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Appeals to High Court

Appeals to High Court could lie either from Civil matter or from Criminal matter. 

There is a hierarchy of Civil and Criminal Courts in every state subordinate to their respective High Courts to administer civil and criminal law disputes. The civil Courts are governed by Code of Civil Procedure and Criminal Courts are governed by Criminal Procedure Code. The matters are entertained by civil as well Criminal courts according to territorial jurisdiction, pecuniary jurisdiction and jurisdiction according to subject matter. The Courts in hierarchy below to High Courts are called as Trial Courts. Any person aggrieved by any decision of the Court may challenge an order or judgement before the higher Court in Appeal.

An appeal is a process by which a judgment/order of a subordinate Court is challenged before its superior court. An appeal can be filed only by a person who has been party to the case before the subordinate Court. However, at the death of such a person, his legal heirs and successors in interest may as well as file or maintain an already filed appeal in many matters. The person filing or continuing an appeal is called the appellant and the concerned Court is termed as the appellate Court. A party to a case does not have any inherent right to challenge the judgment/order of a Court before its Superior Court. Appeal can be filed only if it is specifically allowed by any law and has to be filed in the specified manner in the specified Courts.

An order or Decree or Judgment passed by Trial Court may be challenged in High Court in Appeal. The Appeals before High Court are either Civil Appeals or Criminal Appeals.

APPEALS IN CIVIL MATTERS:

Appeals arising out of Civil matters are called as Civil Appeals. The Civil Appeals are basically governed by Code of Civil Procedure. Further the High Court may also frame rules and procedures for conducting Civil Appeals. Appeals could be filed either against an order or Judgment.

APPEALS FROM ORIGINAL DECREE:

Against the judgment/decree/order passed by District Judge/Additional District Judge the Appeal lies to High Court.

SECOND APPEAL:

The decree/judgment passed by any appellate Civil Court in the first appeal can be challenged by way of a second appeal before the High Court. If the case involves a substantial question of law, the second appeal can be filed even against an exparte decree/judgment of the first appellate court.

GROUNDS OF APPEAL:

  1. A judgment/decree can be challenged in the first appeal on varied grounds both on basis of facts of the case and as well the legal interpretation of various legal provisions involved.
  2. For instance a party may raise objections as regards the territorial and pecuniary competence of a court passing the challenged judgment and decree.
  3. If there has been a failure of justice on account of such incompetence.
  4. Equally, in case all the necessary parties were not joined in the original suit, a challenge to the judgment decree of such a court can be maintained.
  5. An appeal may be as well to challenge the interpretation of law as the legal provisions applied by the subordinate court while making the judgment/ decree any error, defect as irregularity in any proceeding before the subordinate court affecting the merits of the case as the jurisdiction of such a court may as well be a sustainable ground while making an appeal.
  6. The second appeal can be filed only if there exists a substantial question of law. In the case the question of law would be substantial if it is of general public importance or which directly and substantially affects rights of the parties.

NO APPEAL:

No appeal can be filed against a decree/judgment which has been passed by the court with the consent of the parties. Again, no appeal can be filed, except on a question of law, from a decree in any suit of the courts of small causes, when the value of the subject matter of the suit is less than Rs. 3000/-.

Furthermore, where a decree/judgment is passed by a single judge of the High Court in second appeal, the said decree/judgment is not appealable.

PROCEDURE:

The appeal has to be preferred in the form of a memorandum signed by the Appellant or his advocate. The memorandum is required to set forth, concisely and distinctly the grounds of objection to the decree and judgment challenged in the appeal. These grounds have to be numbered consecutively. The memorandum of appeal has to be accompanied by a copy of the decree and the judgment appealed from.

In case the appeal is made against a decree for payment of money, the appellant is required to deposit the amount disputed. In the appeal with the amount appellate court or otherwise has to furnish security in respect of such amount. The appellate court may as well require the appellant to provide security for the costs of the appeal or the original suit or both before calling the other party to appear or after words at the application of such party.

STAY:

An appeal itself does not operate as the stay of proceedings undue the decree/judgment appealed from and the execution of a decree is not stayed merely because an appeal is filed in the appellate court. However, the appellate court can, if there is a sufficient cause to do so, order stay of execution of such decree. The stay can be granted by the court which passed the decree if an application is made for the stay of execution of such a decree before expiration of the time allowed for filing an appeal against it and if such application discloses sufficient cause for seeking the stay.

The probability or certainty of a substantial loss to the party seeking stay constitutes a sufficient cause if the said party has made the application for stay without unreasonable delay and if the party has given security guarantying due performance of the decree against which stay is sought.

LIMITATION:

The appeal to a High Court from any decree or order has to be filed within 90 days from the date of decree or order, but if a decree or order of any High Court is to be appealed in the same court the period of limitation is 30 days. Equally, the period of limitation for filing appeal to any subordinate court from any order or decree is 30 days.

The period of limitation for seeking review of a Judgment is 30 days and for invoking revisionary jurisdiction of the High Court is 90 days.

COURT FEE:

The court fee in Civil appeals is payable as per the schedule

APPEALS IN CRIMINAL MATTERS

 

APPEAL BY CONVICTED PERSON:

Any person convicted on a trial held by Sessions judge or an Additional Sessions judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person in the same trial may appeal to High Court.

NO APPEAL: LIMITED APPEAL:

No appeal can be filed where a court of Sessions or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding 3 months or if fine not exceeding Rs.200/- or both such fine & imprisonment. No appeal lies from a sentence of fine of RS.100/- or less imposed by the Magistrate of First Class or from a sentence of fine of Rs.200/- or less passed in a summary trial.

Furthermore, if the accused person had confessed his guilt before a court and was convicted on such confession he cannot appeal against his conviction but can only challenge the extent or legality of the sentence. But any person, whose sentence is not appealable, has right to appeal if his co-accused has been given an appealable sentence in the same trial.

APPEAL BY STATE:

The State Govt. can appeal to the High court for enhancement of the sentence of the accused in case it finds that the sentence is inadequate. The High Court can enhance the sentence but it has to give a reasonable opportunity to the accused person to challenge the said enhancement. Furthermore, the accused person can also plead for acquittal or for reduction of sentence in such cases. The state can also appeal against order of acquittal passed by any court to the High Court. The appeal against acquittal can only lie to the High Court. The appeal can be entertained by the High Court only if it grants leave for the same to the appellant

APPEAL BY COMPLAINANT:

  1. If the accused is acquitted in a case instituted upon a complaint the complainant may also file appeal against the acquittal after seeking leave to file the appeal.
  2. The complainant should seek the leave to file appeal within 60 days from the order of the acquittal. But in case the complainant is a public servant, the leave can be sought within 6 months from the order of the acquittal. The appeal has to be filed within 30 days after obtaining the said leave.
  3. If the complainant's application seeking leave to appeal is refused by the High Court, no appeal can be filed even by the state.

PROCEDURE:

  1. The appeal has to be filed in the form of a petition in writing and is to be presented by the convict/accused person himself, or his advocate. If the convict is in prison, he may submit his appeal through the jail authorities.
  2. The petition of appeal should contain concise and clear grounds on which appeal is sought. The mis-appreciation of evidence in record or misapplication of settled principles of criminal law or severity of sentence constitute sustainable ground in criminal cases.
  3. The court can dismiss the appeal summarily (that is informally without a detailed hearing) if it considers that there is no sufficient ground for interfering but before dismissing the appeal summarily, the appellant or his Advocate has to be given a reasonable opportunity to present their case before the court.
  4. Even when an appeal is filed by an accused person from jail, he has to be heard unless the court thinks that the appeal is frivolous or that bringing the accused to the court would bring inconvenience disproportionate to the circumstances of the case.
  5. No appeal filed by accused person from jail can be dismissed summarily unless the period allowed for filing such appeal has expired. In cases, where an appeal filed by an accused through jail authorities is dismissed summarily by the court finds that another petition of appeal duly presented by the accused himself or his Advocate has not been considered by it, the court can hear and dispose of such appeal in accordance with law if it feels that it is necessary in the interests of justice to do so.
  6. The High court is required to give reasons for dismissing the appeal and the power to dismiss the appeal summarily has to be used sparingly.
  7. If the appeal is not dismissed summarily, the notice of the time and place of formal hearing is given to the accused or his Advocate, state and the complainant, if there is any in the case. At the specified time, place and day the appeal is heard and disposed off.

BAIL PENDING APPEAL:

Where an appeal by a convicted person is pending before the court, the court may by reasons to be recorded by it in writing, suspend the sentence passed against the convict and if the convict is in confinement grant him bail. Where a person is convicted by the High Court, the High Court can grant him bail if the person satisfies the court that he intends to present an appeal the bail can be granted in two circumstances.

  1. Firstly, where the offence of which the person has been convicted is bailable and the person is on bail.
  2. Secondly, where the person being on bail, is sentenced to imprisonment for a term not exceeding three years. The bail in such cases is granted for period, which will provide sufficient time to the convicted person to file appeal and obtain bail from the appellate court.
  3. If the appellant is finally sentenced to imprisonment, the time during which he was released on bail as aforesaid is excluded in computing the term of his sentence. If an appeal is filed against acquittal by the state or the complainant, the High Court may issue a warrant for getting the accused arrested ad it may either grant him bail or may imprison him.

LIMITATION:

The limitation for filing appeal from a sentence of death passed by court of sessions or the High Court in its original jurisdiction is 30 days and from any other sentence or order to the High Court is 60 days and to any other court is 30 days. The period of limitation against an order of acquittal is 90 days but where appeal against such order has to be made after seeking special leave of the court, the period of limitation is 30 days.

COURT FEE:

No court fee is payable in Criminal appeals if the convicted person is in jail and is filing the appeal from jail otherwise court fee as per schedule is to be paid.

CIVIL MATTERS

 

APPEAL FROM ORIGINAL DECREE:

From the judgement and decree of the Civil courts of first instance viz. the Civil Judge, Additional District Judge and the High Court in its original jurisdiction appeal may be filed to challenge the said judgement and decree as the Ist appeals before various courts depending upon the subject matter of the case and its monetary value.

For example in Delhi in certain cases, the first appeal from Civil Judge may lie to the Senior Civil Judge but in some other cases it may lie directly to the higher courts. The hierarchy and forums for appeal are set by the concerned High Court from time to time in exercise of its administrative power.

SECOND APPEAL:

The decree/judgement passed by any appellate Civil Court in the first appeal can be challenged by way of a second appeal before the High Court. If the case involves a substantial question of law, the second appeal can be filed even against an exparte decree/judgement of the first appellate court.

GROUNDS:

  1. A judgement/decree can be challenged in the first appeal on varied grounds both on basis of facts of the case and as well the legal interpretation of various legal provisions involved.
  2. For instance a party may raise objections as regards the territorial and pecuniary competence of a court passing the challenged judgement and decree.
  3. If there has been a failure of justice on account of such incompetence.
  4. Equally, in case all the necessary parties were not joined in the original suit, a challenge to the judgement decree of such a court can be maintained.
  5. An appeal may be as well to challenge the interpretation of law as the legal provisions applied by the subordinate court while making the judgement/decree any error, defect as irregularity in any proceeding before the subordinate court affecting the merits of the case as the jurisdiction of such a court may as well be a sustainable ground while making an appeal.
  6. The second appeal can be filed only if there exists a substantial question of law. In the case the question of law would be substantial if it is of general public importance or which directly and substantially affects rights of the parties.

NO APPEAL:

No appeal can be filed against a decree/judgement which has been passed by the court with the consent of the parties. Again, no appeal can be filed, except on a question of law, from a decree in any suit of the courts of small causes, when the value of the subject matter of the suit is less than RS. 3000/-. Furthermore, where a decree/judgement is passed by a single judge of the High Court in second appeal, the said decree/ judgement is not appealable.

PROCEDURE:

The appeal has to be preferred in the form of a memorandum signed by the appellant or his advocate. The memorandum is required to set forth, concisely and distinctly the grounds of objection to the decree and judgement challenged in the appeal. These grounds have to be numbered consecutively. The memorandum of appeal has to be accompanied by a copy of the decree and the judgment appealed from.

In case the appeal is made against a decree for payment of money, the appellant is required to deposit the amount disputed. In the appeal with the amount appellate court or otherwise has to furnish security in respect of such amount. The appellate court may as well require the appellant to provide security for the costs of the appeal or the original suit or both before calling the other party to appear or after words at the application of such party.


- As on 1st July 2019