggrieved by the decision of the lower? court may move in appeal or revision to the higher court for scrutiny and reconsideration of? the decision in interest of justice. So appeal and revision may be regarded as corrective? devise.??

Apart from its being a corrective devise the review procedure serves another important? purpose. The very fact that the decision of the lower court is duly Scrutinized by a Superior? court in “appeal” or “revision” gives certain satisfaction to the party “aggrieved” by that? decision. The review of the case by superior courts in a way assures the aggrieved party that? all reasonable efforts have been made reach a just decision free from plausible errors? prejudice and mistakes. Thus review procedures are therefore importantly useful to inspire in? public mind a better confidence in the administration of criminal justice.?

The Supreme Court in M.H Haskot v. State of Maharashtra (1978) 3 SCC 544 (1) observed,? it is integral to fair procedure, natural justice and normative universality save in special cases? like the original tribunal being a high bench sitting on a collegiate basis and subject to just? exceptions, at least one right appeal , as provided in the criminal procedure code , manifests? the value upheld in Article 21 of Constitution of India.??

RESEARCH METHODOLOGY??

This paper uses the doctrinal method of research and is primarily structured upon secondary? sources of information. It makes use of various Maxim and statutes as concerned to? provisions of appeal and this paper also involve various judgments passed by courts of India.? Some material has also been picked up from different textbooks and course books along with? online websites, that contain information about the topics covered. Various judgments of? supreme court and high courts were studied, and the relevant parts were selected and included? in this paper.?

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REVIEW OF LITERATURE?

According to the literal dictionary meaning . an appeal is a complaint to 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 is a creative of statute and there can be? no inherit right of appeal from any judgment or determination unless an appeal is expressly? provided for by the law itself.??

There are various law relating to appeal like there are various cases where their can be no? appeal , appeal from conviction, appeal by state government etc. No appeal can be made in? certain cases as mentioned below :-?

(i) No appeal unless provided by Law :-?

Section 372 code of criminal procedure , expressly provides that there can be no right of? appeal against a judgment or decision of lower court unless a provision for appeal is? specifically provided by the law itself as was held in case of Durga Shankar v. Raghuraj? singh AIR 1954 SC 520 (2), so it can be said as held in the case of Kalu Ahir And Others vs? Ramdeo Ram 1973 AIR 2145, 1974 SCR (1) 130 (3) that there is no inherit right of appeal? because an appeal is creative of statute.?

(ii) No appeal in petty cases :-?

Section 376 code of criminal procedure, provides that there shall be no appeal in petty cases.? The provisions as to appeal in various cases are contained in section 373 to 380 of the code? excepting the two aforesaid sections. There shall be no appeal by a convicted person in any of? the following cases, namely??

(a) where high court passes only a sentence of imprisonment for a term not exceeding 6? months or a fine not exceeding 1000 rupees or of both such imprisonment and fine.??

(b) where a court of session or a metropolitan magistrate passes only a sentence of? imprisonment for a term not exceeding 3 months or of fine not exceeding 200 rupees or of? both such imprisonment and fine.??

(c) where a magistrate of the first class passes only a sentence of fine not exceeding 100? rupees.?

(d) where in a case tried summarily, a magistrate empowered to act u/s 260 passes only a? sentence of fine not exceeding 200 rupees.??

(iii) No appeal where the accused is convicted on his plea of guilty :-?

Section 375 code of criminal procedure, signifies that where an accused person has pleaded? guilty and has been convicted on such plea, there shall be no appeal :-?

(1) If the conviction is by a high court?

(2) If the conviction is by a court of session, metropolitan magistrate or magistrate of first or? second class except as to the extent or legality of sentence.??

The rationale behind the above section 375 is that a person who deliberately pleads guilty? cannot be aggrieved by being convicted but it must be genuine plea of guilty made freely and? voluntarily that the bar u/s 375 would apply. However, this is subject to one exception . that? is , where a high court convicts and sentences a person on a plea of guilty , an appeal is not? allowed even as regards the extent or legality of the sentence because it can hardly be? contemplated that the judgment of High court would suffer from serious infirmity in respect? of the legality of sentence.??

APPEAL FROM CONVICTION :-?

(A) Appeal to Supreme Court –?

(i) Section 374(1) lays down that if a trial is held by High Court in its extra-ordinary original? Criminal jurisdiction , an appeal would lie to the Supreme Court and not to a Bench of Judges? of the High Court.??

(ii) Where the High Court has, on appeal , revised an order of acquittal of an accused person? and convicted and sentenced him to death or to imprisonment for life or to imprisonment for? life or to imprisonment for a term of 10 yrs or more , he may appeal as of right to the? Supreme Court mentioned in section 379 of code of criminal procedure . This section gives a? right to the Supreme Court against the reversal of an order of acquittal into conviction by the? High Court in appeal provided Sentence of death or imprisonment for life or an? imprisonment for term of 10 years or more has been awarded by the High Court . In other? cases of lesser punishment , appeal can be filed to the supreme court only if the High Court? certifies that the case is fit one for such appeal.?

(iii) The Constitution provides that an appeal State lie to the Supreme Court from any? judgment decree or final order of a High Court, if the High Court Certifies that the case? involves a Substantial question of law as to the interpretation of the Constitution (Article? 132(1))?

But :-?

Where the High Court has refused to give such a certificate the Supreme Court may, if? satisfied that the case that the case involves a substantial question of law as to interpretation? of the constitution grant special leave to appeal from such judgment decree or final order.? 132(2).?

(iv) Article 134(1) of the constitution , provides that an appeal shall lie to the supreme court? from any judgment , final order or sentence in a criminal proceeding of High Court , if the? High Court:-?

(a) has withdrawn for trial before itself any case from any court subordinate to its authority? and has in such trial convicted the accused person and sentenced him to death or??

(b) certifies that the case is a fit one for appeal to supreme court?

(v) Article 136(1) of the Constitution provides 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.??

However the above rule shall not apply to any judgment ,determination, sentence or order? passed or made by any court or tribunal constituted by or under any law relating to the armed? forces. (Article 136(2)).?

(B) Appeal to the High Court –?

Any person convicted on trial held by a session judge or an additional session judge or on a? trial held by any other court in which a sentence of imprisonment for more than 7 year has? been passed against him or against any other person convicted at the same trial may appeal to? the High Courts. (section 374(2)) . And in that case the judgment can be stayed suspended? pending appeal with separate petitions.??

In dealing with appeals under this section from sentences of court of session, the High Court? should give reasons for rejection of an appeal and if arguable and substantial points are? raised, the High Court should not summarily reject the appeal , when such points that is? arguable and substantial points are raised it is improper for the High Court without giving? some indication of its view on such points to dismiss the appeal summarily because if an? appeal is preferred against the judgment of the High Court the Supreme Court is deprived of? the benefit of High Court’s view.??

(C) Appeal to the court of session :-?

Any person :-?

(a) convicted on a trial by a metropolitan magistrate or assistant session judge or magistrate? of the first class or of the second class or??

(b) sentenced u/s 325 or?

(c) in respect of whom an order has been made or a sentence has been passed u/s 360 by any magistrate?

May appeal to the court of sessions 374 (3).?

(D) Special right of appeal in certain cases :-

When more persons than one are convicted in one trial and an appealable judgment or order? has been passed in respect of any of such persons, all or any of the persons convicted at such? trial shall have a right of appeal. (380).?

Thus this section gives a right of appeal to an accused person whose sentence is non appealable , if any of his co-accused has been awarded a sentence which is appealable.??

It is thus evident that section 380 recognizes the right of appeal of an accused person against? whom a non-appealable sentence is passed in a trial in which an appealable judgment has? been given against any one of the accused along with him.??

APPEAL BY STATE GOVERNMENT??

The right to appeal against inadequacy of the sentence has been given only to the state or the? central government and not to the complaint or any other person. However the complaint or? any other person can more the revisional court in revision for this purpose and the revisional? court ie. The High Court or the Court of session as the case may be may excise its revisional? jurisdiction and decide to act Suo-moto and enhance the sentence.??

According to present scheme of section 377 an appeal on the ground of inadequacy of? sentence can also be entertained by the court of session for enhancement if it is passed by? magistrate . This will not only make it easier for the administration to prefer appeals against? unduly lenient sentences by magistrates but will also determine the magistrates from passing? sentences that are grossly inadequate.??

The right to appeal against inadequacy of the sentence has been given only to the state and? not to the complainant or any other person nonetheless the complainant or any other person? can more the High Court or Court of session (revisional courts ) for this purpose and in the? exercise of the revisional jurisdiction the high court or the court of session is competent to? enhance the sentence and 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.??

While the accused is an appeal u/s 377 can show that he is innocent of the offence, the? prosecution is not entitled to show that he is guilty of a graver offence and on that basis the? sentence should be enhanced. The prosecution will only be able to urge that the sentence is? inadequate on the charges.

Where the trial court has recorded conviction of the accused but instead of awarding sentence? of imprisonment allowed him to be released on probation, there is no question of appeal for? enhancement of the sentence as no sentence has been passed at all and therefore the provision? of section 377(1) are not attracted. An appeal u/s 377 must be filed by the state within a? period of 60 days.??

While enhancing the sentence in appeal or revision , the court must record reason for? considering that the sentence awarded by the trial court was inadequate and therefore needed? to be enhanced in the interest of justice.??

In the case of Prem alias Santosh v. state of Maharashtra 1993 (2) BomCR 252, 1993 CriLJ ?1608 (4) , three persons were brutally injured in a road-side robbery and two of them died? shortly afterwards. The Bombay high court enhanced the punishment and sentenced the main? accused to death, holding his culpability as gravest and brutality of the highest degree , and? any leniency might risk the life of others.??

APPEAL AGAINST ACQUITTAL??

Section 378 code of criminal procedure, seeks to restrict the right of appeal against a? judgment of acquittal and government should file an appeal against acquittal in only those? cases in which grave injustice seems to have occasioned. The High Court has discretion to? refuse to grant leave to appeal against an acquittal. In other words where the initial? presumption of innocence in favor of the accused has been duly vindicated by a decision of? competent court , an appeal against such a decision of acquittal means putting the interest of? the accused once again in serious jeopardy. Therefore the restrictions on the preferring of an? appeal against acquittal as envisaged by section 378 are intended to safeguard the interests of? the accused person and to save him from personal vindictiveness.??

The supreme court in Gamini Bala Koteswara Rao & Ors vs State Of A.P. AIR 2010 SC 589 (5) observed that it is well settled by now that it is open to the High Court to re-appraise the ?evidence and conclusion drawn by the trial court but only in case when the judgement of the ?trial court is stated to be perverse. The word perverse as understood in law has been defined ?to mean against the weight of evidence. ?

An appeal against an order or acquittal can be preferred only :-?

(i) by the government?

(ii) in a case instituted upon the complaint by the government as well as the complainant?

(iii) whether the order of acquittal is passed by any magistrate or by the session judge, the ?appeal in every case of such acquittal could be made only to the High Court. ?

(iv) According to subsection 6 an appeal by the state under sub-section 1 or 2 is barred in ?case the private complainant has failed to obtain special leave to appeal under sub-section 4 ?

(v) The application for grant of leave to appeal must be filed within the time prescribed by ?sub-section 5 that is within 6 months where the complainant is a public servant and 60 days ?in every other case and the appeal must be filed within the period of limitation prescribed by ?Article 114 of the schedule of the limitation Act 1963.?

In an appeal against acquittal a court has to remind itself of certain cardinal rules, which are :-?

(1) There is presumption of innocence in favour of the accused which has been strengthened ?by the acquittal of the accused by the trial court.?

(2) If two views are possible , a view favourable to the accused should be taken. (3) The trial judge had the advantage of looking at the demeanour of the witnesses. (4) The accused is entitled to a reasonable benefit of doubt.?

The court can interfere with the order of acquittal only when :-?

(i) The appreciation of evidence by the trial court is perverse .?

(ii) Where there is substantial omission to consider the evidence existing on record. ?(iv) the view taken by the acquitting court is impermissible on the evidence on record. ?(v) If the order of acquittal is allowed to stand , it will result in the miscarriage of justice. ?

In the matters of preferring appeals against acquittals, appeals by the state / central ?government have been treated differently from appeals by a complaint. In the case of an ?appeal preferred by the state / Central government under sub section (1) or sub section (2) of ?sec 378, the code does not contemplate the making of an application for leave under sub ?section (3) thereof , while in the case of an appeal by a complainant, the making of an ?application for grant of “special leave” is a condition precedent for the grant of special leave ?to a complainant. It is not necessary as a matter of law, that an application for leave to?

entertain the appeal should be lodged first and only after grant of leave by the High Court an ?appeal may be preferred against an order of acquittal. However , while refusing leave to ?appeal against an order of acquittal the High Court is required to adduce sufficient reasons for ?the same.??

The power to go in appeal against an order of acquittal should ordinary be used by the ?government in such cases only where there appears to be a serious miscarriage of justice. ?Under sub section (3) the High Court has got full discretion to grant or not to grant leave to ?appeal against acquittal but quite obviously this discretion is to be used judiciously and not ?arbitrarily. ?

According to section 378(1) the appeal by the state against the order of acquittal is to be ?presented in High Court by public prosecutor, so that the state should associate the public ?prosecutor in this matter . where there is a public prosecutor but the state has not associated ?him in preferring the appeal the act of filing the appeal will be invalid . ?

However in a situation where it is impossible to have a public prosecutor for presenting an ?appeal on behalf of the state, it would be legitimate to invoke the maxim “lex non cogit ad ?impossibilia ” which means dispensing performance of what is prescribed when performance ?of it is impossible.?

The public prosecutor according to section 378(1) is to present the appeal against acquittal ?only under the direction of the state government. He has no power to suo motu file such an ?appeal . In absence of any direction from the government the appeal filed by him would be ?incompetent. ?

Sub section (5) prescribes a period of limitation of 60 days for making an application for ?grant of special leave to appeal against an order of acquittal at the instance of a complainant. ?The limitation period is extended to six months whenever the complainant is public servant. ?

An appeal from an order of acquittal in a case instituted upon a complaint must be presented ?within 30 days from the date of grant of special leave to appeal as provided by clause (b) of ?Article 114 Limitation Act. ?

When the state has not appealed against acquittal , the complainant could invoke revisional ?jurisdiction of the sessions courts. ?

CURATIVE APPEAL

A Curative petition is the last constitutional resort available for redressal of grievances in ?court after a review plea is dismissed or has been exhausted.?

The concept of curative petition originated from a landmark judgement in Rupa Ashok Hurra ?vs Ashok Hurra and Anr 2002. (6)?

The Concept was evolved by the apex court to prevent the miscarriage of justice and to ?prevent abuse of process. Five – judge constitution bench of Supreme Court ruled that a ?curative Petition can be allowed if the petitioners establishes there was a violation of the ?principles of the natural justice and there were some facts which were brought to the notice of ?the court but were ignored by the court before passing an order. ?

A curative petition is normally a second time review , but not a matter of right. A curative ?appeal against the judgement of the High Court shall be maintainable on any of following ?grounds :-?

(i) where the trial court has cat short an evidence which the prosecution wanted to produce ?before the court and had important bearing on the decision in the case. ?

(ii) where a court not having jurisdiction in the case has accepted it for trial. ?(iii) where a court not having jurisdiction in the case has accepted it for trial?

(iv) where important evidence has been overlooked by the trial court or its findings are based ?on irrelevant evidences. ?

(v) where acquittal is based on compounding of offence which is not admissible in law or is ?illegal. ?

CONCLUSION?

It can be concluded that through there is process of appeals, a person gets an opportunity to? get any legal, or factual error in an order or judgment corrected. Nevertheless, appeals against? any judgment, or order, or sentence of a criminal court can only be preferred when it has been? specifically provided in the statutes. Thus, it can be seen that the right to appeal can only be? exercised within the limits laid down by code of criminal procedure or any other law which is? in force and hence, this is a constricted right. As far as the decision to appeal is considered, it? is discretionary except in cases when an accused person has been sentenced to death by? Sessions Court. Not only this, there are certain cases as well in which appeal is not allowed at?

all, in fact the judgment, or order, or sentence delivered by the criminal court will attain? finality.??

REFERENCES?

1. https://legalpaathshala.com/appeal-under-code-of-criminal-procedure/ 2. https://www.writinglaw.com/criminal-appeal-and-its-kind-in-crpc/?

3. https://blog.ipleaders.in/appeal-reference-and-revision-under-crpc/?

4. https://lawmint.com/bare-acts/crpc-29-appeals/?

5. R.V KELKAR’S – CRIMINAL PROCEDURE?

6. RATANLAL AND DHIRAJLAL – THE CODE OF CRIMINAL PROCEDURE 7. N.V PRANJAPE - THE CODE OF CRIMINAL PROCEDURE?

CITATIONS??

1. M.H Haskot v. State of Maharashtra (1978) 3 SCC 544?

2. Durga Shankar v. Raghuraj singh AIR 1954 SC 520?

3. Kalu Ahir And Others vs Ramdeo Ram 1973 AIR 2145, 1974 SCR (1) 130 4. Prem alias Santosh v. state of Maharashtra 1993 (2) BomCR 252, 1993 CriLJ 1608 5. Gamini Bala Koteswara Rao & Ors vs State Of A.P. AIR 2010 SC 589 6. Rupa Ashok Hurra vs Ashok Hurra and Anr 2002?