Appeals

 Appeals are legally bestowed rights

 s. 316 CCP – An appeal does not lie from the order of a criminal court except
as provided by the CCP / by any other law

Appeals from the MC

s. 317 – A appeal does not lie form a conviction of a MC where

(a) in the case of a male offender under 16 years – the sentence is only
whipping
(b) D has made an unqualified admission of his guilt under s. 183 & has been
convicted by the MC

An appeal on a question of law lies in all cases except in the case of whipping

s. 318 – No appeal lies form an acquittal by a MC except at the instance / with the
written sanction of the AG.

s. 320 – A party can prefer an appeal against the final judgment of a MC for any error in
fact / error in law

Time Limit s. 320

A person dissatisfied with the final order of a MC can appeal within 14 days.
BUT
Where AG presents an appeal against the final order – can appeal within 28 days.

 Date of order is also taken into account – Sundays & public holidays are
excluded ; s. 321

 If 14 days expires on a day on which the court registry is closed – petition of

appeal can be preferred on the next first day on which the office is open
; s. 321

Manner of Appeal s. 320

 Appeal must be presented to MC in a petition addressed to the PHC. If D is in
jail – copy of petition must be forwarded to the jailor

 Appeal lies only against the final order decree / judgment of MC.
No appeal against
- an order discharging D under s. 153
- an order committing D for trial under s. 154
s. 319 – Where a MC refuses to issue process – a mandamus lies to compel MC to issue
process. But an appeal does not lie against the refusal of MC to issue process
except at the instance / with the written sanction of AG.

s. 4 Hight Court of the Provinces (SP) Act 1990

A party aggrieved by a conviction / sentence / order entered by a MC can prefer an appeal
to the PHC established under Art. 154 P Constitution

Powers of CA regarding appeals from MC s. 328 (Now exercised by PHC)

- At the hearing of the appeal – if CA is of the opinion that there is

insufficient grounds for interfering – can dismiss appeal

- If D appeals against a acquittal – CA can order a re-trial & pass sentence

on him accordingly

- In an appeal against conviction – CA can reverse verdict & sentence & can
acquit D / order D to be re-tried.
CA can also alter sentence maintaining the verdict
Sentences passed in appeal cannot exceed the sentence which might
have been awarded by the court of first instance

- s. 6 HC of Provinces (SP) Act 1990 – PHC given powers similar to CA

regarding appeals from MCs.

Appeals from the HC

s. 331 – An appeal can be lodged by presenting a petition of appeal / leave to appeal

application to Registrar of HC within 14 days form date when the conviction /
sentence / order was pronounced.

* In counting the 14 days – must include day of judgment but all public
holidays are excluded.

* Petition of appeal must be signed by D / his AAL & must be dated.

* Petition of appeal must contain

(a) The sessions of the HC where the conviction, sentence or order
appealed against was pronounced.

(b) Case number

(c) Names & addresses of appellant & respondent

 (d) Address to the CA

(e) Date of pronouncement of judgment / order sought to be appealed

against & the nature of the pronouncement

(f) A plain & concise statement of grounds of appeal

(g) The relief claimed

* Stamps must be affixed to the petition of appeal (value – Rs. 5) No need

for stamps if appeal is by AG / appeal is against the death sentence.

s. 344 Determination of appeal in cases where trial was by jury

(1) CA must allow the appeal against the conviction of a jury if CA thinks that the
verdict of the jury must be set aside on the ground that

* the verdict of the jury is unreasonable

* the verdict of the cannot be supported having regard to the evidence
* the judgment of the court must be set aside on the ground of a wrong
decision of any question of law
* on any ground there was a miscarriage of justice

CA must dismiss an appeal in any other instance

s. 334 (1) Proviso

Court can - notwithstanding that it thinks that the point raised in the appeal
might be decided in favour of the appellant – dismiss the appeal if CA
considers that no substantial miscarriage of justice has actually occurred.

(2) If CA allows an appeal against conviction in a jury trial – CA must quash the
conviction & direct a judgment of acquittal to be entered.
BUT
CA can order a fresh trial if CA is of the opinion that there was evidence before
the jury upon which D might reasonably have been convicted but for the
irregularity upon which the appeal was allowed.

YET CA can order a fresh trial when the trial at which the conviction was had
was a nullity due to any defect in the constitution of the court / otherwise
; s. 334 (3)
 (3) If CA thinks that D, though not properly convicted on some charge / party of the
indictment in a jury trial, but has been properly convicted on some other
charge / party of the indictment – court can
* affirm the sentence passed on the D at the trial
* pass a sentence in substitution of the original sentence as may be
warranted by the part of the indictment / charge that D has been properly
convicted of.

(4) If jury has convicted of an offence & CA thinks that on the facts, the jury could
have convicted D of another offence – CA can instead of allowing / dismissing
the appeal – substitute for the verdict found by the jury a verdict of guilty of the
other offence.
CA can pass a sentence in substitution of the sentence passed at the trial but it
must not be a sentence of greater severity than that passed at the trial.

(5) On the conviction of D, if the jury has found a special verdict & CA considers
that a wrong conclusions has been arrived at by the trial court on the effect
of the special verdict of the jury – CA can instead of allowing the appeal –
order the right conclusion to be recorded & pass sentence in substitution of
the sentence passed by the trial court as is warranted in law on the special
verdict.

s. 335 - Determination of appeals in cases where trial was by judge

(1) If CA considers there is no sufficient ground for interfering with the decision of
the HC judge – CA must dismiss appeal

(2) In an appeal from a conviction by a HC judge – CA can

(a) * Reverse the verdict & sentence and acquit
* discharge D
* order retrial

(b) - Alter the verdict maintaining the sentence

- Without altering verdict increase or reduce the amount of the
sentence / nature of sentence
- Substitute a conviction for a different offence of which D could
have been found guilty on the indictment & pass a fit sentence.

s. 336 - Appeals from sentences

When D appeals against a sentence passed after trial by jury / judge – CA must if it thinks
fit that a different sentence should have been passed
- quash the sentence
- pass another sentence that is warranted in law by the verdict (more / less
severe) in substitution of the original sentence
If courts thinks that sentence passed by HC is OK – must dismiss appeal
s. 337 - Appeals from acquittals
Where the state appeals against the order of HC acquitting D – CA can

(i) Reverse the order acquitting D & order a new trial

(ii) Find D guilty of the same offence he has tried for / different offence which D
could have been found guilty on the indictment & pass sentence according to
law.

State representation at appeals s. 360

(1) In every appeal to CA in which the State / public officer is a party – AG

must appear for the state.
(All document / exhibits / things connected with the proceedings that the AG requires
must be transmitted to AG by the Registrar who has custody of them)

(2) SG / SC / an AAL specially or generally authorized by AG is entitled to

appear for the state in place of the AG in the appeal.

s. 401 – SG / SC can all / any powers of the AG by a general / special

direction of AG except powers of
(a) entering a nolle prosequi
(b) pardoning an accomplice
(c) sanctioning an appeal from an acquittal

s. 350 - An appellant / applicant who is in custody is entitled to be present if he so

desires, at the hearing of his appeal / application.

s. 353 - On the application of an appellant – CA can assign to an appellant in any

criminal case an AAL, if in the opinion of the court, it appears desirable in the
interests of justice that the appellant should have legal aid & that appellant does
not have sufficient means to enable him to obtain the necessary legal aid.

CA has power to call for record of HC / MC ; s. 364

CA can call & examine the record of any case (already tried / pending) in HC / MC to
satisfy itself as to
- the legality / propriety of a sentence or order passed in the case
- the regularity of the proceedings of the HC / MC