CRPC 2
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UNIT-IV
Introduction
The term ―appeal has not been defined in the code. According to the dictionary meaning, an
appeal is a complaint or grievance to a superior court for reconsideration or review of a
decision, verdict or sentence of a lower court. It has been said that every human being is
fallible and a judge is not an exception. It is thus possible that even a judge may err or
commit mistake and his decision may be wrong or faulty.
Article 25 of the Constitution Of India guarantees life and liberty to every citizen, small or
big, rich or poor, as one of the Fundamental Rights. Chapter XXXIX (Section 372 – 394 of
Cr.PC) deals with Appeals. A right of Appeal is not a natural or inherent right. It is a
statutory right and must be governed by the statute which grants it.
Section 372 provides, no appeal lies except otherwise provided by the Code or by any
other law for the time being in force.
Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present
an appeal to the Supreme Court against the order of acquittal passed by the High Court.
SECTION 373 – APPLIES TO APPEALS FROM ORDERS requiring security for keeping
peace or good behavior and 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.
SECTION 374: APPEALS FROM CONVICTIONS Any person convicted on a trial held
by a High Court in its extraordinary original criminal jurisdiction may appeal to the
Supreme Court. 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 Save as otherwise provided in
subsection (2), any person, convicted on a trial held by a Metropolitan Magistrate or
Assistant Sessions Judge or Magistrate of the first class, or of the second class, sentenced
under section 325, or 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.
While disposing of appeals from the sentences of the Sessions Court under this Section, the
High Court should specify the reasons for rejection of appeal and should not reject it
summarily.
This will enable the Supreme Court to know the view of the High Court, in case the
appellant moves the Supreme Court in appeal.
For computing the sentence of imprisonment for seven years for the purpose of ascertaining
the appellate forum under Section 374 (2), the sentence in default of payment of a fine is
not to be added to the substantive sentence of imprisonment.
An appeal from an order of acquittal must be filed within the period of limitation
prescribed by Article 114 of the Schedule of the Limitation Act, 1963.
For the extension of the period of limitation, and for exclusion of time in computing the
period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be useful.
NO RIGHT OF APPEAL
Section 375 and 376 bar appeals in certain cases, though a provision of Revision is maintainable.
Thus no appeal shall lie- Where a High Court passes a sentence of imprisonment not
exceeding six months or fine not exceeding one thousand rupees or both.
Section 377 confers right on the Government to file an appeal against the inadequacy of
sentence awarded by any court other than a High court. If the sentence appears to be
manifestly inadequate resulting in failure of justice, the appellate court can interfere with it
and can enhance the sentence.
But at the same time, the high court can also exercise its revisional jurisdiction, suo
motto call for the record and enhance the sentence in appropriate cases after giving an
opportunity to the accused..
The appellate court must pass a speaking order for enhancing the sentence. A bold statement
that the ends of justice demanded enhancement of sentence was held insufficient by courts.
An appeal under Section 377 must be filed by the State within a period of 60 days and the
contention of the State that it was under a mistaken belief that period of limitation is
ninety days would be no excuse for condonation of the delay.
Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present
an appeal to the Supreme Court against the order of acquittal passed by the High Court. An
appeal from an order of acquittal must be filed within the period of limitation prescribed
by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period
of limitation, and for exclusion of time in computing the period of limitation, Sections 5
and 12 of the Limitation Act, 1963 would be useful. Appeal against an order of acquittal is
an extraordinary remedy. In exercising this power the High Court should give proper weight
and consideration to ―Very substantial and compelling reasons‖ exist when: The trial
court‘s conclusion with regard to the facts is palpably wrong.
The trial court‘s decision was based on an incorrect view of law; The trial court‘s
judgment is likely to result in ―grave miscarriage of justice‖; The entire approach of the
trial court in dealing with the evidence was patently illegal.
The trial court‘s judgment was manifestly unjust and unreasonable; The trial court has
ignored the evidence or misread the material evidence or has ignored material documents
like dying declarations/ report of the Ballistic expert, etc. This list is intended to be illustrative,
not exhaustive.
The Appellate Court must always give proper weight and consideration to the findings of
the trial court. If two reasonable views can be reached – one that leads to acquittal, the
other to conviction – the High Court‘s/appellate courts must rule in favour of the accused.
The Supreme Court held: An appellate court has full power to review, re-appreciate and
reconsiders the evidence upon which the order of acquittal is founded.
The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the
exercise of such power and an appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
Various expressions, such as, ―substantial and compelling reasons‖, ―good and sufficient
grounds‖, ―very strong circumstances‖, ―distorted conclusions‖, ―glaring mistakes‖, etc.
are not intended to curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseology are more in the nature of ―flourishes of language‖ to
emphasize reluctance of an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own conclusion.
An appellate court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
If two reasonable conclusions are possible on the basis of the evidence on record, the
appellate court should not disturb the finding of acquittal recorded by the trial court.
Where the High Court has, on appeal, reversed an order of acquittal of an accused person
and 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. An
appeal to would lie to the Supreme Court as a matter of right when High Court, 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.
In other cases appeal can be filed, if the High Court certifies that the case is a fit one for
appeal to the Supreme Court. Only grave injustice manifest on record can induce the
Supreme Court to interfere with the concurrent finding of guilt of Courts below. The Court
would be slow in reversing the finding entered by the High Court unless there is a
perverse and erroneous appreciation of evidence.
If the High Court, for acquitting the accused has given certain tenable reasons, the Supreme
Court would not be justified in interfering with such acquittal.
The word ―acquittal‖ doesn‘t mean that the trial must have ended in a complete acquittal
but would also include the case where an accused has been acquitted of the charge of murder
and has been convicted of a lesser offense.
Notwithstanding anything contained in this Chapter, 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 person, all or any of the persons convicted at such trial shall have a right of
appeal.
Form of Appeal
SECTION 382 – Petition of Appeal. Every appeal shall be made in the form of a petition in
writing presented by the appellant or his pleader, and every such petition shall (unless
the Court to which it is presented otherwise directs) be accompanied by a copy of the
judgment or order appealed against.
A copy of the judgment or order means a certified copy. The court has, however, discretion to
dispense with the copy of the judgment.
SECTION 383 – APPEAL FROM JAIL Where a convict is in jail and intends to
challenge his conviction, he can file an appeal from jail by presenting it to the officer in
charge of the jail. It is the duty of the jail officer to forward such appeal to an appropriate
court. No Jail Appeal can be dismissed without affording the reasonable opportunity to
the appellate court of being heard.
DISMISSAL IN LIMINE (U/S 384) The Appellate court‘s power to dismiss an appeal
must be exercised sparingly and with great circumspection. The Apex court has dealt with
cases where the summary dismissal of criminal appeal is permissible.
Even if the records of the case is destroyed or is not available, it would justify acquittal.
Bolin v. Jagdish (2005) AIR 2005 SC 1872; State v. Abhai Roy (2004)4 SCC 6
SECTION 385 – Procedure for hearing of the appeal which has been admitted and not dismissed
summarily under Section 384 The section lays down the procedure for hearing of the appeal
which has been admitted and not dismissed summarily under Section 384. An order of the
High Court setting aside the acquittal of the accused in appeal without notice having been
sent to the accused was held to be illegal.
The accused must be heard and his appearance must be ensured while disposing of the appeal.
Where the appeal is not dismissed summarily under Section 384, the Appellate Court is
bound to call for the record if such record has not already been sent by the Court and
then give a hearing to the parties
However, the Court may dispose of the appeal even without asking for the record where the
appeal is only as to the legality of the sentence. Revision and reference The reason for
granting a power of revision to victims of crime is so that a superior criminal court may
wield a sort of supervisory jurisdiction which makes certain that justice is given out
correctly and fairly, without any neglect or irregularities of procedures of law, and causing
unnecessary burdens upon the victims involved.
A limitation on the power of revision would be that it is discretionary in nature and must
only be exercised by a higher court in exceptional cases where there has been an evident
mistake of law.
In the case Pranab Kumar v. State of W. B. the Supreme Court held that revisional powers
do not create any right in the litigant, but only conserve the power of the High Court to
see that justice is done in accordance with the recognized rules of criminal jurisprudence,
and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers
vested in them by the Code .Revision is broader in sense than appeal .
It must be noted that both Revision and Appeals under the Criminal Procedure Code are
review procedures. This means that the verdicts of lower courts are scrutinised and
corrected by the Superior courts in criminal matters.
The lower criminal court which has passed the order can review its order under Section
362 of the Code only to correct clerical or arithmetical orders. In contrast though, in the
Civil Procedure Code, the courts which pass the order or decree has, to a large extent wider
power to review its own order as expressed in Section 114 of the Civil Procedure Code.
This is distinctly different from the Criminal Procedure Code where under Section 362 it
says, ―Save as otherwise provided by this Code or by any other law for the time being in
force, no court, when it has signed its judgement or final order disposing of a case, shall
alter or review the same except to correct a clerical or arithmetical error." Another distinct
point about revision which must be made is that the power of revision is exercised by a
superior court to a court which decides a case, but the power of review is exercised by
the same court which passed the decree or order. Power of revision is exercised only when
there is no appeal to the High Court. This happens to be one of the main points of
difference between revision and appeal.
Section 113 and Order 46 deal with reference. The object of making a reference is to enable
the subordinate courts to obtain the opinion of the High Court in advance on a question of
law in non-appealable cases, and thereby to avoid the commission of an error which cannot
be remedied later on.
The case is referred to the High Court by the subordinate Court to that High Court. The party is
not entitled to make a reference. The grounds of reference relate to reasonable doubt on a
‗question of law‘ .It is of consultative nature from subordinate Court to High Court.
Revision
Section 115 deals with revision. The object of revision is to prevent the subordinate courts
from acting arbitrarily, capriciously and illegally or irregularly in the exercise of their
jurisdiction. In revision, the jurisdiction of the High Court is invoked either by the
aggrieved party or by the High Court suomotu.
The grounds for revision relate to ‗jurisdictional errors ‘of the subordinate court. It is of
commanding nature from High Court to its subordinate courts. Inherent powers of court
Under section 482 of the Code of Criminal Procedure, the inherent power of High Court is
peculiar in criminal jurisprudence.
It is the most powerful weapon for the High Court to clear the province of criminal law
jurisdiction of all vitiating and malicious influences. The issue naturally lifted in the
context are about the extent, scope, and limitation of the power.
These powers are not available to the subordinate courts for the obvious reason that there
will be pandemonium in the criminal justice system‘. These powers are available only to
the High Court for reasons philosophical, historical and practical. According to Sec 26 of
CrPC, 1973, Offences under the Criminal Procedure Code are divided into:
Section-482 of CrPC deals with Inherent powers of the Court. Section- 482 of CrPC of
provides: “Saving of inherent power of High Court- Nothing in this Code shall be deemed
to limit or affect the inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent abuse of the process
of any Court or otherwise to secure the ends of justice.‖
This section was added by the Code of Criminal Procedure (Amendment) Act of 1923 as
the high courts were unable to render complete justice even if in a given case the illegality
was palpable and apparent. The section envisages circumstances in which the inherent
jurisdiction may be exercised, namely: To give effect to an order under CrPC. To prevent
abuse of the process of the court. To secure the ends of justice. The grounds on which the High
Court can impede extended lapse of time. Non-achiever to supply to accused, copies of
police statements and other relevant documents- grounds for other relevant documents-
grounds for HC to quash proceedings against accused.
The law that deals with the inherent powers of the Civil Court, falls under Section-148 to
Section-153A of the Civil Procedure Code (CPC), which envisages the exercise of powers
in different circumstances.
The provisions that deal with these inherent powers are:- Section-150: This provision is
related to the transfer of business. Section-151: It conserves the inherent powers of the
courts Section 152, 153 and Sec 153A: These provisions of the CPC deal with amendments
in decrees, judgments orders or in other proceedings.
Transfer of criminal cases Parties or witnesses can submit application for transfer of
criminal case under Cr.PC if they feel insecure, threat or inconvenience. The principal
which is laid down in section 177 is very much clear.
That every offense shall ordinarily be inquired into and tired by a court within the local
limits of whose jurisdiction it was committed. But this is not a hard and fast rule. Because
parties can also file an application for the transfer of criminal case from court to another
court, district to another district or province to another province. Court has the absolute
authority to transfer criminal case from one district to another. Mere allegation is not a ground
for the transfer of case, some concrete proof has to be given in court.
There are three modes of transfer of case under Cr.PC. Only three provision relating to
transfer of case can be found in criminal law.
These modes are as under: Transfer of Criminal Case Through High Court Transfer of
Criminal Case By Provincial Government Transfer By Session Court 1.
Transfer Through High Court Section 526 of criminal procedure code explains the procedure
Grounds For transfer Of Criminal Case
There are five grounds of transfer which a party can take, if the parties suspects that a fair
justice will not be served. That a fair or impartial inquiry or trial cannot be had in any
subordinate criminal court.
That a place where offense took place is far away from the place of court and court wants
to view the occurrence. That a difficult question of law has arisen which cannot be
decided by the lower court. Convenience of the party or witness that it is expedient for
justice if any one of these grounds exists in any case than the high court can order that;
Any particular case or class of case or appeal be transferred from one subordinate court
to another
Any particular case be tried by itself
Any accused person can be sent to another session court or to itself for trail
Transfer Of Case To The High Court When any case is withdraw from any of its
subordinate court and is tried by itself than the high court must adopt the same rules and
procedure which the lower court has adopted. Modes For Application Of Transfer There are
three modes to file an transfer petition in criminal cases; Application by lower court
Application by any interested party Suomotu order
1. Application By Lower Court When any matter arises to determinate any difficult question
of law. Than lower court always consult with the high court and for this purpose they
make report. High court while considering the importance of this report can transfer
criminal cases from one court to another or to itself.
2. Application By Any Interested Party Application for transfer can be filed by any party
mentioning the grounds in it which are explained above. If the party show mistrust
towards the presiding officer of the court or there is danger to his life or fair trail cannot
be held than he can submit this application and upon this high court can transfer the case.
3. SuoMotu Order High court has the discretion to transfer case suomotu even without
having any application to transfer. Transfer Application by Advocate General when the
applicant is an advocate general who wants to transfer the criminal case, than his
application must be supported by affidavit or confirmation. Except advocate general this
requirement is not mandatory for other applicants
4.Application By Accused person When the application is filed by the accused person
than high court may order the accuse to furnish bonds with or without sureties in the
court. If his application is rejected than the amount of bonds will be awarded to the
opposing party.
Notice To The Public Prosecutor By The Accused Person In every application of transfer
filed by the accused, a prior notice shall be given in writing to the public prosecutor along
with the copy of grounds on which transfer of case is sought. The court can make no order
unless the 24 hours are elapsed of giving notice to the public prosecutor.
No Adjournment or Judgement Is pronounced During the trail if any party intimates to the
presiding officer of the court that he want to file an application to transfer the case. No
adjournment will be granted to the intended applicant. And also no judgment will be
pronounced unless this application has been decided by the high court.
Plea bargaining
Plea bargaining is essentially derived from the principal of 'Nalo Contendere' which
literary means 'I do not wish to contend'.
The Apex Court has interpreted this doctrine as an "implied confession, a quasi confession
of guilt, a formal declaration that the accused will not contend, a query directed to the
court to decide a plea guilt, a promise between the Government and the accused and a
government agreement on the part of the accused that the charge of the accused must be
considered as true for the purpose of a particular case only.
It has been introduced in the criminal procedure code in the chapter XXI A wide criminal
law (amendment) Act 2005.This has change the prospect & the face of the criminal justice
system.
It is not applicable in cases where the offence is committed against a women or a child
below the age of 14 years. Also once the court passes an order in the case of plea
bargaining, no appeal shall lie to any court against the order. "Plead Guilty or bargain for
lesser sentence" is the straight & shortest possible meaning of plea bargaining. Plea
bargaining refers to pre - trail negotiation between the defendant usually conducted by the
counsel & the prosecution during which the defendant agrees to plead guilty in the
exchange for certain concessions by the prosecutor.
Plea bargaining is the result of modern judicial thinking before the introduction of plea
bargaining most courts used to ignore Plea Bargaining. The concept of Plea Bargaining was
not recognized in jurisprudence of India. However accused used to plead guilty only for
petty offences & pay small fine whereupon the case is closed. Initially the concept of Plea
Bargaining was opposed by the legal experts, judiciary etc.
As Per Section 265-A, the plea bargaining shall be available to the accused who is
charged of any offence other than offences punishable with death or imprisonment or for
life or of an imprisonment for a term exceeding to seven years.
Section 265 A (2) of the Code gives power to notify the offences to the Central
Government. The Central Government issued Notification No. SO1042 (II) dated 11-7/2006
specifying the offences affecting the socioeconomic condition of the country. Section 265-B
contemplates an application for plea bargaining to be filed by the accused which shall
contain a brief details about the case relating to which such application is filed, including
the offences to which the case relates and shall be accompanies by an affidavit sworn by
the accused stating therein that he has voluntarily preferred the application, the plea
bargaining the nature and extent of the punishment provided under the law for the offence,
the plea bargaining in his case that he has not previously been convicted by a court in a
case in which he had been charged with the same offence.
The court will thereafter issue notice to the public prosecutor concerned, investigating
officer of the case, the victim of the case and the accused for the date fixed for the plea
bargaining. When the parties appear, the court shall examine the accused in-camera
wherein the other parties in the case shall not be present, with the motive to satisfy itself
that the accused has filed the application voluntarily.
Section 265-C prescribes the procedure to be followed by the court in working out a
mutually satisfactory disposition. In a case instituted on a police report, the court shall
issue notice to the public prosecutor concerned, investigating officer of the case, and the
victim of the case and the accused to participate in the meeting to work out a satisfactory
disposition of the case. In a complaint case, the Court shall issue notice to the accused and the
victim of the case.
Section 265-D deals with the preparation of the report by the court as to the arrival of a
mutually satisfactory disposition or failure of the same. If in a meeting under section 265-
C, a satisfactory disposition of the case has been worked out, the Court shall prepare a
report of such disposition which shall be signed by the presiding office of the Courts and
all other persons who participated in the meeting. However, if no such disposition has
been worked out, the Court shall record such observation and proceed further in
accordance with the provisions of this Code from the stage the application under sub-section
(1) of section 265-B has been filed in such case.
Section 265-E prescribes the procedure to be followed in disposing of the cases when a
satisfactory disposition of the case is worked out.
Section 265-F deals with the pronouncement of judgment in terms of mutually satisfactory
disposition.
Section 265-H deals with the powers of the court in plea bargaining. A court for the purposes
of discharging its functions under Chapter XXI-A, shall have all the powers vested in
respect of trial of offences and other matters relating to the disposal of a case in such
Court under the Criminal Procedure Code.
Section 265-I specifies that Section 428 is applicable to the sentence awarded on plea
bargaining.
Section 265-J talks about the provisions of the chapter which shall have effect
notwithstanding anything inconsistent therewith contained in any other provisions of the
Code and nothing in such other provisions shall be construed to contain the meaning of
any provision of chapter XXI-A.
Section 265-K specifies that the statements or facts stated by the accused in an application
for plea bargaining shall not be used for any other purpose except for the purpose as
mentioned in the chapter. "
Section 265-L makes chapter not applicable in case of any juvenile or child as defined in
Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000. For a valid
disposal on plea bargaining it is important to follow the aforesaid procedure contemplated
in Chapter XXI-A. Even though 'plea bargaining' is available after the introduction of the
said amendment is available, in cases of offences which are not punishable either with
death or with imprisonment for life or with imprisonment for a term exceeding seven years,
the chapter contemplates a mutually satisfactory disposal of the case which may also
include the giving of compensation to victim and other expenses and same cannot be done
without including the victim in the process of arriving at such settlement. The Hon'ble High
Court in the case of Sh. Charan Singh v. M.C.D. has held that no disqualification on account
of conviction could be attached to petitioner as he had been released on probation. In this
case, the Hon'ble Delhi High Court has quoted the case of Trikha Ram v. V. K. Seth and
Anr wherein the Hon'ble Supreme Court held that the benefit of Section 12 of The
Probation of Offenders ACT, 1958 can be extended to the service of the offender.