A right of appeal is the creation of a statute and is not a natural right or inherent right. A right of appeal cannot arise by implication.
An appeal is the removal of a cause from an inferior Court to the superior court to test the soundness of the decision of such court. The right to appeal is not a mere matter of procedure, but it is a substantive right.
It is a vested right and this right to enter the superior court accrues to the litigant and it exists as on and from the date of commencement of the lis/suit and although it may be exercised when the adverse judgment is pronounced, such
right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of decisions or the date of filing appeal.
The proviso of Section 372 is an exception to the general rule and the same confers on a victim a right to appeal against acquittal which is subject to the grant of leave by the Court.
Victim means the actual sufferer of offence and mother person other than the actual receiver of harm can be treated as a victim of the crime/offence, to provide him/her right to appeal under the proviso to Section 372 though, in their absence or disability, their legal heir or guardian would qualify as a victim and have a right to appeal.
WHEN NO APPEAL LIES AGAINST A DECISION
In the following cases, the Code of Criminal Procedure, 1973 does not allow any appeal to be preferred in a superior court:
1. NO APPEAL IN CERTAIN CASES
Section 375 of the Code provides that a plea of guilty is considered a waiver of the right to appeal, except as to the legality or extent of the sentence.
Thus, an accused person who pleads guilty before a Magistrate and is convicted has no right of appeal unless he contends that his conviction is illegal.
In the case of State of M. P. v. Mushtaq Hussain, it was held that the admission of facts as alleged by the prosecution amounts to a plea of guilty by the accused. But if the facts alleged by the prosecution do not constitute an offence the “plea of guilty” shall be of no use and no conviction is possible on that account. This section does not bar any right of appeal against such a conviction.
Additionally, no appeal shall lie from the decisions of-
(a) Conviction by the High Court, or
(b) Conviction by a Sessions Court, Metropolitan Magistrate, Magistrate of 1st and 2nd Classes, except for the legality of the sentence.
It is pertinent to note here that for the application of this Section, the plea of guilty by the accused must be a genuine plea and not one derived from coercion or trickery.
2. NO APPEAL IN PETTY CASES
Section 376 provides that there shall be no appeal by a convicted person in any of the following cases-
(i) Where a High Court passes only a sentence of imprisonment for a term exceeding 6 months or a fine not exceeding 1000 rupees or of both such imprisonment and fine
(ii) Where a Court of Session or Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding 3 months or of a fine not exceeding 200 rupees or both
(iii) Where Magistrate of the 1st Class passes only a fine not exceeding 100 rupees
(iv) Wherein a case tried summarily by a Magistrate empowered to act under Section 260 passes only a fine not exceeding 200 rupees.
It is important to note that the proviso to Section 376 provides that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground-
(i) Person convicted is ordered to furnish security to keep the peace; or
(ii) That a direction of imprisonment in default of payment of fine is included in the sentence; or
(iii) More than one sentence of the fine is passed in the case if the total amount of the fine imposed does not exceed the amount previously mentioned.
WHEN AN APPEAL CAN LIE AGAINST A DECISION
In the following cases, the appeals from the decisions of cases shall lie to a superior court-
1. APPEALS FROM ORDERS REQUIRING SECURITY OR REFUSAL TO ACCEPT OR REJECT SURETY FOR KEEPING PEACE OR GOOD BEHAVIOUR
Section 373 of the Code is applicable in cases of appeal from-
(i) Order requiring security for keeping the peace or good behaviour as provided under Section 117 of the Code
(ii) Against an order refusing to accept or reject a surety under Section 121 of the Code
Note: Such an appeal lies in the Court of Sessions.
However, it must be noted that the proviso to Section 373 provides that provisions of this Section will not apply to a person, against whom proceedings are ongoing or laid down before a Sessions Judge as per Sections 122(2) and 122(4).
2. APPEAL FROM CONVICTIONS
Section 374 provides 3 different forums for filing appeals by the accused against the order of conviction-
(i) If the trial is held by the High Court in the exercise of its extraordinary original jurisdiction, an appeal would be to the Supreme Court and not to a larger bench of Judges of that High Court.
The Supreme Court in the case of Panchhi v. State of U. P., in a murder case, did not permit the move of intervention of the National Commission for Women, as CrPC provisions related to appeal do not allow the National Commission for Women or any other such organization to have locus standi in a murder case.
(ii) If the trial is held by the Sessions Court Judge or an Additional Sessions Judge or by another Court in which the sentence passed is at least 7 years, the appeal would lie to the High Court.
(iii) If the trial is held by a Metropolitan Magistrate, or Assistant Sessions Judge or Magistrate of the First Class or Second Class, an appeal would lie to the Court of Session.
There is no provision under the CrPC, 1973 permitting disposal of criminal appeal in default. It was held in the case of Nathu Ram v. State of U. P., that in the case the appellate court decides to proceed with the hearing of the appeal and is satisfied that either the appellants themselves or their counsel have not appeared, even though they had notice of the date, it has the right to examine the record and decide the appeal on merits.
Note: If several persons have been convicted in a single trial by a Sessions Judge, all of them can file a joint appeal in the High Court and they don't need to file separate appeals.
While rejecting appeals from the sentences of the Sessions Court, the High Court should specify and record reasons for doing so and should not reject it summarily. This is to enable the Supreme Court to know the view of the High Court in case the appellant moves to the Supreme Court.
3. APPEAL BY STATE GOVERNMENT AGAINST SENTENCE
The state government, in any case of conviction on a trial held by any Court other than a High Court, can direct the Public Prosecutor to present an appeal against the sentence on the ground of inadequacy-
(a) To the Court of Sessions, if the Magistrate passes the sentence.
(b) To the High Court, if the sentence is passed by any other Court
Section 377(3) provides that when an appeal is filed against the sentence on the ground of inadequacy, the Court shall not enhance the sentence except after giving to the accused a reasonable opportunity to show cause against the inadequacy of the sentence not include the revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases.
Section 377(4) provides that when an appeal has been filed against a sentence passed under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E (offence of Rape) of the Indian Penal Code, 1860, the appeal shall be disposed within 6 months of such appeal.
4. APPEAL IN CASES OF ORDER OF ACQUITTAL
Section 378(1) provides that-
(a) The District Magistrate can direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by the Magistrate in case of a cognizable and non-bailable offence.
(b) The state government can also direct the Public Prosecutor to file an appeal to the High Court, from-
(i) An original or appellate order of acquittal passed by any Court other than; or
(ii) An order of acquittal passed by the Court of Sessions in revision;
Section 378(3) provides that such an appeal to the High Court will not be entertained except with the leave of the High Court.
Section 378(4) provides that if the case is instituted on a complaint, the complainant may file an application in the High Court regarding special leave to appeal in case of an order of acquittal.
Section 378(5) provides that the expiry for such appeal shall be up to 60 days in general and more than 60 days in the case of a public servant.
Section 378(6) provides that if the appeal is refused under sub-section (4), no appeal from such order of acquittal shall lie under sub-section (1) and sub-section (2).
DUTY OF HIGH COURT IN APPEAL
In an appeal against acquittal, the High Court has full power under Section 378 to review at large, evidence on which the acquittal is based and to conclude as to whether an order of acquittal should be reversed.
In the case of Ganpat v. State of Haryana, the Supreme Court observed that-
The following principles must be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal:
(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its conclusion.
(ii) The appellate court can also review the trial court's conclusion concerning both facts and law.
(iii) While dealing with the appeal preferred by the State, the appellate court must marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed.
5. APPEAL AGAINST CONVICTION BY HIGH COURT IN CERTAIN CASES
Section 379 of the code provides that the accused have the right to file an appeal to the Supreme Court against the order of reversal of an order of an acquittal into conviction by the High Court, on an appeal. Thereafter, if the High Court punishes the accused with a sentence of death, imprisonment for life or imprisonment for a term of 10 years or more, the accused may move to the Supreme Court for an appeal.
In case a lesser punishment is awarded, an appeal can be filed in the Supreme Court to certify that the case is fit for appeal under Article 134-A of the Indian Constitution.
In the case of the State of Rajasthan v. Babula, regarding an appeal against acquittal, it was held that it was not substantially different from an appeal against conviction. The Court would not, however, interfere with the acquittal if the view adopted is reasonable and has its grounds well set out on materials on record.
6. SPECIAL RIGHT OF APPEAL IN CERTAIN CASES
Section 380 gives a special right to appeal when the accused person when more than one accused is convicted in a trial if any of his co-accused has been awarded an appealable sentence.
Thus, Section 380 recognizes the right of an appeal of an accused person against whom a non-appealable sentence is passed in a trial in which an appealable judgment has been given against any one of the accused along with him.
In the case of Shinghara Singh v. State of Haryana, the High Court convicted both father and son under Section 304 read with Section 34 of the Indian Penal Code, 1860. The son filed a criminal appeal before the Supreme Court and the father preferred a special right to appeal. It was held that given the provisions of Section 380 CrPC, where the order and judgment passed by the High Court were appealable and the co-accused had filed an appeal, the father could also exercise his right of appeal instead of a special leave petition.