CRIMINAL CODE OF PROCEDURE PROJECT

POWERS OF THE APPELLATE COURT

SUBMITTED BY : NIHARIKA ANAND ROLL NUMBER : 17910303811 CLASS : 3-B

S.NO. 1. 2. 3.

TOPIC
SECTION 386
POWERS OF THE APPELLATE COURT

PAGE NUMBER 3. 6. 6.

PROCEDURE FOR DEALING WITH APPEAL SECTION 381

HEARING OF APPEAL IN COURT OF SESSION

4.

SECTION 382
PETITION OF APPEAL AND ITS PRESENTATION

6.

5.

SECTION 383
PROCEDURE WHEN APPELLANT IN JAIL

7.

6.

SECTION 389
POWER OF APPELLATE COURT TO SUSPEND SENTENCE

7.

7.

SECTION 390
POWER OF APPELLATE COURT TO GRANT BAIL

9.

8.

SECTION 391
POWER OF APPELLATE COURT TO OBTAIN ADDITIONAL EVIDENCE

10.

SECTION 386 IN THE CODE OF CRIMINAL PROCEDURE, 1973

386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction(i) 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 committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) 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; (c) in an appeal for enhancement of sentence(i) 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, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

Section 386 of the CrPC is of importance for the purposes before us. It requires the Appellate Court to peruse the records, and hear the Appellant or his pleader if he appears; thereafter it may dismiss the appeal if it considers that there is insufficient ground for interference. In the case of an appeal from an order of acquittal (State Appeals in curial parlance) it may reverse the order and direct that further inquiry be carried out or that the accused be retried or committed for trial. Even in the case of an appeal from an order of acquittal the Appellate Court is competent to find him guilty and pass sentence on him according to law. The proviso to this Section prescribes that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such a proposal, thereby mandating that an accused must be present and must be heard if an order of acquittal is to be upturned and reversed. It is thus significant, and so we reiterate, that the Legislature has cast an obligation on the Appellate Court to decide an appeal on its merits only in the case of Death References, regardless of whether or not an appeal has been preferred by the convict.

Anyone convicted of a crime has the right to appeal that conviction if they believe a legal error has occurred. If you have been convicted of a crime and plan to appeal, you are no longer known as the defendant, you are now the appellant in the case. In criminal cases, an appeal asks a higher court to look at the record of the trial proceedings to determine if a legal error occurred that may have affected the outcome of the trial or the sentence imposed by the judge.

The Supreme Court has identified the powers of appellate courts while dealing with an appeal against an order of acquittal thus1: 1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; 2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law; 3. Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
1

Ramappa Halappa Pujar v. State of Karnataka , Cr. App. No. 1344 of 2005

4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforce, reaffirmed and strengthened by the trial court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trail court.

The appellate court being the final court of fact is fully competent to re-appreciate, reconsider and review the evidence and take its own decision Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.2

Persons competent to lodge petitionA petition of appeal or revision on behalf of a person convicted by a Criminal Court or an application for transfer shall not be admitted by a Criminal Court, unless it is either submitted through the jail authorities, or is presented by the convicted person himself, or by some person authorised by a duly stamped power of attorney to present it on his behalf; and a petition for revision by a complainant shall not be admitted unless it is presented by the complainant or by some person authorised by a duly stamped power of attorney to present it on behalf of the complainant: Appointment or a pleader by a jail prisonerProvided that a person confined to jail shall be allowed to appoint his pleader, whether falling under class (1) or (2) of Section 4(r) of the Code of Criminal Procedure [See Section 2(q) of new Code], by means of a printed form,signed by him, and attested by the Superintendent of the Jail, and that no stamp shall be required on this form.

State of M.P. v. Ramesh and Anr. [2011] 5 S.C.R 12

PROCEDURE FOR DEALING WITH APPEAL [ SECTION 381- 383]

SECTION 381
HEARING OF APPEAL IN COURT OF SESSION

An appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge. An appeal against a conviction on a trial held by a Magistrate of the

second class may be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate. An Additional Sessions Judge, Assistant Sessions Judge or a Chief Judicial Magistrate shall hear only such appeals as the Sessions Judge of the division may, by general or special order, make over to him or as the High Court may, by special order, direct him to hear.

SECTION 382
PETITION OF APPEAL AND ITS PRESENTATION

Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against. Though the Code does not specifically require that the petition of appeal is to specify the grounds on which the appeal is based , yet the memorandum of appeal should contain a succinct statement of that .3 Where several persons are convicted at one trial , all or some of them can present one joint appeal.4

3 4

Kapil Deo Shukla v State of U.P. AIR 1958 SC 121 Lalu Jela AIR 1962 Guj 125

SECTION 383
PROCEDURE WHEN APPELLANT IN JAIL
If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court.

SECTION 389
POWER OF APPELLATE COURT TO SUSPEND SENTENCE

389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

By passing an order under Section 389 , the sentence is not set aside , but is merely suspended i.e. kept in abeyance. The order of conviction still remains in existence and disqualification due to conviction continues to be in operation . However, an order of conviction may be suspended in exceptional cases e.g. when prima facie no case is made out . 5

Rama Narang (1995) 2 SCC 513

Suspension of Sentence Pending the Appeal; Release of Appellant on Bail: Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement. The High Court of Madhya Pradesh has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section. It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases. The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal. It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail. The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C. Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance. The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Courts order declining to recall its own judgment was liable to be set aside. Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time. It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the
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appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant. The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.

SECTION 390
POWER OF APPELLATE COURT TO GRANT BAIL

Arrest of accused in appeal from acquittal When an appeal is presented under section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail. This section ensures that an accused ( especially in a capital case ) , against whom an appeal has been filed may not abscond during the pendency of an appeal .

The object of this section is not to extend protection to the person who is convicted in a capital case but to ensure that he does not have an opportunity to abscond during the pendency of his appeal. An order of acquittal passed in favour of the accused against whom a capital charge was made, does not alter his status as an accused, when an appeal against his acquittal has been filed in the High Court. Therefore, where an appeal has been presented under Section 378 against the accused, the High Court has the power to issue a warrant directing the arrest of the accused and he be brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison during the pendency of his appeal or admit him on bail. The idea is that an accused who was involved and charged for a capital offence, should not be allowed to be at large during the period an appeal against his acquittal is pending before the High Court.

SECTION 391
POWER OF APPELLATE COURT TO OBTAIN ADDITIONAL EVIDENCE (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. Additional evidence at appellate stage allowed: Where some documents were sought to be brought on record at the appellate stage. Such documents were only public documents and opposite party could get opportunity to rebut it either at the time of argument or by other legal method. As such, the rejection of application for additional evidence was set aside. Additional evidenceApplication rejected for producing affidavit of four witnesses: Where the said affidavit had been directly filed by the witnesses in Supreme Court in a matter pending before it. Held that application if allowed would amount to capricious exercise of powers of High Court in favour of prosecution to fill up the lacuna. As such, the application was rejected.

Appellate Court may take further evidence or direct it to be taken: This section embodies an exception to the general rule that an appeal must be decided on the evidence on record and allows the Appellate Court to take additional evidence, if necessary. The Appellate Court can take additional evidence under this section in any appeal whether it is against conviction or against acquittal. However, the power under this section should be exercised by the Appellate Court sparingly and only in suitable cases. The Appellate Court may itself take additional evidence under this section directly or order it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of
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Session or a Magistrate who shall promptly comply with the order of the Appellate Court. The accused and/or his pleader shall have a right to be present when such additional evidence is being recorded by the Appellate Court. The section is not intended for filling the laches left in the prosecution case or for allowing the prosecution to indulge in fishing evidence. It is also not meant to make out a case altogether different from the one already on record. The provisions of this section do not permit the prosecution to tender additional evidence as of right and the discretion in this regard solely vests in the Appellate Court which has to be exercised judicially in the interest of justice. The High Court of Patna has held a view that the power to take additional evidence should be exercised by the Appellate Court when it is otherwise not possible to pronounce the judgment without such evidence. In the case of A. Hasan Bava v. P. V. Upadhya, the accused had failed to lead evidence on account of his travel to foreign country. He could not plead his inability to lead evidence and also cannot ask for adjournment of proceedings on that ground because he failed to turn up even on subsequent dates when he was available. Therefore, permission to him to lead evidence was rightly rejected. In an appeal involving gold-smuggling the prosecution prayed for additional evidence of Mint Master to specify the purity of gold. The High Court rejected the prayer as the report of the Mint Master has already been placed on record as evidence. In appeal, the Supreme Court declined to interfere holding that the said report of Mint Master had completely supported the case of the prosecution that the gold was of specified purity.

The Supreme Court held that it is open to Appellate Court to call for further evidence before appeal is disposed off . The object of Section 391 is to subserve the ends of justice and to get the truth . it was held that if the lapse or omission is committed by the investigating agency or because of negligence theprosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.6 As was observed in another case , if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice.7
6 7

Paras Yadav &ors. V. State of Bihar 1999 (2) SCC 126 Ram Bihari Yadav v. State of Bihar &Ors. 1999 (4) SCC 517

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In the Best Bakery case , it is a case with horror and terror oriented history. In this case the star eye- witness had not stated truthfully before the trial court and was later on willing to speak the truth infront of the appellate court on the basis of affidavit. It was held rejecting the application for additional evidence by Appellate court by merely branding the witness is improper. The underlying object which the court must keep in mind is the very reason for which the court exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts is not employed or utilized in a manner which gave room to unfairness or lend themselves to be used ats instruments of oppression and injustice . 8

Zahira Habibulla H. Sheikh v. State of Gujarat 2004 Cri.L.J. 2050 (SC)

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BIBLIOGRAPHY

Indianlegalservices.com Indiankanoon.com Criminal code of Procedure , Bare Act, 1973

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