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‘Appeals, Reference and Revision’
Prof. .S. D. Bhosale
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APPEALS, REFERENCE, AND REVISION
Question Bank
1. Explain the provisions as to Appeals, reference and revision.
2) Explain Provisions as to appeal before Sessions Court.
Short Notes
1) Appear.
2) Reference
3) Revision
SYNOPSIS
A] PROVISIONS AS TO APPEAL-
I)
General:
II)
III)
A)
Appeal Meaning:
Types of appeal:
Appeal from conviction:
1)
No Appeal in certain cases-
a) No appeal to lie unless otherwise provided (S.372)-
b) No appeal from conviction on plea of guilt (S.375)-
c) No appeal in petty cases (S.376) -
When appeal lies:
2)
a) Appeal to the Supreme Court:
b) Appeal to the High Court (S.374 (2)) -
c) Appeal to the Court of Session (S.374 (4) -
d) Appeal against inadequacy of sentence (S.377) -
e) Appeal against order of acquittal (S.378) -
IV. Other provisions as to appeal -
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‘Appeals, Reference and Revision’
Prof. .S. D. Bhosale
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1. Special Right to appeal (S.380) -
2. Power of the Appellate Court in dealing with appeal (S.368) -
3. Power of Appellate Court to obtain evidence (S.391) -
4. Difference among Judges (S.392) -
B) Provisions as to Reference:
C) Provisions as to Revision.
(i) Power to call for and examine the record of the lower Court (S.397) -
(ii) No revision in relation to ‘interlocutory orders’ (S.397(2)) -
(iii) Only one revision application (S. 397(3)) -
Distinction between appeal and revision –
1. Nature -
2. Power -
3. Who may more Court -
4. Discretion of Court -
5. Rehearing -
A] PROVISIONS AS TO APPEAL:-
I)
General:-
An appeal is an important aspect of a fair trial. Every human being is fallible. Therefore,
the Magistrate is also fallible. Therefore, except in petty offences, at least the right of one appeal
is treated as an important aspect of a fair trial.
II)
Appeal Meaning:-
The term “appeal” has not been defined in the Criminal Procedure Code. The dictionary
meaning of “appeal” is ‘a complaint or grievance to a superior court for reconsideration or
review of a decision, verdict or sentence of a lower Court.’
In other words, ‘appeal’ is challenging the judgment of an inferior to a superior Court to
test the soundness of the decision of the inferior Court.
III)
Types of appeal:-
There are the following types of appeal.
A)
1)
Appeal from conviction:-
No Appeal in certain cases:-
There shall lie no appeal from the following Judgments -
No appeal to lie unless otherwise provided (S.372):-
No appeal shall lie from any Judgment or order of a criminal Court except for as provided
a)
by this Code or any other law for the time being.
This means that an appeal shall not lie for any Judgment or order if there is no provision
of appeal in this Code or any other law. The right to appeal is a statutory right, not a natural or
inherent one.
Provided that the victim shall have a right to prefer an appeal against any order
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b)
No appeal from conviction on a plea of guilt (S.375):-
No appeal lies where the accused pleads guilty and is convicted by a High Court. But if
he is convicted on a plea of guilt by a Court of Sessions, Metropolitan Magistrate, or by a
Magistrate of First Class or Second Class, an appeal lies only to the extent of legality of the
sentence.
c)
No appeal in petty cases (S.376):-
No appeal will lie -
(i)
Where a High Court passes a sentence of imprisonment not exceeding six months
or a fine not exceeding one thousand rupees or both.
Where a Court of Session or a Metropolitan Magistrate passes a sentence of
imprisonment not exceeding three months or a fine not exceeding two hundred
rupees or both.
(ii)
(iii)
(iv)
Where the Magistrate of the First Class passes a sentence of fine not exceeding
one hundred rupees or
In a summary case, the Magistrate passes a fine sentence not exceeding two
hundred rupees.
However, revision is maintainable on these grounds.
When appeal lies:-
2)
Subject to the restrictions mentioned above, any person convicted of an offence may
appeal in accordance with the provisions given below-
a) Appeal to the Supreme Court:-
(i)
Any person convicted on trial held by the High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court (S.374(1)) -
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 imprisonment for a term of ten years or more, he may appeal to the Supreme
Court.
(ii)
(iii)
an appeal shall also lie to the Supreme Court against the decision of the High
Court if the High Court certifies that the case involves the substantial question of
law as to the interpretation of the Constitution (Art. 132 of the Indian
Constitution).
(iv)
(v)
where the High Court has an appeal reversed an order of acquittal of an accused
person and sentenced him to death (Art. 134 (1) of the Indian Constitution), or
Where the High Court 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. (Art 134(1) of the Indian Constitution), or
(vi) where the High Court certifies that the case is a fit one for an appeal to the
1 Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009).
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Supreme
Court (Art 134(A) of the Indian Constitution)
(vii)
the Supreme Court may grant special leave to appeal from any decision of a Court
or tribunal according to Art 136 of the constitution.2
b)
Appeal to the High Court (S.374 (2)):-
Subject to the restrictions mentioned under Ss.372, 375 & 376, any person convicted on
trial held by -
(i)
a Session judge or Additional Session Judge, or
(ii)
any other Court in which a sentence of imprisonment for a term exceeding seven
years has been passed against him or any other person convicted at the same trial
- may appeal to the High Court.
c)
Appeal to the Court of Session (S.374 (4):-
Subject to the restrictions mentioned above, any person -
(i)
convicted on trial held by a Metropolitan Magistrate or Assistant Session Judge or
Magistrate of the first class, or of the second class, or
sentenced under S.325, or
(ii)
(iii)
in respect of whom an order has been made, or a sentence has been passed under
S.360 by any Magistrate
- may appeal to the Court of Sessions.
d)
Appeal against the inadequacy of sentence (S.377):-
The State Government may appeal to the High Court on the grounds of the inadequacy of
the sentence in case of conviction on trial held by any Court other than the High Court.
When the Delhi Police have investigated the offence established (constituted under the
Delhi Police Establishment Act) or by any agency empowered to investigate an offence under
any Central Act (other than this Code), the Central Government may appeal on the grounds of
inadequate sentence to the High Court. A Public Prosecutor presents an appeal on the direction
of the State or Central Government.
e)
Appeal against order of acquittal (S.378):-
In the complainant case, the complainant may prefer an appeal to the High Court against
an order of acquittal. Such appeal is entertained only when the High Court has granted special
leave to appeal.
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 the High
Court, and also if the offence is investigated by the Delhi Special Police establishment, or by any
other special agency empowered to investigate under any Central Act other than this Code.
IV. Other provisions as to appeal:-
1.
Special Right to appeal (S.380):-
S.380 lays down that when two or more persons are convicted in one trial, and an
2 Or imprisonment for life or for a period of not less than ten years (According of Supreme Court (Enlargement of criminal
Appellate jurisdiction Act 1970)
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appealable Judgement or order has been passed in respect of any of such persons, all or any of
the persons convicted at such trial shall have the right of appeal.
2.
Power of the Appellate Court in dealing with an appeal (S.368):-
After perusing the record and hearing the parties, the Court may dismiss the appeal, allow
the appeal, or pass any other order that may appear to it to be just and proper.
3.
Power of Appellate Court to obtain evidence (S.391):-
After recording its reasons, the appellate Court may take additional evidence or direct it
to be taken by the Magistrate.
4. Difference among Judges (S.392):-
When the Judges composing the division bench of the High Court are equally divided in
opinion, it shall be laid before a third Judge. After hearing as he thinks fit, that Judge shall
deliver his opinion, and the Judgement or order shall follow that opinion. In other words, the
third Judge is completely free to resolve the dispute as he thinks fit.
B) PROVISIONS AS TO REFERENCE:-
Where any Court is satisfied that a case pending before it involves a question as to the
validity of any Act, ordinance, or Regulation, and the determination of which is necessary for the
disposal of the case, and (the Court) is of the opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative but has not been so declared by the High Court to which that
Court (hearing appeal) is subordinate or by the Supreme Court, the Court shall stay the case
setting out its opinion. The reasons therefore and refer the same for the decision of the High
Court.
In other words, a reference is a proceeding by which a Court seeks guidance from the
High Court on a point of Law.
Reference is to be made to the High Court only and not the Court of Session.
C) PROVISIONS AS TO REVISION:-
Revision is a kind of ‘supervisory jurisdiction’.
Ss.397 empowers Session Judge and High Court to exercise revisional jurisdiction by
calling for and examining the record of an inferior Court to satisfy itself as to the legality or
propriety of any finding, sentence or order recorded, imposed, or passed by such inferior Court.
If the revisional Court finds any defect, illegality or irregularity, it can pass appropriate orders to
remove or correct defects, cure illegalities or irregularities, and prevent miscarriage of justice.
The object of revisional jurisdiction is to confer upon the superior criminal Court a
supervisory jurisdiction to prevent miscarriages of justice arising from a misconception of law,
irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment.
Generally, the Judgement or order of a criminal Court is corrected in appeal. However,
not all orders are appealable; therefore, there is a probability of a miscarriage of justice.
Provisions for ‘revision’ are made under this Code to correct such orders that are not appealable.
(i) Power to call for and examine the record of the lower Court (S.397):-
The High Court or Sessions Court may call for and examine the record of any proceeding
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before any inferior criminal Court situated within its local jurisdiction to satisfy itself as to the
correctness, legality, or propriety of any finding or order of such inferior Court.
If, after examining the record, the High Court or Session Court considers any correction,
it can do so.
(ii)
No revision in relation to ‘interlocutory orders’ (S. 397(2)):-
The powers of revision are not to be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial, or other proceedings (S.397(2)). It is meant for the speedy
disposal of criminal cases.
(iii)
Only one revision application (S. 397(3)):-
If an application for revision is made by any person either to the High Court or to the
Session Judge, no further application by the same person shall be entertained by either of them.
The provision is meant to secure finality to orders.
The distinction between appeal and revision:-
Revisional jurisdiction is part and parcel of appellate jurisdiction. Therefore, revisional
powers are substantially co-extensive with appellate powers.
However, there are following distinctions between these two –
1.
Nature:-
The right of appeal is a right to rehear on the law as well as on facts. Therefore, it can re-
assess the entire evidence and come to its own conclusion.
Whereas ‘revisional’ jurisdiction is supervisory, and it is to be exercised only in
exceptional cases where there is a glaring defect in the procedure or manifest error of law
resulting in a miscarriage of justice.
2.
Power:-
The appeal is a continuation of the original proceeding; therefore, it can do everything the
trial Court can do.
The ‘revisional Court’ has no such power and cannot re-examine, review or reassess the
evidence. It cannot substitute its own findings for those re-considered by the trial Court.
3.
Who may move Court:-
The appellant can move the court by filing an appeal, whereas the Court can exercise
4.
Discretion of Court:-
In an appeal, the appellant has to be heard as of right.
However, in revision, the appellant has no such right. The court has the discretion to hear
revisions.
5. Rehearing:-
In an appeal from an acquittal, if the High Court is satisfied that the acquittal is courtesy
to law, it can set aside the acquittal and convict the accused.
whereas, in revision, if the Court is fully convinced that the acquittal is wrong, it can set
3 on its own
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aside an order of acquittal and, at most, order a retrial of the case, but it cannot convict the
accused.
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