Grounds and Procedure To Appeal From an Order of a Trial Court In a Criminal Case

By | September 20, 2019
Grounds and Procedure To Appeal From an Order of a Trial Court In a Criminal Case

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Grounds and Procedure To Appeal From an Order of a Trial Court In a Criminal Case | Overview

Under the Indian laws, a criminal case goes for trial before the trial court first which is the Court of Magistrate or Court of Session depending upon the seriousness of the offence triable. The trial court either convicts the accused of the charges or acquits him/her of all charges. If either party is not satisfied with the decision of the trial court, the Code of Criminal Procedure allows an appeal before the High Court of the State and lays down the grounds and procedure for such appeal.

Meaning of Appeal

Black’s Law Dictionary defines appeal as “the complaint to the superior court of an injustice done or error committed by an inferior court, whose judgment or decision the court above is called to correct and reverse”[1]

In Wiscart v. Dauchy[2], the court observed that appeal means the removal of a case from the jurisdiction of a subordinate court or inferior court to that of superior courts for the purpose of review or retrial. Thus, in simple terms appeal is a remedy available with a person or party who is satisfied with the decision of a judicial body provided there is another judicial body above to it in the hierarchy.

As aforementioned, the trial court where the case is heard for the first time can either convict the person or acquit him of some or all charges. If the person is convicted, the trial court hearts both the parties, i.e. the Prosecution and Accused to determine the sentence of imprisonment to be awarded to the offender. Thus, an appeal lies in three circumstances:

  • Firstly, where the accused is convicted of the offence and he is unsatisfied with the decision, he may move the High Court such conviction.
  • Secondly, where the accused is convicted of the offence but the Prosecution is not satisfied with the amount of sentence that is imposed upon him, the Prosecution can move the High Court.
  • Thirdly, where the person is acquitted and the Prosecution is unsatisfied with the decision of the trial court, it can approach the High Court by way of appeal. All the three circumstances of appeal have different grounds and procedure laid down in different provisions of the Code. All the three situations shall be dealt with in this article one by one in detail.

Appeals against Convictions

Section 374 of the Code allows appeals from the order of conviction against a person accused of an offence if the person is unsatisfied with the order. The provision entails three situations of appeal, one from High Court to Supreme Court and second from the trial court to the High Court and another from Court of Magistrate or Assistant Sessions Judge to Court of Session.

  • Appeal to the Supreme Court

According to Section 374 (1), a person can approach the Supreme Court if he has been tried and convicted by the High Court in its extraordinary original jurisdiction. This is a very rare case because in India, criminal trials are conducted only in the trial courts and the superior courts usually remand a case back to the trial court if they believe that trial has to be conducted in a proper manner or for some other reasons.

However, the High Court has the power to take up criminal cases in its original jurisdiction under Article 226 and 227 of the Constitution of India which is called its extra-ordinary original jurisdiction. If a person approaches the High Court under its extra-ordinary original jurisdiction, he has to prove the violation of a legal or fundamental right by another person.

After this, the accused person is tried and the High Court, if it thinks fit convicts the person. Thus, according to Section 374(1), an appeal can be taken to the Supreme Court against such conviction by the High Court.

The procedure for appeal before the Supreme Court is not provided in the Code of Criminal Procedure but in the Constitution itself. Article 134 of the Constitution provides the following as the procedure to appeal to the Supreme Court in criminal matters:

  1. The High should have convicted the person and sentenced him to death and only then the Supreme Court can interfere in appeal or
  2. The High Court issues a certificate to the appealing person certifying that the case is fit for appeal before the Supreme Court. Under Article 134A of the Constitution, a case is considered fit for an appeal if there is a substantial question of law that needs to be answered by the Supreme Court. Thus, the Supreme Court cannot be moved without the certificate of the High Court and for any question related to facts.
  • Appeal to the High Court

Section 374 (2) provides grounds for appeal to the High Court. These are:

  1. The case must be tried and the accused person must be convicted by the Court of Session or the Additional Sessions Court.
  2. The sentence passed by the trial court must be for the imprisonment of seven years or more.
  3. The person convicted must be either tried separately or jointly with other accused but for the same offence for which they have been convicted.

On these grounds, the High Court can exercise its appellate jurisdiction to hear appeals from these conviction orders. During the appeal stage, the High Court does not look into the veracity of the witnesses or strength of the evidence. The High Court only looks into questions of law and any error committed by the inferior court in considering the material evidence brought on record.

The High Court is empowered to reverse the decision of the trial court if it believes that the conviction was without any merit or if there are reasons to believe that the trial was not conducted properly and material facts and evidence were ignored, it can transfer the case back to the trial court with the order to take into consideration such material evidence.

There is no strict procedure to be followed under the Criminal Procedure Code to appeal before the High Court. The general practice requires that the appellant submits a memorandum of appeal stating the reasons and grounds for appeal along with the certified copy of the judgment of the trial court.

  • Appeal to the Court of Sessions

According to Section 374 (3), an appeal can be brought before the Court of Session from an order of conviction in any criminal matter which fulfils the ground for appeal under the section. The grounds under Section 374 (3) are:

  1. The appellant must be tried and convicted by a Court of Judicial Magistrate or Metropolitan Magistrate or Court of Assistant Sessions Judge or
  2. The appellant is sentenced under Section 325 of the Code of Criminal Procedure where the Judicial Magistrate feels that the accused deserves a sentence severe than what the Magistrate is empowered to impose and the case is transferred to the Chief Judicial Magistrate who imposes a severe sentence upon the accused person or
  3. An order of probation has been passed against the accused person and he is unsatisfied with the order believing him to be innocent of the offence convicted of.

Appeals by State Government against Sentences

According to Section 377 (1) of the Cr.P.C, if a person accused of an offence is tried and convicted by the trial court but the Prosecution, i.e. the State is unsatisfied with sentence of imprisonment or any other sentence passed by the trial court, the State Government may give direction to the Public Prosecutor to move the High Court as appeal against such sentence.

The sole ground to appeal under this section is that the State believes that the sentence is inadequate in proportion to the offence committed by the convicted person. A public prosecutor or the victim or complainant is not entitled to appeal before the High Court against the sentence of conviction even if they are unsatisfied with the sentence and believe it to be inadequate. The adequacy of the sentence is a subjective phenomenon and it is upon the State to satisfy the court that the sentence is insufficient to meet the desired result.

Further, under Section 377 (3), when an appeal has been filed against the sentence on the ground of its inadequacy, 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 may plead for his acquittal or for the reduction of the sentence.

The High Court has to hear the appeal without any prejudices against the accused even if he has been convicted by the trial court. During the course of proceeding for enhancement of sentence of the accused, if the High Court finds that the accused has been convicted without proper merit or on unreasonable grounds, it may also reverse the order of conviction even if the appeal was not brought by the accused but by the State Government.

Appeals in Cases of Acquittal

Section 378 of the Code deals with appeals from an order of acquittal passed by any trial court, be it the Court of Magistrate or Sessions Court. The appeal under this section is very wide in nature. It allows appeal by the State as well as by the complainant and it allows appeal against orders of acquittal in cases instituted on ordinary jurisdiction or in revisionary jurisdiction of the Court of Session. The important procedures to be followed under this provision are:

  1. If the appeal is taken by the State, it must be represented by the Public Prosecutor and no one else.
  2. The Public Prosecutor must act under the direction of the State Government and not suo motu.
  3. No appeal should be allowed from the order of acquittal unless leave is obtained from the High Court to file such appeal. If the application for leave is refused by the High Court, the appeal cannot be moved under this provision.
  4. An appeal must be filed within six months from the date of the order of acquittal if the case is instituted on a police report and within sixty days if it is filed on a private complaint before the Magistrate.


While you have the right to appeal your case, there are important requirements and deadlines that must be met or else your appeal may be considered waived. Moreover, the particularistic approach the court typically takes in its decision making apparently sensitizes it to the substantive characteristics prevailing in criminal appeals: the crimes are serious and there is little doubt about factual guilt.


  1. K. Mukherjee, Law of Criminal Appeals, Revisions, References With Model Forms, (2nd ed. 2004).

[1] Bryan A. Garner, Black’s Law Dictionary 112 (10th ed. 2014).

[2] Wiscart v. Dauchy, 3 Dall. 321.

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