Key Bullet Point Notes on Appeal

 Appeal means a complaint to a superior court of an injustice done or error committed by an inferior court (of fact or law)
 Appeal is a Statutory Right (See Chapter XXXI of BNSS) and Section 413 BNSS
 Based on the idea of human fallibility
 It adds to the satisfaction of the party and lend assurance to the person that whatever was possible is done
 First appeal has been considered as natural right
 Appeal involves extra time and resources hence, only when allowed when statute expressly prescribes, no automatic right to appeal
 Petty cases and guilty plea cases appeal not allowed as logical
 After the Judgment of trial court or the appellate court is delivered a person may appeal
 Usually there is a limitation period which starts running from the date of the judgment
 Specific rights to appeal are given to specific set of people
o against conviction the convict,
o against inadequate sentence—the State,
o against acquittal—State and complainant,
o against acquittal, inadequate compensation, punishment for lesser offence to the victim
o Special right of appeal

 Usual hierarchy of appellate Courts (Check Specific Provision, no hard and fast rule. Always look for the Statute)
o Magisterial Court to Sessions Court
o Sessions Court to High Court
 o High Court to Supreme Court
o Letters Patent Appeal is also possible in some States where single Bench HC decision can be appealed to higher Bench of the High
Court
 Witnesses are generally not called back in appeal, rather the evidence taken in trial court is reviewed.
 When additional evidence is taken, then usually the appellate court asks the magistrate to take the evidence and send to the appellate court
 Suspension of sentence may happen suo motu or on application (S. 430)
 Similarly, accused may be arrested if the appeal is against acquittal (S. 431)
 Trial court judgment merges with the appellate court judgments

Various Types of Appeals under BNSS and Constitution of India

Sr. Against Conviction Against Inadequate Against Acquittal Appeal by Victim Special Appeal
No Sentence
1. To Supreme Court by a person To Sessions Court To Session Court (by Appeal lies to the court where To whichever court where
convicted  Section 418(1)(a) State through DM) appeal from conviction would appeal would lie by
 Section 415 (1) When High appeal to the  Section 419 (1) ordinarily lie Convict Tried in the same
Court has convicted after Sessions Court if (a) if acquittal is  As per Proviso to trial
exercising extraordinary the conviction given by Section 413  As per Section 421
original Jurisdiction was passed by magistrate and  Appeal against acquittal Right to appeal is
 Section 420 when High magistrate the offence is  Appeal against available to all the
Court has reversed the order To High Court cognizable and conviction for lesser person convicted in
of acquittal and gave the non-bailable offence one trial and any
 sentence of more than 10  Section 418(1)(b)  Appeal will be  Appeal against appealable
years appeal to the HC preferred by PP inadequacy of judgment or order
 Article 132 (1) Certificate is if the conviction at the direction Compensation is passed in respect
given by the High Court that was passed by any of DM  No other right to appeal of any of those who
the case involves a other court than  No leave needed to the victim were tried together.
substantial question of law magistrate To High Court by State  The option of revision is
with respect to interpretation  Appeal is to be  Section 419 (1) always open where
of the Constitution preferred by the (b) When any there is no right to
 Article 132 (3) Certificate is PP at the direction court other than appeal
given to applicant under 132 of State Govt, the HC while
(1) and any party is when the trial is exercising
aggrieved by such issuance by any court, Original or
of certificate other than HC Appellate
 Article 132(2) When the HC  If offence is jurisdiction has
refuses to give certificate, investigated by acquitted the
against such refusal, special CG then CG may accused and the
leave may be granted by the direct such appeal is not covered by
SC (Omitted)  In case of such 419(1)(a) or it is
 Article 134 (1) HC giver appeal if the court an order of a
certificate of fitness to intends to Sessions Court
appeal enhance the
  Article 136, Special Leave punishment, audi while exercising
Petition altrem partem to revisional power
To High Court by any person the accused and  The PP will
convicted accused may prefer appeal at
 Section 415 (2) Trial was plead innocence the direction of
conducted by Sessions Court as well State Gov.
and Punishment imposed for  State cannot  If the case was
more than 7 years, any prove graver investigated by
person who has been offence, only on Central Agency,
convicted in the same trial same offence, CGs direction
may appeal, it is not higher needed
necessary that all will appeal punishment can  Appeal in HC
To Sessions Court be argued only with the
 Section 415 (3)  This appeal is leave of the HC,
exclusive not direct appeal
prerogative of the  Leave
State, no one else application may
can appeal be part of the
against memorandum of
inadequacy of appeal
sentence
 However,  Period of
revision may lie limitation starts
by complainant or from the date of
victim order of
acquittal
 Special Leave of
HC is a
condition
precedent in
case of
complaint cases
 A separate and
prior application
of special leave
has to be
applied.
 State may be
complainant as
well as appeal
like state, thus,
appeal is
 possible by State
in two capacities

 Usually, an appellate court would lean in favour of the correctness of the of the trial and judgment passed by trial court or lower court
 This presumption becomes more pronounced in cases where order of acquittal is passed in favour of the accused, if read with the
presumption of innocence of the accused.
 The court is very cautious in such appeal and they have to remember
o Presumption of innocence in favour of the accused stands fortified by acquittal
o If two views are possible, take the view which is favourable to the accused
o The trial judges had the opportunity to observe the demeanour of the witnesses
o The accused is entitled to reasonable benefit of doubt
 Interference from the acquittal order only when
o Appreciation of evidence by the TC was perverse or the conclusion drawn was not possible
o Application of law is improper
o Substantial Omission to consider evidence on record
o As per the evidence on record, acquittal was not possible
o If acquittal is allowed to stand, it will be miscarriage of justice

Procedure of Filing Appeal

 Petition of Regular Appeal, 423

 Jail Appeal 424
 Only one should be preferred, but people do file two appeals. The courts also treats two appeals as separately. Section 425 (1) (c) should
be read here to harmonise about the summary dismissal.

Summary Dismissal of Appeal (S. 425)

 If there is no sufficient ground for interfering, appeal may be dismissal (after the examination of the petition, copy of the judgment)
 This power to be exercised with circumspection, burden on the appellant to ensure that the appeal is admitted, bets possible drafting and
oratory skills needed here.
 The court needs to be convinced that the lower court has failed to provide justice
 The written submission as well as oral arguments should be concise, precise and hard-hitting points highlighting the errors of law, fact and
mixed question of law and fact, if any.
 Read this for court craft of appeal arguments: https://www.livelaw.in/top-stories/supreme-court-guides-young-lawyer-how-to-argue-
criminal-appeal-grants-acquittal-190866
 The court is required to go through atleast the petition of appeal and the judgment to make mind on the case along with an opportunity to
the appellant to be heard to make the submission about the same.
 If the court finds some preliminary substance, court may ask for records of the case, peruse the same and then may decide, to dismiss or
notice to be issued, calling for the records may be considered a partial victory though.
 While dismissing the appeal, reasons need to be recorded so that the appellate may go for second appeal, if there is provision.
 Dismissal of jail appeal is no bar to hearing regular appeal, but it should not occur in routine manner.
 Default of appearance of the appellant does not empower the court to dismiss for default. The case can be considered on merits even in the
absence of the appellant and then dismissed. [Read K.S. Panduranga, (2013), 3 SCC, 721]
Procedure for Hearing if Not Dismissed Summarily (S.426)

 Notice of time and place to the

o Appellant
o Officer of the Government
o To the complainant (if a complaint case)
o To the accused if the appeal is for enhancement of sentence or an appeal against acquittal
o Call for the records, if not available already, except in cases where the appeal is only for enhancement of sentence
o Hearing is to take place, but if the appeal is only for enhancement, then leave of the court is needed by the accused for pleading
innocence

Powers of the Appellate Court (S.427)

 Listen to all the concerned parties, and if reaches to the conclusion that no need to interfere, dismiss the appeal.
 If not dismissed, then,
o If an appeal against acquittal,
 reverse the same and direct for further inquiry,
 re-trial

 While deciding the appeals on merits, the appellate court has to follow the three principles laid down by the Privy Council as
Approved by SC in Sawant Singh Case (1961) 1 CrLJ 766

 The Appellate court has full power to review the evidence

  The trial court had a better opportunity about

(a). Credibility of the witness

(b). Presumption of innocence Benefit of doubt

(c). Slowness of the appellate court in disturbing the finding of the trial court who had the opportunity to see the witness

 Give specific reasons why the trial court order is being reversed, all the points need to be turned upside down and reasons
recorded for reversing the verdict of the trial court, which were reasons for the trial court to arrive at a particular conclusion

 If two views possible, favour the one which was taken by the trial court, especially when it goes in favour of the accused.

o If an appeal is against conviction,

 reverse the finding (to set aside or annul the conviction) and acquit,
 discharge,
 retrial,
 alter the finding (of conviction of the offence for which trial court could have convicted, read with alteration of charge),
maintaining the sentence
 without altering the finding alter the nature/extent of the sentence, not to increase sentence
 Retrial not to be allowed for supplying the gaps by the prosecution
 Only in exceptional cases, retrial is to be ordered, after finding the fact that the trial court had no jurisdiction, or trial was
vitiated be some serious illegality or irregularity or on account of misconception of the nature of the proceedings which has
led to a situation where actually real trial never happened
  Once retrial is ordered, evidence on record is deemed obliterated
 Retrial of only that case for which appeal from conviction was made, not the entire case other than appealed
o If appeal if for enhancement of sentence
 Reverse the finding and sentence and acquit,
 Discharge
 Order retrial
 Alter the finding, maintain the sentence
 without altering the finding alter the nature/extent of the sentence be reduced
 If any other order is appealed, alter or reverse such order
 Make any amendment or any consequential or incidental order that may be just or proper
 In case of enhancement of sentence, accused must be heard
 The maximum punishment after altering only the one which the trial court could have given.
 In an Appeal from Conviction

Power to Take Additional Evidence (S. 432)

 Record reasons of the need to take additional evidence

 May take evidence on their own,
 Direct any magistrate to take the same

Concluding Remarks

 Appeal is a statutory right and a very limited right

 The powers of the appellate court depend on the type of appeal preferred.
 The appellate court will generally lean in favour of the lower court, if they do not find any manifest error or substantial irregularity
 The advocate has to be very vigilant about the limitation period as well as drafting and arguing the case, one of the toughest jobs to save
the appeal being dismissed at preliminary stages
 Accuse always gets some sort of benefit, if the same is possible to be given, as per the scheme of the law as well as by judicial pronoucments