Describe the power of the Appellate Court?

Question: Describe the power of the Appellate Court?

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Answer

The Code of Criminal Procedure, 1973 (hereinafter CrPC), contains elaborate provisions on appeals against a judgment or order of the criminal courts. The appellate process provides an opportunity to correct any possible factual or legal errors in a judgment or order. Section 386 of the CrPC defines the powers of the appellate Courts in dealing with appeals. The Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:

(1) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(2) In an appeal from a conviction

1. reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
2. alter the finding, maintain the sentence, or
3. with or without altering the finding, alter the nature of the sentence’s extent, or the nature and extent, but not so as to enhance the same.

(3) In an appeal for enhancement of sentence

1. reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
2. alter the finding maintaining the sentence, or
3. with or without altering the finding, alter the nature of the extent, or the nature and extent, of the sentence so as to enhance or reduce the same;

(4) In an appeal from any other order, alter or reverse such order;

(5) Make any amendment or any consequential or incidental order that may be just or proper.

The powers enumerated are vested in all Courts, whether the High Court or subordinate Courts, except that clause (a) of the section, is restricted to the powers of the High Court only since an appeal against an order of acquittal lies only to that Court, while clause (b) of the section is not so restricted and embraces all Courts.

In exercise of appellate power under section 386, the High Court has full power to reverse an order of acquittal and if the accused are found guilty they can be sentenced according to law.

The Code gives ample powers to the Courts to alter or amend a charge, whether by the trial Court or by the appellate Court, provided that the accused is not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him.

The Court of appeal possesses full power to go into the entire evidence and all relevant circumstances to arrive at its own conclusion about the guilt or the innocence of the accused, bearing in mind, however, that:

• there is the initial presumption of innocence of an accused and
• the fact of his acquittal by the trial Court

In addition to this, if the trial Court’s judgment verges on the perverse, the appellate Court has a duty to set the evaluation right and pass a proper order.

The appellate court can dismiss the appeal only on the merits and has no power to dismiss it summarily. The Court is bound to peruse the record, and to hear the appellant or his pleader, if he appears, before disposing of the appeal. Even if the appellant or his pleader is not present, the Court is bound to go through the record itself and to decide the appeal on its merits. It cannot summarily dismiss the appeal. [Emperor v. Kuldip Singh(1926) 6 Pat 16]

In KS Panduranga v. State of Karnataka AIR 2013 SC 2164, the Supreme Court culled out the following principles –

• that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;
• that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer is absent;
• that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;
• that it can dispose of the appeal after perusing the record and judgment of the trial court;
• that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in the law would preclude the court from doing so; and
• that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.

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