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| APPEALS
TO THE HIGH COURT CRIMINAL
MATTERS
Hierarchy
Criminal Courts - At
the subordinate level there are broadly four levels of courts for any territory
in a state. These are Executive Magistrates, Judicial Magistrates of Second Class,
Judicial Magistrates of the first class (Metropolitan Magistrate in a Metropolitan
area) and the courts of session in the increasing hierarchical order.
- Every state consists of many sessions divisions
and every sessions division in turn consists of many districts. These districts
may be further divided into sub-division.
- That apart, cities designated as metropolitan
areas such as Bombay, Calcutta and Madras are considered as a separate sessions
division and district for these metropolitan areas the machinery for administration
of criminal justice is little different from that of the order areas of the state.
- A person convicted by a Metropolitan Magistrate
or an Assistant Session Judge or Magistrate of First class or of the Second class
may appeal to court of sessions.
APPEAL BY CONVICTED PERSON
Any
person convicted on a trial held by 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
in the same trial may appeal to High Court. NO
APPEAL: LIMITED APPEAL
No appeal can be filed
where a court of Sessions or a Metropolitan Magistrate passes only a sentence
of imprisonment for a term not exceeding 3 months or if fine not exceeding Rs.200/-
or both such fine & imprisonment. No appeal lies from a sentence of fine of
RS. 100/- or less imposed by the Magistrate of First Class or from a sentence
of fine of Rs.200/- or less passed in a summary trial. Furthermore,
if the accused person had confessed his guilt before a court and was convicted
on such confession he cannot appeal against his conviction but can only challenge
the extent or legality of the sentence. But any person, whose sentence is not
appealable, has right to appeal if his co-accused has been given an appealable
sentence in the same trial. APPEAL
BY STATE
The State Govt. can appeal to the High
court for enhancement of the sentence of the accused in case it finds that the
sentence is inadequate. The High Court can enhance the sentence but it has to
give a reasonable opportunity to the accused person to challenge the said enhancement.
Furthermore, the accused person can also plead for acquittal or for reduction
of sentence in such cases. The state can also appeal against order of acquittal
passed by any court to the High Court. The appeal against acquittal can only lie
to the High Court. The appeal can be entertained by the High Court only if it
grants leave for the same to the appellant
APPEAL BY COMPLAINANT
- If the accused is acquitted in a case
instituted upon a complaint the complainant may also file appeal against the acquittal
after seeking leave to file the appeal.
- The complainant should seek the leave to file appeal within
60 days from the order of the acquittal. But in case the complainant is a public
servant, the leave can be sought within 6 months from the order of the acquittal.
The appeal has to be filed within 30 days after obtaining the said leave.
- If the complainant's application seeking leave to appeal
is refused by the High Court, no appeal can be filed even by the state.
PROCEDURE
- The appeal has to be filed in the form
of a petition in writing and is to be presented by the convict / accused person
himself, or his advocate. If the convict is in prison, he may submit his appeal
through the jail authorities.
- The petition of appeal should contain concise and clear
grounds on which appeal is sought. The misappreciation of evidence in record or
misapplication of settled principles of criminal law or severity of sentence constitute
sustainable ground in criminal cases.
- The
court can dismiss the appeal summarily (that is informally without a detailed
hearing) if it considers that there is no sufficient ground for interfering but
before dismissing the appeal summarily, the appellant or his Advocate has to be
given a reasonable opportunity to present their case before the court.
- Even when a appeal is filed by an accused person from jail,
he has to be heard unless the court thinks that the appeal is frivolous or that
bringing the accused to the court would bring inconvenience disproportionate to
the circumstances of the case.
- No
appeal filed by accused person from jail can be dismissed summarily unless the
period allowed for filing such appeal has expired. In cases, where an appeal filed
by an accused through jail authorities is dismissed summarily by the court finds
that another petition of appeal duly presented by the accused himself or his Advocate
has not been considered by it, the court can hear and dispose of such appeal in
accordance with law if it feels that it is necessary in the interests of justice
to do so.
- The High
court is required to give reasons for dismissing the appeal and the power to dismiss
the appeal summarily has to be used sparingly.
- If the appeal is not dismissed summarily, the notice of
the time and place of formal hearing is given to the accused or his Advocate,
state and the complainant, if there is any in the case. At the specified time,
place and day the appeal is heard and disposed off.
BAIL PENDING APPEAL
Where
an appeal by a convicted person is pending before the court, the court may by
reasons to be recorded by it in writing, suspend the sentence passed against the
convict and if the convict is in confinement grant him bail. Where
a person is convicted by the High Court, the High Court can grant him bail if
the person satisfies the court that he intends to present an appeal the bail can
be granted in two circumstances. - Firstly,
where the offence of which the person has been convicted is bailable and the person
is on bail.
- Secondly,
where the person being on bail, is sentenced to imprisonment for a term not exceeding
three years. The bail in such cases is granted for period, which will provide
sufficient time to the convicted person to file appeal and obtain bail from the
appellate court.
- If
the appellant is finally sentenced to imprisonment, the time during which he was
released on bail as aforesaid is excluded in computing the term of his sentence.
If an appeal is filed against acquittal by the state or the complainant, the High
Court may issue a warrant for getting the accused arrested ad it may either grant
him bail or may imprison him.
REVISION
Apart
from entertaining appeal from the subordinate courts, the High Court can call
the records from the subordinate criminal courts for its examination. The power
is termed as the revisionary power of court. The High court can call the records
on its own or on an application made in that regard. The powers of revision cannot
be exercised in relation to any interim order (temporary order passed pending
final disposal of a case) passed in any proceeding. The
power of revision can be exercised by the High Court on two grounds:
- Where the finding, sentence or order
of the High Court is illegal or improper
- Where the proceedings are irregular.
LIMITATION
The
limitation for filing appeal from a sentence of death passed by court of sessions
or the High Court in its original jurisdiction is 30 days and from any other sentence
or order to the High Court is 60 days and to any other court is 30 days. The
period of limitation against an order of acquittal is 90 days but where appeal
against such order has to be made after seeking special leave of the court, the
period of limitation is 30 days. COURT
FEE
No court fee is payable in Criminal appeals
if the convicted person is in jail and is filing the appeal from jail otherwise
court fee as per schedule is to be paid. | |
