Appeal Section 374 CrPC

Introduction

The criminal justice system can have far-reaching effects on an individual’s life, most
significantly affecting their right to life and freedom. Since courts, like any other man-
made organisation, are likely to make mistakes, it follows that the judgements they
make are also subject to this risk of making errors. In order to prevent a serious
miscarriage of justice, there should be procedures in place to carefully review the
rulings of subordinate courts. To account for this, certain measures have been
incorporated into the criminal procedure for appealing a criminal court’s judgement or
order. From Section 372 all the way up to Section 394 of the Criminal Procedure Code
are detailed requirements regarding appeals.

However, the opportunity to appeal is not always available. For this reason, even in
circumstances where the right of appeal has been limited by CrPC, the lawmakers
integrated the concept of a review procedure termed “revision” into the legislative
process to entirely preclude any miscarriage of justice. The higher courts’ revision
powers and the method for exercising those powers are laid forth in Sections 397 to 405.
These authorities are wide-ranging and ad hoc, which should be taken into account.

While litigants are guaranteed the opportunity to appeal in most circumstances,

criminal courts have wide latitude in deciding whether or not to grant a motion for
rehearing, therefore revision is not a guaranteed legal right. Legally, an accused person
has the right to at least one appeal in criminal proceedings but no such recourse in
situations of revision. The distinction between an appeal and a revision has been
revisited numerous times in court. According to the Supreme Court’s decision in Hari
Shankar v. Rao Ghari Chowdhury (1963), “the distinction between an appeal and a revision is a
real one. Unless the statute that grants the right of appeal specifies otherwise, a rehearing on
appeal includes a rehearing on both the law and the facts. In most cases, a higher court has the
authority to review a previous ruling to ensure that the original decision was made in accordance
with the law.”
Appeal under criminal law

Although the term “appeal” is not defined in the Code of Criminal Procedure, 1973, it
can be thought of as the review of a lower court’s ruling by a higher court. It must be
stressed that no appeal can be made from any judgement or order of a criminal court
except in accordance with the legislative procedures given forth in the Code of Criminal
Procedure, 1973, or any other law that is in force. This means that even the initial appeal
is time-limited by law; hence, no “vested right” to appeal exists. The rationale behind
this principle is the presumption that the trial was handled fairly by the courts that
heard the matter. In the event of an acquittal, a conviction for a lesser offence, or
insufficient compensation, however, the victim may file an appeal of the court’s
decision. Appeals in the sessions courts and the high courts are typically governed by
the same sets of rules and procedures. The high court is the highest court of appeal in a
state and enjoys more powers in matters where an appeal is permissible. Since it is the
country’s highest court of appeals, the Supreme Court has the ultimate discretion and
plenary power in all appeals. The Supreme Court’s authority is principally determined
by the provisions of the Indian Constitution and the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction), 1970. If the high court overturns an acquittal ruling
and sentences the defendant to life in prison, 10 years in jail, or death, the defendant has
the right to appeal to the Supreme Court. Article 134(1) of the Indian Constitution
establishes the same law under the appellate jurisdiction of the Supreme Court,
recognising the importance of a criminal appeal being brought to that court. In
accordance with Article 134(2) of the Indian Constitution, the legislature also passed the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, which gives
the Supreme Court the authority to hear appeals from the high court in certain cases. If
the trial involved multiple defendants and the court issued an order of conviction for all
of them, each defendant has the same right to appeal the decision. The right to appeal
may be waived, however, under limited circumstances. These rules can be found in
Sections 265G, 375, and 376. The Code of Criminal Procedure of 1973 prescribes that
verdicts and orders cannot be appealed except in certain situations. This demonstrates
the critical status of appeals.

A criminal defendant can file an appeal with the Supreme Court, a high court, or a
sessions court, depending on the nature of the case. According to the Supreme Court’s
decision in Arun Kumar v. State of Uttar Pradesh (1989), the Allahabad High Court was
right to overturn the Sessions Judge’s acquittal and convict the appellants if it
determined that the Sessions Judge’s position was clearly erroneous and even
contributed to a miscarriage of justice. The Supreme Court of India ruled in Satya Pal
Singh v. State of Madhya Pradesh (2015) that a victim’s next of kin has standing to appeal
a conviction to a higher court under the provisions of Section 372, provided that the
deceased victim’s father meets the definition of a victim. The victim needs the
permission of the high court to initiate an appeal against a decision of acquittal, as the
Supreme Court ruled in the case of Satya Pal Singh v. State of Madhya Pradesh. These are
the cornerstones of the appeals process under CrPC:

 The right to appeal must be established by law.

 No automatic right to seek an appeal.
 No appeal only against conviction.
 Petty cases are final and cannot be appealed.
 A plea of guilt results in an automatic conviction; there is no right of appeal.

Who can appeal

A person whose trial results in a guilty verdict may file an appeal of that verdict. When
an appeal is made, it does not imply that the case is being heard again. Issues raised by
the trial transcript are used to make a decision on the appeal. The court may hear new
evidence from the appellant if the circumstances warrant it. Affidavits from witnesses
detailing their prepared statements for a new trial should be submitted to the court to
demonstrate this. It is the appellant’s burden to persuade the court that:

 claims that the jury’s judgement should be overturned because it was arbitrary or
not supported by the evidence,
 the judge made an error in interpreting the law, or
 there was a miscarriage of justice.
If an appeal is filed, the court can do just about anything with it. The court may uphold
the conviction, overturn the conviction, substitute a judgement of acquittal, or order a
new trial. Even if the court rules in the appellant’s favour on a technicality of the law, it
may nonetheless decide to throw out the appeal if it determines that there was no
serious miscarriage of justice. The Director of Public Prosecutions may also file an
appeal with the Court of Appeal, requesting that the Court of Appeal quash an acquittal
and retry the case, or file an appeal against an interlocutory judgement.
Subsequent appeals

A person who has been found guilty at trial may, with the approval of the Court of
Appeal, make a second or subsequent appeal. An individual seeking permission to
appeal must convince the court that new and persuasive evidence exists and should be
taken into account. If the court believes there was a significant miscarriage of justice, it
may hear a new appeal, overturn the conviction, and either substitute a judgement of
acquittal or order a new trial.

Kinds of appeal

Section 373 CrPC – Appeal in court of session

In the event that a person has been ordered to offer security for the purpose of
maintaining the peace or for good behaviour, an appeal against the order may be filed
with the Court of Session in accordance with Section 117.

Where a person has been wronged by any order refusing to accept or reject a surety, the
person may seek redress under Section 121.

Section 374 CrPC – Appeal from convictions

 High Court orders of conviction issued while exercising original criminal

jurisdiction have the right to be appealed to the Supreme Court.
 Conviction orders issued by the Court of Session or Additional Court of Session
are appealable to the High Court.
 If the Court of Session or the Additional Court of Session imposes a sentence of
more than seven years in prison, the defendant may appeal the decision to the
High Court.
 Appeals may be taken to the Court of Session from convictions handed down by
the Metropolitan Magistrate, Judicial Magistrate I, or Judicial Magistrate II.
 The court of session hears appeals from anyone who is dissatisfied with the
results of a criminal proceeding under Sections 325 and 360 of the Criminal
Procedure Code.
Exception to Section 374

The exceptions to Section 374 of the Criminal Procedure Code are found in Sections 375
and 376 of the CrPC as given below:

1. There is no right to appeal a conviction where the defendant has made a guilty
plea and been found guilty on the basis of that plea.
2. A person who has been found guilty and sentenced by a high court to a period of
imprisonment of not more than six months or a fine of not more than one
thousand rupees, or to both such imprisonment and fine, shall not be permitted
to file an appeal against that sentence.
3. A person who has been found guilty and sentenced by a court of the session or a
metropolitan magistrate to a period of imprisonment of not more than three
months or a fine of not more than two hundred rupees, or to both such
imprisonment and fine, shall not be permitted to file an appeal against that
sentence.
4. A person who has been fined by a first-class magistrate of not more than one
hundred rupees shall not be permitted to file an appeal against that sentence.

Section 377 and 378 CrPC – State appeals

State government appeals:

1. Under Section 377, to increase the severity of a punishment;

2. Under Section 378, to overturn an acquittal of an accused person

Section 377 CrPC – Appeal against sentence

The state government may appeal the sentence to the Court of Session or High Court on
the grounds that it is inadequate pursuant to this clause, which may be done through
the office of the public prosecutor.

If one disagrees with a magistrate’s sentencing decision, they have the right to file an
appeal with the court of session. If a sentence is handed down by a lower court, an
appeal could be filed with the high court.
If the inquiry is conducted by the Delhi Special Police Establishment or another central
agency, the Central Government would issue the directive to the public prosecutor.

It is expected that the accused will be given a fair hearing before any appeal or decision
to increase their sentence is issued.

Section 378 CrPC – Appeal in case of acquittal

If a magistrate issues an acquittal in a case involving a cognizable and non-bailable

offence, the district magistrate may instruct the public prosecutor to appeal the decision
to the court of session. If an acquittal is issued by a court other than the high court, the
state can still ask for a review of the decision by filing an appeal with that court.

If the inquiry was conducted by the Delhi Special Police Establishment or another
government body, the Central Government will provide instructions on how to file an
appeal.

It should be mentioned that the high court’s authorisation will be sought in advance of
launching an appeal there.

In the event that the high court grants special permission to make an appeal, the
complaint may do so in the event that the case launched on the basis of the complaint is
afterwards acquitted. A government employee who has been found not guilty may file
a new application within six months after the acquittal.

An application may be filed within 60 days following the judgement of acquittal if the
complainant is not a government employee. No appeal from a judgement of acquittal
shall lie if such an appeal is dismissed.

Section 379 CrPC- Appeal against conviction by High Court in certain cases

If a person’s acquittal by the high court is overturned and he is subsequently convicted

and sentenced to death, life in prison, or a term of imprisonment of 10 years or more,
the accused may appeal to the Supreme Court.
Section 380 CrPC- Special right of appeal in certain cases

If a co-defendant has received an appealable sentence, then the other defendant has the
right to appeal his own non-appealable punishment under this provision.

Non-appealable cases

Section 375 CrPC- Certain guilty pleas are non-appealable

No appeal shall lie if the defendant enters a plea of guilty before the high court and the
court records such a plea and finds the defendant guilty.

If the defendant enters a guilty plea in a lower court, an appeal of the sentence may be
made to the high court.

There is a right to appeal a sentence based on:

1. The totality of the punishment.

2. The sentencing process was followed per the law.

Section 376 CrPC- No appeal in petty cases

Petty misdemeanours shall not be subject to appeal. The procedures for handling petty
matters vary by jurisdiction. The following are examples of minor offences:

 In the instance of the High Court, the possible penalties include either
imprisonment for up to 6 months or a fine of up to Rs 1000, or both.
 Up to three months in jail time, a Rs. 200 fine, or both if found guilty in court of
session.
 Up to 3 months in jail, or a fine of Rs. 200, whichever is greater, if prosecuted by a
metropolitan magistrate.
 There is a Rs 100 fine if you are caught breaking a law in front of a judicial
magistrate.
 Up to Rs. 200 in the instance of a Magistrate authorised under Section 260 of the
Criminal Procedure Code.
Appellate court

The jurisdiction of an appellate court is laid out in detail under Section 386 of the
Criminal Procedure Code. Although the appellate court has the jurisdiction to dismiss
an appeal summarily, it will only do so if the appeal has not been dismissed under
Section 384. In accordance with Section 386 of the Criminal Procedure Code, the
Appellate Court may dismiss the appeal if it finds that there is insufficient cause for
interfering with the order under appeal.

If the appellate court hasn’t already ruled out the appeal for the reasons stated, it might:

1. Reverse the lower court’s acquittal decision and remand the matter for further
investigation, a new trial, or commitment, as appropriate; or find the defendant
guilty and impose the appropriate punishment;
2. Reverse the finding and sentence and acquit or discharge the accused, or order
him to be retried by a Court of competent jurisdiction subordinate to such
Appellate Court, or commit him for trial, or alter the finding, maintaining the
sentence, or 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 in an
appeal from a conviction;
3. Reverse the finding and sentence and acquit or discharge the accused or order
him to be retried by a Court competent to try the offence; Alter the finding
maintaining the sentence; Alter the nature, the extent, or both, of the sentence, so
as to enhance or reduce the same; With or without altering the finding, alter the
nature, the extent, or both;
4. Modification or reversal of any prior order pending appeal;
5. Make any adjustment or order that is necessary or appropriate to the
punishment; Provided, however, that the sentence shall not be increased unless
the accused has been given a chance to show cause against such increase.
Further, the Appellate Court shall not impose on the defendant a greater penalty than
that imposed by the court that issued the order or sentence that is the subject of the
appeal. Regarding an appeal that has arisen from an order of conviction, Section
386(b) provides the Appellate Court with extensive powers, and the Appellate Court
has the authority to even acquit a person who has been found guilty of an offence by the
trial court.
According to Section 386 of the Criminal Procedure Code, a person who has been
convicted has the right to appeal their case, and the Appellate Court has the authority
to, while the appeal is pending, order that the execution of the sentence or order that is
being appealed against be suspended, and also, if the person is in confinement, that
they be released on bail or on their own bond.

Conclusion

An appeal does not result in a new trial. In order to evaluate whether there are
sufficient grounds to grant the appeal, the appellate court instead reviews the record of
the lower court’s proceedings. A complete transcript of the trial as well as all pre and
post-trial motions are included in the record. Appellate courts don’t just look at the
evidence presented in the trial; they also read the briefs the parties submit. Appellate
briefs provide context for the arguments made in an appeal and lay out the relevant
legal issues at stake. Since it was created by legislation, the appellate court’s authority
and jurisdiction must be defined within the confines of the law. At the same time, an
appeals court is a “court of error,” the purpose of which is to revise the lower court’s
ruling if it was incorrect, and its jurisdiction should be identical to that of the lower
court. It should not and cannot perform an action that the lower court lacked
jurisdiction to execute. Similarly, in circumstances where the trial for conviction was not
held in the High Court, the State Government has the authority to direct the Public
Prosecutor to file an appeal against the sentence on the grounds of inadequacy with
either the session’s court or the High Court. Neither the victims nor the complainants
nor anybody else has been afforded the opportunity to file an appeal challenging their
sentences on the grounds that they are inadequate. In addition, the court must provide
the defendant with a fair opportunity to present arguments against any proposed
sentence enhancement. The defendant has the right to show cause in order to be
exonerated or have his sentence reduced.

Frequently Asked Questions (FAQs)

What is the format for filing an appeal?

One can only file a petition for appeal in writing. A written petition of appeal shall be
given by the appellant or his pleader, and every such petition shall (unless the court to
which it is presented differently instructs) be accompanied by a copy of the judgement
or order appealed against, as stated in Section 382.
In what circumstances is it possible to have the appeal dismissed?

Section 394 of the Criminal Procedure Code states that the right to appeal a conviction
or sentence is lost upon the accused’s death, with the exception of an appeal of a fine.

When an appeal is pending against a conviction and sentence of death or

imprisonment, however, and the appellant dies during the appeal process, the appeal
shall not abate if any of the appellant’s close relatives apply to the Appellate Court for
leave to continue the appeal within thirty days of the appellant’s death.

What are the grounds for appeal?

1. Legal error.
2. Juror misconduct.
3. Ineffective assistance of counsel.

Is the victim allowed to seek an appeal, and if so, against what kind of order?

The victim does have the option to file an appeal. The following judgments can be
appealed:

1. Issue a judgement of not guilty,

2. Issue an order finding the accused guilty of a lower offence, and
3. Inadequate compensation ordered.

What are the cases when an appeal is filed?

The following circumstances call for an appeal:

1. A person who has been found guilty in a trial held by a high court may appeal
the decision to the Supreme Court. However, if the trial takes place before a
session judge, extra session judge, or some other court and the sentence handed
 down is more than seven years, the defendant may file an appeal with the
supreme court.
2. One has the right to appeal any order that calls for security or that refuses or
rejects surety for the purpose of maintaining peace or good behaviour.
3. Section 377 of the Criminal Procedure Code provides that if the state or central
government believes that the sentence imposed by the court is too lenient, they
may instruct the public prosecutor to appeal the decision.

What are the cases when an appeal is filed?

1. No reliance on false testimony unless as required by law: In most cases, an appeal

is only lodged if the law allows it. “No appeal may lie from any decision or order
of a criminal court save as allowed for in this Code or by any other legislation for
the time being in effect,” as stated under Section 372 of the Criminal Procedure
Code.
2. No appeal in minor cases: Section 376 provides that a person convicted of a minor
offence shall not be entitled to an appeal of his or her conviction.