ABSTRACT:
The Code of Criminal Procedure, 1973, is to provide a mechanism for the sound administration system of the Criminal justice and ensure the accused, a full and fair trial along with certain well established and understood lines that are in consensus with our notions of natural justice. In India, the judicial system is classified into three levels/ tiers- the Trial Court/Court of Session, High Court and the Supreme Court of India. The powers of appeal, revision and reference is given to Courts and depends upon which Court’s order is challenged. It is therefore important to know the essence of all these three terms, and how different they are from each other. It is crucial to know the extent of all these steps for exercising the power of review against the Court's impugned order. This Article with deal with the powers of appeal, revision and reference as provided in the Criminal Procedure Code, 1973 and how they differ from each other.
KEYWORDS – Appeal, Reference, Revision, CrPC, 1973, India, Justice, Courts. INTRODUCTION:
Among the branches of Public Law, Criminal Law is of great importance as it aids the State in administration of Criminal justice to ensure peace and social security. The Code of Criminal Procedure, 1973 is a procedural law that provides a mechanism for the enforcement of the Criminal law. The process of the criminal justice system plays an important role in everyone’s life, primarily on the fundamental right provided under the Indian Constitution that deals with right to life and personal liberty. Every individual therefore deserves the right to at least one appeal in order to ensure that justice is equal in every legal case, that natural justice prevails and that the right to life and liberty is safeguarded. Each and every human-built institution is vulnerable to flaws, so this also applies to judgments made by the courts. Clear safeguards should also be in place to scrutinise lower court rulings in order to reduce the impact of the miscarriage of justice. Keeping this in mind, the Crpc contains provisions for safeguards on
appeal against a decision or order of a criminal court. Sections 372-394 of CrPC, 1973 deals with appeals.
However, in certain cases, there is no rights to appeal. The lawmakers took this in mind and introduced in the legislature the principle of review procedure called revision to fully prevent any miscarriage of justice even in such cases where the right of appeal has been barred by CrPC. Section 397 to Section 405 contains the revision powers given to the higher courts, and the process for exercising certain powers. It must be remembered that by their very nature, those powers are both detailed and discretionary. The Code also provides the power of reference to the High Courts of the State. Sections 395 & 396 of the CrPC deals with reference. Hence, appeal, reference and revision are the privileges conferred upon the people of our country.
APPEAL:
Chapter XXIX containing Sections 372 to 394 of the Code of Criminal Procedure, 1973 lays down the provisions relating to Appeals. The term ‘Appeal’ has not been defined anywhere in the Code. It literally means, “any proceeding taken to rectify an erroneous decision of a court by bringing it before a higher court”. According to Blacks Law Dictionary, “an appeal is a complaint to a superior court of an injustice done or error committed by an inferior one, whose judgement or decision the court above is called upon to correct or reverse”.
Highlighting the significance of appeals in the Code of Criminal Procedure, 1973 the Supreme Court in M.H. Hoskot v. State of Maharashtra, observed "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, and subject to just exceptions atleast one right of appeal, as provided in the Criminal Procedure Code, manifests the values upheld in Article 21 of the Constitution of India”.
Section 372 of the Code states that, with the exception of the constitutional provisions laid down by CrPC or any other statute in place, an appeal cannot be based on any decision or order of a criminal court. However, the proviso to Section 372 states that the victim has a right to appeal against any decision passed by the Court in exceptional circumstances like judgment of acquittal, insufficient compensation or conviction for a lesser offence.
Section 373 deals with appeal from orders requiring security or refusal to accept or rejecting the security for keeping peace or good behaviour under Sections 117 and 121 respectively.
Appeal can lie from the following orders –
1. Order requiring security for keeping the peace or for good relations, under Section 117. 2. Order refusing to accept or rejecting a surety under Section 112 (except in cases before sessions court under Sec.122(2) or (4)
3. Order to pay compensation under Sec.250.
4. Order for disposal of property under Sec.452.
5. Order for disposal of property under Sec.458.
6. Order to pay bona fide purchaser compensation under Sec.453.
7. Order releasing first offender under Sec.360.
The first two are appealable to a court of Session (Sec.373).
Section 374 allows for Court decisions from appeals. It stipulates that an appeal for convictions shall lie from the High Court to the Supreme Court. An appeal can also be brought before the High Court by a Court of Sessions for a conviction if it is more than 7 years old.
The Supreme Court has the power grant special leave to appeal under Article 136 (1) of the Indian Constitution where it is shown that some special and exceptional circumstances exist and grave and substantial injustice has been done and therefore, the case warrants a review of the decision by the Supreme Court. The Apex Court in Pritam Singh v. State approved the Privy Council decision in Dellect's case, and observed that the principles laid down in that decision of the Privy Council provided useful guidelines in the exercise of discretion in granting special leave. In Dellect's case the Judicial Committee of the Privy Council observed: "His Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal processor some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done.”
The Hon’ble Supreme Court in the case of Arun Kumar v State of Uttar Pradesh stated that if the High Court found that the opinion of the Sessions Judge to acquit the appellants was wrong and that it also led to a miscarriage of justice, it was right for the High Court to set aside their acquittal and to convict them.
Section 375 and 376 of the CrPC lays down provisions to ensure that cases that do not need further judicial review are not appealed again and again, the law specifically stipulates that no appeal will lie for those cases. The aim of not having an appeal in these circumstances is to bring the proceedings to an end and not to increase the number of cases before the superior courts. Section 375 says, no appeal in certain cases when accused pleads guilty for the crime he/she was charged with and the order of conviction is passed by the High Court, Court of Session, Metropolitan Magistrate of the first or second class. However, an exception is provided in Section 375(b) which states that an appeal may be allowed if the legality of the sentence is questioned. Section 376 states that appeal shall not lie from petty or small cases and defined them to be provided under clause a to d of Section 376.
Section 377 deals with appeals by the State Government against sentence against grounds of inadequacy to either the Session Court or the High Court, but only in such cases where the trial for prosecution has not been held by the High Court.
Section 378 provides for Appeals in case of Acquittal. It states that the District Magistrate and the State Government have the power to direct the Public Prosecutor to bring an appeal in the event of an acquittal to the Court of Sessions, and the High Court, respectively, subject to certain conditions.
In Chandrappa vs. the State of Karnataka, the Court of Appeal set out the guiding rules for appeals in cases of acquittals. They are as follows:
1. Where clearly the truth of the case is incorrect, and a miscarriage of justice has been justified. An appeal on the acquittal can be held in this case. This principle was laid down at Bhagirath, 35 CRLJ 1367.
2. An appeal can be made where the trial court failed to make a reasonable distinction between an unquestionable conclusion and the facts of the case. E.g. Raothula 40 CR LJ 458.
3. Where the court of trial ignored crucial evidence in adjudicating the case resulting in a flawed verdict or a miscarriage of justice. An example of the same is The Dharnac A1960 SC 734.
4. When the facts of case were wrongly dismissed by the trial court as evidence. One instance is Dhulaji A1963G 234.
Section 379 provides the accused with the right to appeal against the judgement of the High Court to the Supreme Court if the High Court has reversed an order of his acquittal and thereby sentenced to imprisonment for life, or to ten years or more or death penalty.
Section 382 envisages that every appeal shall be made in form of a petition and it shall also contain a copy of the judgement/order appealed against. It also prescribes the form of a petition.
Section 383 prescribes the procedure of presenting an appeal when the appellant is in jail.
Section 384 of the Code provides that if, after careful review of the petition before the Court, the Court is of the opinion that there is no reasonable ground for interference, it may dismiss the appeal summarily.
Section 385 provides that If an appeal is not dismissed pursuant to Section 385 of the Code, it shall provide notice of the time and place in which the appeal is to be heard:
1. To the appellant, his pleader or either of them;
2. To any officer who may be named by the Government of the State on his behalf; 3. To the plaintiff, if there was an appeal from the judgement in the case, a complaint was lodged.
Section 386 states the powers of the Court of Appeal. This section defines and provides that after the parties have been heard, they may dismiss the appeal, allow an appeal or pass any other appropriate order that serves the justice of the case.
Pursuant to Section 393 of the Code, the decision of the Appellate Court is to be the final decision on the matter before the Court, except in cases where an appeal is filed by the Government of the State against a conviction under Section 377, where an appeal is filed in the case of acquittal under Section 378, in the case of a reference and a clarification made under Chapter 30 of the Code, or where an appeal is filed.
Section 394 of the Code lays down the provisions relating to abetment of appeals. According to this section, an appeal
(i) For enhancement of sentences or against acquittal abates on the death of the accused;
(ii) In any other case (except appeal for fine) on the death of the appellant.
Any other near relatives of the deceased appellant may, in case of conviction and sentence of death or imprisonment apply within 30 days of the death of the appellant for leave to continue the appeal.
The other provisions relating to appeal mostly deal with procedure, timeline and powers of the Appellate courts and appellant.
REFERENCE AND REVISION:
Chapter XXX containing Sections 395 to 405 of the Code of Criminal Procedure, 1973 lays down the provisions relating to Reference and Revision. When a criminal Court other than a High Court is not certain about the constitutional validity of a particular enactment of law involved in the case before it, such Court may make a reference to the High Court for decision on that point The object of revision, on the other hand, is to provide adequate remedy to the aggrieved parties to move the higher Court where no right to appeal is available. Thus, in order to avoid miscarriage of justice because of the limited scope for an appeal, the provision for review procedure has been incorporated in the Code. The revisional powers conferred on the High Courts are wide and discretionary in nature. They are subject to certain limitations.
REFERENCE –
Section 395 and 396 of the Code deals with provisions relating to reference. The term reference is not defined in the code. When a question involving validity of law is referred to a referee for his/its decision or opinion, it is called reference.
According to Section 395(1) of the Code, every subordinate Court is required to make a reference to the High Court, when a question of law arises. According to the Section, reference to High Court takes place in the following circumstances:
1. If the Court (Subordinate Court) is satisfied that the case pending before it involves a question of the constitutional validity of any law or provision.
2. The Court (Subordinate Court) is satisfied that determination of such constitutional validity is necessary for disposal of the case before it.
3. If the Court is of the opinion that such law or legal provision is invalid or inoperative, but the same has not been declared void by the High Court.
While making such reference to the High Court, the subordinate Court shall furnish the reasons therefor. When such question referred to is answered by the High Court, the referring (subordinate) Court shall dispose of the case in conformity with the order of the High Court. Article 228 of the Constitution empowers the High Court to withdraw a case from the subordinate Court itself and to dispose of the same after deciding the question as to its validity of law or legal provision.
The section does not permit a reference with a view to resolve a conflict of authority where different views on a certain point of law have been expressed by some High Court the reason
being that the Court desiring to make a reference is supposed to follow the law laid down by the High Court to which it is subordinate.
Section 376 deals with the disposal of cases according to the decision of the High Court. It states that the Subordinate court that referred the matter to the high court shall dispose off the case after the High Court has passed the order. Moreover, the High Court has the power to direct as to who shall bear the costs of the reference.
When a case comes under a reference, the High Court should strictly confine itself to the terms of the reference. It has no power to deal with the facts or consider any contentious issues that may have been raised in the case. Where High Court passes an order under this section and the subordinate Court which made the reference, decides the case in conformity with such order, it has no power to reconsider or review that order if the matter comes before it again in an appeal.
REVISION –
Sections 397 to 401 of the Code deal with the revisional jurisdiction of the High Court. The revisional jurisdiction is derived from three sources.
1. Sections 397 – 401 of Criminal Procedure Code
2. Article 227 of the Constitution of India
3. The power to issue writ of certiorari
Section 401 is the main operative section and it empowers the High Court and the Sessions Judge to call for records of any inferior Criminal Court and examine them for themselves as to whether a sentence, finding or order of such inferior Court is legal, correct or proper and whether the proceedings of such Court are regular or not, with a view to prevent miscarriage of justice and perpetuation of illegality. The High Court can exercise revisional power suo motu and it should not dismiss a revision petition merely on technical grounds of limitation. Sub section (2) bars revision of interlocutory orders.
The High Court or the Sessions Judge have the concurrent jurisdiction to interfere at any stage of the proceeding, i.e. the case and they are under a legal duty to interfere when it is brought to their notice that some person has been illegally prosecuted or subjected to harassment or same material error of law or procedure has been committed by an inferior court which has resulted into miscarriage of justice. The cases of wrong exercise of jurisdiction or non-exercise of jurisdiction or improper appreciation of evidence etc. call for interference of the High Court or the Sessions Judge under Section 397. By and large, the interference of the High Court under its revisional jurisdiction may be justified on the following grounds:
1. In a case of grossly erroneous decision or finding of the inferior Court;
2. Non-compliance or improper application of law;
3. legal appreciation of evidence or irregularities in recording of evidence; 4. Where judicial discretion has not been exercised properly or it is exercised arbitrarily or perversely,
The provisions of Section 397 are attracted under the following conditions: (a) The proceedings must be that of an inferior criminal Court;
(b) The term inferior Court includes all Magistrates whether Judicial or Executive exercising original or appellate jurisdiction. They shall be deemed to be inferior to the Sessions Judge for the purposes of Section 397 398 The Court of District Magistrate shall also be an inferior Court to the Sessions Judge for the purpose of this section;
(c) Such inferior Court must be situated within the local limits of the jurisdiction of the revisional Court; and
(d) the purpose of calling records by the revisional Court should be to enable it to satisfy as to correctness or legality of any finding sentence or order recorded or passer to examine the regularity of any proceedings of such inferior Court.
The revisional jurisdiction of the High Court or a Sessions Judge under Section 397 extends only to the 'inferior Criminal Courts' and it does not include a civil or revenue Court acting under Section 340 of CrPC. The Court of the Sessions Judge is a Court inferior to the High Court within the meaning of Section 397 of the Code of Criminal Procedure, 1973.
In the case of Mohd Shakal v. State Police through P. S. Hanmakonda, revision was filed before the High Court against conviction of accused (appellant) for being responsible for suicide by his wife. There were arguable points involved in the petition, but the High Court did not analyse various stands taken by the appellant. The relevance of dying declaration and its effect on prosecution case was not considered by the High Court and relying on the factual scenario it came to an abrupt conclusion that revision was without merits and dismissed the revision petition. On appeal, the Supreme Court held that the mode of disposal of revision by the High Court was not proper and it remitted the case for fresh consideration in accordance with law.
DIFFERENCE BETWEEN APPEAL, REFERENCE AND REVISION:
It is important to know the difference between appeal, reference and revision in the context of provisions of the Code of Criminal Procedure, 1973. The difference is as follows –
1. In a reference the question of validity of an Act, Regulation or Ordinance is involved whereas in revision the question of validity of a decision, judgment or science is involved.
2. A reference can be made only in pending cases whereas a revision lies against both, pending as well as decided cases.
3. The power of reference is vested in the High Court only. Whereas a revision lies before the High Court and the Court of Session.
Difference between Appeal and Revision:
1. Appeal is a legal right of a party but revision depends on the discretion Court, therefore it cannot be claimed as a matter of right.
2. An appeal may lie on the point of law as well as on facts but a revision generally lies on the question of law only.
3. In case of appeal, the appellant is heard, but it is not necessary in case of a revision petition.
CONCLUSION:
Hence, we can see that the Criminal Procedure Code, 1973 has granted powers of appeal and revision to the victims of crime which are extremely essential so that the trial conducted by the Courts are fair and follow the natural justice principles. Article 21 of the Constitution of India provides the right to life and personal liberty which is enjoyed by all the citizens of the country. This, therefore, requires a fair trial because there may be cases where the jury or a judge may be subject to error, or the decision may be incorrect, or incomplete, or even unreasonable, and therefore in such a cases, in order to ensure that fair trials can be held and that justice can be delivered to the victims of crime, the Code of Criminal Procedure lays down provisions of appeal and revision. In order to ensure that such powers are not used vindictively or falsely, the Code has created safeguards for the same and an application for appeal cannot be made unless the leave of appeal has been granted and power of revision has not been granted in all the cases. The power of reference has also been given to the Courts where a matter can be referred to the High Court if there is a question involving validity of an Ordinance, Act, etc. Due to these provisions, the process of expeditious and fair trials reinstates faith in the criminal justice system. Thus, we can see that the powers that are granted are a part of equal justice and fair trial structure that the Criminal Procedure Code, 1973 aims to offer to both the victim as well as the accused and it is of significant importance to those people who have been wrongly abused by law or those who are victims of wrong decisions.
By- Devanshi Lohia
Amity University, Kolkata.
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