Report No. 14

38. Criminal Appeals

1. Right of appeal in criminal cases.-

Under the Code of Criminal Procedure there is generally speaking, a right of appeal, with some exceptions which we shall indicate later, from a conviction by any court to a higher court designated in the Code.

2. From sentences of magistrates.-

Formerly, appeals from convictions by a magistrate of the third class who is competent to impose a sentence of imprisonment not exceeding one month and/or fine not exceeding one hundred rupees, and a magistrate of the second class who is competent to impose a sentence of imprisonment not exceeding six months and/or fine not exceeding five hundred rupees lay to the district magistrate or to a first class magistrate invested with appellate-powers. The Code, as amended in 1955, however, provides that appeals by persons convicted at a trial held by magistrates of these two classes (second and third class) shall lie to the court of session and may be heard by an additional session judge or an assistant sessions judge.

Appeals from convictions by a first class magistrate who is competent to impose a sentence of imprisonment not exceeding two years and/or fine not exceeding two thousand rupees also lie to the court of session, but such appeals are heard only by the sessions judge or an additional sessions judge to whom they are made over either by the sessions judge or by the State Government by general or special order. Appeals, however, against orders made under section 122 of the Code by these magistrates refusing or rejecting a surety still lie under section 406A to the district magistrate. We recommend that these appeals should lie to the court of session.

Appeals from district and presidency magistrates.- A district magistrate being only a magistrate of the first class under the Code, appeals from his judgments and orders also follow a similar course. But, in cases of conviction for an offence under section 124A, Indian Penal Code, appeals lie to the High Court. Further, all appeals from the judgments and orders of presidency magistrates whose powers of punishment are equal to those of first class magistrates lie to the High Court.

Appeals from section 30 magistrates.- Appeals from convictions by magistrates who are specially empowered under section 30 of the Code to impose sentences of imprisonment not exceeding seven years also lie to the High Court, if the sentence impOsed by them exceeds four years; otherwise, appeals lie to the court of session.

3. Appeals from sentences passed by the court of session.-

Assistant sessions judges are competent to pass a sentence of imprisonment for a term not exceeding ten years. Appeals from any sentence passed by such judges for a term exceeding four years lie to the High Court; in all other cases, appeals lie to the court of session. Appeals against convictions by a sessions judge or an additional sessions judge who is competent to pass any sentence authorised by law lie to the High Court.

4. Appeals from orders of the High Court.-

A person convicted on a trial held by the High Court in the exercise of its ordinary criminal jurisdiction can in certain circumstances, appeal under section 411A of the Code; such an appeal has to be heard by a Division Bench of the High Court.

5. Appeals to the Supreme Court.-

A right of appeal to the Supreme Court from any judgment, final order or sentence of a High Court in a criminal proceeding is also permitted by Article 134 of the Constitution, if the High Court certified that the case is a fit one for appeal and, in certain other circumstances, when a sentence of death has been passed. In addition, the Constitution has provided for appeals by special leave under Article 136.

6. Appeals against certain orders.-

The Code confers a right of appeal not only against orders of conviction but also against certain other orders, like orders requiring security for keeping the peace or for good behaviour, orders refusing to accept or rejecting sureties and orders under sections 250, 486, 476B, 515, 524 etc. of the Code.

7. No right of appeals in certain cases.-

Though, ordinarily, a conviction by a criminal court is subject to an appeal to a higher court as provided in the Code, there are, however, certain cases in which the Code, does not give a right of appeal. They are:

(1) Generally speaking, where an accused person has pleaded guilty in the trial court, such trial court being either a magistrate of the first class or a presidency magistrate, a court of session or the High Court, there is no right of appeal except as to the extent or legality of the sentence.

(Section 412)

(2) Where a magistrate of the first class, a district magistrate or a court of session imposes a sentence of fine not exceeding fifty rupees, there is no right of appeal.

(Section 413)

(3) There is no right of appeal where a person has been convicted by a court of session and sentenced to imprisonment for a period not exceeding one month.

(Section 413)

(4) Where a presidency magistrate, the court of session for Greater Bombay or the High Court passes a sentence of imprisonment not exceeding six months or of fine not exceeding two hundred rupees, an appeal is barred by the Code.

(Sections 411 & 413)

(5) There is no right of appeal when a person tried summarily has been sentenced to a fine not exceeding two hundred rupees.

(Section 411)

8. Exception to the rule of non-appeal ability.-

A special provision in the Code, however, enables an accused person to file an appeal even in the above-mentioned cases where the punishment therein mentioned is combined with any other punishment (section 415) or where he has been convicted in one trial along with other persons and an appealable judgment has been passed in respect of the other persons.

(Section 415A)

9. Restriction on right of appeal.-

It will be observed that an appeal lies in all cases against a conviction by a magistrate of the second or the third class. In the generality of cases of convictions by magistrates of the first class and sessions judges, a single appeal is provided, except in petty cases and from certain summary convictions. Unlike in civil cases, there is no right of second appeal. The High Court has, however, a revisional jurisdiction which can be availed of by a convicted person who has no right of appeal or who has failed to succeed in the appellate court. We shall deal with the revisional jurisdiction and its scope elsewhere.

10. Removal not favoured.-

It was represented to us that as a conviction for a criminal offence is a stigma which may result in far reaching consequences to the convicted person in his social and public life, a right of appeal should be given in all cases. We are unable to agree with this view. We are of opinion that in not granting a right of appeal in the cases detailed above, the Code has proceeded on sound practical considerations of expediency. The right of appeal which amounts to a right to a re-hearing is not a natural or inherent right of any person.

It is essentially the creation of statute. These provisions have been in existence for many decades and do not appear to have worked injustice. They make for finality in a number of petty cases. Nor has our attention been drawn in the course of our inquiries to any real hardship having resulted from them. The demand for their removal appears to us to be based more on theoretical grounds than on any actual instances of their unsatisfactory operation. In cases of clear injustice, it is always open to the person aggrieved to invoke the revisional jurisdiction of the High Court.

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