Law Web: Whether Appellate court has the power to make any consequential or incidental order in an appeal filed U/S 373 of CRPC?

386. Powers of the Appellate Court.—After

perusing such record and hearing the appellant or

his pleader, if he appears, and the Public

Prosecutor if he appears, and in case of an appeal

under section 377 or section 378, the accused, if he

appears, the Appellate Court may, if it considers

that there is no sufficient ground for interfering,

dismiss the appeal, or may—

(a) in an appeal from an order or 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 be, or find him guilty and

pass sentence on him according to law;

(b) in an appeal from a conviction—

(i) 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

(ii) alter the finding, maintaining the sentence, or

(iii) 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—

(i) 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

(ii) alter the finding maintaining the sentence, or

(iii) 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 an 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.

The very use of the words “and in case of an appeal under

section 377 or section 378” means that the said provision

being generally applicable to all kinds of appeals under

Chapter-XXIX also applies to appeals filed under Sections

377 and 378 Cr.P.C. This would be further evident from a

reading of clause (d) conferring power on the appellate

Court to alter or reverse order passed in an “appeal against

any other order”. So, clause (a) relates to appeal from an

order of acquittal, clause (b) relates to appeal from a

conviction and clause (c) relates to appeal for enhancement

of sentence. The expression “appeal from any other order”

in clause (d) is obviously wide enough to include all appeals

including those provided under clauses (a), (b) and (c) and

therefore, shall include an appeal under Section 373 also.

Clause (e) is a general power available to the Court dealing

with all kinds of appeals. Thus, in an appeal under Section

373 of Cr.P.C. the appellate Court has the power to make

any consequential or incidental order that may be just or

proper. Obviously, this power includes the power to stay

the operation of the order impugned in the appeal. The

reasoning of the Court below that power given under

Section 386 Cr.P.C. is only meant for appeal under Section

377 or 378 Cr.P.C., is clearly erroneous.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No. 1284 of 2023

Application under Section 482 of Criminal Procedure Code,

1973.

Mamata Sahoo Vs State of Odisha

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 11th April, 2023

SASHIKANTA MISHRA, J. The petitioner challenges the order

dated 16.02.2023 passed by learned 2nd Additional

Sessions Judge, Bhubaneswar in Crl. Appeal No.78 of

2022, whereby her application for stay of further

proceedings in CMC No. 1555 of 2022 pending before the

Additional Deputy Commissioner of Police-cum- Executive

Magistrate, Bhubaneswar was rejected.

2. Shorn of unnecessary details, the facts of the

case are that the petitioner filed an appeal against the

order passed by learned Executive Magistrate,

Bhubaneswar in CMC No. 1555 of 2022 under Section 107

of Cr.P.C. The said appeal has been registered as Criminal

Appeal No. 78 of 2022. She also prayed for stay of the

proceedings before the learned Executive Magistrate during

pendency of the appeal. Such application was rejected by

the Court below vide order dated 16.02.2023. While

rejecting the application for stay, the Court below held that

no power is vested on the appellate Court under Section

373 of Cr.P.C. to grant him consequential and interim

relief. Moreover, the legislature has not provided any power

to suspend the order passed under Section 117 of Cr.P.C.

as such order shall not cause prejudice to any person.

3. It is argued by Mr. S.R. Mohapatra, learned

counsel for the petitioner that unless the direction issued

by learned Executive Magistrate to the petitioner to execute

bond to keep peace in the locality is stayed, it would render

the appeal infructuous. He further submits that the power

to hear appeal includes the power to grant all

consequential relief including the power to stay the

operation of the impugned order till disposal of the appeal.

4. Mr. S.K. Mishra, learned Addl. Standing

Counsel submits that there is no specific power conferred

on the appellate court under Section 373 of Cr.P.C. to

grant him consequential relief. He however, fairly submits

that unless the operation of the impugned order is stayed,

it would render the appeal infructuous.

5. Undisputedly, the appeal has been preferred

by the petitioner under Section 373 of Cr.P.C., which reads

as under:

“373. Appeal from orders requiring security

or refusal to accept or rejecting surety for

keeping peace or good behaviour.—Any

person,—

(i) who has been ordered under section 117 to

give security for keeping the peace or for good

behaviour, or

(ii) 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:

Provided that nothing in this section shall apply

to persons the proceedings against whom are

laid before a Sessions Judge in accordance with

the provisions of sub-section (2) or sub-section (4)

of section 122.”

6. Chapter-XXIX of the Code deals with Appeal in

general. Section 372 lays down that no appeal shall lie

except as provided for by the Code. Section 373, as already

stated, provides for appeal from orders requiring security or

refusal to accept or reject surety for keeping peace or good

behavior. Section 374 deals with appeals from convictions.

Section 377 relates to appeal by the State Government

against sentence and Section 378 relates to appeal in case

of acquittal. All other provisions, namely, Section-379, 381,

382, 383, 384, 385, 386, 387, 389 and 391 etc. are general

provisions relating to appeals. If the provisions are read

carefully it would reveal that where such provision is

intended to be applied to appeals filed under specific

provisions such as, Section 377 or Section 378 or Section

382 or Section 383 etc. the same have been specifically

mentioned in the provision without diluting the general

power. For instance, in Section 385, which lays down the

procedure for hearing appeals not dismissed summarily,

Clause-iv of sub-Section (1) thereof relates to appeals

under Section 377 or Section 378. This does not mean that

all the other clauses and sub-Sections also relate only to

such appeals. Similar reasoning can be adopted in case of

the power under Section 386, which reads as follows:

386. Powers of the Appellate Court.—After