Describe the procedure of hearing appeals not dismissed summarily?

Question: Describe the procedure of hearing appeals not dismissed summarily?

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Answer

Before dismissing an appeal, the Court may call for the record of the case and record the reasons for ordering such dismissal. Whenever an appeal is not dismissed summarily, it becomes the appellate court’s duty to follow the hearing procedure for such situations as assigned under section 385 of the Code of Criminal Procedure.

Section 385 of the Code of Criminal Procedure, 1973 lays down the procedure for hearing appeals not dismissed summarily. The section runs down as below:

“(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given—

1. to the appellant or his pleader;
2. to such officer as the State Government may appoint on this behalf;

1. if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

1. if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant, and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record or the case, if such record is not already available in that Court, and hear the parties;

Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending it for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not except with the leave of the Court urge or be heard in support of any other ground.”

This section provides for the case where the appeal is not dismissed summarily. It was held in Nafar v. Emperor, (1913) ILR 41 Cal 406, that all the grounds taken in the petition of appeal are open for consideration at the final hearing, and the appellant cannot be restricted to any selected ground out of those specified in his petition. Even where the ground of appeal is the severity of the sentence only, the Court may allow the appellant to urge any other ground.

In State of Madhya Pradesh v. Parasaram, AIR 1962 MP 291, the case was disposed of under Section 385 of CrPC, and the Supreme Court held that since the judgment given by the High Court was not in accordance with the law, it is to be sent back to the High Court for a fresh consideration of the appeal.

Once an appeal is admitted and a notice is issued under this section, the appellate Court should dispose of the appeal on merits. There is no provision for dismissing the appeal in default of the appellant’s appearance.

Moreover, the notice to the appellant or his pleader is obligatory. The principle of natural justice demands notices to the appellant or his pleader so that the accused is given a reasonable opportunity of being heard. Notice to the complainant is a new provision that gives a right to a private complainant to be heard in an appeal filed by the accused against his conviction at the instance of such complainant. It is obligatory upon the Court to issue notice to such complainant of the hearing of the appeal filed by the accused. He will also be entitled to be furnished with a copy of the grounds of appeal.

If in an appeal to the High Court against acquittal by the State, the High Court sets aside the acquittal without serving notice on the accused and at his back without hearing him, the order is illegal, and the matter is remanded for reconsideration.

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