A Study of Criminal Appeal and Courts where such Appeal Lies

By | September 25, 2019

Last Updated :

A Study of Criminal Appeal and Courts where such Appeal Lies | Overview

This article is a Study of Criminal Appeal and Courts where such Appeal Lies. Bouvier, in his legal lexicon, defines appeal as “the removal of a case from a Court of inferior jurisdiction to one of superior jurisdiction for the purpose of obtaining a review and re-trial”[1].

The article attempts to present the subject of Criminal Appeals and the Indian courts where appeals are allowed. The article is divided into three parts; the first part deals with the appeal before the Supreme Court, the second part deals with the appeal before the High Courts and the third part deals with the appeal before the Courts of Session.

Part I: Appeals to the Supreme Court

According to Article 134 of the Constitution of India, the Supreme Court is entitled to hear cases brought in the form of appeals from the decision of the High Court of the respective States in a criminal proceeding conducted within the territories of India.

However, to exercise such power, the High Court from which appeal is intended must grant a certificate under Article 134A stating that the appeal is allowed and that in the opinion of the court, the appeal preferred is sufficient and has probative value. Criminal appeal from High Court arises in two circumstances;

  • When the court considered it momentous to reverse the decision acquitting the accused passed by the trial court when it was to it by way of appeal and it passed a sentence of death penalty or

  • Where the High Court withdraws any case for trial before any court subordinate to its jurisdiction and itself tries such case and passes a sentence of death in such case.

Moreover, any case that is not falling or coming under any of the two situations or circumstances aforementioned or when the High Court refuses to give a certificate under Article 134A to appeal before the Supreme Court, an appeal can also be under Article 136 after obtaining special leave from the Supreme Court to appeal.

Article 136 gives a broad and carte blanche discretion to the apex court to decide any matter brought before it in the form of appeal from any order or decision of a High Court. This provision enables the court to hear circumstances where appeal certificate has been denied and the court thinks it would lead to the travesty of justice.

In Surya Moorthi v. Govindaswamy[2], the apex observed that “by way of self-imposed discipline, the Supreme Court does not ordinarily re-appreciate or reassess the evidence unless it is of the opinion that the lower courts have ignored any material evidence that has caused the miscarriage of justice”[3].

In the year 2003, a writ petition was filed by an IAS officer who averred that there is ongoing corruption in his department which carried on by some corrupt people and that these people are assimilating vacancies of 4000 job for JBT officers. The petitioner requested the Supreme Court to transfer the investigation from CBI to a Special Investigation Team and handle the trial itself.

The Supreme Court observing that it in common parlance is not allowed or expected to reassess any evidentiary material and it can be done in extremely exceptional circumstances when the court believes that material facts or evidence have been ignored any material evidence that has caused miscarriage of justice denied the appeal and sent the case back for trial before the appropriate court[4].

In the instant case, there was no approver. The material witness, the namely cashier, unfortunately, died much earlier to the commencement of the investigation. Therefore, reliance may be placed on the circumstances and mainly on the evidence of Prosecution Witnesses as to what happened at Agra.

Thus, the Supreme Court held that here absolutely no evidence either oral or documentary or circumstantial to conclude that the accused persons are guilty. Hence, the appeal was dismissed and the order of the High Court was upheld[5].

Following are some of the circumstances in which the Supreme Court has decided that it can exercise its power appellate jurisdiction. These are mere illustrations and may include much more:

  1. If the decision rendered by the court below the apex court suffers from the deficiency of justice and worth and is given per in curium;
  2. If the decision rendered goes against what is categorical from the evidentiary material, oral or documentary, which was brought before the court;
  3. If the process of taking evidence or appreciating evidence by the High Court was prima facie illegal and in the opinion of the court led to the travesty of justice;
  4. If the decision rendered suffers from discrepancies with respect to the existence or non-existence of any factual or legal presumption or physical or psychological fact which makes it ex facie illegal;
  5. If both the High Court and the Court of Session has recorded an order of acquittal, then the Supreme Court would be reluctant to interfere with such order.

Part II: Appeals to the High Court

  • Appeal against Acquittal

It has been established that the power of the High Court is to reconsider a case when it comes before it for appeal. In such a process, the court is entitled to reassess or review any evidentiary material brought before it during the course of the ongoing proceedings.

It is said that when the appeal brought is against the acquittal of the accused, the court should go slow and not reach to the final conclusion of his guilt without deliberations. It is a cardinal principle of criminal law that a person is always presumed to be innocent unless he is proven to be guilty and the axiom is reinforced when a court has already found a person innocent.

The bling rule or the emporium principle in criminal law is that when there are two deductions that can be derived from the facts produced before the court such that one will lead to conviction while the other will lead to acquittal and both of them are extremely reasonable and possible under the circumstances, the court should ordinarily give the benefit to the accused and choose the deduction which leads to acquittal.

The most momentous rumination of the court should be to avoid travesty to justice. Section 378 of Cr.P.C provides that if the accused person(s) is acquitted by the trial court, the Public Prosecutor may move the superior court by way of appeal moved under the direction of the State Government. If an appeal is not sought by the government and the State considers it fit to settle the dispute without moving the appellate court, the victim or the complainant is left without a remedy.

In Haseemuddin Mondal v. Golam Mehbub[6], the Calcutta High Court discerned as to the fact that when no appeal is brought by the Prosecutor under the government’s direction attempting to reverse the decision of the trial court to free the accused, the only remedy before the complainant is to file for revision of the case before the Court of Session.

  • Appeals against Conviction

In Rama v. State of Rajasthan[7], it was espied by the court that it is an ordinary belief or common parlance that the High Court should reassess or reconvene any evidentiary material itself and should not let it be examined by the Sessions Court in a revision or review. I

n this case, the appellant appealed before the High Court against the conviction order of Court of Session but the apex court held that in the impugned judgment of the High Court no information as to the number and detail of witnesses that were examined or the evidence used was mentioned. In such circumstances, the appeal was allowed and conviction was set aside.

Part III: Appeals from Courts of Session

According to Section 381, an appeal from the order, judgment or sentence of the Chief Judicial Magistrate or Chief Metropolitan Magistrate shall be heard by the Court of Sessions comprising of the Sessions Judge or Additional Sessions Judge.

Section 381 of the Code of Criminal Procedure, 1973, admits no ambiguity as such, viewed in its proper context and in totality it contemplates only two types of orders passed by Courts of Session viz. order relating to the sentence of death and life imprisonment. Once these orders are confirmed or any other order was passed thereon by the High Court, the Court of Session shall cause such order to be carried into effect. The session’s court can do this by resorting to either option:

  1. By issuing a warrant or
  2. By taking such other steps as may be necessary.


  1. K.N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure, (6th ed. 2018).
  2. S.K. Mukherjee, Law of Criminal Appeals, Revisions, References With Model Forms, (2nd ed. 2004).
  3. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th ed. 2006).
  4. S.C. Sarkar, Criminal Procedure, (3rd ed. 2014).

[1] John Bouvier, A Law Dictionary, 216 (6th ed. 1856).

[2] Surya Moorthi v. Govindaswamy, 1989 JIC 724 (SC).

[3] Ibid.

[4] Sanjiv v. Om Prakash Chautala, (2005) 3 Crimes 8 (SC).

[5] State of U.P. v. Pheru Singh, AIR 1989 SC 1205.

[6] Haseemuddin Mondal v. Golam Mehbub, 1988 Cri. L.J 1900 (Cal).

[7] Rama v. the State of Rajasthan, 2002 Cri. L.J 2533 (SC).

  1. 10 Interesting Facts About Supreme Court(Opens in a new browser tab)
  2. Procedure of Dismissal of Complaint under the Code of Criminal Procedure, 1973(Opens in a new browser tab)