The
Code of Criminal Procedure, 1973
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 14[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 AMENDMENT
In Punjab and Union territory of Chandigarh, w.e.f. 27th June, 1983
In sub-section
(3), for the words "Magistrate of the first class" the
words "Executive Magistrate" shall be substituted.
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, 15[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.
378. Appeal in case acquittal
(1) Save as otherwise provided in sub-section (2) and subject to the
provisions of sub-section (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 16[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 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 sub-section (1)
or under sub-section (2).
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 or order
has been passed in respect of any of such persons, 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 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.
STATE AMENDMENT
In Andaman and Nicobar Islands and Lakshadweep, w.e.f. 30th March, 1974
Section 382 shall be re-numbered as sub-section (1) of that section,
and in sub-section (1) as so re-numbered the following provisos and Explanation
shall be inserted: -
"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 sub-section (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: -
(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."
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
In Andaman and Nicobar Islands and Lakshadweep, w.e.f. 30th March, 1974
At the end of section 383, the following words shall be inserted: -
"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."
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 session 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.
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 of 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
extend, 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;
(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.
387. Judgements 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.
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 bilabial
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 cases provided for in section 377, section 378,
sub-section (4) of section 384 of 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.
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