Project On Appeals Under Code of Criminal Procedure, 1973: Acknowledgement

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PROJECT ON

APPEALS

UNDER

CODE OF

CRIMINAL PROCEDURE ,1973

ACKNOWLEDGEMENT

The present project on the “ Appeals” has been able to get its final shape with the support and help of people
from various quarters. My sincere thanks go to all the members without whom the study could not have come to
its present state. I am proud to acknowledge gratitude to the individuals during my study and without whom the
study may not be completed. I have taken this opportunity to thank those who genuinely helped me.

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With immense pleasure, I express my deepest sense of gratitude to Ms. Priya for helping me in my project. I am
also thankful to the whole University Institute of Legal Studies family that provided me all the material I
required for the project. Not to forget thanking to my parents without the co-operation of which completion of
this project would not had been possible.

I have made every effort to acknowledge credits, but I apologies in advance for any omission that may have
inadvertently taken place. Last but not least I would like to thank Almighty whose blessing helped me to
complete the project.

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INDEX

Introduction……………………………………………………. ……Page 4

Meaning of Appeal…………………………………………………..Page 5

Rights of Appeal……………………………………………………Page 7

Appeal from Conviction…………………………………………….Page 9

Special right of appeal in special cases……………………………..Page 12

Appeal against order of acquittal…………………………………...Page 15

Bibliography………………………………………………………..Page 20

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INTRODUCTION

Human judgment is not infallible. Despite all the provisions for ensuring a fair trial and a just decision, mistakes
are possible and errors cannot be ruled out. The code therefore provides for “appeals” and “revisions” and
thereby enables the superior courts to review and correct the decisions of the lower courts. Apart from its being
a corrective device, 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 to reach a just decision free from plausible errors, prejudice and
mistakes. Review procedures are therefore importantly useful to inspire in the public mind a better confidence
in the administration of criminal justice.

The Supreme Court has observed:

“One component of fair procedure is natural justice. Generally speaking and subject to just exceptions,
at least a single right of appeal on facts, where criminal conviction is fraught with loss of liberty, is basic to
civilized jurisprudence. It is integral to fair procedure, natural justice and normative university save in special
cases like the original tribunal being a high bench sitting on a collegial basis. In short, a first appeal… as
provided in the Criminal Procedure Code, manifests this value upheld in Article 21”1

Appeal is one of the two important review procedures.

An appeal is a complaint to a 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.2

An appeal is a creature of statute and there can be no inherent right of appeal from any judgment or
determination unless an appeal is expressly provided for by the law itself.3

The appeal as a corrective procedure would obviously be far less relevant in cases where the chances of error in
the judgment of the trial court are very remote. Further, the review of the case in appeal means petty cases
where the possible error in the decision of the lower court is more likely to be of insignificant nature, it would
be inexpedient to allow appeals in such cases. These considerations have found expression in the provisions of
the code. In cases where the accused has been convicted on the order of conviction, but fairly permits under

1
M.H.Hoskot v. State of Maharashtra (1978) 3 SCC 544
2
Black’s Law Dictionary, 4th Edn., p. 124
3
Durga Sankar Mehta v. Raghuraj Singh, AIR 1954 SC 520
Page 4
certain circumstances an appeal as to the extent or legality of the sentence passed on the accused person. It will
further be seen that the code does not generally favour a second appeal.

The appeal would consider the circumstances in which appeals can be filed against the orders of convictions or
of acquittals and also the conditions in which the Government can appeal on the ground of inadequacy of the
sentence passed on the accused person, form of appeal, the procedure for its filing, the manner in which it is
heard, the power of the appellate court in disposing of an appeal, the abatement of appeal under certain
circumstances, and other ancillary matters.

A right of appeal carries with it a right of rehearing on law as also on facts. Generally there is no right of
hearing on facts or appreciation of evidence in a revision.4 A rehearing of the case could, however, be ordered
in exercise of revisional power.

Appeal - Meaning

One component of fair procedure and natural justice is the provision for reviewing the decisions of criminal
courts for the purpose of correcting possible mistakes and errors in such decisions. The reviewing process not
only provides for a corrective mechanism against real errors but it is also useful to inspire better confidence in
the public mind regarding the administration of justice. The reviewing of a decision can be made by the very
court which gave the decision or it can be done by the superior courts. Obviously, it is more expedient if the
reviewing is done by a superior court.

The Code provides for a review either by way of an ‘appeal’ or by way of a ‘revision’. Appeal and revision are
remedies open to a party aggrieved with the judgment of a criminal court. These remedies are moved by the
parties themselves, but reference is an act of the court.

The provisions of the Code which confer the right of appeal and prescribe the procedure for the same are both
substantive and procedure.

According to Black’s Law Dictionary, an appeal is a complaint to a superior court of an injustice done or error
committed by an inferior one, whose judgment or decision the court the above is called upon to correct or
reverse.

4
State of Kerela v. Sebastian, 1983 CriLJ 416, 418 (Ker)
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Legally, the word ‘appeal’ means the right of carrying a particular case from an inferior to a superior court with
a view to ascertain whether the judgment is sustainable. An appeal is a creature of statute only and a right of
appeal exists where expressly given.

There can be no inherent right of appeal from any judgment unless an appeal is expressly provided for by the
law itself.5 The right of appeal is governed by the statute in conformity with which a particular offence is tried.6

The right of appeal is neither a fundamental nor an inherent right; it is a creature of the statute, a statutory right.7

The appeal as a corrective device would obviously be less relevant in cases where the chances of error are
remote. Further, appeal means additional time and expense in the final disposal of the case. Therefore, though
the right of appeal is integral to fair procedure, natural justice and normative universality8, the Code, as a policy,
prefers to allow the right in the specified circumstances only.

Difference between Revision and Appeal

Appeal lies on both facts and law whereas revision lies on the point of law only, but facts may also be
considered in certain exceptional cases.

Appeal is a statutory right to the appellant which he can demand from Court whereas in revision, the appellant
has no statutory right beyond inviting the attention of the Court (court has its discretion).

In appeal from conviction, sentence can be enhanced and also the High Court can convert an acquittal into
conviction and in revision, the sentence can be enhanced but it cannot convert acquittal into conviction.

In appeal, there is no pardon whereas in revision, pardon is possible.

Appeal has only one stage whereas revision has two stages, preliminary stage and final stage.

The scope of appeal is limited only to certain specified orders and sentences whereas; scope of revision is wider
and extends to any proceeding before a court. The legality and propriety as well as any order passed therein on
any finding given.

5
Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520
6
Salig Ram v. Emperor, AIR 1943 All. 26 (F.B.)
7
H. Parvathamma Hiremeth v. State of Mysore, AIR 1965 Mys. 125;
8
See the observations of the Supreme Court in Madhav v. State of Maharashtra, (1978) 3 SCC 544; 1978 SCC (Cri) 468 at p. 476; 1978
Cri LJ 1678
Page 6
RIGHTS OF APPEAL

No appeal in certain cases

 SEC 372 – No appeal to lie otherwise provided:

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by
any other law for the time being in force.

According to Section 372, no appeal shall lie from any judgment or order of a criminal court except as provided
by the Code or by any other law for the time being ion force. It is, therefore, necessary to bear in mind that an
appeal is a creature of statute and that there is no inherent right of appeal.9

 SECTION 373 – APPLIES TO APPEALS FROM

1. Orders requiring security for keeping peace or good behaviour and


2. Against order refusing to accept or rejecting to accept or rejecting a surety under s. 121.

The appeal lies to Court of Session, except, of course, in cases where under sub-s. (2) Or (4) of S. 122, the
proceedings are already laid before the Session Judge.

 SEC 376 – No appeal in petty cases:

Notwithstanding anything contained in section 374, there shall be no appeal by a convicted person in any of
the following cases, namely:-

(a) Where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of
fine not exceeding one thousand 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 three months or of fine not exceeding two hundred rupees, or of both such imprisonment
and fine;
(c) Where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees; or

9
See observations of the Supreme Court in Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583; 1973 SCC (Cri) 903, 905; 1973 Cri LJ 1404,
1405
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(d) Where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a
sentence of fine not exceeding two hundred rupees:

Provided that an appeal may be brought against any such sentence if any other punishment is combined with
it, hot such sentence shall not be appealable merely on the round-

(i) That the person convicted is ordered to furnish security to keep the peace; or

(ii) That a direction for imprisonment in default of payment of fine is included in the sentence; or

(iii) That more than one sentence of fine is passed in the case, if the total amount of fine is imposed does not
exceed the amount hereinbefore specified in respect of the case.

It may be recalled here that according to section 31(3), for the purpose of appeal by a convicted person, the
aggregate of the consecutive sentence of imprisonment passed against him at one trial shall be deemed to be a
single sentence.

 SEC 375 – No appeal in certain cases when accused pleads guilty:

Notwithstanding anything maintained in section 374, where an accused person has pleaded guilty and has
been convicted on such plea, there shall be no appeal.
(a) If the conviction is by a High Court; or
(b) If the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second
class, except as to the extent or legality of the sentence.

The rationale behind the above section 375 is that a person who deliberately pleads guilty cannot be aggrieved
by being convicted. When a person is convicted by any court on the basis of his own plea of guilty, he cannot
and should not have any grouse against the conviction and hence is not entitled to appeal from such a
conviction. The accused can be said to have pleaded guilty only when he pleads guilty to the facts contributing
ingredients of the offence without adding anything extra to it.10 However, if the plea of guilty is not a real one
and is obtained by trickery, it is not a plea of guilty for the purposes of the above rule. 11 It is only when there is

10
State of Gujrat v. Dinesh Chandra
11
Prafulla Kumar Roy v. Emperor, AIR 1944 Cal 120; 45 Cri LJ 517, 518
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a genuine plea of guilty made freely and voluntarily that the bar under section 375 would apply. 12 In
Thippaswamy v. State of Karnataka13, the Supreme Court observed that it would be violation of Article 21 of
the constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let
off lightly and then in appeal or revision, to enhance the sentence. A person, by pleading guilty, does not
commit himself to accept the punishment that would be passed against him irrespective of its nature and
legality. Therefore, he is not denied the right to challenge the extent or legality of the sentence. However, this is
subject to one exception. That is, where a high court would suffer from a serious infirmity in respect of the
extent or legality of the sentence.14

Appeals from conviction

Appeal to the Supreme Court

An appeal lies to the Supreme Court under section 374(1) and section 379.

Besides this, an appeal from a decision of the High Court to the Supreme Court is also provided for under
articles 132, 134 and 136 of the Constitution.

 SEC 374 – Appeals from conviction:

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction
may appeal to the Supreme Court.
Subject to the restrictions on appeals, any person convicted “on a trial held by” a high court in its extraordinary
original criminal jurisdiction may appeal to the Supreme Court. Since such trials are extremely rare, it was felt
that, in the interests of finality to the proceedings appeal should lie direct to the Supreme Court and not to
another bench of the same high court.15

 SEC 379 – Appeals against conviction by High Court in certain cases:

Where the High Court has, on appeal reversed an order of acquittal of an accused person, convicted him,
and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more,
he may appeal to the Supreme Court.

Where the high court has, on appeal, reversed an order of acquittal of an accused person and convicted and
sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may

12
State of Kerela v. Gopinath Pillai, ILR (1978) 2 Ker 267; 1980 Cri LJ 39 (Ker) (NOC)
13
(1983) 1 SCC 194, AIR 1983 SC 747
14
See 41st Report, p. 259, para 31.11
15
See 41st Report, p. 259, para 31.10
Page 9
appeal as of right to the Supreme Court. By this section 379 the provision of the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970 have been incorporated in the Code.

 Article 132, 134 and 136 of Constitution

Under Article 132, an appeal lies to the Supreme Court from any judgment, decree or final order of a High
Court whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a
substantial question of law as to the interpretation of the Constitution.

Article 134 constitutes the Supreme Court as Court of Criminal Appeal in a limited class of cases only, and
clearly implies that no appeal lies to it as a matter of course or right except in cases where the High Court,

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death;
or

(b) has withdrawn from 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

(c) certifies that the case is a fit one for appeal to the Supreme Court.

Article 136(1) lays down 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 in the territory of India.

Article 136(2) provides that nothing in clause (1) shall 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.

The Constitution provides that an appeal shall 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). Further, where the high court has refused to give such a
certificate the Supreme Court may, if it is satisfied that the case involves a substantial question of law as to the
interpretation of the constitution, grant special leave to appeal from such a certificate is given, or such leave is
granted, any party in the case may appeal to the Supreme Court on the ground that any such question as
aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground Article
132(3).

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

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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 the Supreme Court.

Article 136(1) of the Constitution provides that the Supreme Court may, in its discretion, grant special leave to
appeal 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 force Article 136(2).

It has been reiterated by the Supreme Court that in cases which do not come under clauses (a) and (b) of Article
134(1) or under the Act of 1970 or section 379 of the code an appeal does not lie an of right to the Supreme
Court against any order of conviction by the high court. In such appeal will lie only if a certificate is granted by
the high court under sub-clause (c) of Article 134(1) certifying that the case is fit one for appeal to the Supreme
Court or by way of Special Leave under Article 136 when the certificate is refused by the high court.16

Appeal to the High Court

 SEC 374 – Appeals from conviction:

(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 1[has been passed
against him or against any other person convicted at the same trial]; may appeal to the High Court.

Subject to the restriction on appeals, any person convicted on a 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 seven
years has been passed against him or against any other person convicted at the same trial may appeal to the high
court under section 374(2). And in that case the judgment can be stayed suspended pending appeal.17

In a case where the trial is held by an Assistant Session Judge and during the trial the Judge is invested with the
power of the Additional Session Judge or of the Session Judge, a question might arise as to whether an appeal
from an order of conviction in such a trial shall lie to the high court. Courts are not unanimous on this point. In
16
Chandra Mohan Tiwari v. State of M.P., (1992) 2 SCC 105, 113-114; 1992 SCC (Cri) 252; 1992 Cri LJ 1091
17
V. Sundararamireddi v. State, 1990 Cri LJ 167 (All); S.M. Malik v. State, 1990 Cri LJ 1919 (Del)
Page 11
a case where the Assistant Session Judge, after he had recorded the evidence in court and heard the arguments
but before he had written and delivered the judgment was invested with the power of an Additional Session
Judge, the Allahabad high court held that an appeal from conviction in the case would lie to the Session Judge
and not to the high court as the accused was convicted “on a trial held by” an Assistant Session Judge and not
by an Additional Session Judge. The fact that the Assistant Session Judge had become the Additional Session
Judge when he wrote and delivered the Judgment would not affect the position.18

In a case tried and acquitted by the magistrates court on appeal by the state, the high court recorded conviction
and sent the case to the trial court for awarding sentence. The accused appeal of sentence by the trial court, to
the Session Court was held not maintainable as the ‘conviction part’ was non-appealable to the Session Court.19

Appeal to the Court of Session

 SEC 374 – Appeals from conviction:

(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
(b) 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.

Special rights of appeal in Special Cases

 SEC 380 – Special Rights of appeal in certain cases:

Notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial,
and an appealable judgment of order has been passed in respect of any of such person, all or any of the
persons convicted at such trial shall have a right of appeal.

18
Bakshi Ram v. Emperor, AIR 1938 All 102; (1938) 39 Cri LJ 345
19
C. Gopinathan v. Krishnan Ayyappan 1991 Cri LJ 778 (Ker)
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Appeal by Government against Sentence

Before Section 377 dealing with such appeals was enacted, it was considered somewhat unsatisfactory to invoke
the revisional powers of the High Court for correcting any error in sentencing. Considering the frequent
occurrence of inadequate sentences, there seemed no reason why the State government should now be able to
appeal against the inadequate sentence.

 SEC 377 – Appeal by the State Government against sentence:

(1) Save as otherwise provided in sub-section (2), the State Government may in any case of conviction on a
trial held by any Court other than a High Court, direct the Public prosecutor to present an appeal to the
High Court against the sentence on the ground of its inadequacy-
a. To the court of Session, if the sentence is passed by the Magistrate; and
b. To the High Court, if the sentence is passed by any other Court.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police
Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any
other agency empowered to make investigation into an offence under any Central Act other than this
Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court
against the sentence on the ground of its inadequacy –
(a) to the court of Session, if the sentence is passes by the Magistrate; and
(b) to the High Court, if the sentence is passed by the any other Court.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Seesion
or, as the case maybe, the High Court shall not enhance the sentence except after giving to the accused a
reasonable opportunity of showing cause against such enhancement and while showing cause, the accused
or for the reduction of the sentence.

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Earlier an appeal for enhancement of sentence on the ground of it inadequacy could only be entertained by the
High Court. However, as per the present scheme of Section 377 an appeal on the ground of inadequacy of
sentence can also be entertained by the court of sessions in certain circumstances. An appeal for enhancement of
sentence passed by a Magistrate would now lie to the Sessions court. This will not only make it easier for the
administration to prefer appeals against unduly lenient sentences by Magistrates but will also deter the latter
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. However that does not mean that the complainant or any other person cannot
move the High Court (or Court of Session) in revision for this purpose. The High Court or the Court of Session
in an appropriate case may, in exercise of its revisional jurisdiction, decide to act suo motu and enhance the
sentence. 20

The provisions under Section 399 and 401 dealing with the respective revisional powers of the Court of Session
and of the High Court when read with Section 386(c)(iii) are clearly supplemental to those under Section 377.
The effect of reading Sections 377, 386 and 401 may however be noted. While in the exercise of the revisional
jurisdiction the High Court or the Court of Session is competent to enhance the sentence, 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.21

In a case where both the appeal and a petition for enhancement of sentence were heard by the High Court it was
ruled that there was no need to hear the appellant as he could be permitted to lead evidence while hearing the
appeal. Moreover, the Court noted, the appellant have had opportunity of being heard unless Section 235(2) at
the time of conviction.22

While the accused in an appeal under the Section 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 charge as found or
even on an altered less grave charge.23

20
Nadir Khan v. State (Delhi Admn.), (1975) 2 SCC 406; 1975 SCC (cri) 622, 624; 1976 Cri LJ 1721, 1722; Bachan Singh v. State of
Punjab, (1979) 4 SCC 754; 1980 SCC (Cri) 174; 1980 Cri LJ 211; Food Inspector, Mangalore Municipality v. K.S. Raphael, 1981 Cri LJ
1149 (Kant); Prabhudal Chhanganlal v. Babubhai Virabhai Miseria, 1977 Cri LJ 1666 (Guj); Eknath Shankarrao Mukkawar v. State of
Maharashtra, (1977) 3 SCC 25; 1977 SCC (Cri) 410, 413; 1977 Cri LJ 964; State v. Babaji Sahoo, 1977 Cri LJ 1591 (Ori)
21
Food Inspector, Mangalore Municipality v. K.S. Raphael, 1981 Cri LJ 1149 (Kant);see also U.J.S. Chopra v. State of Bombay, AIR
1955 SC 633; 1955 Cri LJ 1410
22
Sirajkhan Buddin Khan v. State of Gujarat, 1994 Cri LJ 1502 (Guj.)
23
Eknath Shankarrao Mukkawar v. State of Maharashtra, (1977) 3 SCC 25; 1977 SCC (Cri) 410, 413; 1977 Cri LJ 964;
Page 14
In a case where the conviction os recorded by the trial court but instead of awarding sentence of imprisonment
the convict is released on probation under the provisions of 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.24

The High Court or the Court of Session, while exercising the power of enhancing the sentencing passed by the
trial court must counter by clear ratiocination the reasons given by the trial court in passing the sentence. 25

Appeal against the order of acquittal

 SEC 378 – Appeal in case of acquittal:

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of subsections (3) and (5), the
State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from
an original or appellate order of acquittal passed by any court other than a High Court 1[or an order of
acquittal passed by the Court of Session in revision].

(2) In such an order of' acquittal is passed in any case in which the offence has been investigated by the
Delhi Special Police Establishment constituted under the Delhi Special police Establishment Act, 1946 (25 of
1946) or by any other agency empowered to make investigation into all offence under any Central Act other
than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject
to the Provisions subsection (3), to the High Court from the order of acquittal.
(3) No appeal under subsection (1) or subsection (2) shall be entertained except with the leave of the High
Court.

(4) If such an order of' acquittal is passed in any case instituted upon Complaint and the High Court, on an
application made to it by the complainant in this behalf, grants, special leave to appeal from the order of
acquittal, the complainant may present such an appeal to the High Court.
(5) No application under subsection (4) for the grant of special leave to appeal from an order of acquittal
shall be entertained by the High Court after the expiry of six months, where the complainant is a public
servant, and sixty days in every other case, computed from the date of that order of acquittal.

24
State of U.P. v. Nand Kishore Misra, 1991 Supp (2) SCC 473; 1991 Cri LJ 456
25
Linga;a Vijay Kumar v. Public Prosecutor, (1978) 4 SCC 196: 1978 SCC (Cri) 579, 583; !978 Cri LJ 1527.
Page 15
(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order
of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under
subsection (2).

Appeal against an order of acquittal is an extraordinary remedy. Where the initial presumption of innocence in
favour of the accused has been duly vindicated by a decision of a competent court, an appeal against such a
decision of acquittal means putting the interests 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.

According to the first four sub- sections of Section 378, an appeal against an order of acquittal can be preferred
only (i) by the Government, and (ii) in a case instituted upon complain, by the Government as well as by the
complainant. Secondly, the right of such appeal can be exercised only after obtaining the leave if the High
Court. Thirdly, whether the order of acquittal is passed by any magistrate or by any Sessions Judge, and
whether the offence of which the accused is acquitted is a major or a minor offence, the appeal in every case of
such acquittal could be made only to the High Court. Fourthly, according to sub-section (6) an appeal by the
State under sub-section (1) or sub-section (2) is barred in case the private complainant has failed to obtain
special leave to appeal under sub-section (4).

Fifthly, the application for grant of leave to appeal must be filed within the time prescribed by the sub-section
(5); and the appeal must be filed within the period of limitation prescribed by Article 114 of the schedule of the
Limitation Act, 1963.

The methodoly of filing an appeal lied with the state, and the High Court has no authority or jurisdiction to
issue a directive to the state to file appeals against persons acquitted.26

Section 378 deals with appeals in cases of acquittals. It does not come into play against an order of discharge. 27
Nor does itapply to cases where the proceedings are dropped as being found to be barred by the prescribed
period of limitation or on account of lack of jurisdiction. An order of acquittal contemplates the complete
exoneration of the accused of the offence with which he was charged.

In an appeal against acquittal a court has to remind itself of set of cardinal rules. They are that:

26
Dwarka Das v. State of Haryana, 2003 Cri LJ 414 (SC)
27
Alim v. Taufiq, 1982 Cri LJ 1264 (All.); Public Prosecutor, High Court of A.P. v. P. Subhash Chandra Reddy, 2003 Cri LJ 4776 (AP)
Page 16
(i) There is a presumption of innocence in favour of the accused which has been strengthened by the
acquitted of the accused by the trial court;
(ii) If two views are possible, a view favourable to the accused should be taken;
(iii) The trial judge had the advantage of looking at the demeanour of the witness, and
(iv) The accused is entitled to a reasonable benefit of doubt, a doubt which a thinking man will
reasonably, honestly and consciously entertain.28

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

(i) The appreciation of evidence by the trial court in perverse or the conclusion drawn by it cannot be
drawn on any view of the evidence;
(ii) Where the application of law is improperly done;
(iii) Where there is substantial omission to consider the evidence existing on record;
(iv) The view taken by the acquitting the court is impermissible on the evidence on record; or
(v) If the order of acquittal is allowed to stand it will result in the miscarriage of jusitice.29

The appellate court should seek an answer to the question whether the findings of trial court are palpably
wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above questions
in the negative the order of acquittal is not to be distributed. 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
then and then only reappraise the evidence to arrive at its own conclusion. 30

In the matter of preferring appeals against acquittal, appeals by the State Government or the Central
Government have been treated differently from appeals by a complainant. This is obvious from the wording of
sub-section (3) and (4) of Section 378. In the case of an appeal preferred by the State Government or the Central
Government under sub-section (1) or sub- section (2) of Section 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 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. Therefore, the State Government or the Central
Government may, while preferring an appeal against an acquittal under Section 378(1) or the Section 378 (2),
incorporate a prayer in the memorandum of appeal for grant of leave under Section 378 (3), but the making of
such an application is not a condition precedent of a State appeal. 31 It is not necessary as a matter of law, that an

28
State v. Vazir Hakki, 2005 Cri LJ 2719 (Bom.)
29
State of Maharashtra v. Jagannath Kisan Mane, 2005 Ind. Law Bom 186
30
Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225; 1996 SCC (Cri) 972
31
State of M.P. v. Devadas, (1982) 1 SCC 552; 1982 SCC ( Cri) 275, 281; 982 Cri LJ 614, 619
Page 17
application for leave to entertain an appeal should be lodged first and only after the grant of leave by the High
Court appeal may be preferred against an order of acquittal.32 However, while refusing leave to appeal against
an order of acquittal, the High Court is required to adduce sufficient reasons for the same.33

Under Article 144 of the Limitation Act, in an appeal from an order of acquittal by the State, the period of
limitation is ninety days from the date of the order appealed from; whereas in an appeal from an order of
acquittal, in any case instituted upon complaint, the period is thirty days from the date from the date of the grant
of special leave. Thus there is a clear distinction between the two types of appeals with regard to terminus a quo
under Article 114. It is, therefore, not necessary to wait until the grant of leave by the High Court to present a
memorandum of appeal against acquittal at the instance of the State. Thus, an appeal can be filed by the State
within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for
entertaining the appeal under section 378(3). If the leave sought for it’s not granted by the High Court, the
appeal is not entertained and stands dismissed.34

It may further be noted that even if the State had in its capacity as the complainant conducted the proceedings in
the trail court, yet it has an independent right as the State to prefer an appeal under Section 378(1). This right of
the State cannot be trammeled by the provisions contained in sub-sections (4) and (5) of the Section 378. This is
a right which is independent of the right given to the complainant, whether the complainant in the trail court
was the State or a public servant or any other private individual. The wide amplitude of phraseology used in
Section 378 (1) clearly shows that the State has a right to approach the High Court to challenge an order of
acquittal passed in any case in the lower court. One restriction that is pleased upon this right of appeal is that
leave of the High Court under Section 378 (3) has to be obtained. The other restriction is contained in Section
378(6).35

The power to go in appeal against an order of acquittal should ordinarily be used by the Government in such
cases only where there appears to be a serious miscarriage of justice.36 The Government can review or recall its
decision under Section 378 to prefer an appeal against an order of acquittal before the appeal is actually
presented in the High Court but not thereafter.37

32
State of Rajasthan v. Ramdeen, (1977) 2 SCC 630
33
Suga Ram v. State of Rajasthan, 2006 Cri LJ 4643; Reema Aggarwal v. Anupam, 2004 Cri LJ 892 (SC); State of Punjab v. Bhag Singh,
2004 Cri LJ 916 (SC)
34
(1997) 2 SCC 630; 1970 SCC (Cri) LJ 393, 397
35
State of Maharashtra v. Deepchand Khushalchand Jain, 1983 Cri LJ 561, 567 (Bom)
36
King-Emperor v. Ganpati AIR 1944 Nag 136
37
Lal Singh v. State of Punjab, 1981 Cri LJ 1069, 1077 (P & H) (FB)
Page 18
The provisions regarding the leave of the High Court to file an appeal against acquittal were found desirable and
expedient against the somewhat arbitrary exercise of the executive power of the government to file such
appeals. Under the 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 judicially and not arbitrarily. Leave to appeal
should not be refused without assigning reasons.38

According to Section 378(1), the appeal by the State against the order of acquittal is to be presented in the High
Court by the Public Prosecutor upon the direction of the State Government. The object of this provision seems
to be that the State should associate the Public Prosecutor in the matter of preferring an appeal against acquittal.
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. Section 378 is thus mandatory. Even though Section 382 allows the appeal to be
presented in the form of a petition by the appellant or his lawyer, that section does not override the special
requirement of Section 378 in respect if an appeal by the State. 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 impossbillia which means dispensing performance of what is prescribed when
performance of it is impossible.39

For the purposes of Section 378(1), the Public Prosecutor is a person appointed as such under Section 24(1). It
has been held that simply because the rules framed by the State Government under Article 165 provided that the
Advocate- General shall represent the Government in the High Court in important civil and criminal
proceedings, it will not give him the status and clothe him with the powers of a Public Prosecutor of the High
Court as appointed under Section 24(1) of the Code.40

It is interesting to note that accepting the letter of the grandfather of the victim as petition an acquittal recorded
by the Sessions court came to be reviewed and set aside by the High Court which remanded the case to pass a
fresh judgment after hearing or if need be, to hold a retrial. The Supreme Court okayed the orders of the High
Court though the acquittal was challenged by the grandfather who was not the de facto complainant in the
case.41

38
State of Maharashtra v. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129
39
J.M. Almeida v. State, 1980 Cri LJ 145, 150 (Goa)
40
State of Kerela v. Kolarveettil Krishnan, 1982 Cri LJ 301, 302
41
Kalpan Singh v. State of M.P, (1997) 6 SCC 185
Page 19
BIBLIOGRAPHY

1 Criminal Procedure Code (Cr.P.C.) Tandon, revised by 18th


Shailender Malik edition,reprint
2012

2 Criminal Procedure Code, 1973 (For LL.B., Judicial S.K.Malik 2009


Exmination & General Practice)

3 Criminal Procedure Code (Theory with Q.A.) Ashok K.Jain Latest

4 Criminal Procedure Code, 1973 (In 2 Vols.) Durga Das Basu 5th edition, 2014

5 Law relating to Criminal Procedure Code Dr. N. Maheshwara 1st edition, 2015

6 Code of Criminal Procedure (in 2 Vols.) B.B.Mitra, revised by 2011


Justice S.R.Roy

Page 20

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