CHAPTER XXIX

CHAPTER XXIX - APPEALS

372. No appeal to lie unless otherwise provided.

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by

this Code or by any other law for the time being in force.

373. Appeal from orders requiring security or refusal to accept or rejecting surety for

keeping peace or good behaviour.

Any person,—

(i) who has been ordered under section 117 to give security for keeping the peace or for

good behaviour, or

(ii) who is aggrieved by any order refusing to accept or rejecting a surety under section

121, may appeal against such order to the Court of Session:

Provided that nothing in this section, shall apply to persons the proceedings against

whom are laid before a Sessions Judge in accordance with the provisions of sub-section (2) or

sub-section (4) of section 122.

374. Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal

jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or

on a trial held by any other Court in which a sentence of imprisonment for more than seven years

has been passed against him or against any other person convicted at the same trial; may appeal

to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,—

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under

section 360 by any Magistrate, may appeal to the Court of Session.

State Amendments

Punjab and Union Territory of Chandigarh:

In sub-section (3) of section 374, for the words "Magistrate of the first class" read as "Executive

Magistrate".

[Vide Punjab Act. 22 of 1983 (w.e.f. 27-6-1983).

Comments

(i) When two views are possible and acquittal judgment of trial Court in murder case found

reasonable, High Court not justified in taking different view with that of trial Court; Ajit Singh

Thakur Singh v. State of Gujarat, AIR 1981 SC 733: (1981) Cr LJ 293: (1981) SCC 495: (1981)

SCC (Cr) 184: (1981) Cr LR (SC) 167.

(ii) Leave to appeal refused by the High Court without giving any reason liable to be set aside;

State of Maharashtra v. Vithal Rao Pritirao Chauhan, AIR 1982 SC 1215: (1982) Cr LJ 1743:

(1981) 4 SCC 129: (1981) SCC (Cr) 807: 1982 Cr LR (SC) 19.

(iii) Sufficient cause must be established for not filing appeal within limitation period and that

cause must arise before expiry of limitation period; Ajit Singh Thakur Singh v. State of Gujarat,

AIR 1981 SC 733: (1981) Cr LJ 293: (1981) 1 SCC 495:

(1981) SCC (Cr) 184: (1981) Cr LR (SC) 167.

(iv) When the view taken by Sessions Judge was found by High Court to be manifestly wrong

and that it had led to miscarriage of justice, High Court was entitled to set aside the acquittal;

Arun Kumar v. State of Uttar Pradesh, 1989 Cr LJ 1460: AIR 1989 SC 1445.

(v) In grant of leave to appeal against acquittal issue of show-cause notice to accused before

hearing appeal on merits is without jurisdiction and misuse of power of High Court; R.V. Murthy

(Dr.) v. State of Karnataka, AIR 1982 SC 677: (1982) Cr LJ 423: (1981) 4 Scc 157: (1981) SCC

(Cr) 810.

375. No appeal in certain cases when accused pleads guilty.

Notwithstanding anything contained in section 374, where an accused person has pleaded guilty

and has been convicted on such plea, there shall be no appeal.—

(a) if the conviction is by a High Court; or

(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of

the first or second class, except as to the extent or legality of the sentence.

376. No appeal in petty cases.

Notwithstanding anything contained in section 374, there shall be no appeal by a convicted

person in any of the following cases, namely:—

(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six

months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine;

(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of

imprisonment for a term not exceeding three months or of fine not exceeding two hundred

rupees, or of both such imprisonment and fine;

(c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred

rupees; or

(d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes

only a sentence of fine not exceeding two hundred rupees:

Provided 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) that the person convicted is ordered to furnish security to keep the peace; or

(ii) that a direction for imprisonment in default of payment of fine is included in the

sentence; or

(iii) that more than one sentence of fine is passed in the case, if the total amount of fine

imposed does not exceed the amount hereinbefore specified in respect of the case.

377. Appeal by the State Government against sentence.

(1) Save as otherwise provided in sub-section (2), the State Government may in any case of

conviction on a trial held by any Court other than a High Court, direct the Public prosecutor to

present an appeal to the High Court against the sentence on the ground of its inadequacy.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special

Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of

1946), or by any other agency empowered to make investigation into an offence under any

Central Act other than this Code, the Central Government may also direct the Public Prosecutor

to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(3) When an appeal has been filed against the sentence on the ground of its

inadequacy, the High Court shall not enhance the sentence except after giving to the accused a

reasonable opportunity of showing cause against such enhancement and while showing cause,

the accused may plead for his acquittal or for the reduction of the sentence.

Comments

It would be clearly violative of Article 21 of the Constitution of India to induce or lead an

accused to plead guilty under a promise or assurance that he would be let off lightly and then in

appeal or revision to enhance the sentence; State of Karnataka v. Benoy Thomas, (1997) 2

Crimes 141 (Kant).

378. Appeal in case of acquittal.

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections

(3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an

appeal to the High Court from an original or appellate order of acquittal passed by any Court

other than a High Court or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated

by the Delhi Special Police Establishment constituted under the Delhi Special Police

Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation

into an offence under any Central Act other than this Code, the Central Government may also

direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to

the High Court from the order of acquittal.

(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave

of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High

Court, on an application made to it by the complainant in this behalf, grants special leave to

appeal from the order of acquittal, the complainant may present such an appeal to the High

Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of

acquittal shall be entertained by the High Court after the expiry of six months, where the

complainant is a public servant, and sixty days in every other case, computed from the date of

that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal

from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection

(1) or under sub-section (2).

Comments

(i) In an appeal against acquittal the appellate Court has the undoubted power to review the entire

evidence and to come to its own conclusion, but, in doing so, it should not only consider every

matter on record having a bearing on the question of fact and the reasons given by the Court

below in support of its order of acquittal but also should express the reasons in its judgment

which let it to hold that the acquittal was not justified; State of Maharashtra v. Joseph Mingel

Koli, (1997) 2 Crimes 228 (Bom).

(ii) If two conclusions can be based upon the evidence on record the High Court should not

disturb the finding of acquittal recorded by the trial Court; State of Maharashtra v. Suresh

Nivrutti Bhurare, (1997) 2 Crimes 257 (Bom).

379. Appeal against conviction by High Court in certain cases.

Where the High Court has, on appeal reversed an order of acquittal of an accused person and

convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a

term of ten years or more, he may appeal to the Supreme Court.

380. Special right of appeal in certain cases.

Notwithstanding anything contained in this Chapter, when more persons than one are convicted

in one trial, and an appealable judgment of order has been passed in respect of any of such

person, all or any of the persons convicted at such trial shall have a right of appeal.

381. Appeal to Court of Session how heard.

(1) Subject to the provisions of sub-section (2), an appeal to the Court of Session or Sessions

Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge:

Provided that 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.

(2) 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

382. Petition of appeal.

Every appeal shall be made in the form of a petition in writing presented by the appellant of 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.

STATE AMENDMENT

Andaman and Nicobar Islands and Lakshadweep:

Section 382 shall be re-numbered as sub-section (1) of that section, and sub-section (1) as so renumbered

the following provisos and Explanation shall be added, namely:—

"Provided that where it is not practicable to file the petition of appeal to the proper Appellate

Court, the petition of appeal may be presented to the Administrator or to an Executive

Magistrate, not below the rank of Sub-Divisional Magistrate, he shall record thereon the date of

presentation and, if he is satisfied that, by reason of the weather, transport or other difficulties, it

is not possible for the appellant to obtain, from the proper Appellate Court, orders for the

suspension of sentence or for bail, he may, in respect of such appeal, or an appeal forwarded to

him under section 383, exercise all or any of the powers of the proper Appellate Court and subsection

(1) of section 389 with regard to suspension of sentence or release of convicted person on

bail:

Provided further that the order so made by Administrator or the Executive Magistrate shall have

effect until it is reversed or modified by the proper Appellate Court.

Explanation.—For the purposes of the provisos to this section and section 383,

`Administrator' in relation to a Union territory means the Administrator appointed by the

President under article 239 of the Constitution, for that Union territory."

In section 382 after sub-section (1) as so re-numbered, the following sub-section shall be

inserted, namely:—

(2) For purposes of computation of the period of limitation, and for all other purposes, an appeal

presented to an Administrator or an Executive Magistrate under sub-section (1) or as the case

may be, under section 383, shall be deemed to be an appeal presented to the proper Appellate

Court."

Vide Regulation 1 of 1974, sec. 4 (w.e.f. 30-3-1974).

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.

STATE AMENDMENT

Andaman and Nicobar Islands and Lakshadweep:

In section 383, the following words shall be inserted at the end, namely:—

"or if, by reason of the weather, transport or other difficulties, it is not possible to forward them

to the proper Appellate Court they shall be forwarded to the Administrator or an Executive

Magistrate, not below the rank of a Sub-Divisional Magistrate, who shall, on receipt of such

petition of appeal and copies, record thereon the date of receipt thereof and thereafter forward the

same to the proper Appellate Court.

Vide Regulation 1 of 1974, sec. 4 (w.e.f. 30-3-1974).

384. Summary dismissal of appeal.

(1) If upon examining the petition of appeal and copy of the judgment received under section 382

or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it

may dismiss the appeal summarily:

Provided that—

(a) no appeal presented under section 382 shall be dismissed unless the appellant or his

pleader has had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under section 383 shall be dismissed except after giving the

appellant a reasonable opportunity of being heard in support of the same, unless the

Appellate Court considers that the appeal is frivolous or that the production of the

accused in custody before the Court would involve such inconvenience as would be

disproportionate in the circumstances of the case;

(c) no appeal presented under section 383 shall be dismissed summarily until the period

allowed for preferring such appeal has expired.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case.

(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of

the Chief Judicial Magistrate, it shall record its reasons for doing so.

(4) Where an appeal presented under section 383 has been dismissed summarily under this

section and the Appellate Court finds that another petition of appeal duly presented under section

382 on behalf of the same appellant has not been considered by it, that Court may,

notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests

of justice so to do, hear and dispose of such appeal in accordance with law.

Comments

(i) While dismissing appeal summarily High Court should give some brief reasons so that

Supreme Court may consider whether it requires further examination; Degadu v. State of

Maharashtra, AIR 1981 SC 1218: (1981) Cr LJ 724: (1981) 2 SCC 575: (1981) SCC

(Cr) 564.

(ii) Government of State where accused was convicted is the appropriate Government and not

Government of the State where the offence was committed; Hanumat Das v. Vinay Kumar, AIR

1982 SC 1052: (1982) Cr LJ 977.

(iii) Non-summoning of lower Court record in appeal against conviction is not fatal; Hanumat

Das v. Vinay Kumar, AIR 1982 SC 1052: (1982) Cr LJ 977.

385. Procedure for hearing appeals not dismissed summarily.

(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time

and place at which such appeal will be heard to be given—

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to

the complainant;

(iv) if the appeal is under section 377 or section 378, to the accused, and shall also

furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record or the case, if such record is not already

available in that Court and hear the parties:

Provided that if the appeal is only as to the extent or the legality of the sentence, the

Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence,

the appellant shall not except with the leave of the Court urge or be heard in support of any other

ground.

386. Powers 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 of 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 re-tried 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

re-tried 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;

(3) 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.

Comments

(i) A wrong and erroneous order of acquittal though irrevocable in the absence of appeal by State

would not operate as a bar in recording constructive liability of co-accused when concerted

action with common intention stands proved; Brathi alias Sukhdev Singh v. State of Punjab,

(1991) 1 Crimes 74 (SC).

(ii) In absence of an appeal preferred by State Government against their acquittal High Court

could not on an appeal by respondents against their conviction alter the acquittal nor there can be

a splitting up of the trial; State of West Bengal v. Laisal Haque, (1989) Cr LJ 865 (SC): AIR

1989 SC 129.

(iii) The power of an Appellate Court to review evidence in appeal against acquittal is as

extensive as its powers in appeal against convictions but Appellate Court should be slow in

interfering with the order of acquittal; Lalit Kumar Sharma v. Superintendent and

Remembrancer of Legal Affairs, Government of West Bengal, (1989) Cr LJ 2297: AIR 1989 SC

2134.

(iv) Where evidence examined by Appellate Court unmistakenly proves that appellant was guilty

under section 34 having shared a common intention with other accused who are acquitted and

that acquittal was bad there is nothing to prevent the Appellate Court from expressing that view

and giving the finding and determining the guilt of the appellants before it on the basis of that

finding; Brathi alias Sukhdev Singh v. State of Punjab, 1991 Cr LJ 402 (SC).

(v) Where view of Sessions Judge in acquitting accused was reasonably possible then the High

Court is not justified to interfere with acquittal; Padman Meher v. State of Orissa, AIR 1981 SC

447 (1980) Cr LJ 1507: (1981) SCC (Cr) 259: (1981) Cr LR (SC) 681.

(vi) Finding of trial Court that fatal blow to deceased was not given in prosecution of common

object of the assembly and acquitted accused, such finding cannot be said to be clearly

erroneous; Surat Lal v. State of Madhya Pradesh, AIR 1982 SC 1224: (1982) Cr LJ 1577: (1982)

1 SCC 488: (1982) SCC (Cr) 260.

(vii) When medical evidence proved that injuries sustained by victim is sufficient to cause death

in ordinary course of nature, its rejection by High Court is not justified; State of Uttar Pradesh v.

Suresh, AIR 1982 SC 1076: (1982) Cr LJ 850: (1981) 3 SCC 635: (1981) SCC (Cr) 774 : (1981)

Cr LR (SC) 409.

(viii) The law clearly expects the Appellate Court to dispose of the appeal on merits not merely

by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning

with the evidence on record with a view to satisfying itself that the reasoning and findings

recorded by the trial Court are consistent with the material on record; Mahendra Singh v. State of

Rajasthan, (1997) 3 Crimes 102 (Raj).

(ix) Reducing a sentence to already undergone and imposing a substantial fine would be making

a mockery of our criminal justice delivery system; Shriang shankar Lokhande v. State of

Maharashtra, (1997) 1 Crimes 479 (Bom).

(x) It is duty of an Appellate Court to look into the evidence adduced in the case and arrive at an

independent conclusion as to whether the said evidence can be relied upon or not and even it can

be relied upon then whether the prosecution can be said to have proved beyond reasonable doubt

on the said evidence. The credibility of a witness has to be adjudged by Appellate Court in

drawing inference from proved and admitted facts; Padam Singh v. State of Uttar Pradesh, AIR

2000 SC 361.

387. Judgments of subordinate Appellate Court.

The rules contained in Chapter XXVII as to the judgment of a Criminal Court of original

jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of

Session or Chief Judicial Magistrate:

Provided that unless the Appellate Court otherwise directs, the accused shall not be

brought up, or required to attend, to hear judgment delivered.

388. Order of High Court on appeal to be certified to lower Court.

(1) Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its

judgment or order to the Court by which the finding, sentence or order appealed against was

recorded or passed and if such Court is that of a Judicial Magistrate other than the Chief Judicial

Magistrate, the High Court's judgment or order shall be sent through the Chief Judicial

Magistrate; and if such Court is that of an Executive Magistrate, the High Court's judgment or

order shall be sent through the District Magistrate.

(2) The Court to which the High Court certifies its judgment or order shall thereupon make such

orders as are conformable to the judgment or order of the High Court; and, if necessary, the

record shall be amended in accordance therewith.

Comments

The order of the High Court on appeal has to be certified to the lower Court by which the

finding, sentence or order appealed against was recorded; K. Umapathy v. Superintendent of Jail,

(1997) 2 Crimes 609 (AP).

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 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.

390. 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.

391. Appellate Court may take further evidence or direct it to be taken.

(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.

392. Procedure where Judges of Court of appeal are equally divided.

When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they

are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that

Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the

judgment or order shall follow that opinion:

Provided that if one of the Judges constituting the Bench, or, where the appeal is laid

before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and

decided by a larger Bench of Judges.

393. Finality of judgments and orders on appeal.

Judgments and orders passed by an Appellate Court upon an appeal shall be final, except in the

case provided for in section 377, section 378, sub-section (4) of section 384 or Chapter XXX:

Provided that notwithstanding the final disposal of an appeal against conviction in any

case, the Appellate Court may hear and dispose of, on the merits.

(a) an appeal against acquittal under section 378, arising out of the same case, or

(b) an appeal for the enhancement of sentence under section 377, arising out of the same

case.

394. Abatement of appeals.

(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally

abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment,

and the appellant dies during the pendency of the appeal, any of his near relatives may, within

thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the

appeal; and if leave is granted, the appeal shall not abate.

Explanation.—In this section, "near relative" means a parent, spouse, lineal

descendant, brother or sister.