19 Appellate Process

Dr.Kumar Askand Pandey

1.  Introduction:

The criminal justice processes have serious repercussions for an individual’s right to life and personal liberty and therefore, the decisions of lower courts should be scrutinized to obviate any miscarriage of justice. Every institution created by humans is fallible and so is true of courts. It is this realization that demands that the laws on criminal procedures contain specific provisions on appeal against a judgment or order of the courts.

The Code of Criminal Procedure, 1973 (hereinafter CrPC), contains elaborate provisions on appeals against a judgment or order of the criminal courts. However, CrPC provisions are not the only provisions wherein one can find the process pertaining to appeals. Several of special and local legislations incorporate appellate process which may mark a departure from the general appellate process contained in CrPC.1

It is to be noted though, that there is no vested right to appeal unless specifically provided under the relevant statutory provision.2 However, an amendment made to Section 372 of CrPC in the year 2009 added3 a proviso conferring upon victims4 of crime a right to appeal in certain circumstances. This amendment shall govern appeals to all the courts including the High Court and the Supreme Court.

Moreover, in view of Sections 265G, 375 and 376 of CrPC there may be circumstances5 when no appeal shall lie against the order of conviction.

In this module, we shall discuss the appellate process at three different levels namely-

Appeals to the Sessions Court and to the High Court are largely governed by the same set of rules and procedure. But the High Court being the highest appellate court within a state, has been given primacy in many cases where appeal is permissible. The Supreme Court, being the appellate court of last resort, enjoys very wide plenary and discretionary powers in the matters of appeal.

2. Appeals to the Sessions Court:

2.1. General:

A Sessions Court is the highest court within the Sessions Division. This in no way means that appeals against the decisions of the criminal courts shall lie straight to the Sessions Court. An appeal against a conviction recorded by a Magistrate of the Second Class may be heard and decided by an Assistant Sessions Judge or a Chief

Judicial Magistrate.6 However, an Additional Sessions Judge, an Assistant Sessions Judge or a Chief Judicial Magistrate shall hear only such appeals as the Sessions Judge may make over to him or as the High Court may, by special order direct him to hear.7

This shows that even the first appeal is subject to statutory limitation and there is no right to appeal as such. The rationale being that courts which try a case are competent and there shall be a presumption that the trial has been fair.

2.2. Appeal against inadequacy of sentence or acquittal:

In all cases, other than those where the trial has been held by the High Court, where the State is not satisfied with the adequacy of the sentence passed by the trial Court, it may issue directions to the Public Prosecutor to prefer an appeal to the Sessions Court and to the High Court against the sentence on the ground that the sentence awarded is inadequate.8 Even the Central Government may direct the Public Prosecutor to present such an appeal in all cases where the investigating agency was an agency of the Center viz. CBI or NIA.

Even the victims of crime shall have a right to appeal against acquittal in view of the amendments made to Section 372 of CrPC in 2009. Accordingly, a victim shall have a right to appeal against an order of acquittal or conviction for a lesser offence or an imposition of inadequate compensation, to the court where appeal ordinarily lies against such order of conviction. Evidently, a victim has no right to appeal against inadequacy of sentence.9

Under Section 378(4) of the CrPC a complainant may prefer an appeal against order of acquittal, if special leave is granted by the High Court. However, in all cases the State and the victim may present appeal against order of acquittal. Also, the District Magistrate, being the Head of the Criminal Justice Administration in a district, may direct the Public Prosecutor to appeal to the Sessions Court against an order of acquittal passed by a Magistrate in a cognizable and non-bailable case.10 Also the State Government can direct the Public Prosecutor to appeal against acquittal passed by any court other than the High Court.11

These powers may be exercised by the Central Government in those cases where the investigation has been done by a Central Agency such as CBI and NIA. However, such an appeal can be entertained only with the leave of the High Court, to be exercised judiciously.12

If the High Court refused to grant special leave to appeal to the complainant, no appeal from that order of acquittal could be filed by the State or the agency contemplated in Section 378(2) of CrPC.13

However, a victim may also be a complainant (in complaint cases) and therefore a question arises as to the application of Section 378 (4), CrPC to an appeal preferred by a victim who is also a complainant. A Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana v State of Gujarat14 observed that if the victim also happens to be the complainant and the appeal is against acquittal, s/he is required to take leave as provided in Section 378 (4) of the CrPC but if s/he is not the complainant, s/he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment for a lesser offence, no leave is necessary at the instance of a victim, whether s/he is the complainant or not. This interpretation of Section 372 & 378(4) of CrPC is not logical as it abridges the victim’s right to appeal against acquittals by bringing in an additional requirement of special leave of the High Court and seems to be contrary to the legislative intent. In Balasaheb Rangnath Khade v State of Maharashtra15, there was a difference of opinion between the two Judges of a Division Bench of the Bombay High Court and,therefore, the matter was referred to a third Judge on the question whether a victim can file an appeal against the order of acquittal passed by the trial Court without filing an application for leave to file appeal. The third Judge was of the view that the victim was not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to Section 372 of CrPC.

It was observed in Dhanna v State of M.P.16 that “though the CrPC does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Courts are concerned, certain unwritten rules of adjudication have consistently been followed by judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. It is important to note that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. Also, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him he would retain that benefit in the appellate Court also. Thus, appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed.”17

As the decision to prefer an appeal is usually taken by the executive, the Supreme Court found it pertinent to devise a mechanism against the abuse or misuse of such discretion and has laid that18:

“(i) There is no limitation on the part of the appellate Court to review the entire evidence upon which the order of acquittal is founded.

(ii) The appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) The appellate Court can also review trial Court’s conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when there are ‘compelling and substantial reasons’ for doing so. If the order is ‘clearly unreasonable’, it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate Court is competent to reverse the decision of the trial Court depending on the materials placed.”

2.3. Manner and form of appeal to the Sessions Court:

Ordinarily, appeals made to the Court of Session or a Sessions Judge are heard by the Sessions Judge or Additional Sessions Judge. However, where the conviction has been recorded by a Magistrate of the Second Class, it may be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate.19 Every such appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall be accompanied by a copy of the order or judgment of the court appealed against, unless otherwise directed by the appellate Court.20

If the appellant is in jail, he may appeal to the appropriate appellate Court by submitting his petition of appeal to the concerned officer in charge of the jail who shall forward the said petition to the appellate Court.21

3. Appeals to the High Court:

3.1. General:

In view of Section 374 (2), CrPC, any person, convicted on a trial held by a Sessions Judge or Additional Sessions Judge or any other court whereby a sentence of more than seven years has been passed against him or any other person convicted at the same trial, may appeal to the High Court concerned.22

For every accused person sentenced to death by a Sessions Judge or Additional Sessions Judge in a trial held before him, there is a right of first appeal on facts to the High court under Section 374 (2) of the CrPC. Independent of that right of appeal, the CrPC contains an in-built mechanism for an automatic appeal on facts to the High Court under Section 366 of the CrPC and this right of appeal is not dependent upon the option of the accused to prefer an appeal or not. This right of appeal has to be compulsorily afforded to the accused by the Court of Sessions by making a reference under Section 366, CrPC.23

When a reference under Section 366 of the CrPC for confirmation of death sentence is made and an appeal under Section 374(2) has also been preferred, they are to be heard together. But if the appeal is preferred within the prescribed time, the reference will by itself constitute the first appeal on facts. Hence, as against an order of confirmation of death sentence passed under Section 368 of the CrPC, there is and there can be no further right of first appeal on facts to the Supreme Court unless the High Court in exercise of its powers under Article 134(1) (c) grants leave to appeal to the Supreme Court or the Supreme Court grants special leave under Article 136(1) of the Constitution for an appeal being preferred.24

Special legislations may also provide for appeals directly to the High Court from the decisions of trial courts.

3.2. Appeal against inadequate sentence or acquittal:

Generally the State and not the individual victim initiate the criminal process against the accused. The plain language of Section 377(1) of CrPC makes it clear that the State Government can file an appeal to the High Court “against the sentence on the ground of its inadequacy”. In a case where the conviction is recorded by the trial Court but instead of awarding sentence of imprisonment the convict is released on probation under the provisions of the relevant special law then it is a case where no sentence at all has been awarded and as such the provisions of Section 377(1) are not attracted.25

Recently, speaking on the issue of appeal against inadequate sentence or acquittal preferred by a complainant, the Supreme Court in Subhash Chand v State (Delhi Administration)26, has observed that “Sub-section (4) of Section 378 of CrPC makes provisions for appeal against an order of acquittal passed in case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of ‘special leave’ as against sub-section (3) relating to other appeals which speaks of ‘leave’. Thus, complainant’s appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for ‘special leave’ by the complainant. It grants six months period of limitation to a complainant who is a public servant and sixty days in every other case for filing application.”

In the opinion of the Supreme Court, sub-section (6) of Section 378, CrPC further provides that “if ‘special leave’ is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation.”27

Thus if in a case instituted on a complaint an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378 (1) (b), it can in any case, that is even in a case instituted on a complaint, direct the public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than High Court. But there is an important inbuilt and categorical restriction on the State’s power. It cannot direct the Public prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. In such a case the District Magistrate may under Section 378(1) (a) direct the Public Prosecutor to file an appeal to the Sessions Court.”28 The amendment made through Act XXV of 2005 to Section 378 brought about a major change in the CrPC. “It introduced Section 378(1) (a) which permitted the District Magistrate, in any case, to direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. For the first time a provision was introduced whereunder appeal against an order of acquittal could be filed in the Sessions Court. Such appeals were restricted to orders passed by a Magistrate in cognizable and non-bailable offences. Section 378(1)

(b) specifically and in clear words placed a restriction on the State’s right to file such appeals.”29

Thus, in any case it cannot be said that the words ‘State Government may’ preserve the State’s right to file appeal against acquittal orders of all types or that if the complainant has not preferred an appeal against acquittal, the State Government can file the same in public interest.

Therefore, it is clear that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court.30

4. Appeals to the Supreme Court:

4.1. Ordinary Appellate Jurisdiction:

The appellate process usually culminates with an appeal to the Supreme Court of India which is primarily a court of appeal. The Supreme Court, therefore, enjoys extensive appellate jurisdiction. However, every decision of the High Court may not be appealable in the Supreme Court. In order to restrict the flow of the criminal appeals to the Supreme Court and in recognition of the important place which the High Court enjoy in the appeals hierarchy, Article 134 of the Constitution regulates criminal appeals to the Supreme Court in such a manner that only important criminal appeals reach the Supreme Court.

Thus, an appeal lies to the Supreme Court from a judgment, final order or sentence of the High Court where the High Court has, on appeal, reversed an order of acquittal of an accused person and sentenced him to death.31 The Supreme Court has said that the sub-clause (1) of Article 134 clothes an accused person, who has been acquitted by the trial Court but sentenced to death at the appellate level, or has been tried by the High Court by withdrawal of the case from any other Court subordinate to it and in such trial has been visited with death sentence, or has secured a certificate32 that his case is of such great moment as to qualify for pronouncement by the Supreme Court.

Moreover, exercising its powers granted under Article 134 (2), the Parliament has passed the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, under which the Supreme Court may also hear criminal appeals firstly, if the High Court has on appeal reversed an order of acquittal of an accused and sentenced him to imprisonment for life or for a period of not less than 10 years and secondly, if the High Court has withdrawn for trial before itself any case from a subordinate court and has convicted the accused and sentenced him to imprisonment for life or for a period of not less than 10 years.

Section 379 of CrPC also makes provisions for appeals to the Supreme Court from certain orders of the High Court.

The resultant position of law from the conjoined reading of Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Articles 134(1), 134A of the Constitution and the CrPC is as follows34:

“(1) Under sub-clause (a) of Article134(1) an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to death.

(2) Under sub-clause (b) of Article 134(1) an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn the case for trial before itself from any Court subordinate to its authority and sentenced him to death.

(3) Under Section 2(a) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of an acquittal of an accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than 10 years.

(4) Under Section 2(b) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court 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 imprisonment for life or imprisonment for a period of not less than 10 years.

(5) Under Section 379 of the CrPC, an appeal lies as of right to the Supreme Court in a case where the High Court has on appeal reversed an order of acquittal of an appeal of an accused person and convicted and sentenced him either to death or to imprisonment for life or imprisonment for a term of 10 years or more.

(6) In cases not covered by Article 134(1) (a) and (b) or Section 2(a) and (b) of the Act of 1970 or by Section 379 of the CrPC an appeal will lie only either on a certificate granted by the High Court under Article 134(1) (c) or by grant of special leave by the Supreme Court under Article136.”

The right of appeal given under Section379 of the CrPC is in line with Article134 (1)

(a) and (b) and Section 2(a) and (b) of the Act of 1970. Article 132 makes it possible for a criminal appeal to be made to the Supreme Court if the High Court certifies under Article 134 A that the case involves a substantial question of law as to the interpretation of the Constitution.

Additionally, any person convicted by the High Court in exercise of its extraordinary original criminal jurisdiction may appeal to the Supreme Court.35

Thus, under Clause (2) of Article 134, an accused who has been convicted for an offence of murder can prefer an appeal to the Supreme Court as a matter of right.36

4.2. Extra-ordinary Appellate Jurisdiction:

Under Article 136 of the Constitution, the Supreme Court also enjoys a plenary jurisdiction in matters of appeal. However, Article 136 is not a regular forum of appeal at all. It is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion.37 Article 136 does not confer a right of appeal upon any party but merely vests discretion in the Supreme Court to interfere in exceptional cases.38

Though the discretionary power vested in the Supreme Court under Article 136 is apparently not subject to any limitation, the Supreme Court has itself imposed certain limitations upon its own powers.39 The Supreme Court has laid down that this power has to be exercised sparingly and only in exceptional cases.40

The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist.41

4.3. Difference in Ordinary and Extra-ordinary Jurisdiction of the Supreme Court:

Unlike the ordinary appellate jurisdiction of the Supreme Court in criminal matters, the extra-ordinary jurisdiction is not fettered with any limitations. Following are the chief distinctions between the two:

1-   Under Article 136, an appeal may lie even against an ‘interlocutory order’ whereas under Article 134, only final orders are appealable.

2-   Appeals against the orders from ‘any court’ can lie to the Supreme Court under Article 136, whereas, under Article 134 orders only from High Court can be appealed against.

It is to be noted that the Supreme Court does not act as a regular court of appeal in every criminal matter. Normally, a High Court’s decision shall attain finality and the Supreme Court has only special jurisdiction. Also, the Supreme Court does not normally interfere with the concurrent findings of the subordinate courts unless there appears to be a manifest injustice viz. where the decision is not based on any evidence or inadmissible evidence or where the finding is such that no reasonable person shall arrive at or where a very vital piece of evidence has been discarded that would have titled the balance in favour of the convict.42 The Supreme Court can also correct mistakes of law committed by the High Court in appreciating the evidences and basing its decision on conjectures and surmises. It can do so even if the trial had been a protracted one and the accused was acquitted by the High Court.43

5. Summary:

The appellate process provides an opportunity to correct any possible factual or legal errors in a judgment or order. However, appeals against the judgment, order or sentence of a Court can be preferred only when specifically provided for. Usually the right to appeal is a very constricted right as it has to be exercised within the statutory framework of the CrPC or some other special and local legislation. Decision to appeal is completely discretionary except in the case where the accused has been sentenced to death by the Sessions Court. Moreover, appeals may not be allowed in certain cases and the judgment/order/sentence of the Court shall attain finality after it is delivered.

The procedure for preferring an appeal to the Sessions Court and to the High Court is largely governed by the same set of rules under CrPC. Appeals to the Supreme Court are governed by the Constitution of India, the CrPC and the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.