Criminal Appeal in Indian Law

Criminal Appeal in Indian Law:

Criminal appeal in Indian Law is a process challenging the judgement or order of the lower court and is covered under sections 372-394 Code of Criminal Procedure along with sections 86, 250, 351, 449, 454 and 458(2) Code of Criminal Procedure and Articles 134, and 136 of the Constitution.

The Fundamental Principles of Criminal Appeal In Indian Law is found under Code of Criminal Procedure which states as follows-

• An appeal is a creature of statute
• No inherent right to file an appeal
• No appeal only against conviction
• No appeal in petty cases
• No appeal on conviction on a plea of guilt.

Courts before which Criminal Appeal in criminal matter is instituted:

1. Appeal to Supreme Court
2. Appeal to High Court

Supreme Court:

Appeal to Supreme Court in regard to criminal matters:

Art. 134: An appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court if the High Court 

(without Certificate of Fitness to Appeal)

·      has on appeal reversed an order of acquittal of an accused person and sentence him to death or to imprisonment for life or for a period of not less than 10 years.

·      has withdrawn for trial before itself any case from any of its subordinate court and has in such trial, convicted the accused persona and sentenced him to death or imprisonment for life or a period not less than 10 years

 (with Certificate of Fitness to Appeal)

·        certifies that the case is a fit one for appeal to the Supreme Court

Special Leave Petition (SLP) 

Art. 136. 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. 

The SLP is filed upon refusing the Certificate of fitness by the High Court or when there is a need to interfere by the Supreme Court to give justice. The criminal special leave has to be filed within 60 days if the High Court has refused to grant the certificate of fitness to appeal against its order. 

Review

Art. 137.  The Supreme Court has the power to review its own judgement. The petition for review has to be filed within 30 days from the date of judgement detailing the grounds on which the review is sought if there is any error apparent on the face of the record or there is any miscarriage of justice.

High Courts:

Appeal to High Court in regard to criminal matters:

There are four levels of courts for any territory in a state. These are

• Executive Magistrate
• Judicial Magistrate of the Second Class
• Judicial Magistrate of the First Class
• Sessions Court

Thus a person convicted by a Metropolitan Magistrate or Assitant Session Judge or Magistrate of First Class or Second Class may appeal to the Court of Sessions. 

Section 374. CrPC Appeal from Convictions

1. Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
2. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial; may appeal to the High Court.
3. Save as otherwise provided in Sub-Section (2), any person;

          (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

          (b) sentenced under section 325, or

          (c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate,

          may appeal to the Court of Session.

    4. When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal1.

Section 386. Powers of the Appellate Court

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a)  in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction

          (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

          (ii) alter the finding, maintaining the sentence, or

          (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence

          (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or

          (ii) alter the finding maintaining the sentence, or

          (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper;

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement;

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

Section 389. Suspension of sentence pending appeal; release of appellant on bail

(1). Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release;

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2). The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.

(3). Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall;

           (i). where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

           (ii). where the offence of which such person has been convicted is a bailable one, and he is on bail,
order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-Section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4). When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Case Law: