Who May Appeal, and Against What

Three points to make about the proviso. It gives the victim a right, not a leave-dependent privilege, so it does not need the permission that section 419(3) and (4) require of the State and the complainant. Its third ground, inadequate compensation, has no counterpart anywhere else in the Part. And its forum rule is borrowed: wherever an appeal against a conviction by that Court would go, the victim's appeal goes.

Sections 414 to 417: the convict's appeal, and what bars it

Section 414, security orders. Any person:

(i) ordered under section 136 to give security for keeping the peace or for good behaviour; or (ii) aggrieved by an order refusing to accept or rejecting a surety under section 140,

may appeal to the Court of Session. Proviso: the section does not apply to persons whose proceedings are laid before a Sessions Judge under section 141(2) or (4).

Section 415, appeals from convictions.

Sub-section (1). A person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

Sub-section (2). A person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge, or on a trial by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.

Sub-section (3). Save as provided in sub-section (2), a person: (a) convicted on a trial held by a Magistrate of the first class, or of the second class; or (b) sentenced under section 364; or (c) in respect of whom an order has been made or a sentence passed under section 401 by any Magistrate,

may appeal to the Court of Session.

Sub-section (4). An appeal against a sentence under BNS sections 64, 65, 66, 67, 68, 70 or 71 shall be disposed of within six months from the date of filing.

Read sub-section (2) carefully. The seven year threshold is not only about his own sentence. If any other person convicted at the same trial got more than seven years, his appeal too lies to the High Court.

Section 416, the plea of guilty. Notwithstanding section 415, where an accused has pleaded guilty and been convicted on that plea, there is no appeal:

(i) if the conviction is by a High Court; or (ii) if the conviction is by a Court of Session or a Magistrate of the first or second class, except as to the extent or legality of the sentence.

The distinction between (i) and (ii) is examinable. A plea of guilty before a High Court bars the appeal entirely; before any other court it bars the appeal on guilt but leaves open the extent or legality of the sentence.

Section 417, petty cases. Notwithstanding section 415, there is no appeal by a convicted person:

(a) where a High Court passes only imprisonment not exceeding three months, or fine not exceeding one thousand rupees, or both; (b) where a Court of Session passes only imprisonment not exceeding three months, or fine not exceeding two hundred rupees, or both; (c) where a Magistrate of the first class passes only a fine not exceeding one hundred rupees; (d) where, in a case tried summarily, a Magistrate empowered under section 283 passes only a fine not exceeding two hundred rupees.

Proviso: an appeal may be brought if any other punishment is combined with such a sentence; but the sentence is not appealable merely because: (i) the convict is ordered to furnish security to keep the peace; or (ii) a direction for imprisonment in default of fine is included; or (iii) more than one sentence of fine is passed, if the total does not exceed the amount specified for that case.

Sections 418 and 419: appeals by the State and by a complainant

Section 418, inadequacy of sentence.

Sub-section (1). 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 against the sentence on the ground of its inadequacy: (a) to the Court of Session if the sentence was passed by a Magistrate, and (b) to the High Court if by any other Court.

Sub-section (2). Where the offence was investigated by an agency empowered under a Central Act other than the Sanhita, the Central Government may also so direct, to the same forums.

Sub-section (3), the safeguard. The Court shall not enhance the sentence except after giving the accused a reasonable opportunity of showing cause against the enhancement; and while showing cause the accused may plead for his acquittal or for the reduction of the sentence.

Sub-section (4). An appeal against a sentence under BNS sections 64 to 68, 70 or 71 shall be disposed of within six months of filing.

Sub-section (3) is what makes an enhancement appeal fair, and it is generously drafted: the accused answering an enhancement notice is not confined to defending the sentence he got; he may ask for acquittal.

Section 419, appeals from acquittals.

Sub-section (1). (a) The District Magistrate may, in any case, direct the Public Prosecutor to 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 appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, other than an order under clause (a) and other than an order of acquittal passed by the Court of Session in revision.

Sub-section (2). Where the offence was investigated under a Central Act other than the Sanhita, the Central Government may also direct such appeals, to the same forums and with the same exclusions.

Sub-section (3). No appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court.

Sub-section (4), the complainant. Where the acquittal is in a case instituted upon complaint and the High Court, on the complainant's application, grants special leave to appeal, the complainant may present such an appeal to the High Court.

Sub-section (5), limitation. No application for special leave shall be entertained after six months where the complainant is a public servant, and sixty days in every other case, computed from the date of the order of acquittal.

Sub-section (6). If the application for special leave is refused, no appeal from that acquittal shall lie under sub-section (1) or (2).

Sub-section (6) is easy to miss and it is the trap: a refusal of the complainant's special leave closes the State's route too.

Sections 420 and 421: two further rights

Section 420. Where the High Court has, on appeal, reversed an order of acquittal, convicted the accused and sentenced him to death, or to imprisonment for life, or to imprisonment for ten years or more, he may appeal to the Supreme Court.

Section 421. Notwithstanding anything in the Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any of them, all or any of the persons convicted at that trial shall have a right of appeal.

Section 421 is a small section with a large effect. It stops the accident by which one co-accused's lighter sentence would otherwise leave him without the appeal his co-convicts have.

A worked example

A first class Magistrate convicts Imran and fines him ninety rupees.

Can he appeal? No. Section 417(c) bars an appeal where a first class Magistrate passes only a fine not exceeding one hundred rupees.

The Magistrate adds a direction for imprisonment in default. Still no appeal: proviso clause (ii) says the sentence is not appealable merely because such a direction is included.

The Magistrate instead fines him two hundred rupees. Now section 417(c) does not apply, and section 415(3)(a) gives him an appeal to the Court of Session.

Change the court. A Sessions Judge convicts him and sentences him to five years. Appeal lies to the High Court, section 415(2), because the trial was held by a Sessions Judge.

Change it again. A first class Magistrate tries three men; Imran gets two years, but a co-accused at the same trial gets eight. Imran's appeal lies to the High Court, section 415(2), because a sentence of more than seven years was passed against any other person convicted at the same trial.

Imran had pleaded guilty. Then, the conviction being by a Magistrate, he may appeal only as to the extent or legality of the sentence, section 416(ii). Had it been a High Court conviction on a plea of guilty, no appeal at all, clause (i).

The State thinks the sentence too light. It may direct the Public Prosecutor to appeal on the ground of inadequacy, to the Court of Session if a Magistrate sentenced him and to the High Court otherwise, section 418(1). The Court cannot enhance without giving Imran a reasonable opportunity to show cause, and in showing cause he may plead for acquittal or reduction, sub-section (3).

Now suppose Imran was acquitted. If the offence was cognizable and non-bailable and the acquittal was by a Magistrate, the District Magistrate may direct an appeal to the Court of Session, section 419(1)(a). Otherwise the State Government may direct an appeal to the High Court, section 419(1)(b), and that appeal needs the leave of the High Court, sub-section (3).

The case was on a private complaint. The complainant may apply to the High Court for special leave, within sixty days, or six months if he is a public servant, section 419(5). If the application is refused, no State appeal lies either, sub-section (6).

The victim wants to appeal. She may, as of right, against an order acquitting, convicting for a lesser offence, or imposing inadequate compensation, to the Court to which an appeal against a conviction by that Court would ordinarily lie, proviso to section 413.

The High Court reverses the acquittal and sentences Imran to twelve years. He may appeal to the Supreme Court, section 420.

And the offence was one under BNS section 64. Then the appeal, whether his or the State's, must be disposed of within six months of filing, sections 415(4) and 418(4).

Distinctions

What this does NOT mean

There is no general right of appeal. Section 413 says an appeal lies only as provided by the Sanhita or another law in force.

A plea of guilty does not always end the matter. Except before a High Court, the extent or legality of the sentence remains appealable.

The bar in section 417 is about the sentence actually passed, not the offence. It applies where the Court passes only the sentence described; combining any other punishment restores the appeal.

An enhancement appeal is not one-sided. Section 418(3) forbids enhancement without a reasonable opportunity to show cause, and lets the accused plead for acquittal or reduction.

And a refusal of special leave to a complainant is not a mere procedural failure. By section 419(6) it bars the State and Central Government appeals from that acquittal as well.

Quick revision

• 413: no appeal except as provided; the victim may appeal against acquittal, conviction for a lesser offence, or inadequate compensation, to the Court to which an appeal against conviction by that Court ordinarily lies.
• 414: appeal to the Court of Session against an order for security under section 136 or refusal or rejection of a surety under section 140; not where the proceedings are laid before a Sessions Judge under section 141(2) or (4).
• 415: High Court extraordinary original jurisdiction, to the Supreme Court; Sessions Judge or Additional Sessions Judge, or more than seven years on him or a co-convict, to the High Court; Magistrates, section 364 sentences and section 401 orders, to the Court of Session; six months to dispose of an appeal on BNS ss.64 to 68, 70, 71.
• 416: on a plea of guilty, no appeal from a High Court; from other Courts, only as to the extent or legality of the sentence.
• 417: no appeal where the sentence is only three months or one thousand rupees (High Court), three months or two hundred rupees (Court of Session), one hundred rupees (first class Magistrate), or two hundred rupees in a summary trial; unless another punishment is combined; security, default imprisonment and multiple fines within the limit do not make it appealable.
• 418: the State, and where a Central agency investigated also the Centre, may appeal against inadequacy of sentence, to the Court of Session from a Magistrate and to the High Court otherwise; no enhancement without a reasonable opportunity to show cause, in which the accused may plead acquittal or reduction; six months for the listed offences.
• 419: appeals from acquittals, by the District Magistrate (Magistrate's acquittal, cognizable and non-bailable, to the Court of Session), the State (to the High Court, with leave), the Centre (where a Central agency investigated), and the complainant (special leave, sixty days, or six months for a public servant); a refusal of special leave bars the government appeals too.
• 420: where the High Court reverses an acquittal and imposes death, life, or ten years or more, an appeal lies to the Supreme Court.
• 421: where several are convicted in one trial and an appealable judgment is passed as to any, all or any of them have a right of appeal.

Test yourself

1. Is there an inherent right of appeal in a criminal case? No. Section 413 provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Sanhita or by any other law for the time being in force.

2. On what grounds may a victim appeal? Against an order acquitting the accused, convicting him for a lesser offence, or imposing inadequate compensation; the appeal lies to the Court to which an appeal ordinarily lies against a conviction by that Court, proviso to section 413.

3. A Magistrate sentences A to two years and his co-accused B to eight. Where does A appeal? To the High Court. Section 415(2) applies where a sentence of more than seven years has been passed against him or against any other person convicted at the same trial.

4. Can a man who pleaded guilty appeal? Not if the conviction is by a High Court. If it is by a Court of Session or a Magistrate, he may appeal only as to the extent or legality of the sentence, section 416.

5. Does a Court of Session or High Court need permission to enhance a sentence? It must give the accused a reasonable opportunity of showing cause against the enhancement, and in showing cause the accused may plead for his acquittal or for the reduction of the sentence, section 418(3).

6. Within what time must a complainant apply for special leave to appeal from an acquittal? Sixty days from the date of the order of acquittal, or six months where the complainant is a public servant, section 419(5).

7. When does an appeal lie to the Supreme Court under section 420? Where the High Court has, on appeal, reversed an order of acquittal, convicted the accused, and sentenced him to death, imprisonment for life, or imprisonment for ten years or more.