Appeal

Appeal may be filed

• against the judgment of acquittal

• against the inadequacy of sentence
and
• against conviction.
 Forum of Appeal-Conviction
Sec. Trial conducted by Appeal to Whom
407 3rd & 2nd Class Judicial To the CJM
Magistrate (May transfer/withdraw to or from
ACJM)

408 Joint Sessions Judge, MM, To the Sessions Judge, If conviction

1st Class Judicial Magistrate passed by a Joint Sessions Judge is above
5yrs then to the HCD.
MM/JM specially empowered to try
offence u/s.124A of the P.C, then to the
HCD

410 Sessions Judge & Addl. To the HCD

Sessions Judge
 Appeal against guilty plea ?[S.412]
• Where an accused person has pleaded guilty
and has been convicted by a Court of Session or
any Metropolitan Magistrate or Magistrate of
the first class on such plea, there shall be no
appeal
• exceptions - only as to the extent or legality of
the sentence.
 Appeals to Court of Session how
heard ? [S.410]
• An appeal to the Court of Session or Sessions
Judge shall be heard by the Sessions Judge or
by an Additional Sessions Judge[S.409]:

Provided that an Additional Sessions Judge

shall hear only such appeals as the
Government may by general or special order,
direct or as the Sessions Judge of the Division
may make over to him.
 Where no appeal shall lie?
• there shall be no appeal by a convicted person
in cases in which
a)a Court of Session passes a sentence of
imprisonment not exceeding one month only,
b)a Court of Session or Chief Judicial Magistrate
or Metropolitan Magistrate or other Magistrate
of the first class passes a sentence of fine not
exceeding fifty Taka only.
 Contd.
• there shall be no appeal by a convicted
person in any case tried summarily in which a
Magistrate empowered to act under section
260 passes a sentence of fine not exceeding
two hundred Taka only.
 Appeal against acquittal

• Appeal against the order of acquittal passed

by any Courts of Session shall lie to the High
Court Division and
• Appeal against the order of acquittal passed
from an original or appellate order of acquittal
passed by any Magistrate to the Courts of
Session.
• In FIR cases, the Government may direct the
Public Prosecutor to file the appeal against an
order of acquittal.
• But if the state does not file any appeal against an
order of acquittal, the informant may file a
revision u/s. 439 of the Code against such an order
passed in a case initiated on police report [6 BCR
(AD) 368, 36 DLR (AD) 42].
• When an order of acquittal is passed in a case
instituted upon complaint, the complainant may
also file an appeal if the order involves an error of
law occasioning failure of justice.
• However, if an appeal is filed by a complainant, it
shall not be entertained after expiry of sixty days
from the date of the order of the acquittal.
Hearing and disposal of appeal against the
judgment of acquittal
• The power of the court is limited .
• When a person is acquitted after a full scale trial,
his innocence is more strengthened and as such
the order cannot be reversed lightly, there must
be very good and cogent reasons for reversal.
• in an appeal against the order of acquittal, the
appellate court has power to review the evidence
and
• if it is found that the findings of the trial court are
not based
• on the evidence and
• are in wanton disregard of good and unblemished
evidence or that
• there was misreading of evidence or that
• the findings are absolutely against the evidence,
speculative and perverse,
• Then the appellate court may reverse the
Judgment and order of acquittal and pass an order
of conviction and sentence against the accused in
accordance with law.
• But if it finds that there is a valid ground for
retrial, it may send back the case for fresh trial.
• If the accused is convicted in such an appeal,
there shall be a direction upon him to
surrender before the trial court within a
specified date to suffer the sentence. If he fails,
the trial court may issue warrant of arrest.[58
DLR (AD) 60, 11 BLD (AD) 117, 52 DLR 617= 20
BLD 315, 55 DLR 568, 57 DLR (AD) 129]
 Appeal against inadequacy of sentence

•  U/S.417A, an appeal against inadequacy of

sentence may be filed by the Public Prosecutor
against a judgment of conviction passed in a case
started on the basis of FIR.
• The complainant may also file such an appeal
within sixty days from the date of conviction given
in a complaint case.
• when a FIR case is ended in conviction and if
sentence is inadequate only the Government can
file an appeal, the informant cannot file an appeal
• In an appeal filed under section 408 against
conviction, the court has no power to enhance
the sentence.
• Such enhancement can be made only in an
appeal filed under section 417A read with
section 423 (I)(bb) [ 19 BLD 259, 51 DLR 439].
 Time Limit
Order Court and Time Limit Article of the
Limitation Act
Death Sentence HCD- 07 days 150
Against Acquittal Appellate Court- 157
within 06 Months
60 days under CrPC
Other than Death HCD -60 days 155
Sentence and
Acquittal
Other than Death Other than HCD – 30 254
Sentence and days
Acquittal
 Procedure of hearing appeal
[Ss.419-423& Rules 101-113 of CrRO]:
• Every appeal shall be made in the form of a
petition in writing accompanied by a copy of the
Judgment or order appealed against. [S.419]
• If the appeal is made by a convict from Jail, the
petition of appeal, shall be submitted to the officer
in charge of the jail who shall forward the petition
and copies to the proper court. At the time of
hearing Jail appeal, if the appellant expresses his
desire to be represented by a lawyer, then the
lawyer is to be heard.[S.420]
• The court has greater responsibility in disposal of
such an appeal than any other appeal.
• Court is to peruse the facts and circumstances of
the case, the grounds mentioned in the petition
forwarded from the Jail, the Judgment of
conviction etc.
• It will also be advisable to call for the records of
the trial court and also to cause a notice of appeal
to be given to the Government and to the lawyer
of the appellant, if any.
 Summary disposal of appeal
• Section 421 empowers an Appellate Court to
dismiss an appeal summarily if it considers that
there is no sufficient ground for interfering.
However, from the proviso, it is clear that no
such power can be exercised unless the appellant
or his advocate has had a reasonable opportunity
of being heard.
• To determine whether there is any sufficient
ground or not, the court is to peruse carefully the
petition of appeal and other documents filed
along with it specially the copy of the Judgment.
• There cannot be any hard and fast rule laying
down the circumstances under which an appeal
may be summarily rejected.
• However, from the Judicial pronouncements it is
now settled that even while dismissing an appeal
summarily, the court must state reasons in
support of such a decision in the Judgment.
• In other words, the court must apply its judicial
mind to all the relevant questions, either of fact or
of law raised in the appeal. [19 DLR (SC) 486].
•  
• While exercising power under section 421, the
Court must take care to make it apparent that the
power has been exercised with due regard to
judicial considerations and should give some
reasons which may indicate that the questions
raised in the case has been duly appreciated.[32
DLR 48]
• The High Court Division disposed of an
appeal acquitting the accused person. In the
appeal filed before the Appellate Division by
leave, the Appellate Division deprecated the
manner in which the appeal was disposed of
by the High Court Division. The following are
the observations:
"The appeal was disposed of practically in a summary
manner without properly considering the entire evidence
on record, particularly the evidence of eye witnesses and
upon making a wrong approach based on untenable
premises.[17 BLD (AD) 187]"
 Disposal of appeals

• When an appeal is filed, the first duty of the court is

to send a requisition for the record of the trial court.
After the receipt of the record, a notice is to be given
to the appellant or his pleader and to an authorized
officer of the Government intimating the date of
hearing of the appeal.
• If lawyers of the both side appear on the date of
hearing, the court shall hear both sides and decide
the appeal in accordance with law. But there is no
provision of dismissal of a criminal appeal on the
ground of non appearance of the lawyers.
• Once an appeal is admitted, it must be decided on
merit.
• However, it may be mentioned here that in view
of the provisions of section 440, the court may
hear a revision in the absence of the lawyers
because the section provides that no party has any
right to be heard.
• In the hearing of an appeal, the party or the
lawyers are to be heard if they are present but if
they are not present, the appeal shall be decided
on merit in their absence and cannot be dismissed
for default.
 Powers of the Appellate Court
• The appellate court has the following powers:
• (a) in an appeal against an order of acquittal, the court
may review the findings and convict the accused or
may pass an order for further inquiry or for retrial.
• (b) in an appeal against conviction, the appellate court
may reverse the findings and by giving reasons of its
own with reference to the evidence on record, may
acquit the accused or may pass an order for retrial or
may reduce the sentence but cannot enhance the
sentence unless the accused is given an opportunity of
showing cause against such enhancement[50 DLR 559=
18 BLD 512].
• (c) in an appeal for enhancement of
sentence, the appellate court may reverse
the findings of sentence and acquit the
accused or may pass an order for retrial or
may enhance or reduce the sentence.
• When High Court Division and the Appellate
Division consider that the sentence awarded
was inadequate, the sentence may be
enhanced only after issuing an enhancement
rule and after hearing the advocate on behalf
of the convict.
•  
• The appellate court has also some other powers.
• It may suspend the sentence and may also release
the appellant on bail pending hearing of the
appeal.
• It may also issue a warrant of arrest against an
accused to arrest him when an appeal is allowed
from an order of acquittal.
• There is also scope of taking further evidence by
the appellate court in accordance with the
procedure laid down in section 428.
• In a complaint case, the convict filed an appeal
before the Sessions Judge who admitted the
appeal and directed the appellant to submit copies
along with the notice to be served upon the
complainant.
• The appeal was dismissed for non-compliance of
the order. A revision was filed against the order of
dismissal.
• In this revision, it has been held that once a
criminal appeal is admitted, the same cannot be
dismissed on a technical ground.
• It is also observed that under section 422 the Code
of Criminal Procedure there is no legal necessity of
issuing a notice upon the complainant. Moreover,
it has also been mentioned that such a notice is to
be given to the appellant and to an officer of the
Government intimating the time and date of
hearing.
• Further, it has been observed that after conviction
of an accused in a complaint case, the Government
comes to the scene as the Government is to
execute the sentence and as such the Sessions
Judge was wrong in giving direction to the
appellant to furnish copies and the notice for
service upon the complainant