Module 17

MODULE 17
APPEALS, REFERENC AND REVISIONS

5.1. RATIONALE BEHIND ALLOWING APPEALS
“One component of 'fair procedure’ is natural justice. Generally speaking, and subject to just
exceptions at least a single right of appeal on facts, where criminal conviction is fraught with
long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural
justice and normative universality save in special cases like the original tribunal being a high
bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High
Court,as provided in the Criminal Procedure Code, manifests this value upheld in Art 21. What
follows from the appellate imperative? Every step that makes the right of appeal fruitful is
obligatory and every action or in- action which stultifies it is unfair and, ergo, unconstitutional
…”- Per Justice Krishna Iyer in Madhav Hayawadanrao Hoskot

5.2. SECTION 374: APPEALS TO SUPERIOR COURTS:
(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
1[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.

5.3. APPELLATE JURISDICTION OF THE SUPREME COURT

Under s. 379, where the HC has, on appeal, reversed an order of acquittal and sentenced an
accused person to death, imprisonment for life or to imprisonment for a term of 10 years or
more, the accused may appeal to the SC;

An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High
Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under Article 134A that the case involves a substantial question of law as t the
interpretation of this Constitution.

5.4. SECTION 375: NO APPEAL FROM CONVICTION ON PLEA OF GUILTY:

Notwithstanding anything maintained 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.

5.5. SECTION 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, however such sentence shall not be appealable merely on the round-

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

5.6. SECTION 377: APPEAL AGAINST INADEQUACY OF 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-
(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

(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-
(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court. Contd.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, 3[the
Court of Session or, as the case may be, 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 or for the reduction of the sentence.

Cr PC (Amendment) Act, 2005 (Notes on Clauses)
Section 377 has been amended so as to permit the filing of an appeal in the Court of Session
instead of the High Court on the ground of inadequacy of sentence passed by a Magistrate. This

amendment is intended not only to make it easier for the administration to prefer appeals against
unduly lenient sentences by Magistrates but will also deter the latter from passing sentence that
are grossly inadequate.

5.7. PROVISO TO SECTION 372: VICTIMS’ RIGHT OF APPEAL

“…Prior to the said amendment being brought in force, no right of appeal was given to the
victim and (the) proviso, therefore,gives right to victim in three cases viz. in cases where `the
accused is acquitted or is convicted for a lesser offence or where the compensation which is
imposed is found to be inadequate. No right, however, has been given in cases where inadequate
sentence is imposed or awarded by the Trial Court and that right is retained by the State by virtue
of Section 377…It is apparent, therefore, that by virtue of the proviso, procedure as laid down in
Section 378 CrPC is not required to be followed in respect of an appeal against acquittal by a
victim. If the legislature wanted that the rights of the victim to file appeals in these three cases
should be circumscribed by further fetter or procedural provision, it could have made a
consequential amendment in Section 378. The fact that no such consequential amendment has
been made itself clearly discloses the intention of the legislature that the said appeals were not
subjected to the limitations which were imposed on the other categories of appeals.

-Balasaheb Rangnath Khade v.The State Of Maharashtra

5.8. SECTION 378: APPEAL AGAINST ORDER OF ACQUITTAL

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of subsections (3)
and (5),

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to
the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable
and non-bailable offence;

(b) 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 not being an order under clause (a) 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, subject
to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court
other than a High Court not being an order under clause (a) or an order of acquittal passed by the
Court of Session in revision.
5.8.1. Exercising the Discretion under Section 378(3): Leave of the High Court:

“The Trial Court was required to carefully appraise the entire evidence and then come to a
conclusion. If the trial Court was at lapse in this regard the High Court was obliged to undertake
such an exercise by entertaining the appeal. The trial Court on the facts of this case did not
perform its duties,as was enjoined on it by law. The High Court ought to have in such
circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire
evidence on the record independently and returned its findings objectively as regards guilt or
otherwise of the accused. It has failed to do so. The questions involved were not trivial…On
plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever
brief, in its order indicative of an application of its mind,all the more when its order is amenable
to further avenue of challenge. The absence of reasons has rendered the High Court order not
sustainable…About two decades back in State of Maharashtra v. Vithal Rao Pritirao Chawan
(AIR 1982 SC 1215) the desirability of a speaking order while dealing with an application for
grant of leave was highlighted.”

- Suga Ram v. State of Rajasthan

5.9. APPEAL IN CASES INSTITUTED UPON A COMPLAINT

(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 subsection (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 subsection (2).

5.10. INTERFERING WITH AN ORDER OF ACQUITTAL:

“We are fully aware of limitations of the appellate court to interfere with an order of acquittal.
In exceptional cases where there are compelling circumstances and the judgment under appeal is
found to be perverse, the appellate court can interfere with the order of acquittal. The appellate
court should bear in mind the presumption of innocence of the accused and further that the trial
Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner
where the other view is possible should be avoided, unless there are good reasons for
interference. In the instant case, there is no perversity in the judgment of the High Court as it
cannot be said that the judgment is not based on evidence or the evidence on record has not
properly been reappreciated by the appellate court, which may warrant interference by this
court.”

- Phula Singh v. State of H.P.

5.10.1. Umedbhai Javadbhai v. State of Gujarat:

The Sessions Judge has committed a manifest error of record when he held that 'there was a pool
of blood in the outer room and trail of blood-stains leading from the outer room to the inner-
room”and relying on which he came to the conclusion that“the victim was stabbed in the outer-
room while she was running from the outer room into the inner-room”. There was no evidence

oral or documentary to substantiate it. But on the contrary, as noticed and relied on by the High
Court was the Panchnama (Ext. 15 revealing the significant fact that there‘ were blood stains on
the pillows where the head rests,the mattress and on the bed spread (chadar),one of the important
circumstance-to establish that the incident had taken place while the victim was sleeping on the
bed on the floor. The evidence was of profuse bleeding on the bed and there was no“Pool of
blood in the outer room”.

The assault took place while the deceased was asleep on her bed and since there was no violence
on the door or any part of the house by which it could be suggested that an outsider came into the
room, the accused alone had the exclusive opportunity to cause the seven injuries in a closed
room resulting in her death. The story of theft is absolutely false. The fact that he shouted “thief,
thief ” is a deliberate false plea in answer to an inevitable charge against him. The High Court
was absolutely correct in appreciation of the entire circumstances and reaching the conclusion of
guilt of the appellant. It is not a case in which it could be said that two views may be reasonably
taken of the true tell-tale of the circumstances, revealed in the evidence against the accused.

In an appeal against acquittal, the High Court would not ordinarily interfere with the trial court's
conclusion unless there are compelling reasons to do so, inter alia, on account of manifest errors
of law or of fact resulting in miscarriage of justice…Ordinarily the High Court would give due
importance to the opinion of the Sessions Judge, if the same were arrived at after proper
appreciation of the evidence…this rule will not be applicable where the Sessions Judge has made
an absolutely wrong assumption of every material and clinching aspect in the peculiar
circumstances of the case. In a case resting on circumstantial evidence all the circumstances
brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused
and there should be no circumstances which may reasonably be considered consistent with the
innocence of the accused. Even in the case of circumstantial evidence, the Court will have to
bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an
integrated whole.Any missing link may be fatal to the prosecution case.

5.10.2. Filing Appeal within the Period of Limitation:

Under Article 114 of the Limitation Act, in an appeal from an order of acquittal by the State, the
period of limitation is ninety days from the date of the order appealed from. Whereas in an

appeal from an order of acquittal, in any case instituted upon complaint, the period is thirty days
from the date of the grant of special Leave.
Any appeal or any application may be admitted after the prescribed period, if the appellant or the
applicant satisfies the court that he had sufficient cause for not preferring the appeal or making
the application within such period.
5.11. SECTIONS 282 AND 283: PETITION OF APPEAL AND PRESENTATION:
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 older appealed against.
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 (commonly known as “jail appeals”).
5.12. JOINT APPEAL:
“The question which arises for determination is whether, several accused persons jointly tried
have been acquitted by the trial Court, the state can' prefer one appeal against the acquittal of all
of them…if an appeal by persons jointly tried and convicted is competent, then on principle it is
difficult to negative the maintainability of one appeal by the State against a common order
acquitting several persons tried jointly. This rule deals with a matter of procedure and not of
substantive rights and seems to be based on sound commonsense. Procedure has been described
to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of
justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a
construction which would promote this cause. So construed a joint appeal, in compliance of this
rule must be sustained.”

- Ramprakash Puri Case

5.13. SUCCINCT STATEMENT OF THE GROUNDS OF APPEAL:

“A memorandum of appeal is meant to be a succinct statement of the grounds upon which the
appellant proposes to support the appeal. It is a notice to the Court that such and such specific
grounds are proposed to be urged on behalf of the appellant,as also a notice to the respondent
that he should be ready to meet those specific grounds. A memorandum of appeal with a bald
ground…is of no help to any of the parties or to the Court. It may have the merit of relieving the
person responsible for drawing up the ground of appeal,of applying his mind to the judgment
under appeal and its weak points, but this slight advantage, if it is so, is very much out-weighed
by the serious disadvantage to the parties to the litigation and the Court which is to hear the
appeal. Such a bald statement of the grounds leaves the door wide open for all kinds of
submissions, thus, tending to waste the time of the Court, and taking the respondents by surprise.
It is a notorious fact that courts, particularly in the part of the country from where this appeal
comes, are over-burdened with large accumulations of undisposed of cases. The parties
concerned and their legal advisers should concentrate and focus their attention on the essential
features of cases so as to facilitate speedy,and consequently,cheap administration of justice.”

- Kapil Deo Shukla case

5.14. SUMMARY DISMISSAL OF APPEALS:

“A Judgment pronounced by the High Court in the exercise of its appellate or revisional
jurisdiction after issue of a notice and a full hearing in the presence of both the parties would
certainly be arrived at after due consideration of the evidence and all arguments and would
therefore be a final judgment and such judgment when pronounced would replace the judgment
of the lower court, thus constituting the only final judgment to be executed in accordance with
law by the court below. When however a petition of appeal presented by a convicted person from
jail is summarily dismissed under or a revision application made by him is dismissed summarily
or in limine without hearing him or his pleader what the High Court does in such a case is to
refuse to entertain the petition of appeal or the revision application and the order passed by the
High Court dismissed or rejected" cannot be said to be an expression of the opinion of the court
arrived at after due consideration of the evidence and all the arguments…In my judgment a
summary dismissal of an appeal or revision does involve an adjudication by the High Court just
as a dismissal after a full hearing does. The only difference,as we shall presently see, is as to the
respective, nature, scope and effect of the two adjudications.”

- U.J.S. Chopra v. State of Bombay

5.14.1. Procedure in 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,
(If the appeal is from a judgment of conviction in a case instituted upon complaint to the
complainant;

(iii) If the appeal is under section 377 or section 378, to the accused, and shall 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.

5.15. SECTION 391: POWERS OF THE APPELLATE COURT TO TAKE EVIDENCE:
(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.

5.15.1. Exercising the Power under Section 391:

“…the Code gives a power to the appellate court to take additional evidence, under (s. 391),
which, for reasons to be recorded it considers necessary. The Code thus gives power to the -
appellate court to order one or the other, as the circumstances may require, leaving a wide
discretion to it to deal appropriately with different cases. Since a wide discretion is conferred on
the appellate court, the limits of that Courts jurisdiction must obviously be dictated by the
exigency of the situation, and fair-play and good sense appear to be the only safe guides. The
power must be exercised sparingly and only in suitable cases, when there would be failure of
justice without such additional evidence. Once such action is justified, there is no restriction on
the kind of evidence which may be received. It may be formal or substantial. It must, of course,
not be received in such a way as to cause prejudice to the accused, as for example, it should not
be received as a disguise for a retrial or to change the nature of the case against him.”

- Rajeshwar Prasad Misra Case

5.16. ABSENCE OF APPELLANT:

“The plain language of Section 385 makes it clear that if the Appellate Court does not consider
the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that
after the record is received, the Appellate Court may dispose of the appeal after hearing the
accused or his counsel.Therefore,the plain language of Sections 385…does not contemplate
dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages
disposal of the appeal on merits after perusal and scrutiny of the record.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. The law, therefore,does not envisage the dismissal of the
appeal for default or non-prosecution but only contemplates disposal on merits after perusal of
the record.”

- Bani Singh v. State of U.P.

5.17. SECTION 386: POWERS OF THE APPELLATE COURT IN DISPOSING OF
APPEALS:

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;

5.17.1. Exercising the Powers under Section 386:

The scope of the powers of an appellate court in an appeal against acquittal has been elucidated
by the Privy Council in Sheo Swarup v. King Emperor. There Lord Russell observed at p. 404
thus: ...the High Court should and will always give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the
presumption of innocence in favour of the accused, a presumption certainly not weakened by the
fact that he has been acquit- ted at his trial, (3) the right of the accused to the benefit of any
doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the witnesses. …the power of an appellate court in an
appeal against acquittal is not different from that it has in an appeal against conviction; the
difference lies more in the manner of approach and perspective rather than in the content of the
power.

The foregoing discussion yields the following results: (1) an appellate court has full power to
review the evidence upon which the order of acquittal is founded; (2) the principles laid down in
Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in
disposing of such an appeal; and (3) the different phraseology used in the judgments of this
Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent
reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an
appellate court in an appeal against acquittal 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 questions of fact and the reasons given by the court below in support of its order of acquittal

in its arriving at a conclusion on those facts, but should also express those reasons in its
judgment, which lead it to hold that the acquittal was not justified.

- Sanwat Singh v. State of Rajasthan

5.17.2. View in Favour of Acquittal Must Prevail:

The High Court on a reappraisal of the evidence held that there was sufficient and cogent
material to prove the charges leveled against the 7 appellants before us. It does not appear from
the judgment of the High Court that it relied on any piece of evidence which the Additional
Sessions Judge had overlooked to take note of or that the High Court thought that the Additional
Sessions Judge relied on any circumstance which did not appear in the evidence on record. The
only reasons that we could see why High Court reversed the decision of the court of sessions is
that the High Court was inclined to take a view on the evidence different from that taken by the
Additional Sessions Judge. We do not say that the view which the High Court took was not a
possible view on the evidence, but so also was the view that the Additional Sessions Judge had
taken. It is well settled that in an appeal against an order of acquittal, "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. It would follow as a corollary from that that if the view taken by the
trial court in acquiring the accused is not unreasonable, the occasion for the reversal of that view
would not arise."

– Dharamdeo Singh v. State of Bihar

5.17.3. Power to Order Partial Retrial:

“The words 'trial', 'retrial' and 'new trial' are used in the Criminal Procedure Code wherever
necessary. By "criminal trial" is meant the determination of a person's guilt and 'retrial' a second
judicial trial, A second trial need not necessarily be from the very beginning. It may be from the
very beginning or from a particular stage in the previous trial. In other words it may be limited or
partial or it may be unlimited. It would be a retrial even if it is not from the very beginning.On
the other hand a new trial is a de novo trial. It is a fresh trial from the very beginning.”

- K. Subramonian v. Kunhumon

5.17.4. Section 386(b): Powers in Dealing with an Appeal from a Conviction:

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- **********
(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.
5.17.5. Exercising the Power to Order a Retrial:

An order for retrial of a criminal case is made only in exceptional cases as it “(subjected) the
accused to another trial affording the prosecution an opportunity to rectify infirmities disclosed
at the earlier trial. An order for retrial is not made unless the appellate court is satisfied that the
trial court had no jurisdiction to try the case,or that the trial was vitiated by serious illegalities or
irregularities or on account of the misconception of the nature of the proceedings there has been
no real trial or that any of the parties had, for reasons over which it had,, no control, been
prevented from producing material evidence. Since the Sessions judge was of the view that
"additional evidence was necessary" he should have proceeded under (section 391) of the Code.

- Ulka Kolhe v. State of Maharashtra

5.17.6. “Alter the Finding”
An accused person charged with both murder and culpable homicide not amounting to murder.
Acquitted on the former charge and convicted on the latter. The only method by which it would
be possible to obtain a conviction of murder would be by an appeal by the Government against
the acquittal.

“Alter the finding” means altering the finding of conviction and not the acquittal. If the State
does not appeal an acquittal, it is final. Thus, the appellate Court cannot alter the finding under
Section 304 IPC into one of conviction for murder under Section 302 IPC.

5.17.7. Section 386 (c): Enhancement of Sentence:

(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, after the nature or the extent, or the nature and extent,
of the sentence, so as to enhance or reduce the same…
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.
5.18. SECTION 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 if 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.
5.19. REFERENCE - SECTIONS 395 AND 396

(1) Where any court is satisfied that a case pending before it involves a question as to the validity
of any Act…and is of opinion that such Act… is invalid or inoperative, but has not been so
declared by the Court to which that court is subordinate or by the Supreme Court, the court shall
state a case setting out its opinion and the reasons therefore and refer the same for the decision of
the High Court.

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending
before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of
the High Court any question of law arising in the hearing of such case.

************

(1) When a question has been so referred, the High Court shall pass such order thereon as it
thinks fit, and shall cause a copy of such order to be sent to the court by which the reference was
made, which shall dispose of the case conformably to the said order.

5.20. REVISION

5.20.1. Section 397. Calling for records to exercise powers of revision

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding
before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of
satisfying itself ’ or himself as to the correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and
may, when calling for such record, direct that the execution of ’ any sentence or order be
suspended, and if the accused is in confinement, that he be released on bail or on his own bond
pending the examination of the record

(2) The powers of revision conferred by sub-section (I) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or
to the Sessions Judge, no further application by the same person shall be entertained by the of the
of them.

5.20.2. Powers of Revision Not to be Exercised Against Interlocutory Orders:

“…it is reasonable to say that an interlocutory order is one which is passed at some intermediate
stage of a proceeding generally to advance the cause of justice for the final determination of the
rights between the parties. I see no reason to hold that the expression "interlocutory order"
changes its complexion when applied to the Code of Criminal Procedure,and on the touch-stone
of the authorities mentioned above, I am inclined to be of the view that the grant or refusal of a
bail application is essentially an interlocutory order.My reasons briefly are that |an accused is
usually enlarged on bail in non-bailable cases to enable him to defend himself adequately and
thereby assist the cause of justice. It is ordinarily at some intermediate stage between the
commencement and the end of criminal cases that it is granted and further that it is open to re-
call or modification and it does not determine the guilt or innocence of the accused and thus
fulfils all the characteristics usually attached to an interlocutory order. Therefore, Mr. Bishnoi is
right when he says that the learned additional Sessions Judge had no jurisdiction to revise the
order of the grant of bail by the learned Magistrate in view of the provisions of Section 397(2) of
the New Code.”

- Dhola v. State

5.20.3. Inherent Power under Section 482 and Powers of Revision:

If the order assailed is purely of an interlocutory character which could be corrected in exercise
of the revisional power of the High Court…the High Court will refuse to exercise its inherent
power. But in case the impugned order clearly brings about a situation which is an abuse of the
process of the Court or for the purpose of securing the ends of justice interference by the High
Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the
exercise of the inherent power by the High Court. But such cases would be few and far between.
The High Court must exercise the inherent power very sparingly. One such case would be the
desirability of the quashing of,a criminal proceeding initiated illegally, vexatiously or as being
without jurisdiction. Take for example a case where a prosecution is launched under the
Prevention of Corruption Act without a sanction. Then the trial of the accused will be without
jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on
the doctrine of Autrefois Acquit.

- Madhu Limaye v. State of Maharashtra

5.20.4. Section 398: Power of Court of Revision to Order Enquiry:

In examining any record under section 397 or otherwise, the High Court or the Sessions Judge
may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to
him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate
Magistrate to make, further inquiry into any complaint which has been dismissed under section
203 of sub-section (4) of section 204 or into the case of any person accused of an offence who
has been discharged:

Provided that no court shall make any direction under this section for inquiry into the case of any
person who has been discharged unless such person has had an opportunity of showing cause
why such direction should not be made.

5.20.5. Section 399: Session Judge’s Powers of Revision:

(1) In the case of any proceeding the record of which has been called for by himself the Sessions
Judge may exercise all or any of the powers, which may be exercised by the High Court under
sub-section (1) of section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under
subsection (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as
may be, apply to such proceeding and references in the said subsections to the High Court shall
be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions
Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no
further proceeding by way of revision at the instance of such person shall be entertained by the
High Court or any other court.

5.20.6. Section 401: High Court’s Powers of Revision:

(1) In the case of any proceeding the record of which has been called for by it self or which
otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of
Session by section 307 and, when the Judges composing the court of revision are equally divided
in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person
unless he has had an opportunity of being heard either personally or by pleader in his own
defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of
acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way if
revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the
High Court by any person and the High Court is satisfied that such application was made under
the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so
to do, the High Court may treat the application for revision as a petition of appeal and deal with
the same accordingly.

5.20.7. Guidelines for Exercising Revisional Jurisdiction:

Without making the categories exhaustive, revisional jurisdiction can be exercised by the High
Court at the instance of private complainant (1) where the trial court has wrongly shut out
evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly
brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has
still acquitted the accused, (4) where the material evidence has been overlooked either by the
trial court or the appellate court or the order is passed by considering irrelevant evidence and (5)
where the acquittal is based on the compounding of the offence which is invalid under the law.
By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant
against an order of acquittal, cannot be exercised lightly and that it can be exercised only in
exceptional cases where the interest of public justice require interference for correction of
manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of
similar nature, retrial or rehearing of the appeal may be ordered.

- Sheetala Prasad case

5.20.8. Indirectly Converting an Order of Acquittal into one of Conviction

In K. Chinnaswamy Reddy vs. State of Andhra Pradesh : [1963] 3 SCR 412, this Court observed
:- “It is true that it is open to a High Court in revision to set aside an order of acquittal even at the
instance of private parties, though the State may not have though fit to appeal; but this
jurisdiction should in our opinion be exercised by the High Court only in exceptional cases,
when there is some glaring defect in the procedure or there is a manifest error on a point of law
and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of s. 439
forbids a High Court from converting a finding of acquittal into one of conviction and that makes
it all the more incumbent on the High Court to see that it does not convert the finding of acquittal
into one of conviction by the indirect method of ordering retrial, when it cannot itself directly
convert a finding of acquittal into a finding of conviction. This places limitations on the power of
the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases
that this power should be exercised.”

5.20.9. Invoking the Revisional Jurisdiction where there is no Right to Appeal:

“…the Code of Criminal Procedure, which has come into force as from the 1st of April, 1974
provides that an appeal will lie only where the sentence on conviction is that of more than three
months. That being so where revision petitions are the only remedy on account of the limitations
contained in the code, the learned Additional Sessions Judges will be more careful in
appreciation of evidence. It is true that the revisional jurisdiction in its own scope does not
postulate re-appreciation of evidence. That, however, is an aspect which must be appreciated in
the light of limitation that no appeal lies against a conviction in respect of which the sentence
imposed is that of less than three months. The court of revision becomes responsible for
adjudicating upon all aspects that may be raised before it. I am sure that these observations will
be borne in mind by the courts having revisionary jurisdiction within section 397 of the new
Code of Criminal Procedure”

-Islamuddin v. State

5.20.10. Section 402: Power of High Court to Withdraw or Transfer Revision Cases:

(1) Whenever one or more persons convicted at the same trial makes or make application to a
High Court for revision and any other person convicted at the same trial makes an application to
the Sessions Judge for revision, the High Court shall decide, having regard to the general

convenience of the parties and the importance of the question involved, which of the two Courts
should finally dispose of the applications for revision and when the High Court decides that all
the application for revision should be disposed of by itself, the High Court shall direct that the
applications for revision pending before the Sessions Judge be transferred to itself and where the
High Court decides that it is not necessary for it to dispose of the applications for revision, it
shall direct that the applications for revision made to it be transferred to the Sessions Judge.

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(4) Where an application for revision is transferred by the High Court or to the Sessions Judge,
no further application for revision shall lie to the High Court or to the any other Court at the
instance of the person or persons whose applications for revision have been disposed of by the
Sessions Judge.

5.20.11. Section 406: Power of SC to Transfer Cases:

(1) Whenever it is made to appear to the Supreme Court that an order under this section is
expedient for the ends of justice, it may direct that any particular case or appeal be transferred
from High Court to another High Court or from a Criminal Court subordinate to one High Court
to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney
General of India or of a partly interested, and every such application shall be made by motion,
which shall, except when the applicant is the Attorney-General of India or the Advocate-General
of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed,
the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order
the applicant to pay by way of compensation to any person who has opposed the application such
sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of
the case.

5.20.12. Party Interested:

“It will be noticed that the "party interested" has not been defined under CrPC. The word "party
interested" is of a wide import and, therefore, it has to be given a wider meaning. If it was the

intendment of the legislature to give restricted meaning then they would have used words to the
effect, "party to the proceedings". In this behalf the wording of Article 139A of the Constitution
of India may be looked at. Under Article 139A the transfer can be if "the Supreme Court is
satisfied on its own motion or on the application made by the Attorney General of India or by a
party to any such case (emphasis supplied). Also if the provisions of Chapter XXIX of the
Criminal Procedure Code are looked at, it is seen that when the legislature intended a "party to
the proceeding" to have a right of appeal it specifically so stated. The legislature, therefore,
keeping in view the larger public interest involved in a criminal justice system, purposely used
words of a wider import in Section 406. Also it is well-settled principle of law that statutes must
be interpreted to advance the cause of statute and not to defeat it. The petitioner being a political
opponent, is vitally interested in the administration of justice in the State and is a "party
interested" within the meaning of subsection 2 of Section 406 CrPC. Even otherwise Mr.
Subramanium Swamy was the original complainant.He supports these transfer petitions.”

-K.Anbazhagan v. Supt. Of Police

5.20.13. Exercising the Power to Transfer a Case:

“This is a case where the apprehension of the accused being denied a free and fair trial within the
State of Gujarat has to be considered on the weight of the materials produced on behalf of the
accused in support of such apprehension and the prejudice that may also be caused to the
prosecution in presenting its case. That the facts involved in this case are of a sensitive nature,
cannot be denied, but that by itself cannot be a ground for transfer of the trial outside the State of
Gujarat. A good deal of care and caution has to be exercised to see whether the
accused/petitioners have been able to make out a case of bias and prejudice on the part of the
State or the prosecuting authorities which raises a very real and plausible ground for transferring
the trial pending before the Special Judge, Ahmedabad outside the State of Gujarat. Apart from
the above, what has also to be taken into consideration is a conceivable surcharged communal
climate which could have a direct bearing on the trial itself. The Court has to undertake a
balancing act between the interest of the accused, the victims and society at large in the focus of
Article 21 of the Constitution to ensure a free and fair trial to the accused.

-Jahid Sheikh (Ahmedabad Blasts Case)

5.20.14. Reasonable Apprehension:

“A case is transferred if there is a reasonable apprehension on the part of a party to a case that
justice will not be done. A petitioner is not required to demonstrate that justice will inevitably
fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he
entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the
principles of the administration of justice that justice should not only be done but it should be
seen to be done. However,a mere allegation that there is apprehension that justice will not be
done in a given case does not suffice. The Court has further to see whether the apprehension is
reasonable or not”

-Gurcharan Dass Chadha Vs. State of Rajasthan

5.20.15. Parameters of Granting Transfer:

Some of the broad factors which could be kept in mind while considering an application for
transfer of the trial are:-

(i) when it appears that the State machinery or prosecution is acting hand in glove with the
accused,and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the
prosecution;

(ii) when there is material to show that the accused may influence the prosecution witnesses or
cause physical harm to the complainant;

(iii) comparative inconvenience and hardships likely to be caused to the accused, the
complainant/the prosecution and the witnesses, besides the burden to be borne by the State
Exchequer in making payment of travelling and other expenses of the official and non-official
witnesses;

(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and
impartial trial because of the accusations made and the nature of the crime committed by the
accused;and

(v) existence of some material from which it can be inferred that the some persons are so hostile
that they are interfering or are likely to interfere either directly or indirectly with the course of
justice- Nahar SinghYadav v. Union of India

5.20.16. Section 407(1): Power of HC to Transfer Cases:

(1)Whenever it is made to appear to the High Court-

(a) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate
thereto, or

(b)That some question of law of unusual difficulty is likely to arise; or

(c) That an order under this section is required by any provision of this Code, or will tend be the
general convenience of the parties or witnesses, or is expedient for the ends of, justice,

it may order- (i) That any offence be inquired into or tried by any court not qualified under
sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such
offence;

(ii) That any particular case, or appeal, or class of cases or appeals, be transferred from a
Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior
jurisdiction;

(iii) That any particular case be committed for trial of to a Court of Session; or

(iv) That any particular case or appeal be transferred to and tried before itself.

5.20.17. Section 407: Provisions Relating to Procedure

(2) The High Court may act either on the report of the lower court, or on the application of a
party interested, or on its own initiative: Provided that no application shall lie to the High Court
for transferring a case from one Criminal Court to another Criminal Court in the same sessions
division, unless an application for such transfer has been made to the Sessions Judge and rejected
by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall,
except when the applicant is the Advocate-General of the State, be supported by affidavit or
affirmation.

(4) When such application is made by an accused person, the High Court may direct him to
execute a bond, with or without sureties, for the payment of any compensation which the High
Curt may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor, notice in,
writing of the application, together with a copy of the grounds on which it is made; and no order
shall be made on the merits of the applications unless at leasttwenty-four hours have elapsed
between the giving of such notice and the hearing of the application.
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(8) When the High Court orders under sub-section (1) that a case be transferred from any court
for trial before itself, it shall observe in such trial the same procedure which that court would
have observed if the case had not been so transferred.
5.20.18. Section 408: Power of Sessions Judge to Transfer Cases and Appeals:
(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is
expedient for the ends of justice, he may order that any particular case be transferred from one
Criminal Court to another Criminal Court in his session’s division.
(2) The Sessions Judge may act either on the report of the lower court, or on the application of a
party interested or on his own initiative.
(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of section 407 shall apply in
relation to an application to the Sessions Judge for an order under sub-section (1) as they apply
in relation to an application to the High Court for an order under subsection (1) of section 407,
except that sub-section (7) of that section shall so apply as if for the words “one thousand”
rupees occurring therein, the words “two hundred and fifty rupees” were substituted.