Appeals (Section 413 – 435, Chapter 31 BNSS 2023) Continued Quest for Justice

Object & Scope

The Judgments are pronounced by judges who are human beings, therefore the possibility of bona fide human

error cannot be rules in judgments as well.

Therefore, it is of paramount importance to provide for review procedures of judgments which are passed by

subordinate courts.

This helps in upholding public confidence in the judicial system and ensures that justice is brought to the

maximum number of people.

It is pertinent to note that the right of appeal and review upholds the inherent values of Article 21.

Meaning of Appeal

Appeal is a complaint to a superior court of an injustice done or error committed by an inferior court, whose

judgement or decision the Court calls upon to correct or reverse.

Appeal is statutory right and no one has an inherent right to appeal.

If the statute does not provide for an appeal then no appeal would lie in such case.

Cases where No Appeal Lies

No appeal unless provided by law – S.413

Appeal is not a matter of right (statutory right, creation of statutes, has to be specifically provided by law )

An aggrieved person can only appeal if the same provided by the law under some statutory provision.

No appeal in petty cases – S.376

The following types of cases are considered as petty cases:

High Court – Sentence – 6 months Imprisonment or Fine upto Rs. 1,000/-

Court of Sessions – Sentence – 3 months Imprisonment or Fine upto Rs. 200/-

Magistrate of 1st Class – Sentence – Fine upto Rs. 100/-

An appeal can be brought against the abovementioned sentences if they are combined with other

sentences which are appealable.

For the purpose of appeal aggregate of consecutive sentence has to be seen.

No Appeal in case of conviction on plea of guilt – S.416

The person who deliberately pleads guilty cannot be aggrieved by being convicted.

It means that such person does not have a grouse against the conviction.

Therefore, the question of appeal against such order of conviction does not arise at all.

However, the way in which the Court obtained the plea of guilt has to be scrutinized.

If the accused was threatened or induced into pleading his guilt then such order of conviction would be bad in law.

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 Appeal from Conviction
Appeal to Supreme Court
An appeal to the Supreme Court can be filed in the following instances and under the following provisions:
S.415(1) – Trial by the High Court.
In case of a conviction upon the trial by a High Court, the aggrieved party can appeal against such order of
conviction before the Supreme Court.
Although such trials are very rarely held.
S.420 – Reversal of order of Acquittal and sentenced to Death or Life Imprisonment by High Court.
If the High Court reveres the order of Acquittal and sentence the accused to Death or imprisonment for life.
In such scenario, the aggrieved person is entitled to appeal against such conviction before the Supreme Court.
Article 132 – Appeal if the case involves substantial question of law.
If the High Court certifies that a case involves a substantial question of law, then upon obtaining such certificate
the appeal can be filed before the Supreme Court.
Even if the High Court refuses to grant the certificate the Supreme Court can grant leave to appeal.
Article 134 – Certificate of Appeal by the High Court
An appeal under article 134 lies to the Supreme Court in two cases:
When the High Court has withdrawn for trial a case from lower court before itself or
When the High Court certifies that a case is fit for appeal.
Article 136 – Special Leave Petition
The Supreme Court may grant special leave to appeal from any judgment, order or sentence passed by the High
Court or a Tribunal.

Appeal to the High Court – S.415(2)

An appeal to the High Court would lie from the order, sentence or judgment of the following courts:
Sessions Judge; or
Additional Sessions Judge; or
Any Other Court – passing sentence of imprisonment for more than seven years.

Appeal to the Court of Sessions – S.415(3)

An appeal to the Court of sessions lies in case of conviction by the following Courts:
Metropolitan Magistrate; or
Assistant Sessions Judge; or
Magistrate of 1st Class; or
Magistrate of 2nd Class

Special Right of Appeal in case where more than one person is convicted – S.421
Section 421 contemplates the following conditions to be fulfilled before an appeal can be filed in a case where
more than one person is convicted:
Conviction of more than one person; and
Appealable order or judgment passed in respect of any of them; and
All or any one may file an appeal.

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 Appeal against Acquittal (S.419)
Scope & Object
Appeal against an order of acquittal is an extraordinary remedy.
Appealing against an order of acquittal means that the interests of the accused are once again in serious jeopardy.
Section 419 therefore tends to safeguard the interests of the accused who has been acquitted by the trial court.
The decision of the Government to prefer an appeal or not is an administrative decision.
The Government has the same right of appeal as a convict has against his conviction.
General Provisions u/s. 419
Who May prefer an Appeal u/s. 419
The following persons may file an appeal under section 419:
Government; or
Complainant. (in case of a case constituted upon complaint)
The right to file an appeal can only be exercised after obtaining the leave of the High Court.
Appeals lies before – The appeal against acquittal shall lie before the High Court regardless of the fact whether the
order/judgment has been passed by the Session Judge or the Magistrate.
In a case instituted upon private complaint the appeal can only be filed once the High Court grants leave to appeal.
The application for seeking leave to appeal shall be filed within the prescribed period of limitation.
Factors to be considered before interfering with the order of acquittal
Application of law;
Grounds taken by the trial judge while acquitting the accused;
Any substantial omission while considering the evidence;
Appreciation of evidence.
Rules to be followed by the High Court
Presumption of innocence is strengthened by order of acquittal.
The trial judge had the opportunity to observe the demeanor of the witnesses.
If two views are possible, the one favorable to the accused shall be taken.
The accused is entitled to a reasonable benefit of doubt.
The High Court shall arrive at its own conclusion after pursuing the evidence on record.
Duty of the High Court
The High Court has to examine the case from its own independent view point;
It has to see if the order of the trial judge was palpably wrong, manifestly erroneous or demonstrably
unsustainable.
It has to examine if there are any infirmities so blatant that the order has to be reversed.
The Court must exercise its discretion judicially and scrutinize the evidence in minute detail.
Role of the Public Prosecutor
The State shall engage the Public Prosecutor to file an appeal against the order of acquittal.
The object is to ensure that the State takes the legal opinion of the PP before filing the appeal.
If the State does not file the appeal through the public prosecutor then the appeal will be invalid.
However, the above-mentioned requirement can be waived off in case the appeal has to be filed in urgency and the
Public Prosecutor is not available.
The Public Prosecutor can only file an appeal upon the directions of the State Government and he has no suo
moto powers to do the same.

Application for grant of Leave to file appeal & Limitation

The general rule provides that the application for leave to appeal shall be filed within 60 days of passing of the
orders.
An appeal from an order of acquittal in a case instituted upon a complaint must be presented within 30 days.

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However, in cases of complaints by public servants the limitation can be extended to six months on account of
administrative exigencies.
Upon proving a sufficient cause for delay the Court may condone the delay in filing the appeal.
In such case the accused has a right to oppose the delay and the application.

Summary disposal & Hearing of appeals not dismissed summarily (Sec. 425 – 426)
Summary Disposal of Appeal – S.425
Dismissing the appeal in a summary manner means dismissing it in an informal manner without delay of formal
proceedings after perusal of the petition and the judgment.
When the case is prime facie arguable in such case the appeal shall not dismissed summarily.
Examination of Petition of Appeal & Judgment
If the appellate court upon examination of the appeal petition and the judgment is of the opinion that there is no
ground to interfere with order/judgment it may dismiss it summarily.
However, the accused must be given an opportunity of being heard.
If substantial and arguable points are raised then the appeal shall not be dismissed summarily.
The grounds for dismissal shall be recorded as well.
Calling for the Case Record
It is not mandatory for the appellate court to call for the case record before exercising powers u/s. 425.
Reasonable opportunity of being heard
reasonable opportunity of being heard shall be given to the accused.
What amounts reasonable opportunity depends on the facts and circumstances of the case.
Procedure regarding Jail Appeals
The accused shall be brought before the Court in case he has filed the appeal while he is in jail. (S.383 – Jail
Appeal)
However, if the Court deems fit that the appeal is completely false and frivolous then in such case it may dismiss
it without calling the accused before the Court.
Recording of Reasons
The Supreme Court has laid stress on the need to pass a reasoned order, as the dismissed order is open for review
of the higher courts, therefore if it is reasoned order, then the court reviewing the same would be able to decipher
the reasoning for the same.
No Dismissal for Non-Appearance of the Appellant
It is to be noted that an appeal cannot be merely dismissed because of the non-appearance of the appellant.
The Court has to peruse the petition and the relevant case record and render it decision on the basis of the same.
The following guidelines have been passed by the Supreme Court in this regard:
The Court cannot dismiss the appeal without examining the merits of the case.
The court is not bound to adjourn the matter in absence of both the counsels.
In case the appellant is in jail, then it is advisable to adjourn the matter as he cannot come to the Court on his own.
No Withdrawal of the Appeal
Once an appeal has been filed then the Court cannot allow the same to be withdrawn at the instance of the party.
It is the duty of the Court to decide the matter regardless of the fact whether the appellant wants to follow it up or
not.
Procedure when the appeal is not dismissed summarily – S.426
Notice of Motion.
Furnish a copy of grounds of appeal.
Call for the record of case – Mandatory.
No additional grounds after filing of the appeal.
Production of the accused.

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 Powers of the Appellant Court in disposing of Appeals (S.427)
Two Essential Conditions/Duties
Once the appellant Court receives the appeal it is bound to carry out the following two duties:
Peruse the Record of the Case – In order to enable the Court to adjudicate upon the correctness or otherwise of the
order or judgment appealed against not only with reference to the judgment but with reference to the records
which will be basis on which the judgment is founded.
Hearing of Parties – The appellant, public prosecutor, shall be given an opportunity of being heard. A notice to the
parties shall be given specifying the date of hearing.
No interference needed – Summarily dismissed
In case the appeal is dismissed after fulfilling the above mentioned conditions the Appellant Court will not
interfere with the decision of the Court.
Appeal from Order of Acquittal
The Court Appellant Court can uphold the order or reverse the acquittal into that of conviction.
However before doing so the following principle shall be followed:
The entire evidence shall be considered;
The views of the trial judge shall be considered;
The statements of witnesses shall be considered;
The accused shall be given benefit of doubt;
The appellant court must pass reasoned order.
The appellant court may order further enquiry.
Appeal from order of conviction
The general provisions regarding appeal from an order of acquittal shall apply to the appeal from an order of
conviction.
The Appellant has the following powers:
Acquit the accused;
Uphold the order of conviction;
Alter the sentence.
A retrial can be ordered in exceptional circumstances only.
The accused can be convicted for different offence which arises of the same facts and circumstances. For e.g., 302
converted to 304.
Appeal for enhancement of Sentence
In case of appeal for enhancement of sentence, the Court cannot inflict a greater sentence than what has been
ordered by the trial judge.
There can be two scenarios in an appeal for enhancement of sentence:
Sufficient punishment has been imposed;
Inadequate punishment has been imposed.
Powers of the Court:
Reverse the finding and acquit the accused;
Alter the findings;
Alter the nature of sentence;
Order retrial.
Power to pass consequential or incidental orders
To ensure adequate punishment for all offences the appellant court along with the main order may pass additional
order.
For example, along with conviction for S.304-A, the Court convict the accused for S.279 as well.
Such order has to be consequential or incidental to the primary order.

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No Dismissal in default
Once the case is admitted, the Court has to pass a reasoned order before disposing it.
It cannot dismiss the appeal in default.

Ancillary/Miscellaneous Provisions
Petition in appeal – s.423
The appeal shall be accompanied by a written petition and the judgment of the Court.
The several accused can file a joint appeal under one petition.
The petition shall mention the grounds of appeal.
The appeal presented to jail authorities is a jail appeal by the accused in jail custody.
Power to obtain further evidence – S.432
The appellant has no right to tender additional evidence at the appellant stage.
However, the court may order to obtain further evidence in case of an exigency.
Such obtaining of further evidence shall not cause prejudice to the accused.
Opinion of Third Judge, when the Bench is equally divided – S.433
The appeal is to be heard by the division bench of the High Court.
In case the division bench is equally divided, then the matter is to be heard by a third judge.
The opinion of the third judge shall be final.
Order of the High Court to be certified to the Trial Court – S.388
The High Court shall cause the order of the appeal to be certified to the trial court against whose order/judgment
the Court.
This provision helps in informing the trial court about the decision of the case in appeal.
Finality of Judgments & Orders of Appeal – S.434
The appellant court including the High Court cannot review its own judgment passed in an appeal.
The law does not provide for any appeal against the decision of the appellant court except an appeal against the
order of sentence u/s. 418 or u/s. 419.
S.435 – Abatement of Appeals.
An appeal u/s. 418 or 419 shall abate on the death of the accused.
However, an appeal against a conviction shall not abate if the appellant dies during the pendency of the appeal.
The nexus behind the same is that the family of the accused would be discharged from the stain of conviction on
their family member

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 Revision (Sec.438 – 442)
Unless it is otherwise provided, under the Procedural Criminal Laws only one opportunity for appeal is

afforded to the convict in a criminal case.

• Moreover, the right of appeal is not available in each and every case.

• Therefore, in order to prevent miscarriage of justice, where no appeal can be filed the Courts have been vested

with the power of Revision.

• The powers of revision conferred on the Higher Courts are very wide and discretionary in nature.

• Section 438 – 405 deals with the Revisional Jurisdiction of the Courts.

• The above-mentioned provisions also place some limitations on the exercise of such power of Revision.

Object

• The object of revisional jurisdiction is to confer upon superior criminal courts, kind of paternal power or

supervisory jurisdiction.

• To prevent miscarriage of justice.

• To provide an easy remedy and secure expedition in the disposal of cases.

• To keep a check on the subordinate Courts and ensure that they do not exceed their jurisdiction.

• To ensure that justice is done as per the recognized rules of criminal jurisprudence.

Limitations on exercise of Power of Revision

• The power of filing revision has been limited in the following circumstances:

• Where an appeal lies, but no appeal has been brought; or

• No revision lies in relation to an interlocutory order; or
• An acquittal cannot be converted into conviction under a Revision Application/Petition.
• Only one Revision can be filed i.e., either to the Court of Sessions or High Court.
Power to Call for Records (S.438)

• Scope of Power

• The power to call for records is conferred on two kinds of Courts, viz:
• High Court
• Sessions Judge
Grounds on which the power can be exercised are as follows:

• Where the findings, sentence, or order is illegal or improper; and

• Where the proceedings are irregular
• The revisional powers of the High Court are wide in their scope and ambit, yet the discretion shall be exercised
only in rare cases.

• Criminal law shall not be used as an instrument to settle personal vengeance.

• S.438 does not create any right in the litigant but only preserves the power of the Court to see that justice is

done in accordance with recognized principles of law.

• Locus Standi
The rules of locus standi under Revisional Jurisdiction are not very stringent.

• The Court can act on its own motion.

• The Court can even act upon the motion of a stranger who may be instrumental in bringing to the knowledge
of the Revisional court a matter which otherwise the Revisional court may not have known.

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• The concerned parties to the case may also apply for a revision of an order, sentence or finding of a Court.
Power of Revisional Court to release offender on Bail

• Firstly, S.438(1) provides that an offender can be released on bail if the sentence of conviction is under
Revision and the Court has suspended the execution of sentence.

• Secondly, Revisional jurisdiction can be exercised against an order refusing bail under section 167(2) as the
same is final and not an interlocutory order.

• Thirdly, any order refusing bail is an interlocutory order, as bail may be refused at one stage and granted at a
later stage in the proceedings. It can be even rescinded or modified and therefore the same is not a final order.

Thus being an interlocutory order, the accused cannot apply for revision of an order rejecting bail.

No Revision against “Interlocutory” Orders

• S.438(2) expressly provides that no revision shall lie against an interlocutory order.
• The objective behind this provision is to attain finality of proceedings and expedite the disposal of criminal
cases.

• Meaning of Interlocutory Order – An interlocutory order is the one which is passed at some intermediate stage
of a proceeding generally to advance the cause of justice for the final determination of the rights between the

parties.

• Test to determine whether an order is interlocutory or final is to see if the rights and liabilities of the parties are
settled or are left to be determined by the Court in ordinary way.

• Therefore, the term interlocutory order denotes an interim order of temporary nature.
Concurrent Jurisdiction of High Court and Sessions Court

• The aggrieved person can directly invoke the Revisional jurisdiction of either the High Court or Session Court.

• Thus, it is not necessary to approach the Sessions Court first.

• One can approach the High Court directly without approaching the Sessions Court.

Ouster of High Court’s Jurisdiction

• As noted above, the High Court and the Sessions Court have concurrent jurisdiction under the Revisional

jurisdiction.

• Therefore, if an aggrieved person approaches the Sessions Court first, then he cannot later on approach the

High Court.

• As only one opportunity of filing a revision a provided under the law.

• S.438(3) also provides that a second revision is barred under the law.

• Mere making of a revision application before the Session Judge, makes second revision before the High Court

non-maintainable.

Circumstances where Revisional Jurisdiction can be exercised

• The following circumstances cull out certain circumstances where the Revisional Jurisdiction may be

exercised:

• Grossly erroneous decision; or

• Non – compliance with the provisions of law; or
• Finding of fact not based on evidence; or
• Non – consideration of material evidence; or
• Arbitrary exercise of judicial discretion;

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 Reference to the High Court – S.436
Meaning (to seek opinion of High Court qua point of law in a pending matter)

Scope - A reference to the High Court may be made on any of the following grounds:

• Question of constitutional validity of any law; or

• Other Question of law.

Court competent to make a Reference

• S.436(1) requires every subordinate Court to refer the question of validity of any Act, etc. to the High Court.

• However, S.436(2) gives discretion to the Court of Sessions and or a Metropolitan Magistrate to refer for the

decision of High Court, any question of law arising during the hearing of the case.

Conditions to be fulfilled before a Reference can be made

• The following conditions have to be taken into consideration by the subordinate Courts before making a

reference on a question of law to the High Court:

• Pending Case – The case shall be pending before the subordinate Court which purposes to make a reference to

the High Court.

• Question of Law – The reference shall contain a question of law or the question of validity of an Act, Statute,

Ordinance or a Regulation. Such question shall be a real and substantial question of law.

• Disposal of Case – The decision on such question of law shall be necessary for the final decision of the

case/disposal of the case.

• Not already declared invalid – Such question of law shall not have already been declared invalid by the High

Court.

• Opinion & Reasons – The Court that makes the reference shall state a case setting out its opinion and reasons

for making the said reference.

Important Points on Reference

• Reference shall be made only on a question of law;

• Such question must have arisen in the hearing of the case.

• Such question shall be based on points of law which are already settled by the High Court.

• Merely because a Sessions Judge has entertained a revision petition does not vest him with the powers to make

a reference on a question arising out of hearing of such revision.

Post Reference Procedure – S.396

• Once a reference has been made under section 436 to the High Court;

• The High Court may pass order as it deems fit;

• A copy of the order shall be sent to the Court which made the reference at the first place;

• The High Court may also direct parties as to payment of the costs of such reference shall be paid

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 Basis APPEAL (413- 435) REFERENCE (436-437) REVISION (438-445)
Chapter Chapter 31 BNSS. Chapter 32 BNSS. Chapter 32 BNSS.
Section Section 372- 394 BNSS . Section 436-437 BNSS . Section 438-445 BNSS .
An appeal is made to the higher Reference is made to the Revision is made to both
Meaning court on the points of the fact higher court on the points of higher and lower court on the
and laws. the law. already adjudicated matters.
The Reference occurs while The revision begins under the
The Appeal begins on the
Stage the case is still pending in the final judgment or final order or
determination of the case.
court. final decision of the court.
Reference is to consult the
Revision is to review, change
An appeal or petition is to be High Court on insolvency or
Against or amend any grammatical,
filed against the decision passed invalid law, act, regulation or
what clerical or arithmetic error by a
by the lower court. ordinance related to the case
trial court or high court.
at hand.
In some cases, an appeal can be The revision can be initiated
Reference is made by the
By whom filed with leave of the court by by the trial court suo moto or
trial court to the High Court.
an aggrieved person or accused. the High Court.
Forum Superior Court / Appellate Court High Court High Court & Sessions Court

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