APPEAL AGAINST ACQUITTAL IN CRIMINAL CASES
Updated: Jun 16, 2020
Written by: Upasana Borah, N.E.F. Law College, Guwahati, Assam
Section 341 of CODE OF CRIMINAL PROCEDURE, 1973 defines Appeal. Until there is an complaint under Section 340 of this code there is no Right to Appeal. An appeal, Review and Revision are under the rights bestowed on each and every citizen. In simple term an appeal is a case that has been filed to the superior court to make correction in the decision of the inferior court. An “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 or nor. An appeal is a statute that only exists where expressly given. Besides the present chapter there are other provisions of the code which also gives Right to Appeal such as Sec 86, 250, 351,449,454,458(2). Therefore, through the Right to appeal is integral to fair procedure, natural justice and normative universality. The provisions relating to criminal appeals are contained in Chapter 29 Section 372-394 of the Code of Criminal Procedure. Thus this chapter is divided into two parts-
1. Types of Appeals- When an appeal lies or not under section 372-380
2. Procedure for dealing with an appeal and powers of appellate court under section 381-394
OFFENCES FROM THE CONVICTION AGAINST WHICH APPEAL LIES-
SEC 372 OF THE CODE OF CRIMINAL PROCEDURE, 1973 provides that 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 forced. Basically where the Right of appeal is not exercised no proceeding by way of revision can be entertainment.
Any person who has been ordered under Section 117 to give security for keeping the peace or for good behaviour or who is aggrieved by any order refusing to accept or APPELLATE PROCESS SESSIONS COURT HIGH COURT SUPREME COURT rejecting a surety under Section 121 may appeal against such order to the Court of sessions .
SEC 373 states that nothing in this section shall apply to persons the proceedings against whom are laid before a sessions judge in accordance with the provision of Section 122(2) and 122(4).
The District Magistrate may in case direct a public prosecutor to present an appeal to the court of session from an order of acquittal passed by a magistrate in respect of a cognizable and non-bailable offence.
APPEALS ARE FILED IN THE FOLLOWING CASES
1. Appeals from conviction
2. Appeals from orders requiring security or refusal to accept or rejecting surety for keeping peace.
APPEALS FROM CONVICTION
Any person who had convicted on a trial held by a High Court in its extraordinary criminal jurisdiction may appeal to Hon’ble Supreme Court.
Any person convicted on a trial held by a session 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 person convicted at the same trial may appeal to the High Court.
Any person who has convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or First class and Second Class Magistrate.
Any person who has been sentenced under section 325
Any person in respect of whom an order has been made or a sentence has been passed under section 360 by any magistrate may appeal in the court of sessions.
Case Law- Dayanu Hariba v State , (1970) AIR SC 979
While dealing with appeals under this section from sentences of court of sessions the high court should give reasons for rejection of an appeal and if arguable and substantial points are raised the high court should not summarily reject an appeal.
APPEALS FROM ORDERS REQUIRING SECURITY OR REFUSAL TO ACCEPT OR REJECTING SURETY FOR KEEPING PEACE AND GOOD BEHAVIOUR-
Who has been ordered under the section 117 to give security for maintaining peace and good behaviour or who is aggrieved by any order refusing to reject or accept a surety under the section 121 of the code.
CODE REGARDING APPEAL AGAINST ACQUITTAL
The law relating to appeal against acquittal has been provided under section 378 of the Code of Criminal Procedure, 1973 . It lays down that in any case the state government may 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 High Court sessions court in revision . However such appeals can only be entertained only after obtaining the leave of the High Court. In order to check the reckless acquittals section 378 has been amended in the year of 2005 to provide that an appeal against the order of acquittal passed by a magistrate in respect of a cognizable and non-bailable filed on a police report would lie to the court of session and the District Magistrate would be authorised to direct the public prosecutor to file such appeal. If the order of acquittal has been passed in any case instituted upon complaint and the High Court on an application made to it by the complainant grants special leave to the appeal from the acquittal order the complainant may also present such an appeal to the High Court. No application will be entertained for grant of leave by High Court after the expiry of 6 months and after 60 days in other cases. 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 competent court, an appeal against such decisions of acquittal means putting of interests of the accused once again in serious jeopardy.
In an appeal under this section the High Court has full power to review the supportive evidence on which the order of acquittal was based and come to its conclusion. The High Court always gives proper weight and consideration to such matters as the credibility of witnesses and the presumption of innocence.
Under Indian Constitution Article 132, 134 and 136 it is possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court. An appeal against the acquittal must be filed in the limitation period prescribed under the Article 114 of the Limitation Act, 1963.
The judgment and the order of the appellate court are final and excepted as provided in the section 372 section378 and sub-section (4) of section384 of chapter 30