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    Sunday, 26 February 2017

    Appeal and it's Kind - Fully Explain

    Introduction
    Appeal is a continuation of ongoing judicial proceedings. However, according  to section 404, no appeal lies against any judgment or order of a court exercising criminal jurisdiction unless and until special provision has been made in this code or under any law for the time being in force. Right of appeal is bestowed by law and cannot be claimed as a right.

    Definition
    Appeal is continuation of judicial proceeding from lower to top. Right of appeal is bestowed by law and cannot be claimed as a personal right.

    Appealable order and judgment

    An appeal may lie from the following judgments and order passed by a court of law.

    a) Appeal against order rejecting application for restoration of attached property

    According to section 405, everybody whose application filed by him under section 89 for the purpose of delivery of property or sale proceeds earned there from, Has been rejected by any court of law may prefer an appeal to the court which appeal are ordinarily filed against the order of sentence passed by the former court. The applicant request that;

    i) attached property be released
    ii) sale proceeds received from the sale of such property be returned to him


    b) appeal against an order demanding security for keeping peace or for ensuring good behavior

    In pursuance of section 406, whoever is required under the orders passed by a magistrate to give security for keeping the peace or ensuring good behavior may file appeal against such order to the session court.

    c) Appeal against an order refusing to accept or rejecting a surety

    According to section 406-A where any person is aggrieved by an order passed by a court refusing to accept or rejecting a surety under section 122 of this code may file an appeal against such orders to the sessions court.

    d) Appeal against an order passed by a magistrate of second or third class

    According to section 407 , any person who has been convicted by a magistrate of second or third class may file an appeal before a district magistrate.

    However district magistrate may authorize any magistrate of First class to hear such appeal who is subordinate to him and from the provincial government has also authorized to hear that sort of appeals.


    e) Appeal against an order passed by additional session judge or judicial magistrate

    Under section 408, anybody who has been convicted by any additional session judge or a judicial magistrate or who has been sentenced under section 349 is entitled to file an appeal against such conviction or sentence.

    Relevant condition 

    For filling such appeals, law imposes following conditions:-
    When in any case an additional session judge or magistrate of first class passes any sentence of imprisonment for a term exceeding four years then all convicted accused or any one of them may file an appeal before the high court

    When any person is convicted by a magistrate of an offence under, section 124A of PPC , appeal against such order shall lie to the High court.


    f) Appeal against an order passed by Court of Session

    According to section 410, every body who has been convicted on a trial conducted by sessions judge or an Additional session judge , may  file an appeal against such order before the High Court.

    Appeal against acquittal

    In common practice no appeal can be filed against an order of acquittal passed by any court other than a high court.

    Where there is a grave injustice is apprehended, the provincial government may direct the public prosecutor to file an appeal before the High court against an original or appellate order of acquittal passed by any court other then high court in accordance with section 417.

    The empowerment of provincial government to interfere in such case by way of appeal is based on the idea that nobody should be allowed to revenge on his own cause and grave miscarriage of justice be avoided.

    Appeal on behalf of provincial Government
    Appeal against the order of acquittal can only be filed through the public prosecutor advocate general is not a public prosecutor. But, in case the governor has authorized advocate general to act as public prosecutor for the province, he may file such appeal.

    Appeal by private complainant
    If in any case instituted upon complaint an order of acquittal is passed and the high court, on the bases of an application file before it by the complainant to this effect, may grant special leave to appeal from such order of acquittal, the complainant is entitled to file an appeal before the high court.

    In case an application for special leave to appeal filed under sub-section 2 of section 417 against an order of acquittal is passed, provincial govt is not entitled to file an appeal on the expiry of sixty days from the date of that order.

    Limitation to file appeal before any court other than a high court
    The complainant may file an appeal against order of acquittal before any appellate court other than a high court within thirty days from the date of such order.

    Rejection of application
    Where the High court rejects the application or refuses to grant special leave to appeal against such order of acquittal , no appeal shall lie from that order of acquittal before any court of law.

    Procedure and limitation to file an appeal against acquittal
    1) appeal should be filed on a question of law against conviction of accused.

    2) Appeal may be filed with permission of the court or on the certificate of judge who has conducted trial of such case. 

    3) In case the order of conviction is other than that prescribed by law, such order may be appealed against on special leave to appeal granted by the court.

    4) Provencal govt may direct public prosecutor to present an appeal to the high court against an original or appellate order of acquittal passed by any court other than a high court.

    5) A division bench of high court which shall comprise not less than two judges may hear appeal. Any judge who has conducted trial of such case shall not be proposed for that division bench.
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    Item Reviewed: Appeal and it's Kind - Fully Explain Rating: 5 Reviewed By: Usman Ali
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