Report No. 48
48. Appeals against acquittals.-
We have, next, to deal with appeals against acquittals1. There is an important point which, though not referred to us, requires, in our view, to be considered. The Report of the previous Commission2 dealt with a few points relating to appeals against acquittals but did not suggest any radical modifications. In our view the matter requires further consideration.
1. Clause 388, Cr. P.C. Bill, 1970.
2. 41st Report, Vol. I, Para. 31.17.
49. Section 417 of the Code deals with appeals in case of acquittal. Sub-section (1) of the section gives the State Government an unrestricted right of appeal against any order of acquittal (whether original or appellate), and a similar right is given to the Central Government by sub-section (2) in cases investigated by the Delhi Special Police Establishment. Sub-section (3) permits a private complainant, in a case instituted on complaint, to appeal against the acquittal, but only after obtaining special leave from the High Court. In India, a Government appeal against an acquittal has been regarded1 as "a necessary part of public policy".
1. Emp. v. Sheo Janak, AIR 1934 All 27.31 (order of reference).
50. It is true that the provision for appeals against acquittal in appropriate case may be necessary to avoid miscarriage of justice. But we are not convinced that it is in general desirable to encourage such appeals. The general theory is that in criminal proceedings the State should not recognize any interest except that of the public. To this theory, the Code recognizes a few exceptions, first, by requiring that in certain cases only the person aggrieved can initiate proceedings1, and secondly, by permitting the complainant to appeal against an acquittal with special leave of the High Court.
1. Section 194 to 196 and 198 et seq, Cr. P.C.
51. The question to be considered is, whether the general and unlimited right conferred on the Government to file such appeal deserves to be retained. We must note that such a right is unusual, and is not found in most common law jurisdictions.
In most common law countries, the general rule is not to allow an appeal against acquittal. While a limited right of appeal against acquittal has been given in England in respect of an appellate judgement of acquittal, the general rule mentioned above is still adhered to. Under the Administration of Justice Act, 19601,-
"Subject to the provisions of this section an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor,
(a) from any decision of a Divisional Court of the Queen's Bench Division in a Criminal cause or matter;
(b) from any decision of the Court of Criminal Appeal2 on an appeal to that court."
It was, however, further enacted that no appeal should lie, except with the leave of the court below or of the House of Lords and that such leave shall not be granted unless it is certified by the court below, that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.
It has been stated3 that the right to a further appeal in these cases is important for the general administration and development of the criminal law. Whereas an improper ruling by a trial judge will not bind other judges to follow the ruling, a wrong decision by an appellate court will affect the subsequent rulings of all lower courts; and without, a Crown appeal, a ruling against the Crown, if the trial judges abide by the rules of stare decisis, cannot directly come before the Court of Criminal Appeal a second time for reconsideration.
1. Section 1, Administration of Justice Act, 1960 (Eng.).
2. Now the Court of Appeal, Criminal Division.
3. Friedland Double Jeopardy, (1969), p. 293.
52. Canada has introduced a provision1 giving the right to appeal on a point of law to the Court of Appeal from an acquittal for an indictable offence2. Similar provision exists in New Zealand3.
New South Wales (Australia) permits "moot appeals"4. The provision in Tasmania5 is as follows:-
"(2) The Attorney General may appeal to the Court-
(a) against an order arresting judgment;
(b) by leave of the Court upon the certificate of the judge of the Court of trial that it is a fit case for appeal, against an acquittal on a question of law alone, or
(c) by leave of the Court, against, the sentences."
As to this provision, Dixon C.J. observed6-
"It is evident that the policy which guided the legislature was rather concern in the application of criminal law than of correcting verdicts of acquittal to which the crown objected."
1. Section 584, Canadian Criminal Code.
2. For working of the Canadian Section, see (1966) 9 Can. Bar Journal 168, 173.
3. Sections 380-382, Crimes Act, 1961 (New Zealand).
4. Friedland Double Jeopardy, (1969), pp. 281 and 299.
5. Section 401(2), Criminal Code of Tasmania.
6. Vallance, (1961) 35 ALJR 182, 183.
53. In some of the American jurisdictions, a limited right of appeal against an appellate order of acquittal is provided. For example, in the New York State1, upon the determination of an appeal, by the appellate division or a county court, an appeal may be taken by any party aggrieved to the court of appeal in certain cases, provided such party obtains a certificate granting permission to appeal. One such case is appeal from a judgment or order affirming or reversing a judgment of conviction, including an order granting a new trial.
Connecticut allows an appeal to the State equal to that given to the accused. A statute in that State provides as follows2.-
"Appeals from the rulings and decisions of superior court or of the court of common pleas, upon all questions of law arising on the trial of criminal cases, may be taken by the State, with the permission of the presiding judge, to the Supreme Court of errors, in the same manner and to the same effect as if made by the accused."
1. Hewitt (Editor) Administration of Criminal Justice in New York, (1967), p. 298.
2. Connecticut General Statutes, Article 8312 (Revised 1949), cited in Mereland Criminal Procedure, (1959), p. 278.
54. The federal policy against a government appeal from an acquittal is almost as strong in the U.S.A. as in England. But the government can appeal to the Supreme Court from a federal appellate decision reversing a conviction1.
1. Foreman v. U.S., (1960) 361 US 416: 4 & 5 L Ed. 2d 412 (419).
55. In France, the Cr. P.C. provides1-
"Decrees of acquittal pronounced by the felony court may be made the object of a petition of review only in the interest of the law and without prejudice to the party acquitted."
1. Article 572, French Cr. P.C.
56. An unlimited and general right given as in India in respect of appeals against acquittals is, thus, rare in the Anglo-American countries. It is for this reason that a re-examination of the subject appeared necessary. While one may grant that cases of unmerited acquittals do arise in practice, there must be some limit as to the nature of cases in which the right should be available. For, in our view, proper regard should be had to the need for putting reasonable limits on the period for which the anxiety and tension of a criminal prosecution should be allowed to torment the mind of the accused.
There is a qualitative distinction between conviction and acquittal, and appeals against acquittals should not be allowed in the same unrestricted manner as appeals against convictions. No doubt, guilty persons should be punished. But when a competent court, manned by trained judicial officer, has held a person to be innocent, the matter should ordinarily end there. The initial presumption of innocence is strengthened in such cases by a judicial verdict, and interference with that verdict should require special reasons.
57. With these considerations in view, we recommend that appeals against acquittals under section 417, even at the instance of the Central Government or the State Government, should be allowed only if the High Court grants special leave. It may be pointed out that even now the High Court can summarily dismiss an appeal1 against an acquittal, or for that matter, any criminal appeal. Therefore, the amendment which we are recommending will not be so radical a departure as may appear at the first sight. It will place the State and the private complainant on an equal footing. Besides this, we ought to add that under section 422 of the Code, it is at present competent to the appellate court to dismiss the appeal both of the State and of complainant against acquittal at the preliminary hearing.
1. Section 422, Cr. P.C.
58. We should, however, make it clear that if the right of appeal against acquittal is itself retained, then the right to be given to a private party should not be abolished. And logically the law should cover cases not instituted on complaint. The right of a private party was introduced in 1955. And, though a recent Committee1 has recommended its abolition in order to reduce the arrears in High Courts, we do not, with respect, share that approach. Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, the limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved person.
1. High Court Arrears Committee, Report (1972), Vol. I, Chapter 5, para. 90.