In my last post, I wrote about kinds of appeal, nature, and scope of appeal. In this post, I’m going to write about different kinds of appeal in a detailed manner.
Appeal by Convict (section 374) – Conditions – Appeal against the conviction of the convict, the Appellant is the convict.
Appeal to Supreme- Court under Section 374 – Nature of the jurisdiction of High-Court is of appellant court, but it has extra-ordinarily jurisdiction of Trial Court.These are the two situations where the High-court Passes the judgment of conviction-
- Where the Sessions Court Judgment of Conviction is confirmed by High-court , there lies no appeal to the Supreme Court [Section 374(1)].
- But in case where the High-Court exercises its original jurisdiction to convict the accused. This judgment can be appealed to the Supreme-Court.
Section 374(1)- Enables a convict to prefer an appeal to the Supreme- Court against the judgement of conviction of the High-court ‘on a trial’ in its extra-ordinarily original jurisdiction of Criminal Case.
Court of Sessions can pass a judgment of – 1. Acquittal – Appeal by the State High-court and it reverses the judgment and in such case no appeal lies.
2. Conviction appeal- The High-court confirms the judgment and therefore no appeal lies to the supreme-court [Sec 374(1)].
Similarly, when the Sessions Court passes a judgement of acquittal, but the state has appealed to the High-court and the High-court on hearing the appeal reverses the judgment of the sessions court and passed a judgment of conviction that judgment cannot be appealed to the supreme court under section 374(1). But it can be appealed under Article 134 of the constitution by obtaining a certificate of fitness under Article 134.
Appeal to High-court [Section 374(2)] – An appeal can be preferred to the High-court by a convict against the judgment of conviction passed by –
- Sessions Judge
- Additional Sessions Judge
- Any court which passed a Judgment of conviction with a sentence of imprisonment of 7 years or more, i.e, by a special court constituted under a special act.
Appeal to Sessions Court [section 374(3)]– Under this section the convict may appeal to S.C/A.S.C. The judgment should be given by courts subordinates to the sessions Court-
- Metropolitan Magistrate
- Court of Assistant Sessions
There are two other circumstances where a convict may appeal to the Sessions Court. They are-
- Against the Judgment of the lower court convicting the accused under Section 325 of crpc.
- Against an order or Judgment of conviction passed under Section 360 of crpc (post-conventional order).
Appeal by State – By the Central government or State Government as the case maybe. To invoke Section Section 377 or Section 378 of Crpc, the following are the important factor-
- The state is only appellant .
- It is a judgment of acquittal or conviction.
- The appeal under Section 377 may lie before court of session or High-Court. No appeal lies to the Supreme-Court(for the matter of inadequacy of sentence).
- The government as the case maybe (central government/State Government) shall direct the public prosecutor to present the appeal on the ground of inadequacy of sentence awarded by the lower court and seeking enhancement of the sentence.
- Before enhancement of the sentence,the appellant court shall issue a show cause notice to the respondent or convict.
- The respondent or convict may plead in his reply to the appeal for the acquittal or to reduce this sentence.
- The appellant court may enhance the sentence but cannot convict the respondent for a different offence with a different punishment.
- The prosecution is permitted to appeal and pray for the enhancement of the sentence but cannot ask for a different sentence for a different punishment.
- The appellant court after hearing the appeal may enhance the sentence but it should not convict the convict for a different punishment for a different sentence.
Case Laws – Tara Chand V. State of Madras, AIR 1962 S.C. Page No. 130
It was observed that the word ‘acquittal’ used under section 378 does not mean a complete acquittal (acquittal from case and offence) but it can just be acquittal.i.e, acquittal from the offence. Supreme Court also held that state has right to appeal in this case.To invoke Section 378 judgment of acquittal is important , if not state can appeal under Article 134 of the constitution.
Procedural Safeguards to apply Section 378 of Crpc-
- An appeal under Section 378 shall be by District Magistrate or government.
- Such appeal shall be presented by the State Prosecutor as the case maybe .
- If the appellant is the District Magistrate or the government, appeal shall be with the leave of High court.
- Appeal under Section 378 lies before the court of sessions or High-Court.
- Under Section 378, a complainant(under section 200, crpc) can also file an appeal against acquittal of the accused by the Trial Court.
- However, such appeal by the complainant shall only be n a special leave by the High-court and on an application by the complainant within the time prescribed . I.e, 6 months by a public servant and for others 60 days.
- In case application for special leave rejected by the High-court, the government is not permitted to appeal under section 378.
Appeal by Victim- Proviso 2 of Section 372 , Criminal Law Amendment Act,2008 inserted by proviso ( exceptional Circumstances) to section 372 Crpc,enabling the victim of an offence to appeal in the following cases-
- Against any order of acquittal and of accused.
- Order of conviction but with not adequate sentence.
- Against an order of inadequate compensation.
Appeal in certain Special cases- section 380, crpc- X, Y, Z three people tried and charged and convicted by the trial court. If appealable order is made against one of them, the others are also enabled under Section 380 to appeal. Section 380 of Crpc provides for a special circumstances of filing an appeal by all/anyone of the convicts of a convictional judgment provided an appellant order has been made against one of them.
Here are few other posts related to this topic of Criminal Procedure Codes-