PAHUJA LAW ACADEMY

Lecture Note: APPEAL

Criminal Procedure Code [Cr PC]

QUESTION. Discuss the provisions relating to 'Appeal under the code of Criminal Procedure, 1973.
also explain the distinction between the appeal and revision ?

ANSWER .
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 court, whose judgment or decision, the court above is called upon to
correct or to reverse.”

Sec 372 to 394 of the Criminal Procedure Code, 1973 lays down provision in relation to appeal.

First of all it is necessary to know that no appeal shall lie from any judgment or order of a criminal court
except as provided by this code or any other law for time being in force. (Section 372)

 Section 372: This section expressly provides that there can be no right of appeal against a
judgment or decision of a lower Court unless a provision for appeal is specifically provided by
the law itself. It therefore, follows that there is no inherent right of appeal because an appeal is
a creature of the statute.

Ingredients
i) Appeal from any judgment or order of a criminal court lies only in two cases –
a) As provided by the Code of Criminal Procedure; or
b) As provided by any other law for the time being in force.
ii) No appeal lies except as above mentioned.
 The Code does not permit appeal in petty cases (Section 376), nor does it allow an appeal where
the accused is convicted on his plea of guilty (Section 375). The proviso 2008 amendment gives a
right to the victim to file an appeal in the High Court against any order of a criminal Court
acquitting the accused or convicting him for a lesser offence or the imposition of inadequate
compensation.

Satya Pal Singh v State of Madhya Pradesh [(2015) 15 SCC 613]

 From a reading of the abovesaid legal position laid down by this Court in the cases referred to supra,
it is abundantly clear that the proviso to Section 372 of CrPC must be read along with its main
enactment i.e. Section 372 itself and together with sub-ection (3) to Section 378 otherwise the
substantive provision of Section 372 will be rendered nugatory, as it clearly states that no appeal
shall lie from any judgment or order of a Criminal Court except as provided by the CrPC.

 Thus, to conclude on the legal issue: “whether the appellant, being the father of the deceased, has
statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to
Section 372 without obtaining the leave of the High Court as required under sub- section (3) to
Section 378”, the right of questioning the correctness of the judgment and order of acquittal by
preferring an appeal to the High Court is conferred upon the victim including the legal heir and
others, as defined under Section 2(a) of CrPC under proviso to Section 372, but ONLY after
obtaining the leave of the High Court as required under sub-Section (3) to Section 378. This is
overruled in Mallikarjun v State of Karnataka [(2019) 2 SCC 752].

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Important provisions regarding appeal are following:
(1) Appeal from Orders from requiring or refusing Security- Section 373 of the code provides that-
(a) Who has been ordered under Section 117 to give security for keeping the peace or for good
behaviour, or
(b) Who is aggrieved by any order refusing to accept or rejecting a surety under Section 121;
may appeal against such order to the court of session.

S.No. Aggrieved from section 117 &Section 121, Cr.P.C Appeal

1 Any person ordered under section 117 to give security for keeping Court of Session
the peace or for good behaviour
2 Any person who is aggrieved by any order refusing to accept or Court of Session
rejecting a surety under section 121

Note : 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.
(2) Appeal from Convictions- Section 374 of the Code provides for appeal from convictions.
According to it-
(a) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to Supreme Court.
(b) 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 may appeal to the High Court.
(c) Save as otherwise provided in sub Section (2), any person-
(i) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or
(j) Magistrate of the first class, or of the second class, or
(ii) sentenced under Section 325, or
(iii) 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 sessions.

Thus, Section 374 lays down provisions of appeal from conviction in general matter.

Section 374 Appeals from convictions

S. No. Conviction from Court Forum for Appeal
1 High Court Supreme Court
2 Sessions Judge High Court
3 Additional Sessions Judge High Court
4 Assistant Session Judge High Court
(Sentence of imprisonment for more than seven years)
5 Assistant Session Judge Court of Session
(Sentence of imprisonment for seven or less than seven years)
6 Metropolitan Magistrate Court of Session
7 Magistrate of the first class Court of Session
8 Magistrate of the second class Court of Session
9 sentenced under section 325, Court of Session.
10 An order or sentence has been passed under section 360 Court of Session.

Appeal has created a attitude to reduce the sentence or release the accused if under imprisonment. But in
State of Rajasthan vs. Dhool Singh, (A.I.R. 2004 S.C. 1264)- Supreme court stated that it is not correct
to reduce the sentence or release the accused on the basis of undergone imprisonment, by the court
without using it's discretion. Such doing so, the nature, severety, etc. of the case should be considered.

(3) Appeal by State against Sentence- Section 377 of the code provides that-The state government
may, in any case of conviction on a trial held by any court other than a High Court, direct the public

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 prosecutor to present an appeal to the High court against the sentence on the ground of its
inadequacy.

If such conviction is concerned with an investigation by the Delhi Special Police Establishment,
Constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered
under any central act, 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.

Saheb Singh vs. State of Haryana, (A.I.R. 1990 S.C. 1188)- Supreme court decided that if appeal is
made against conviction by the accused, then his sentence cannot be increased. Enhancement in sentence
can only be done when an appeal to increase the amount of sentence is made by government.

(4) Appeal from Acquittal- Section 378 provides that- 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. Such order may be given in appeal or revision.

If such an order of acquittal is related to an investigation by Delhi Special Police Establishment

Constituted under Delhi Special Police Establishment Act, 1946 or by any agency empowered to make
investigation under any central act, the central govt. may also direct the Public Prosecutor to present an
appeal to the High Court from the order of acquittal.

Authority to direct Direction to.. Forum for Appeal Acquittal from..

District Magistrate Public Prosecutor Court of Session Acquittal passed by a
Magistrate in respect of a
cognizable and non- bailable
offence.
State Government Public Prosecutor High Court Other than above matter

The permission of High Court shall be required for such an appeal Reema Aggarwal vs. Anupam, (AIR
2004 S.C. 1418)- Supreme Court stated that- The application to appeal in cases of acquittal should not be
dismissed without any reason. It is required to record the reasons of dismissal.

During the hearing of appeal from the order of acquittal, it should be taken into consideration that there is
no miscarriage of justice (Allaharakha K. Mansuri vs. State of Gujarat, AIR 2002, S.C. 1051).

It is required that the order of acquittal should be reversed after due consideration of record, grounds of
acquittal and the evidence should be taken in true sense. (Punjab Rao vs. State of Maharashtra, A.I.R.
2002 S.C. 486)

The order of acquittal cannot be dismissed merely on the ground that a second approach could have been
applied in the case and it means that the accused could have been convicted on considering another view,
(Chandra Singh vs. State of Gujarat, A.I.R. 2002 S.C. 3469).

(5) Appeal against conviction by High Court- According to Section 379 of the code-where the High
Court has, an appeal, reversed on order of acquittal of an accused person and convicted him and
sentenced him to death or imprisonment for life or to imprisonment for a term of ten years or more,
he may appeal to the Supreme court.

(6) Special right of Appeal- According to Section 380 of the Code- When more persons than one are
convicted in one trial and an appealable Judgment or order has been passed in respect of any of such
persons, all or any of the persons convicted at such trial shall have a right of appeal.

(7) Cases in which no Appeal Allowed- Section 375 and Section 376 of the code lays down those cases
in which no appeal is allowed. Such cases are as following-

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 (i) When the accused has pleaded guilty- Section 375 of the code provides that where an accused
person has been convicted on plea of guilty, there shall be no appeal-
(a) if the conviction is by the High Court; or
(b) if the conviction is by the court of session, metropolitian magistrate or magistrate of first
class or second class, except as to the extent or legality of the sentence.
State vs. Mangla, (A.I.R. 1957 Allahabad 753)- Allahabad High Court has decided it.
(ii) No appeal in petty cases- According to Section 376, there shall be no appeal 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 exceedings one thousand rupees, or of both such imprisonment and
fine;
(b) Where a court of session or a Metropolitian 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 first class passes only a sentence of fine not exceeding one hundred
rupees; or
(d) Where, in case tried summarily, a magistrate empowered to act under Section 260 passes
only a sentence of fine not exceeding two hundred rupees;
Provided, that if any other punishment is combined with it, then an appeal may be allowed.

(8) Abatement of Appeals- Section 394 of the code lays down provisions for Abatement of Appeals.
According to it-
(a) Every appeal under Section 377 or 378 shall finally abate on the death of the accused.
(b) Every other appeal under this chapter except an appeal from sentence of fine, shall finally abate
on the death of the appellant.

Provided that where an appeal is against a conviction and sentence of death or of imprisonment, and the
appellant dics during the pendency of the appeal, any of his near relatives may, within thirty days of the
death of the appellant, apply to the Appellate Court for leave to continues the appeal and if leave is
granted, the appeal shall not abate.

If the application is made after 10 years for some reason, then it is liable to be dismissed. (S.V.
Kameshwar Rao vs. State of Andhra Pradesh, AIR. 1991, S.C. 2085)

(9) Procedure of Appeal- The code also provides for the procedure for an appeal. According to it-
(a) Every appeal shall be made in the form of petition is writing presented by the appellant or his
pleader and shall be accompanied by a copy of judgment or order appealed against; (Section
382).
(b) If the appellant is in jail, he may present his petition of appeal through the officer incharge of Jail
(Section 383).
(c) If upon examining the petition of appeal and copy of the judgment received under Section 382 or
383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss
the appeal summarily.
(d) If the appeal is not dismissed, the court shall hear the appeal under Section 385 from the
appellant or his pleader, appointed officer of the state government, complainant in a case
instituted upon complaint and appeal under Section 377 or Section 378. The appellate court shall
call for the record of the case; (Section 385).
(e) Pending an appeal by accused person, the appellate court shall suspend the execution of order of
sentence and if he is in confinement he be released on bail (Section 389).
(f) When an appeal is presented against acquittal, the High Court may issue a warrant directing that
the accused be arrested (Section 390).
(g) The appellate court may either take such evidence in appeal or direct it to be taken. (Section 391)
(h) Where an appeal is heard by a High Court before a Bench of Judges and they are divided in
opinion, the appeal with their opinions, shall be laid before another, judge of that court and that
judge shall deliver his opinion, and the judgment or order shall follow that opinion (Section 392).

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(10) Powers of Appellate Court- Section 386 of the code lay down the powers of Appellate Court.
(i) In an appeal from an order of acquittal, the appellate court may-
(a) reverse such order;
(b) dismiss the appeal;
(c) direct that further inquiry be made;
(d) the accused be retried or committed for trial;
(e) find him guilty and pass sentence on him.
(ii) Similarly in an appeal from a conviction, the Appellate Court may-
(a) reverse the finding and sentence and acquit or discharge the accused.
(b) order him to be re-tried.
(c) alter the finding maintaining the sentence, or
(d) with or without altering the finding, alter the nature or extent of the sentence.
(iii) in an appeal for enhancement of sentence, the Appellate Court may-
(a) reverse the finding and sentence and acquit or discharge the accused;
(b) order him to be re-tried;
(c) alter the finding maintaining the sentence, or
(d) with or without altering the finding, alter the nature of extent of the sentence.

Thus, extreme powers have been granted to the Appellate Court „Rajayan vs. State of Kerala (AIR. 1998
SC 1211)- Supreme Court decided that- An appeal from an order of acquittal shall not be dismissed until
the order of acquittal seems to be wrong, against law and unreasonable.

State of Punjab vs. Ramdev Singh, (AIR 2004 SC 1290)- Supreme Court stated that- court should not
think of only acquittal. The practice to acquit an accused on the basis of doubt should be avoided.

In all, the decision of trial court should not be interfered in appeal until it is perverse. (State of U.P. vs.
Lala Singh, AIR. 1990 S.C. 1013)

The distinction between the appeal and revision in the following:

(1) An appeal lies to a superior court, which may not necessary be a High Court, while a
revision application under the code lies only to the High Court.

(2) An appeal lies only from the decrees and appealable order, but a revision application lies
from any decision of a court subordinate to the High Court from which no appeal lies to the
High Court or to any subordinate court.
(3) A right of appeal is a substantive right conferred by the statute, while the revisional power of
the High Court is purely discretionary.

(4) An appeal abates if the legal representatives of a deceased party are not brought on record
within the prescribed period. A revision application however does not abate in such case. The
High Court may at any time bring the proper parties on the record of the case.

(5) The grounds for an appeal and revision application are also different. An appeal lies on a
question of fact or law or of fact and law, while a revision application lies only on the ground of
jurisdictional error.

(6) In case of appeal the memorandum of appeal must be filed before the appellate court by the
aggrieved party, but filing of an application is not necessary in case of revision.

(7) Ordinarily appellate jurisdiction involves rehearing on question of law as well as on facts of
the case whereas revisional jurisdiction involves only the question of law and this jurisdiction is
never considered a rehearing.

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(8) An appeal is considered to be a consideration of the original proceeding whereas unlike
appeal revisional is not the constitution of the original proceeding.

(9) An appeal is a right based remedy and can be claimed as of right if there is statutory
existence of it, where the revision is the purely discretionary remedy and cannot be claimed as of
right.

In case of Hari Shanker v. Rao Girdhari Lal Chowdhur,1, the Supreme Court highlighted the
distinction between appeal and revision as under:-

Likewise, in Lachhman Dass v. Santokh Singh,2 the Supreme Court held as under:

“…an appeal is a continuation of a suit or proceedings wherein the entire proceedings are again
left open for consideration by the appellate authorities which has the power to review the entire
evidence subject, of course, to the prescribed statutory limitations. But in the case of revision
whatever powers the revisional authority may have, it has no power to reassess and reappreciate
the evidence unless the statute expressly confers on it that power. That limitation is implicit in
the concept of revision.”

1
AIR 1963 SC 698: 1962 Supp (1) SCR 933
2
(1995) 4 SCC 201
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