Overview of Appeal in CrPC
Introduction
Here is the simplistic hierarchy of the Courts. (JMFC stands for Judicial Magistrate of First Class)
Not so serious cases are tackled by Lower courts. Serious cases are tackled by Sessions court. We humans are not Gods. Courts are presided by humans and its possible that they can make a mistake. They should be remedy to people when courts commits mistake. One of such remedy is Appeals.
Remember this one, you don't have right of Appeal in all the cases even if you feel Court had committed some mistake. Criminal Procedure Code gives a right to appeal in specific circumstance. CrPC provides circumstance when you CANNOT appeal. Apart from CrPC, constitution also have certain provisions related to Appeal. Specific laws like NIA Act, UAPA Act etc have provided separate procedure of Appeal.
In this post we will cover below things
- When you CANNOT appeal ?
- Who can appeal and for What purpose ?
- Appeals to Sessions Court
- Appeals to High Court
- Appeals to Supreme Court
- General procedure
- Power of Appellate Court
- Finality of Judgement
When you cannot appeal
If matter is really trivial, there is really no need of appeal. In Supreme Court Vs Prashant Bhushan, supreme court fined Prashant Bhushan 1 Rs. Should we allow appeal for such trivial punishment? Of course NOT.
Section 265G, 375 and 376 of CrPC contains the provision when there is not appeal.
Section 265G deals with decisions given in Plea Bargaining. In this case decision if final and no appeal can be preferred.
Section 375 provides that when accused takes a plea of guilt he wont be allowed to appeal the conviction. He can however appeal against the amount of punishment.
Section 376 bars appeal in petty cases.
Who can appeal and For what purpose ?
Convicted Person
Convicted person may prefer an appeal against the conviction decision of lower court. He may also appeal against the quantum of punishment.
If convicted person is in jail, he may submit his appeal to officer in charge of the jail as per Section 383.
Prosecutor/State
State(Police) can prefer and appeal against the acquittal of accused. They can file an appeal against the quantum of punishment.
If accused is prosecuted on Complaint, then complainant can file an appeal against the quantum of punishment or against the acquittal of accused.
Section 377 provides for appeal by State Government against sentences. If punishment is conferred by an court other than High Court, then State Government can direct the public prosecutor to present an appeal to the High court against inadequate punishment. If investigation agency is central agency like NIA/CBI (Which generally works for Political masters), then also appeal can be presented.
Before appellate court enhances the punishment, reasonable opportunity must be given to accused
Similarly under 378, State/Central Government can present an appeal against the order of acquittal. To file such an appeal permission of the High Court is necessary. why ?
First, there is presumption of innocence. By order of acquittal, such presumption gets more strong. Hence appeals against acquittal are treated very cautiously by Courts. If there is absolute surety to appellate court about guilt, with strong evidences against accused, then only order of acquittal is interfered with.
Victim
Appeals to Sessions Court
Sessions Court is highest Court in Sessions Division. It doesn't mean all the appeals from lower court will lie in Sessions Court. It's possible that Chief Judicial Magistrate (referred as CJM hereafter) or Additional Session Judge or Assistant Session Judge may also hear appeals if Sessions Court or High Court refers matter to them.
Appeals to High Court
If Sessions court have tried the matter and awarded a punishment of more than 7 years of imprisonment, then convicted person can present an appeal to High Court.
Similarly State government can move against Sessions court order of acquittal or inadequate permission to High court.
Appeals to Supreme Court
High Courts have extra ordinary original criminal jurisdiction wherein they take over trial of trial court. In such cases appeal may be presented to Supreme Court.
When High Court, on appeal reverse the order of acquittal and convict the person for imprisonment for more than 10 years or death, appeal lies in Supreme Court.
Apart from above scenarios, appeal lies in Supreme Court as provided Constitution.
- As per Article 132(I), when substantial question of law is involved.
- As per Article 134(I), when High court exercise extra ordinary jurisdiction(taking trial court case) or reversing the order of acquittal and giving death sentence.
- Certifies under Article 134-A that the case is a fit one for appeal to Supreme court.
- As per 136 by Special Leave Appeal.(This is how most rich people appeal in Supreme Court)
General Procedure
Format of an Appeal.
Section 382 only mentions that appeal should be in writing and the copy of judgement or order appealed against should be attached to it.
It's not necessary that grounds to be mentioned in appeal petition, however they can be stated in appeal.
Summary Dismissal
Section 384 provides that appeals can be dismissed summarily if Court considers that there is no sufficient ground for interfering with decision of lower court..
However before dismissal, reasonable opportunity must be given to appellant or his lawyer. If appeal is presented from Jail, then also that person must be given a hearing before dismissing the appeal.
Section also provides that appeals should not be dismissed before expiry of period allowed for preferring such appeal.
If appeal is summarily dismissed by Sessions Court of CJM, then they should record the reasons for dismissing the appeal.
Hearing Process
If appeal is NOT dismissed summarily, then Court will proceed to hearing the parties involved.
Appellate court will send the notice about time and place to appellant or his pleader, State Officer, Complainant (If case is instituted by complainant).
With notice grounds for appeals should also be stated to parties involved. For example is accused had filed an appeal, then grounds needs to be stated State Officer etc.
Judgment
After hearing the appeal, Court shall deliver a judgment.
So this is how normal procedure will be carried out. First filing, then dismissal if court think so, then hearing process if not dismissed and then judgement.!
Power of Appellate Court
Section 386 contains provisions related to Power of Appellate Court.
Appellate court may
- Dismiss the appeal
- In an appeal against acquittal, may direct the lower court for retrial or further inquiry.
- In an appeal against conviction
- May reverse the finding and discharge or acquit the accused, or order him to be re tried by lower court
- alter the finding maintaining the sentence
- Alter the sentence or nature of sentence.
- In an appeal for enhancement of sentence
- Reverse the finding and may even discharge or acquit the accused, or order the court for retrial
- Alter the sentence (Enhance the sentence)
Finality of Judgement and Orders on Appeal
Section 393 categorically states that judgement and orders on appeals are final. However there are certain exception. They are
- When appeal is under Section 377(an appeal against inadequacy of sentence)
- Section 378 (an appeal against acquittal)
- Section 384(4) - Regular appeal after dismissal of Jail appeal
- Chapter 30(an application for reference and revision)
Apart from disposal of appeals on convictions, court can dispose of appeal under 377 and 378 in Same cases.
For example, Convict files an appeal against conviction. In the same case State may file for enhancement. In that case Court can give judgement and orders which would be final.
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