Report No. 41
31.11. Section 412.-
Under section 412, there is no appeal by a person who is convicted on a plea of guilty by Courts mentioned in the section, "except as to the extent or legality of the sentence". The rationale behind the section is that a person who deliberately pleads guilty cannot be aggrieved by being convicted. The principle is sound. We would go further. In our view, where a High Court convicts and sentences a person on a plea of guilty, an appeal should not be allowed, even as regards the extent or legality of the sentence. It can hardly be contemplated that the judgment of a High Court would suffer from a serious infirmity in respect of the extent or legality of the sentence. We recommend an amendment of the section to bar an appeal in such cases.
31.12. Section 413.-
Section 413 provides that there shall be no appeal in the following cases.-
(i) where the High Court passes a sentence of imprisonment not exceeding six months or a fine not exceeding Rs. 200;
(ii) where the Court of Session passes a sentence of imprisonment not exceeding one month; and
(iii) where a Court of Session or District Magistrate or other Magistrate of the first class passes a sentence of fine not exceeding Rs. 50.
The Explanation to the section is to the effect that no appeal shall lie from a sentence of imprisonment passed by such Court or Magistrate in default of payment of fine when no substantive sentence of imprisonment has also been passed.
In our view, there should be a general upward revision in the no.-appealable limit as regards fine in view of the change in the value of the rupee, and also because it would be a recognition, though indirect, of the modern tendency to consider fine as a good deterrent punishment and a means of compensating the victim of the offence. We recommend that the no.-appealable limit of fine be raised from Rs. 200 to Rs. 1,000 in the case of High Courts and from Rs. 50 to Rs. 200 in the case of Sessions Judges and Magistrates of the first class. (Rs. 200 is now the limit under section 411 in the case of Presidency Magistrates).
As regards the no.-appealable limit of imprisonment the present term of six months in the case of a High Court does not call for any change. But the limit of one month in the case of a Court of Session should be raised to three months. We have recommended under section 411 that the no.-appealable limit of imprisonment in trials by a Presidency Magistrate should be reduced from six months to three months.
We are further of the view that there should be no appeal where there is a combination of imprisonment and fine within the limits prescribed in section 413. That is to say, if a sentence of imprisonment upto the period specified in section 413 is combined with a sentence of fine upto the amount specified in that section, there should be no appeal.
It was suggested that there should also be no appeal when the accused person though convicted is not sentenced but released on a bond or probation under the provisions of section 562 of the Code. We are unable to accept the suggestion. No doubt, being released on bond or on probation may not be as serious a matter as a sentence; nevertheless, the conviction does cast a stigma, and that is sufficient justification for permitting an appeal. Some of the offences to which section 562 applies are serious, and may involve moral turpitude. The person convicted may, therefore, like to clear his reputation, by appealing to a higher Court.
31.13. Section 414.-
Under section 414, no appeal lies from a sentence of fine not exceeding Rs. 200 passed in a summary trial by a first class Magistrate. No change in substance is needed here.
31.14. Section 415.-
Under section 415, an appeal may be brought against any sentence referred to in sections 413 and 414 whereby any punishment mentioned in those sections is combined with any other punishment. The language is cryptic, and has caused some difficulty in interpretation.1 For instance, it does not seem to apply to a case where two sentences of fine which together do not exceed the limit mentioned in section 413 are awarded. In such a case, one has to fall back on section 413, but that section itself is not clear enough on this point, nor does one get any help from section 35(3) which covers only sentences of imprisonment. The position therefore requires to be made clear.
1. See discussions or cas.-law in Banwari v. Rex, AIR 1949 All 216.
31.15. Revision of sections 408 to 415 recommended.-
In the light of the foregoing discussion, we recommend that sections 408 to 415 be revised and replaced by the following sections.-
"408. Appeals from convictions.- (1) Any person convicted on a trial held by a High Court.........may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or a Metropolitan Magistrate may appeal to the High Court.
(3) Any person convicted on a trial held by an Assistant Sessions Judge.... or a Magistrate of the first class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 562 by any Magistrate, may appeal to the Court of Session.
(4) Any person convicted by a Magistrate of the second class may appeal to the Chief Judicial Magistrate.
409. No appeal in certain cases when accused pleads guilty.- Notwithstanding anything hereinbefore contained, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appea.-
(a) if the conviction is by a High Court; or
(b) if the conviction is by. a Court of Session, Metropolitan Magistrate or Magistrate of the first class, except as to the extent or legality of the sentence.
410. No appeal in petty cases.- Notwithstanding anything contained in section 408 there shall be no appeal by a convicted person in any of the following cases, namely.-
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine;
(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine;
(c) where a Magistrate of the first class passes only a sentence of fine not exceeding two hundred rupees; or
(d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not exceeding two hundred rupees:
Provided that an appeal may the brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground
(i) that the person convicted is ordered to furnish security to keep the peace; or
(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or
(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case.
411. Appeals to Courts of Session how heard.- (1) Subject to the provisions of su.-section (2), an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge
(2) An Additional Sessions Judge shall hear only such appeals as the Sessions Judge of the division may, by general or special order, make over to him or as the High Court may, by special order, direct him to hear."
31.16. Section 415A.- No change is required in section 415A.
31.17. Section 41.-
Appeals against acquittal.-Section 417 deals with appeals in case of acquittal. Su.-section (1) gives the State Government unrestricted right of appeal against any order of acquittal whether original or appellate, and a similar power is given to the Central Government by su.-section (2) in cases investigated by the Delhi Special Police Establishment. The Courts expect, however, that these powers will be exercised with restraint, and since the Courts are as a rule reluctant to interfere with acquittal orders, such appeals are in fact filed after a good deal of scrutiny.
Su.-section (3) permits a private complainant in a case instituted on complaint to appeal against acquittal, but only after obtaining special leave from the High Court: all the appeals under section 417 lie to the High Court. The provisions for acquittal appeals are, in a sense, unusual, but experience shows that in the existing set up of our Courts they are necessary to avoid miscarriage of justice, and that is why the Code requires that all such appeals must be heard by the High Court. The suggestion1 that Sessions Judges could be entrusted with the responsibility of deciding such appeals has not attracted us, as it is, we think, only in the High Courts that a uniform standard for dealing with such appeal can be maintained.
It has also been suggested that, apart from the State and the complainant in complaint cases, other interested persons such as the first informer to the police2 or the victim of a crime3 or his relatives may be given a right of appeal, in suitable cases. We are unable to agree, as in criminal proceedings we do not want to recognise any interest except that of the public, and of course, to some extent, that of a complainant who actually initiates the proceedings in court. It is, therefore, not necessary to expand the scope of section 417 in that direction.
1. F. 3(2)/5.-L.C., Pt. II, p. 231, S. No. 30(t), (Suggestion of a Collector).
2. F. 3(2)/55, Pt. III, S. No. 69 and F. 3(2)/55, Pt. I, S. No. 72.
3. F. 3(2)/55, Pt. I, S. No. 49.
31.18. Section 417(5).-
Su.-section (5) of section 417 says that if an application for special leave by a complainant has been refused by the High Court, no appeal by the State in that same cases will lie.-and quite properly, for while considering the application for special leave, the High Court will have examined the judgment under appeal and presumably found it good. It has been suggested1 that there should be an express provision for the converse case, namely, that when an appeal by the State has been dismissed, no application for special leave by a complainant should be competent. This, however, is already a necessary consequence, for, if an appeal has been dismissed, no question of admitting or considering another appeal on the same matter can arise, and it is unnecessary to burden the code with any express provision to that effect.
1. F. 3(2)/5.-L.C., Pt. III, S. No. 52 (Bar Council of Madras).
31.19. Further appeal to Bench from decision of a single Judge not necessary.-
Another suggestion for our consideration is a proposal1 (in a Private Member's Bill), that in case a single Judge of a High Court accepts an appeal against acquittal and convicts the respondent, he should have a right to appeal to two Judges of the same High Court. The idea here is to introduce what in civil case is called a "Letters patent" appeal. We are not convinced that any useful purpose will be served by making any such provision in the Code. It is quite simple for any High Court to provide by rule that acquittal appeals should be heard by the Judges, and the object behind this proposal can be amply served by that arrangement.
1. Bill of Shri K.V. Raghunath Reddy (No. 11 of 1963) clause 8 and Rajya Sabha Debates, .-.-1965, cols. 162, 18.-184, 207.
31.20. Limitation need not be extended.-
The time allowed for an acquittal appeal by the State is now ninety days.1 Some time ago, it was six months. It has been suggested2 that the period should be extended, but we are unable to find any justification for it.
1. Article 114, Limitation Act, 1963 (Old Article 157).
2. F. 3(2)/5.-L.C, Pt. III, S. No. 50(b), (One I.G. Police).
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