Appeals

This article provides an introduction to the appeal mechanism in India from various High Courts and subordinate courts, and also discusses the revisionary powers of the Supreme Court. The process for both criminal and civil cases and their appeal procedure has been described and discussed. The appeal mechanism can often get complicated and it is important to understand its working while involved in a legal dispute.

Fri Jul 15 2022 | Civil Litigation and Others | Comments (0)

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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  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  a manner specified by a specific court. .

The redressal of legal grievances involves three-tier hierarchical judicial machinery comprising the Supreme Court situated in Delhi as the highest Court of the country. The High Courts situated in various States and Union Territories constitute the second tier of this  hierarchical order in the descending order. The Courts in a particular State or a Union Territory Subordinate to their respective High Courts, are the lower most rung of the hierarchy.

There are certain special tribunals to adjudicate upon certain specific matters such as income tax, excise, company law, the bank recovery cases, administrative tribunals, consumer tribunals, etc. Appeals from these tribunals may lie to the High Court or the Supreme Court.

SUPREME COURT APPLEALS

  1. On Certificate by High Court
  2. SLP- Special Leave to appeal

The Supreme Court is mainly an appellate court and can entertain appeals both in the Civil and Criminal matters if certain specified requirements are met . The appeals may be filed against the judgment/order of the various High Courts and as well as the Subordinate Courts.

APPEALS ON CERTIFICATE BY HIGH COURTS

CONSTITUTIONAL CASES

An appeal can be filed against any judgment, decree or final order of a High Court in a civil, criminal or other proceedings, if the concerned High Court certifies that the case involves a substantial question of law as to the interpretation of the constitution. Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question has been wrongly decided.

CIVIL CASES

An appeal may be filed against any judgment, decree or final order in a civil proceeding of a High court if the High Court certifies that the case involves a substantial question of law of general importance and that in the opinion of the High Court, the said question needs to be decided by the Supreme Court. However, no appeal can be filed from the judgment, decree or final order of a single judge bench of the High Court. The party making the appeal can urge, as one of the grounds, that a substantial question of law as to the interpretation of the Constitution has been wrongly decided.

PROCEDURE

  1. The party desirous of filing an appeal on a certificate by the High court, as aforesaid, is required to file a petition of appeal in the court.
  2. The Petition should contain concise information regarding the proceedings in the Subordinate Courts and the High Court in a chronological order with relevant dates and should as well state the amount or value of the subject matter of the suit in the Subordinate Courts, High Court and the Supreme Court.
  3. The particulars showing the computation of the said valuation have to be mentioned as well. However, where the appeal is incapable of valuation, this fact has to be mentioned in the appeal instead of the said valuations.
  4. The petition of appeal should be accompanied by seven copies of:
    1. a certified copy of judgment and decree appealed from;
    2. a certified copy of certificate granted by High Court; and
    3. a certified copy of the order granting the said certificate
  5. In cases where the High Court has passed a summary order (that is a brief order on a superficial level without hearing the matter in details) or the High Court has not recorded the reasons or grounds for granting the certificate and in certain appeals in the Contempt Cases, four certified (or uncertified copies if such copy is affirmed to be true copy upon affidavit) of the judgment or order and decree of the subordinate Court are also required to be filed with the petition of appeal.

COURT FEE

The person filing an appeal is required to pay Court Fee as per the scheduled table of Court Fees.

LIMITATION

The petition of an appeal on the basis of the certificate by High Court, has  to be presented within sixty days from the date of grant of the certificate of fitness. But in computing the period of limitation, time spent in obtaining a copy of the certificate and the order granting the said certificates are excluded. Furthermore, if the petition of appeal is delayed, the person filing the appeal may seek condonation of delay from the Supreme Court by explaining the reasons for the delay.

CRIMINAL CASES

An appeal can be filed against any judgement, final order or sentence of a High Court in a criminal proceeding in following situations.

  1. Firstly, if the concerned High Court has an appeal reversed of an order of acquittal of an accused person and sentenced him to death. Imprisonment for life as to imprisonment for a period of not less than ten years.
  2. Secondly, if the High Court has withdrawn for trial before itself any case from any of its subordinate courts and in such trial has convicted the accused person and sentenced him to death or to the imprisonment for life or for a period of not less than ten years.
  3. Thirdly, if the High Court certifies that the case is a fit one for appeal to the Supreme Court.
  4. Lastly, a person convicted on a trial held by the High Court in its extraordinary original criminal jurisdiction,
  5. However, no appeal can be filed by a convicted person if the sentence, passed against him by the HC, does not exceed the term of 6 months and  fine not exceeding 1000 as both such imprisonment and fine.
  6. The criminal appeal can be filed if the High Court disregarded or misapplied the established principles of criminal law.

PROCEDURE

  1. The memorandum of appeal should be in the form of a petition and should contain concisely and as far as possible, in a chronological order, the principal steps in the proceedings from its commencement in the subordinates courts till its conclusion in the High Court.
  2. The petition of appeal has to be accompanied by a certified copy of the judgement/order challenged in the appeal and as well the certified copy of the certificate of the High Court in case an appeal is filed on a certificate.
  3. In cases where the High Court has passed a summary order (that is a brief order without hearing the matter in details) or where the High Court has not recorded reasons as grounds for granting the certificate and in certain appeals in the contempt cases, 4 certified (or uncertified copies if such copies are affirmed to be true copy upon affidavits) of the judgement or order and decree of the subordinate court are also required to be filed with the petition of appeal.
  4. Where the appellant has been sentenced to a term of imprisonment, the petition of appeal is required to state if the appellant has surrendered. If the appellant has not surrendered to the sentence, the appeal cannot be registered unless the court, on a written application, orders its registration and where the appellant is in jail,  he may present his petition of appeal through the offices-in-charge of the jail.

COURT FEE

No court fee is payable in Criminal appeals.

LIMITATION

A Criminal appeal in which a certificate has been granted by the High Court is required to be filed within 60 days from the date of the said certificate. In other cases, appeal is to be filed within sixty days from the date of the judgement; final order or sentence appealed from.

But in computing the period of limitation, the time spent for obtaining a copy of the judgement as order appealed from or the time spent on obtaining the certificate and order granting the certificate are excluded.

Again, if sufficient cause is shown, delay in filing the criminal appeal may be condoned by the Supreme Court.

BAIL PENDING APPEAL

The Supreme Court has the same powers as the High Court for granting bail to the accused pending his appeal.

ABATEMENT

The Criminal appeals in the Supreme Court would abate or continue at the death of the accused on similar grounds as before the High Court.

SPECIAL LEAVE TO APPEAL

If the High Court refuses to certify a case as above said, or if any of the conditions as above said are not fulfilled, any party to the case can seek special leave to file appeal from the Supreme Court itself.

The Supreme Court may grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed as made by any court or  tribunal. However, special leave to appeal cannot be obtained to challenge any judgement, determination, sentence or order passed as made by any court as tribunal constituted by as under any law relating the Armed Forces.

CIVIL SPECIAL LEAVE PETITION

PROCEDURE

The party desirous of seeking special leave to appeal is required to file a special leave petition in a specified format.

  1. A detailed description and address of the parties and their status in the High Court in the form of the memo of parties is to be mentioned in the very beginning of the petition.
  2. Details pertaining to the judgement/order challenged in the petition.
  3. Questions of law arising for consideration in the petition.
  4. Declaration to the effect that no other petition seeking leave to appeal has been filed by the appellant against the same judgement/order.
  5. Declaration to the effect that the documents filed with the petition are true and form part of the record of the courts below.
  6. Ground for filing the appeal.
  7. Grounds for seeking interim reliefs (reliefs such as stay etc sought from the court pending disposal of the appeal by the court).
  8. Lastly, main prayer or relief sought in the petition and the interim prayer ( reliefs such as stay etc pending disposal of the appeal by the court).
  9. At the end, place and date of preparing and filing the petition and as well as name of the advocate has to be mentioned. Along with the petition, a concise note regarding the relevant events and incidents and as well the proceedings in the subordinate courts and the High Court is to be submitted in a chronological order. This note is referred to as the list of dates.
  10. Petition should be confined to the submissions relied on by the appellant in the courts below. But the appellant may, with due notice to the opposite party and with leave of the court,  submit additional grounds at the time of hearing.
  11. Every petition is required to be supported by the affidavit of the appellant or by any person authorised by the appellant.
  12. The petitioner is required to file 4 sets of the petition & accompanying papers.

COURT FEE

The person filing a special leave petition is required to pay court fee as per the scheduled table of court fees.

LIMITATION

The special leave petition has to be filed within 60 days in case the certificate of fitness to appeal to the Supreme Court is refused by the High Court. The period of sixty days is calculated from the date of the order of refusal by the High Court.

In other cases, the period of limitation is 90 days from the date of judgement or order challenged in the special leave petition. However, while computing the period of limitation, the period of time spent in making the application to seek certificate in the High Court till its rejection is to be excluded.

CRIMINAL SPECIAL LEAVE PETITION

PROCEDURE

  1. The petition seeking special leave to file a criminal appeal should coherently and concisely state all such facts as may be necessary to enable the court to determine whether the special leave should be granted.
  2. The petition has to be duly signed by the Advocate for the petitioner unless the petitioner appears in person . The petition should also state if the petitioner had moved the High Court concerned for leave to appeal against its decision and the order of the High Court regarding the same.
  3. The petition should also clearly mention a statement as to whether the petitioner had filed any petition for special leave to appeal against judgement / order under challenge. If such a special leave petition had been filed earlier, its result should also be mentioned duly supported by an affidavit of the appellant or any other person duly authorised by the appellant.
  4. The submissions in the petition should be confirmed only to the pleadings already made before the court / tribunal whose order is challenged and the other documents relied upon in these proceedings. No additional facts, documents as  grounds can be stated as relied upon without permission of the court.
  5. The Petition is to be accompanied by:
    1. A certified copy of the judgement or order appealed from and
    2. An affidavit in support of the statement of facts contained in the petition.

In case the appellant has been sentenced to a term of imprisonment, the petition should mention clearly if the petitioner has surrendered or where the petitioner has not surrendered to the sentence. The court cannot hear the petition unless the court exempts the petitioner from surrendering.

COURT FEE

No court fee is payable or filing a criminal special leave petition.

LIMITATION

The criminal special leave petition has to be filed within 60 days if leave to appeal was refused by the High Court. The period of sixty days has to be computed from the date of refusal. The period of limitation in any other case not involving sentence of death is 90 days from the date of judgement or order appealed from and in case involving a sentence of death it is 60 days.

But while computing the period of limitation, the period of time spent in making the application to the High Court for seeking leave and its rejection  thereafter, wherever applicable, will be excluded.

REVIEW

The Supreme Court is the highest court in the  land and no appeal lies from its judgement and order to any court or Forum. But the Supreme Court has the power to review its own judgement. The petition for review has to be filed within 30 days from the date of judgement detailing the ground on which the review is sought. The review can be sought, both in Civil and Criminal cases if there is any error apparent on the face of record or  miscarriage of justice.

The prescribed court fees have to be paid with the review petition.

APPEALS TO THE HIGH COURT CRIMINAL MATTERS

Hierarchy Criminal Courts 

  1. At the subordinate level, there are broadly four levels of courts for any territory in a state. These are Executive Magistrates, Judicial Magistrates of Second Class, Judicial Magistrates of the first class (Metropolitan Magistrate in a Metropolitan area) and the courts of session in the increasing hierarchical order.
  2. Every state consists of many sessions divisions and every sessions division, in turn, consists of many districts. These districts may be further divided into sub-division.
  3. That apart, cities designated as metropolitan areas such as Bombay, Calcutta and Madras are considered as a separate sessions division and district for these metropolitan areas, the machinery for administration of criminal justice is a little different from that of the order areas of the state.
  4. A person convicted by a Metropolitan Magistrate or an Assistant Session Judge or Magistrate of First class or of the Second class may appeal to court of sessions. 

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 the 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 an appeal against the acquittal after seeking leave to file the appeal.
  2. The complainant should seek the leave to file the 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 the appeal is sought. The misappreciation 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 have 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 an 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, it 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 a period, which will provide sufficient time to the convicted person to file an 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 and  it may either grant him bail or may imprison him.

REVISION

Apart from entertaining appeal from the subordinate courts, the High Court can call the records from the subordinate criminal courts for its examination. The power is termed as the revisionary power of the court. The High court can call the records on its own or on an application made in that regard. The powers of revision cannot be exercised in relation to any interim order (temporary order passed pending final disposal of a case) passed in any proceeding.

The power of revision can be exercised by the High Court on two grounds:

  1. Where the finding, sentence or order of the High Court is illegal or improper
  2. Where the proceedings are irregular.

LIMITATION

The limitation for filing an appeal from a sentence of death passed by the 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 an 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

Hierarchy of Civil Courts

There is a hierarchy of Civil Courts in every state subordinate to their respective High Courts to administer civil law disputes. These civil courts are assigned a particular territory in a city or a town of the state and as well a particular pecuniary limit that is, the limit of the monetary value of the cases, which these courts may entertain.

Thus, a particular civil court at a particular position in the hierarchy would be able to adjudicate civil cases only of a particular monetary value and further only from a particular territory.

The Hierarchy and the nomenclature of these civil courts varies in different states.

In Delhi, for instance, there are, very broadly, following levels of civil courts.

  1. District Judge & his collateral additional District Judges
  2. Senior Civil Judge
  3. Civil Judge
  4. Small Cause courts.

Civil cases upto the monetary value of three lakhs are filed before the Civil Judges. The Civil cases having monetary value between three lakhs and twenty lakhs are filed before the District Judge or additional district Judge. The Civil cases having monetary value above twenty lakhs are filed directly in the High Court.

The Small Cause Courts are established to adjudicate upon small cause matters such as guardianship and custody matters which can be adjudicated in a summary trial that is, without a protracted and extensive civil trial.

The court of Civil Judge, Senior Civil Judge and Additional District Judges, on the other hand, entertain regular matters requiring proper civil trial following all the rules of evidence and procedures envisaged in the civil procedure code.

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 first  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 a 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 made  to challenge the interpretation of law as the legal provisions applied by the subordinate court while making the judgement/decree may have an error or defect or an irregularity in proceedings before the subordinate court, thereby affecting the merits of the case. The jurisdiction of the court may also be a reasonable ground for 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. 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 the application of such party.

STAY

An appeal itself does not operate as a  stay on  proceedings and  the decree/judgement 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 guaranteeing due performance of the decree against which stay is sought.

REVIEW

A person aggrieved of a decree of a court may, instead of filing an appeal, seek review of the decree and judgement from the same court, which has made it. A Review can be sought in cases where no appeal is allowed from the original decree/judgement.

The procedure for making an application for review is similar to that of making an appeal. If it appears to the court that there is no sufficient ground for a review, it can reject the application. But where the court opines that the application for review should be granted, it could grant the same and review its judgement after giving notice to the opposite party and enabling him to appear before it and submit its objections against the review.

An order of the court rejecting the review application is not appealable but an order granting such an application is appealable. The order or decree finally passed after a review is also appealable.

REVISION

The High Court, in exercise of its revisionary powers, can call for the record of any case which has been decided by any of its subordinate courts in which no appeal lies thereto, if it appears that the subordinate court has

  1. exercised a Jurisdiction not vested in it by law
  2. failed to exercise a jurisdiction vested in it by law
  3. acted in the exercise of its Jurisdiction illegally or with material irregularity.

The High Court in exercise of its revisionary powers can make any orders, as it thinks fit. But the High Court cannot vary or reverse any order deciding an issue unless such order is unjust or has a material and decisive bearing in the case of party applying for revision.

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 Judgement 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.

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