Wednesday, 30 May 2018

Notes on appeal to session court

The term appeal signifies the right of carrying a particular case from an inferior to a superior court with a view to ascertaining whether judgment of lower court is sustainable.

S 372 of CRPC. No appeal to lie unless 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:

Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation,and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.[ Inserted by Amendment Act 2008]

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S 374. Appeals from conviction:-
Sub S 3. An appeal lies to session court by-
1) any person convicted on trial held by metropolitan magistrate or an assistant session judge or a first class magistrate;

2) Any person sentenced under S 325(viz in the case of an accused where the magistrate is of opinion that he cannot pass a sentence which is sufficiently severe and therefore submits the entire proceedings to chief judicial magistrate);

3) Any person in respect of whom an order has been made or a sentence has been passed under S 360 by any magistrate (that is an order releasing a person on probation or after admonition).

S 375. No appeal in certain cases when accused pleads guilty:-
Where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,-
a) if conviction is by high court;or
b) if conviction is by a court of session, metropolitan magistrate of magistrate of first class,except to the extent or legality of the sentence.

S 376. No appeal in petty cases:-
There shall be no appeal by a convicted person in any of the following cases, namely :-
b) Where a court of session or 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 first class passes only a sentence of fine not exceeding one hundred rupees; or
d) Where in a case tried summarily, a magistrate empowered to act under S 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 ,but such sentence shall not be appealable merely on the ground-
1) that the person convicted is ordered to furnish security to keep peace;or
2) that a direction for imprisonment in default of payment of fine is included in the sentence; or
3) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount mentioned above.

S 377. Appeal by state government against sentence :-
1) State government may in any case of conviction on trial held by any other court than a high court direct public prosecutor to present an appeal against the sentence on the ground of its inadequacy-
a) to the court of session,if sentence is passed by the magistrate;and
b) to the high court, if sentence is passed by any other court.
3) When an appeal has been filed against the sentence on the ground of its inadequacy, the court of session or the high court shall not enhance the sentence except after giving to the accused reasonable opportunity of showing cause against such enhancement abd while showing cause, the accused may plead for his acquittal or for reduction of the sentence.

S 378. Appeal in case of acquittal:-
1) (a) District magistrate may direct the public prosecutor to present an appeal to court of session from an order of acquittal passed by a magistrate in respect of a cognizable and non-bailable offence;
b) State government may direct public prosecutor to present an appeal to high court from an original or appellate order of an acquittal passed by any court other than high court[ not being an order under clause (a) or an order of acquittal passed by the court of session in revision]
4) If such an order of acquittal is passed in any case instituted upon complaint and high court on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal,the complainant may present an appeal high court.
5) No application under sub s. 4 for grant of special leave to appeal from an order of acquittal shall be entertained by high court after expiry of six months, where complainant is a public servant, and sixty days in every other case,computed from the date of order of acquittal.
6) If in any case, the application under Sub S (4) for grant of special leave to appeal from an order of acquittal is refused, no appeal from the order of acquittal shall lie under Sub S (1).

S 380. Special right of appeal in certain cases:-
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 right of appeal.

S 381. Appeal to session court how heard:-

S 382. Petition of appeal:- Copy of judgment be annexed.

S 383. Procedure when appellant in jail:- Appeal to be submitted through proper of officer of jail.
S 384. Summary dismissal of appeal:-
Appeal may be dismissed summarily,
a) after hearing appellant or his pleader.
b) after hearing appellant who is in jail.
c) No appeal presented under S 383 shall be dismissed summarily until period allowed for preferring such appeal has expired.
2) before dismissing an appeal under this section, the court may call for the records of the case.
3) Where the appellate court dismissing an appeal under this section is a court of session or of chief judicial magistrate,it shall record its reasons for doing so.
4) appeal filed by appellant who is in jail is dismissed, another appeal filed by him is if pending,Court shall decide such appeal in accordance with law.

S 385.Procedure for hearing appeals not dismissed summarily:-
1) court shall issue notice to,
a) Appellant or his pleader,
b) officer of state government,
c) complainant if appeal is from judgment of conviction in a case instituted upon complaint.
d) if appeal is under S 377 or S378 to accused,
2) Court shall call record of case,and hear the parties,
Calling of record is not necessary if appeal is only to the extent or legality of sentence.
3) Where the only ground for appeal from conviction is alleged severity of sentence,the appellant shall not except with the leave of court urge or be hear in support of any other ground.

S 386. Powers of appellate court:- Appellate court may dismiss appeal or may-

a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial,as the case may, or find him guilty and pass sentence on him according to law;

b) in an appeal from conviction-
1) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial,or
2) alter the finding, maintaining the sentence,or
3) with or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence,but not so as to enhance the same;

c) in an appeal for enhancement of sentence-
1) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence,or
2) alter the finding maintaining the sentence,or
3) with or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence, so as to enhance or reduce the same;
d) in any appeal from any other order,alter or reverse such order;
e) make any amendment or any consequential or incidental order that may be just or proper.
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement;
Provided further that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed,than might have been inflicted for that offence by the court passing the order or sentence under appeal.

S 387. Judgments of subordinate appellate court:-
Rules as to judgment of original criminal court shall apply to Judgments of subordinate appellate court.
Provided that unless appellate court otherwise directs, the accused shall not be brought up, or required to attend to hear judgment delivered.

S 388.Order of high court on appeal to be certified to lower court

S 389.Suspension of sentence pending the appeal;release of appellant on bail:-
1) Pending any appeal by a convicted person, the appellate court may for reasons to be recorded by it in writing ,order that execution of sentence be suspended against the person,and also that he be released on bail or on his own bond, if he is in confinement.
However before releasing the convicted person on bail or on his own bond,if such a person is convicted of an offence punishable with death or life imprisonment or for a term of not less than ten year,the appellate court must give an opportunity to public prosecutor to show cause in writing against such release. Where the convicted person is released on bail, the public prosecutor can also file an application for cancellation of bail.
It the convicted person satisfies the court by which he is convicted that he intends to present the appeal,the court must in two cases, order that the convicted person be released on bail(unless there are special reasons for refusing bail),for such period of time as would afford sufficient time to present the appeal. These two cases are:
a) where such a person who is already on bail, is sentenced to imprisonment for a term not exceeding three years; or
b) where the offence for which the person has been convicted is a bailable offence and he is on bail. Where in such a case, the appellant ultimately sentenced to imprisonment, the time during which he was released to be excluded in computing the term for which he is sentenced.

D 390. Arrest of accused in appeal from acquittal:-
When an appeal is presented under S 378,the high court may issue a warrant directing that the accused be arrested and brought before it or any subordinate court,and the court before which he is brought may commit him to prison pending the disposal of appeal or admit him of bail.

S 391. Appellate court may take further evidence or direct it to be taken :- Appellate court has power to take additional evidence,if it considers it necessary to do so for reasons to be recorded by it in writing. The appellate court may take such additional evidence either by itself,or direct it to be taken by a magistrate.

S 393. Finality of judgments and orders on appeal :-
Judgments and order passed by an appellate court upon an appeal shall be final,except in the case provided for in section 377,S 378, Sub-Section(4) of S 384 or chapter 30.
Provided that notwithstanding the final disposal of an appeal against conviction in any case, the appellate court may hear and dispose of, on the merits,-
a) an appeal against acquittal under section 378,arising out of the same case,or
b) an appeal for enhancement of sentence under section 377,arising of same case.

S 394. Abatement of appeals :-
1) It provides that every appeal filed by state government against a sentence under section 377,or against the acquittal of a person under section 378 finally abates on the death of the accused.
2) Every other appeal under this chapter(except an appeal from a sentence or fine) shall finally abate on the death of appellant.
Provided that where appeal is against a conviction and sentence of death or of imprisonment,and the appellant dies during the pendency of appeal,any of his near relatives may within thirty days of death of appellant apply to appellate court for leave to continue the appeal; and if leave is granted,the appeal shall not abate.

Explanation:- In this section,near relative means a parent,spouse,lineal descendant brother or sister.

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