How an Appeal Is Heard and Decided

The distinction between a section 423 appeal and a section 424 appeal runs through the next section, so fix it now: 423 is presented in court, 424 through the jail.

Section 425: summary dismissal

Sub-section (1). If, on examining the petition of appeal and copy of the judgment, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.

The three provisos. (a) No appeal presented under section 423 shall be dismissed unless the appellant or his advocate has had a reasonable opportunity of being heard in support of it. (b) No appeal presented under section 424 shall be dismissed except after giving the appellant a reasonable opportunity of being heard, unless the Court considers the appeal frivolous, or that producing the accused in custody would involve inconvenience disproportionate in the circumstances. (c) No appeal presented under section 424 shall be dismissed summarily until the period allowed for preferring the appeal has expired.

Sub-section (2). Before dismissing, the Court may call for the record.

Sub-section (3). Where the dismissing Court is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons.

Sub-section (4). Where a section 424 appeal has been summarily dismissed and the Court finds that another petition duly presented under section 423 on behalf of the same appellant has not been considered, it may, notwithstanding section 434, if satisfied it is necessary in the interests of justice, hear and dispose of that appeal according to law.

Sections 426 and 427: the hearing, and the powers

Section 426(1), notice. If the appeal is not dismissed summarily, the Court shall give notice of the time and place of hearing:

(i) to the appellant or his advocate; (ii) to such officer as the State Government appoints; (iii) if the appeal is from a conviction in a case instituted upon complaint, to the complainant; (iv) if the appeal is under section 418 or 419, to the accused;

and shall furnish that officer, complainant and accused with a copy of the grounds of appeal.

Sub-section (2). The Court shall send for the record if not already available, and hear the parties. Proviso: if the appeal is only as to the extent or legality of the sentence, it may dispose of the appeal without sending for the record.

Sub-section (3). Where the only ground is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard on any other ground.

Section 427, the powers. After perusing the record and hearing the appellant or his advocate if he appears, the Public Prosecutor if he appears, and, in an appeal under section 418 or 419, the accused if he appears, the Appellate Court may, if it considers there is no sufficient ground for interfering, dismiss the appeal, or may:

(a) in an appeal from an order of acquittal: reverse the order and direct further inquiry, or that the accused be re-tried or committed for trial, or find him guilty and pass sentence on him according to law;

(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 competent Court subordinate to the Appellate Court, or committed for trial; (ii) alter the finding, maintaining the sentence; (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 it;

(c) in an appeal for enhancement of sentence: (i) reverse the finding and sentence and acquit or discharge, or order a retrial by a Court competent to try the offence; (ii) alter the finding maintaining the sentence; (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce it;

(d) in an appeal from any other order: alter or reverse it;

(e) make any amendment or any consequential or incidental order that may be just or proper.

First proviso: the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against the enhancement. Second proviso: 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.

Compare (b)(iii) with (c)(iii). They are word for word the same until the end, where one says "but not so as to enhance" and the other "so as to enhance or reduce". That single difference is the answer to why the State must file its own appeal to get a heavier sentence.

Sections 428 and 429: judgment, and certifying it down

Section 428. The rules in Chapter XXIX about the judgment of a Court of original jurisdiction apply, so far as practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate. Proviso: unless the Appellate Court otherwise directs, the accused shall not be brought up or required to attend to hear judgment delivered.

Section 429(1). Whenever a case is decided on appeal by the High Court, it shall certify its judgment or order to the Court which recorded or passed the finding, sentence or order appealed against; if that Court is a Judicial Magistrate other than the Chief Judicial Magistrate, the judgment goes through the Chief Judicial Magistrate; if it is an Executive Magistrate, through the District Magistrate.

Sub-section (2). That Court shall make such orders as are conformable to the High Court's judgment, and if necessary the record shall be amended accordingly.

Section 430: suspension of sentence and bail

Sub-section (1). Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded in writing, order that the execution of the sentence or order be suspended and, if he is in confinement, that he be released on bail, or on his own bond or bail bond.

First proviso: before releasing on his own bond or bail bond a person convicted of an offence punishable with death, imprisonment for life, or imprisonment for not less than ten years, the Court shall give the Public Prosecutor an opportunity to show cause in writing against the release. Second proviso: where a convicted person is released on bail, it is open to the Public Prosecutor to apply for cancellation of the bail.

Sub-section (2). The power may also be exercised by the High Court where the appeal by the convicted person lies to a Court subordinate to it.

Sub-section (3), the convicting Court's duty. Where the convicted person satisfies the Court which convicted him that he intends to present an appeal, that Court shall:

(i) where he, being on bail, is sentenced to imprisonment for a term not exceeding three years; or (ii) where the offence is bailable and he is on bail,

order that he be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court; and the sentence shall, so long as he is so released, be deemed to be suspended.

Sub-section (4). Where the appellant is ultimately sentenced to imprisonment for a term or for life, the time during which he was so released shall be excluded in computing the term.

Sections 431 to 435: arrest, evidence, division, finality, abatement

Section 431. When an appeal is presented under section 419, that is against an acquittal, the High Court may issue a warrant directing that the accused be arrested and brought before it or a subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.

Section 432, further evidence.

Sub-section (1). If the Appellate Court thinks additional evidence necessary, it shall record its reasons and may take the evidence itself, or direct it to be taken by a Magistrate, or, where the Appellate Court is a High Court, by a Court of Session or a Magistrate.

Sub-section (2). Where taken below, it shall be certified to the Appellate Court, which then proceeds to dispose of the appeal.

Sub-section (3). The accused or his advocate shall have the right to be present when the additional evidence is taken.

Sub-section (4). The taking of evidence is subject to Chapter XXV, as if it were an inquiry.

Section 433, a divided Bench. When an appeal is heard by a High Court before a Bench of Judges who are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, who, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion. Proviso: if one of the Judges constituting the Bench, or that third Judge, so requires, the appeal shall be re-heard and decided by a larger Bench.

Section 434, finality. Judgments and orders of an Appellate Court on an appeal shall be final, except in the cases provided for in section 418, section 419, section 425(4) or Chapter XXXII.

Proviso: notwithstanding the final disposal of an appeal against conviction, the Appellate Court may hear and dispose of on the merits: (a) an appeal against acquittal under section 419 arising out of the same case; or (b) an appeal for enhancement of sentence under section 418 arising out of the same case.

Section 435, abatement.

Sub-section (1). Every appeal under section 418 or 419 shall finally abate on the death of the accused.

Sub-section (2). Every other appeal, except an appeal from a sentence of fine, shall finally abate on the death of the appellant.

Proviso: where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during its pendency, any of his near relatives may, within thirty days of the death, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation. "Near relative" means a parent, spouse, lineal descendant, brother or sister.

Two things about section 435. The exception for a sentence of fine exists because a fine affects the estate, which survives the man. And the thirty day window with leave is how a family clears a dead man's name.

A worked example

A Magistrate convicts Farhan and sentences him to two years. He is in jail.

How does he appeal? He may present the petition and copies to the officer in charge of the jail, who forwards them to the Appellate Court, section 424.

Who hears it? The Sessions Judge or an Additional Sessions Judge; and if the trial had been by a second class Magistrate, the Chief Judicial Magistrate may hear it, section 422.

Can it be thrown out at once? Only under section 425, and because it was presented under section 424, not until the appeal period has expired, proviso (c); and not without a reasonable opportunity of being heard, unless the Court thinks it frivolous or that producing him would involve disproportionate inconvenience, proviso (b). A Court of Session must record its reasons for a summary dismissal, sub-section (3).

It is not dismissed. Notice of the hearing goes to Farhan or his advocate, the officer the State Government appoints, and, the case having been on a complaint, the complainant; each gets a copy of the grounds of appeal, section 426(1).

Farhan says the sentence is too severe and nothing else. Then he may not urge any other ground except with the leave of the Court, section 426(3); and the Court may dispose of the appeal without sending for the record, proviso to sub-section (2).

What can the Court do? On an appeal from a conviction, it may acquit or discharge him, order a retrial or commitment, alter the finding keeping the sentence, or alter the sentence but not enhance it, section 427(b).

The State has also appealed for enhancement. Then the Court may enhance or reduce, section 427(c)(iii), but not without giving Farhan an opportunity to show cause, first proviso, and not beyond what the convicting Court could have inflicted, second proviso.

Farhan wants to be out while it is heard. The Appellate Court may, for reasons in writing, suspend the sentence and release him on bail or his own bond, section 430(1). And if he had been on bail with a sentence not exceeding three years, the convicting Court itself must release him, unless there are special reasons, for long enough to file the appeal and get the Appellate Court's orders, sub-section (3); the sentence is deemed suspended meanwhile, and if he is ultimately sentenced, that time is excluded from the term, sub-section (4).

A document has surfaced. The Appellate Court may take additional evidence, recording its reasons, itself or through a Magistrate, and Farhan or his advocate has the right to be present, section 432.

In a different case the High Court Bench of two is divided. The appeal with their opinions goes to a third Judge, whose opinion the judgment follows; and if any of them requires it, the appeal is re-heard by a larger Bench, section 433.

Farhan dies while his appeal is pending. It abates, section 435(2), unless a near relative, that is a parent, spouse, lineal descendant, brother or sister, applies within thirty days for leave to continue it, the sentence being one of imprisonment.

And the State's appeal against his acquittal in another matter? That abates on the death of the accused, section 435(1).

Distinctions

What this does NOT mean

Summary dismissal is not dismissal without a hearing. Proviso (a) to section 425(1) requires a reasonable opportunity to the appellant or his advocate, and proviso (b) extends it, with two narrow exceptions, to a jail appeal.

An appeal against conviction cannot become an enhancement. Section 427(b)(iii) forbids enhancement; the State's own appeal under section 418 is the route.

And even then the Appellate Court is capped. By the second proviso to section 427 it may not exceed what the Court below could have inflicted for the offence.

Bail pending appeal is not automatic. The Appellate Court must record reasons, and where the offence carries death, life or ten years or more and release is on the convict's own bond, the Public Prosecutor must first be heard in writing.

Additional evidence is not a second trial. It requires recorded reasons, and it is taken subject to Chapter XXV as if it were an inquiry, with the accused entitled to be present.

And finality under section 434 is not absolute. It yields to sections 418, 419, 425(4) and Chapter XXXII, and the proviso preserves the hearing of an acquittal or enhancement appeal out of the same case.

Quick revision

• 422 to 424: heard by the Sessions Judge or Additional Sessions Judge, and a second class Magistrate's conviction may go to the Chief Judicial Magistrate; a written petition with a copy of the judgment; a jail appeal goes through the officer in charge.
• 425: summary dismissal where there is no sufficient ground for interfering; a hearing first, with the frivolity and inconvenience exceptions for jail appeals; not before the appeal period expires for a jail appeal; reasons where a Court of Session or CJM dismisses; a duly presented section 423 petition may still be heard.
• 426: notice to the appellant, the State's officer, the complainant, and, in 418 or 419 appeals, the accused, with the grounds; the record sent for, unless the appeal is only about the extent or legality of the sentence; no other ground where severity alone is urged, without leave.
• 427: acquittal appeals, reverse and order inquiry, retrial or commitment, or convict and sentence; conviction appeals, acquit or discharge, retrial or commitment, alter the finding, or alter the sentence without enhancing; enhancement appeals, the same, but enhance or reduce; other orders, alter or reverse; plus consequential orders. No enhancement without an opportunity to show cause, and never more than the Court below could inflict.
• 428 and 429: Chapter XXIX applies to a subordinate Appellate Court's judgment, and the accused need not attend; the High Court certifies its judgment down, through the CJM or District Magistrate where required, and the lower Court conforms.
• 430: suspension and bail pending appeal, for reasons in writing; the Public Prosecutor heard before release on own bond in death, life or ten year cases, and free to seek cancellation; the convicting Court must release a man on bail sentenced to three years or less, or convicted of a bailable offence, long enough to appeal; that time is excluded from the term.
• 431 to 433: the High Court may issue a warrant on an acquittal appeal; additional evidence on recorded reasons, with the accused entitled to be present; a divided Bench goes to a third Judge, or to a larger Bench on request.
• 434 and 435: appellate judgments are final save under 418, 419, 425(4) and Chapter XXXII; abatement on the death of the accused in State appeals, of the appellant otherwise, except fine appeals, with thirty days for a near relative to seek leave to continue.

Test yourself

1. How does a prisoner file his appeal? He may present the petition and the accompanying copies to the officer in charge of the jail, who shall forward them to the proper Appellate Court, section 424.

2. Can an appeal be dismissed without hearing the appellant? Not one presented under section 423. A jail appeal under section 424 may be dismissed without a hearing only if the Court considers it frivolous or that producing the accused would involve disproportionate inconvenience, and never before the appeal period has expired.

3. In an appeal against conviction, can the sentence be increased? No. Section 427(b)(iii) permits the Appellate Court to alter the nature or extent of the sentence but not so as to enhance it. Enhancement requires an appeal under section 418.

4. What are the two limits on the Appellate Court's power to enhance? The accused must have had an opportunity of showing cause against the enhancement, and the Court may not inflict a greater punishment for the offence than the Court below might have inflicted, the two provisos to section 427.

5. When must the convicting Court itself release the convict on bail? Where he satisfies it that he intends to appeal and either, being on bail, he is sentenced to imprisonment not exceeding three years, or the offence is bailable and he is on bail; unless there are special reasons for refusing bail, section 430(3).

6. What happens when a High Court Bench hearing an appeal is divided? The appeal with their opinions is laid before another Judge of that Court whose opinion the judgment follows; and if one of the Judges of the Bench or that Judge so requires, the appeal is re-heard by a larger Bench, section 433.

7. Does an appeal survive the appellant's death? Not ordinarily; but an appeal from a sentence of fine does not abate, and where the appeal is against a conviction and sentence of death or imprisonment a near relative, that is a parent, spouse, lineal descendant, brother or sister, may apply within thirty days for leave to continue it, section 435.