WHAT IS THE MEANING OF APPEAL?
An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust decree/order via referring it to a Superior Court.
A right of Appeal is not a natural or inherent right. It is a statutory right and must be governed by the statute which grants it.
WHO CAN FILE AN APPEAL?
The ordinary rule is that an appeal can be filed only by a party to a suit adversely affected by the decree or any of its representatives in the interest. However, with the leave of the court, a person who is not a party to a decree or order can prefer an appeal against such decree or order. which he is either bound or aggrieved by it or is maliciously influenced by it.
The person filing or continuing an appeal is called an appellant and the concerned court is termed as an appellant court.
WHAT ARE THE ESSENTIALS OF AN APPEALING CASE?
The essentials of appealing cases can be narrowed down to 3 elements:
1. A decree passed by a judicial/administrative authority;
2. An aggrieved person, not necessarily a party to the original proceeding; and
3. A reviewing body instituted for the purposes of entertaining such appeals.
WHAT ARE THE GROUNDS ON WHICH APPEAL CAN BE FILED?
Grounds on which an appeal can be filed are:
1. When a mistake was committed in the trial– Only grave errors are counted under this provision. Harmless errors cannot be a ground for appeal. The appellant must also show that the error caused his rights to be infringed.
2. When evidence does not support the verdict– It is much harder to prove an appeal that is based on insufficient evidence. As the Court of Appeal did not hear the entire proceedings in the previous trial and didn’t make a fully unbiased decision. Based on their belief in the judgement of the trial court, most appeal courts weigh and then make their decision.
WHERE TO FILE AN APPEAL?
Appeal from the decisions of the District Court in the Civil or Criminal Matter lie to the High Court.
The courts in hierarchy below the High Court are called Trial court. The appeals before high court are either civil appeals or criminal appeals.
WHAT IS THE PROCEDURE FOR APPEAL IN CIVIL MATTERS?
Appeals filed either against the order or judgment of the civil cases is considered as the Civil Appeals which are governed by the Civil Procedural Code. However, the high court has the authority to frame its own procedures and rules to conduct the civil appeals.
APPEAL FROM ORIGINAL DECREES:
An appeal can be filed under the Section 96 of the CPC, which states that, unless otherwise provided for in the CPC or any other statute in effect, an appeal is based on any decree passed by a court exercising original jurisdiction before the Court of Appeal which is authorized to hear the appeal in the Court’s decision.
SECOND APPEAL:
The decree or the judgment passed by the appellate civil court is considered to be the first appeal and if such judgment or the decree is challenged before the high court then in that case the appeal is considered to be the second appeal. In a case where the substantial question of law is involved then the second appeal can be filed against an exparte decision of the appellate court.
PROCEDURE:
1. The appeal in the form of memorandum is signed by the party to the case or his advocate.
2. The memorandum is required to contain grounds of objection to the decree or judgment in the appeal with certain annexures comprising of the copy of the decree or judgment.
3. The appellant is required to submit the amount paid in a case where the appeal is filed against such decree.
4. The appellate court may require the appellant to furnish the security for the cost of the appeal or the original suit or both before calling the other party to appear before the court or at the application of such party.
5. The court fee for civil appeal is payable as prescribed by the schedule.
LIMITATION:
1. For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1963.
2. For appeal, in case of a decree passed by lower court in civil suit, the limitation is : Appeal to High Court – 90 days from the date of decree Or order.
WHAT IS THE PROCEDURE FOR APPEAL IN CRIMINAL MATTERS?
Appeals filed either against the order or judgment of the criminal cases is considered as the Criminal Appeals which are governed by the Code of Criminal Procedure, 1973.
1. Section 374(2) provides that Any person convicted on a trial conducted by a Sessions Judge or an Additional Sessions Judge or by any other Court in which a sentence of imprisonment of more than seven years has been passed against him or any other convicted person in the same trial; may appeal to the High Court.
2. Section 375 provides that no appeal lies in cases where accused pleads guilty.
3. Section 376 provides that no appeal lies in petty cases.
4. Section 377 provides that the state government has the power to appeal to the high court regarding the enhancement of the sentence of the accused.
5. Section 378 (1) (b) provides that State government the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.
6. The victim or complaint may also file an appeal in high court in case of the acquittal of the accused.
The complainant seeking the leave has to file the appeal within 60 days from the date of
order of acquittal.
If such application is refused by the high court, then no appeal shall be filed by the state.
PROCEDURE:
1. The appeal filed before the high court has to be in written form and is presented by the convict or the accused person or by his advocate. In case if the convict person is in jail then the jail authorities would file the appeal on his behalf.
2. The appeal filed before the Court should contain the clear grounds. The court has the power to dismiss the appeal without conducting the detailed hearing if there is no sufficient ground for interfering but this can be done only after giving the opportunity to accused or his advocate of being heard and present the case before the concerned court.
3. The appeal filed by the accused through the jail authorities has also given the opportunity to be heard unless the appeal is frivolous or which is disproportionate to the circumstances of the case.
4. The appeals cannot be rejected summarily unless the term is expired for filing the appeal.
If the appeal is dismissed which is filed by the jail authorities and the court finds that another petition of appeal is presented by the accused himself or through his advocate which has not been considered by the court then the Court hear such petition and dispose it if it is required for interest of justice.
5. The high court dismissing the appeal has to give reasons in support and the dismissal of appeal summarily has to be used cautiously.
6. If such appeal is not dismissed summarily then the formal hearing notice containing the time and place of hearing shall be given to the accused or his advocate, state and the complainant. The appeal is heard and dismissed at the particular date and place of hearing as fixed by the high court.
7. There is no court fee for the convicted person who are filing the appeals through the jail authorities otherwise the court fee is applicable as prescribed by the Act.
LIMITATION:
The time period for filing the appeal is 30 days against the death sentence passed by the death sentence passed by the session court or the high court having its original jurisdiction. The limitation period is 90 days against the order of acquittal and the limitation period is 90 days in the cases where the order has to be made after seeking the special leave of the court.
BY UDICHI BANSAL
(Campus Law Centre, Faculty of Law, University of Delhi)