Appeal to the High Court

This article analyses the appeal mechanism of criminal and civil proceedings, and the powers of High Court. It further discusses bail appeals and procedures for filing an appeal via different methods i.e., lawyer, jail authorities or self. The article discusses first and second appeals along with the relevant limitation periods.

Fri Apr 29 2022 | Civil Litigation and Others | Comments (0)

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Appeal from the decisions of the District Court in the Civil or Criminal Matter lie to the High Court.

As per the hierarchy  of  Courts, the trial courts are subordinate to the  High Court to administer  civil and criminal cases. The Code of Criminal Procedure regulates the civil court whereas  the Criminal Procedure Code governs the Criminal Court.

There are mainly three types of jusridsictions  by which the matters are entertained by the civil or criminal court. These are as follows:

  • Territorial Jurisdiction
  • Pecuniary Jurisdiction
  • Jurisdiction with respect to the subject matter of the case.

Any person who is aggrieved by the decision of the court can challenge the decision before the higher court for appeal.

Appeal is considered to be a process by which the judgment or the order of the subordinate court is challenged before the High Court. This can be filed any person who is a party to the dispute and in case of death of the person, the legal heirs or the representative files the same before the High Court or can continue to maintain such appeal. The person who files the appeal or continues to maintain the appeal on behalf of the deceased person is known as the appellant. The court which hears such appeal is termed as the appellate court. The law has not given any inherent right to challenge the order of the subordinate court. The appeal can only be filed if it is specifically allowed by the law in the specific manner as mentioned by the Specific Courts.

Appeals in Civil Matters  

Appeals filed  against the order or judgment of the civil cases is considered as  Civil Appeals, which are governed by the Civil Procedural Code. However, the High Court has the authority to frame its own procedures and rules to conduct the civil appeals.

Appeals from original decree

Any judgment/order or decree passed by the district judge or the additional District judge can be challenged before the High Court.

Second Appeal

The decree or the judgment passed by the appellate civil court is considered to be the first appeal and if such judgment or the decree is challenged before the High Court, then in that case, the appeal is considered to be the second appeal. In a case where a  substantial question of law is involved,  the second appeal can be filed against an ex-parte decision of the appellate court.

Grounds of Appeal

  1. The decree or judgment passed by the court can be challenged on the basis of the facts of the case and the legal interpretation of the legal provisions.
  2. In the cases where the party to the dispute raises any objection with respect to the territorial and pecuniary jurisdiction of the court passing the judgment and the decree.
  3. On the basis of the failure of justice relating to the incompetency of the court.
  4. In the cases where the parties to the dispute have not joined in the original suit, in such matters appeal lie against the judgment/ decree of such court.
  5. Where there is a challenge to the interpretation of law which are applied by the subordinate court
  6. On the grounds of any defect or error or irregularity in the legal proceedings of the case
  7. In the cases where the substantial question of law exists and it is affecting the rights of the parties.

No Appeal

With the consent of the parties, no appeal can be filed against the judgment/decree passed by the Court. Where the value of the subject matter is less than Rs. 3000/- and the question of law arises, in such cases the appeal can be filed before the superior court. In the cases where the decree is passed by the single judge of the High Court in second appeal is not allowed for appeal.

Procedure

The appeal, in the form of a memorandum, is signed by the party to the case or his advocate. The memorandum is required to contain grounds of objection to the decree or judgment in the appeal with certain annexures comprising of the copy of the decree or judgment. The appellant is required to submit the amount paid in a case where the appeal is filed against such decree. The appellate court may require the appellant to furnish  security for the cost of the appeal or the original suit or both before calling the other party to appear before the court or at the application of such party.

Stay

 Filing an appeal in the appellate court does not amount to the stay of proceedings. But in certain cases, the  appellate court can order to stay the execution of the decree where it finds that that there is a sufficient reason to do so. The stay can only be granted by the court upon the application for the stay of the execution before the expiry of  limitation  for the filling the appeal, and in cases where such application has  sufficient reason for seeking the stay.

Limitation

The appeal before the High Court from any decree or judgment passed by the subordinate court shall be made within 90 days from the date of the decree or the order. . In case of seeking the review of a Judgment, the limitation period is 30 days and with respect to invoking the jurisdiction of the High Court, the limitation period is 90 days.

Court fee

The court fee for civil appeal is payable as prescribed by the schedule.

APPEALS IN CRIMINAL MATTERS

Appeal by the convicted person.

Any person who is convicted for the offence which is punishable with imprisonment of seven years or more on a trial held by session judge or held by another court may appeal to a High Court.

No Appeal

No appeal shall lie in the following:-

  1. Where the offence is punishable with sentence of imprisonment for a term not exceeding three months or the fine exceeding Rs. 200/- or both , in such cases the no appeal shall be filed.
  2. No appeal shall lie in the cases where the sentence is paying the fine of Rs. 100 or less given by the magistrate of first class or a sentence of fine of Rs. 200/- or less passed in the summary trial.
  3. No appeal shall lie before any court in the cases where the accused confesses his guilt and is convicted.
  4. Such accused, after making the confession of his guilt, can appeal for the legality and the extent of the sentence.
  5. But the appeal is made in the cases where co accused of the person has been given the appealable sentence in the same trial.

Appeal by the state

The state government has the power to appeal to the High Court regarding the enhancement of the sentence of the accused in the cases where the sentence is inadequate. A  reasonable opportunity is given to the accused for challenging the enhancement of the sentence. Also, the accused person has the right to appeal for  acquittal or for the reduction of the sentence. Th state can also appeal to the High Court against the order of acquittal passed by the Court. Only the High Court has the authority to hear the appeal if  it grants leave for the same to the accused or state.

APPEAL BY COMPLAINANT

  1. Upon the case of complaint filed by the complainant, the accused has a right to file the appeal against such complaint for acquittal after seeking leave to file the appeal.
  2. The complainant seeking the leave has to file the appeal within 60 days from the date of order of acquittal.
  3. If such application is refused by the High Court, then no appeal shall be filed by the state.

Procedure 

  1. The appeal filed before the High Court has to be in written form and is presented by the convict or the accused person or by his advocate. In case the accused  is in jail then the jail authorities would file the appeal on his behalf.
  2. The appeal filed before the Court should contain  clear grounds. The court has the power to dismiss the appeal without conducting the detailed hearing if there is no sufficient ground for interfere  but this can be done only after giving  opportunity to the accused or his advocate of being heard and present the case before the concerned court.
  3. The appeal filed by the accused through the jail authorities has also to be given the  opportunity to be heard, unless the appeal is frivolous or is disproportionate to the circumstances of the case.
  4. The appeals cannot be rejected summarily unless the term expires  for filing the appeal. If the appeal filed by jail authorities is dismissed and the court finds that another petition of appeal is presented by the accused himself, or through his advocate, which has not been considered by the court then the Court can hear such petition and dispose it if it is required for interest of justice.
  5. The High Court dismissing the appeal has to give reasons in support and the dismissal of appeal summarily has to be used cautiously.
  6. If such appeal is not dismissed summarily then the formal hearing notice containing the time and place of hearing shall be given to the accused or his advocate, state and the complainant. The appeal is heard and dismissed at the particular date and place of hearing as fixed by the High Court.

BAIL PENDING APPEAL

Where the appeal is pending before the court, the court shall record the reasons in writing and suspend the sentence which is passed against the accused  and if the convicted person is in  confinement.

If the person is being tried under  the High Court, then the High Court has the power to grant the bail if the court is satisfied by the reason:

  1. Commission of the offence by the accused is bailable and the person is on bail.  
  2.     When the person is released on bail and is sentenced for not more than 3 years of imprisonment. The bail granted to the accused  is for some period, during which the accused can file the appeal and obtain a bail from the appellate court.
  3. In cases where the appellant is sentenced to imprisonment, the time during which the accused is released on bail is excluded for the computation of the term of the sentence. But in certain cases where the High Court  may issue the warrant for the arrest of the accused person and it may either grant him bail or may sentence him with imprisonment, such appeals  are filed against the acquittal order by the state or the complainant himself.

LIMITATION PERIOD

The time period for filing the appeal is 30 days against the death sentence passed  by the session court or the High Court having its original jurisdiction. The limitation period is 90 days against the order of acquittal and the limitation period is 90 days in the cases where the order has to be made after seeking the special leave of the court.

COURT FEE

There is no court fee for a  convicted person  who is  filing  appeals through jail authorities. Otherwise,  court fee is applicable as prescribed by the Act.

CIVIL MATTERS

Appeal from Original Decree

Appeal from original decree (First Appeal)

The Appeal can be made to various courts depending upon the subject matter and the monetary value of the case against the decree or the judgment of the civil court i.e. civil judge, Additional District Judge and the High Court having the original jurisdiction of the matter.

Second Appeal

If  a substantial question of law is involved in the decree/judgment given by the appellate court in the first appeal, it can be challenged in the second appeal before the High Court. Such an appeal can be filed against an ex-parte decree/judgment of the first appellate court.

GROUNDS

  1. On the basis of facts of the case and the legal interpretation of various legal provisions.
  2. Territorial and pecuniary competency of the court.
  3. Failure of justice on the competency of the court
  4. The parties which are not joined in the original suit, appeal against the decree/judgment of such court can be maintained.
  5. Defect in the irregularity of the proceeding before the subordinate court affecting the merits of the case.
  6. If the substantial question of law is existed if it is of public importance and affecting the rights of the people.

NO APPEAL

No appeal can be made against the decree or the judgment passed by the court with the consent of parties, except  the question of law from a decree in any suit where the value of the subject matter is less than Rs. 3000/-No appeal can be filed against the decree or the judgment passed by the single judge of the High Court in the second appeal.

PROCEDURE

The signed memorandum by the parties are required for the filing the appeal. The memorandum must include  concise and clear grounds of objection against the decree/judgment which is challenged before the court and the copy of the decree or judgment must be attached with the memorandum.

If the appeal is against the decree/judgment for the payment of money, then the appellant shall deposit the  disputed amount along with the security for the cost of appeal or the original suit or at the application of such party.

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