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Report No. 41

31.21. Provision for appeal to enhance sentence.-

It will be noticed that although section 417 permits the State Government to appeal against an order of acquittal, it does not permit any appeal against a conviction when the punishment imposed may be grossly inadequate. Any error in sentencing can be remedied only by the exercise of the revisional powers of the High Court. This is somewhat unsatisfactory. There seems no reason why the State Government should not be able to appeal against an inadequate sentences, nor why such an appeal cannot be handled by the ordinary court of appeal. Cases of inadequate sentences are frequently occurring, and we consider the ordinary court of appeal should, in each case where the State considers it proper to lodge an appeal, be able to deal with it. We, therefore, propose to add a new section in this Chapter as section 417A, thus:

"417A. Appeal by the Government against sentence.- (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.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy.

(3) An appeal under this section shall lie to the Court to which an appeal by the person convicted in the case would lie under section 408."

31.22. Section 41.-Omission recommended.-

Section 418 contains provisions which will be entirely superfluous with the abolition of jury trials. The statement with which the section opens, namely, that an appeal may lie on a matter of fact as well as a matter of law, derives relevancy from the exception that follows to the effect that, in the case of a jury trial, the appeal shall lie only on a matter of law. The explanation is again with reference to jury trials, making it clear that there could be an appeal in such trials for reducing the sentence on the footing that the alleged severity of the sentence shall be deemed to be a matter of law. Su.-section (2) applies only to trials by jury. We recommended the omission of the entire section 418.

31.23. Sections 419, 420, 42.-Jail appeals and appeals presented through pleaders.-

An appeal has to be presented either by the appellant or his pleader as section 419 requires, but in case the appellant is in jail, he can present it to the officer in charge of the jail who has to forward it to the appellate court as is provided in section 420. Such appeals are usually called "jail appeals". Section 421 provides that the appellate court may, after reading the petition of appeal and the copy of the judgment accompanying it, find that there is no ground for interference and on that the court can dismiss the appeal summarily, but before doing so, the Court must afford opportunity to the appellant or the pleader to be heard except in the case of a jail appeal. In other words, a jail appeal can be summarily dismissed without hearing any one, but an appeal presented in person or through a pleader cannot be so dismissed.

31.24. Right to present one appeal only.-

It is obvious that the right vested in the appellant is to present one appeal, although there are different methods of presenting it, and strictly speaking, if one method is availed of and one appeal either under section 419 or section 420 is presented, no other appeal can be lodged.

31.25. Position when two appeals are presented.-

In practice, however, it appears that frequently both appeals are presented and are dealt with as two appeals about the same matter. Thus an appellant in jail sends an appeal through the jail superintendent and later a pleader instructed on his behalf presents another appeal against the same order. No practical difficulty arises if, as is normally the case, both the appeals are dealt with at the same time. Sometimes, however, through oversight, one appeal is disposed of and then the other appeal comes up for disposal, causing considerable embarrassment to the appellate Court.1

At times a jail appeal is summarily dismissed and then an appeal filed through counsel comes up for hearing when some arguable question is raised, and the Court is not certain if it can proceed with the appeal. If the appeal is in the High Court, its inherent jurisdiction can perhaps be invoked,2 but a large number of appeals lie to the Court of Session where no such solution is available.

1. Cf. Sundar Lal, AIR 1968 All 329.

2. Section 561A.

31.26. Supreme Court's ruling and possible hardship therefrom.-

In a recent case, the Supreme Court1 has ruled that if a jail appeal under section 420 is summarily dismissed, then after the dismissal of that appeal, no appeal under section 419 is competent. In that particular case, the second appeal was presented after the jail appeal had been dismissed; but it is not unlikely that the Courts will apply the same rule to a pending appeal and hold that if a jail appeal is dismissed summarily, no other appeal, although pending at that time, can be heard. This, we think, may lead to hardship. If we were satisfied that a jail appeal received the same attention by the appellate Court as any other appeal, we .would have been content to leave the matter as it stands, hoping that the appellate Courts will so arrange their work that such two appeals are always heard together.

We have information, however, that except perhaps in the High Courts, "jail appeals" are not considered with particular care, and in many cases, the grounds of appeal drafted in jail do not attract sufficient attention and, even if there be any point in the appeal, it is liable to be missed. Our law entitles an accused person to obtain legal assistance and present his case in Court through a competent pleader2 and we are anxious that the spirit of this rule should be preserved.

1. Pratap Singh, (1961) 2 SCR 509 (512): AIR 1961 SC 588.

2. Section 340.

31.27. Recommendation.-

We therefore propose to make a legal provision that a jail appeal must not be summarily dismissed till the time for filing an ordinary appeal has expired. This will ensure that an appellant wishing to avail of legal assistance will have presented an appeal under section 419 before his appeal, if any, presented under section 420 comes up for disposal. We are further providing that, if in spite of this, a jail appeal happens to be dismissed summarily, that would not debar the Court from considering an appeal under section 419 on the merits, provided such appeal is otherwise duly presented and the Court is satisfied "that the interests of justice require that it should be heard".

31.28. Reason for summary dismissal to be recorded.-

It will be noticed that section 421 authorises the appellate Court to summarily dismiss an appeal without stating its reasons. In the case of High Courts, this causes no difficulty; but in the case of Sessions Courts, it does, as their orders are liable to be revised by the High Court, and it would be very helpful if their reasons existed on the record. We suggest therefore that an appellate Court, other than a High Court, should record its reasons.

31.29. Provision of section 421 recommended.-

Section 421 may accordingly be revised as follows.-

"421. Summary dismissal of appeal.- (1) If upon examining the petition of appeal and copy of the judgment received under section 419 or section 420, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

Provided tha.-

(a) no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same; and

(b) no appeal presented under section 420 shall be dismissed summarily until the period allowed for preferring such appeal has expired.

(2) Before dismissing an appeal under this section the Court may call for the record of the case, but shall not be bound to do so.

(3) An Appellate Court other than the High Court dismissing an appeal under this section shall record its reasons for doing so.

(4) Where an appeal presented under section 420 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 419 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 430, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law."

31.30. Section 422.-

Section 422 provides that if an appeal is not dismissed summarily, the Court shall give notice of the appeal to the appellant or his pleader and to the Public Prosecutor, and in case of an appeal under section 411A(2) or section 417, to the accused. If the Public Prosecutor applies, he will be furnished with a copy of the grounds of appeal; but nothing is said about the accused being given such a copy. No mention is made of a private complainant who may have instituted the proceedings in the trial Court. We think it proper that in such cases, he should be entitled to appear. It would also be proper to provide that, along with the notice of hearing, a copy of the grounds of appeal should be sent to the opposite party. The reference to "section 411A, su.-section (2)" will have to be omitted and a reference to the proposed new section 417A (appeal for enhancement of sentence) added.



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