INTRODUCTION

The process of criminal justice has some serious consequences on an individual’s life, primarily on the
right to life and personal liberty. Each and every institution built by humans is prone to fallibility,
therefore, this applies to the decisions rendered by courts as well. Resultantly, there should be specific
provisions in place so as to scrutinise the decisions of lower courts in order to obviate the scope of
miscarriage of justice. Realizing this aspect, there are certain provisions which have been included in the
criminal procedure on appeal against a judgment or order of criminal courts. CrPC contains elaborate
provisions on appeals starting from Section 372 to Section 394.

Howbeit, there are certain cases in which there is no right to appeal. The legislators bore this in mind
and incorporated the concept of review procedure called revision in the legislature so as to completely
avoid any miscarriage of justice for even those cases where the right of appeal has been barred by CrPC.
Section 397 to Section 405 include the powers of revision granted to the higher courts, and the
procedure to exercise these powers. It must be noted that these powers are extensive as well as
discretionary by their very nature.

In a general sense, appeal is a legal right conferred upon parties, however, revision completely depends
on the discretion of a criminal court, which means that it is not a right as such. In criminal cases, at least
one appeal is granted to an accused by the legislature, whereas there is no such right in instances of
revision. In fact, the courts have many times discussed the difference between an appeal and a revision.
In the case of Hari Shankar vs Rao Ghari Chowdhury[1], the Supreme Court held that “the distinction
between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on
law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as.
The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a
particular case has been decided according to law.”

APPEAL

The word “appeal” has not been defined in The Code of Criminal Procedure, 1973, (hereinafter CrPC),
however, it can be described as the judicial examination of a decision, given by a lower court, by a
higher court. The Merriam-Webster dictionary defines appeal as “a legal proceeding by which a case is
brought before a higher court for review of the decision of a lower court”.[2]

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It needs to be pointed out that except for the statutory provisions laid down by CrPC or any other law
which is in force, an appeal cannot lie from any judgment or an order of a criminal court.[3] Thus, there
is no vested right to appeal as such as even the first appeal will be subjected to statutory limitations. The
justification behind this principle is that the courts which try a case are competent enough with the
presumption that the trial has been conducted fairly. However, as per the proviso[4], the victim[5] has a
right to appeal against any order passed by the Court under special circumstances comprising of a
judgment of acquittal, conviction for lesser offence or inadequate compensation.

In the case of Satya Pal Sigh vs State of Madhya Pradesh[6], the Hon’ble Supreme Court held that the
father of the deceased has a locus standi to present an appeal to the High Court under the proviso of
Section 372, as he falls within the definition of “victim”, to question the correctness of judgment and
order of an acquittal of accused.

Generally, same sets of rules and procedures are employed to govern the appeals in the Sessions
Courts[7] and High Courts (highest court of appeal in a state and enjoys more powers in matters where
appeal is permissible). The highest court of appeal in the country is the Supreme Court and hence, it
enjoys the most extensive discretionary and plenary powers in the cases of appeals. Its powers are
largely governed by the provisions laid down in CrPC, Indian Constitution, and the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction), 1970.

The law provides a person who has been convicted of a crime to appeal to the Supreme Court or the
High Court or the Sessions Court as per the circumstances.[8] In the case of Arun Kumar vs. State of
Uttar Pradesh[9], the Honourable Supreme Court held that if the High Court found that the view taken
by the Sessions Judge to acquit the appellants was manifestly wrong, moreover, it even led to
miscarriage of justice, therefore, the High Court was correct in setting aside this acquittal and convicting
them.

The State Government has been empowered to direct the Public Prosecutor to appeal against the
sentence on the grounds of inadequacy to either the sessions court or the High Court, however in only
those cases where the trial for conviction has not been held by the High Court.[10] This shows that this
right to appeal against sentences on the grounds of inadequacy has not been granted to the victims or
the complainants or any other person. Moreover, it is mandatory for the Court to give the accused a
reasonable opportunity to show cause against any enhancement of the sentence in the interest of
justice. The accused has the right to plead for his acquittal or a reduction in the sentence while showing
cause.

Similarly, the District Magistrate, and the State Government have the powers to direct the Public
Prosecutor to present an appeal in case of an acquittal to Court of Sessions, and the High Court,
respectively, subject to certain conditions.[11] A two-Judge bench of the Hon’ble Supreme Court held in
the case of Satya Pal Singh vs State of Madhya Pradesh[12] that the victim cannot file an appeal against
an order of acquittal without obtaining the leave of the High Court.

The accused has been given the right to appeal to the Supreme Court against the judgment of the High
Court if the High Court has reversed an order of his acquittal on appeal by convicting him, thereby,
sentencing him to imprisonment for life or for ten years or more, or to death.[13] Understanding the
relevance of a criminal appeal being made to the Supreme Court, the same law has also been laid down
in Article 134(1) of the Indian Constitution under the appellate jurisdiction of the Supreme Court. The
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, has also been passed by the
legislature in consonance with Article 134(2) of the Indian Constitution to confer additional powers on
the Supreme Court to entertain and hear appeals from the High Court under certain conditions.

A similar right to appeal has been granted to one or all accused persons if more than one persons have
been convicted in a trial and such order has been passed by the court.[14]

However, there are certain circumstances under which no appeal shall lie. These provisions have been
laid down under Section 265G[15], Section 375[16] and Section 376[17] of the CrPC.

As to the finality of the judgments and orders passed on appeal, CrPC makes them final except in some
cases.[18] This shows how paramount importance is given to appeals.

REVISION

The word “revision” has not been defined in CrPC, however, as per Section 397 of CrPC, the High Court
or any Sessions Judge have been empowered to call for and examine the records of any proceeding
satisfy oneself:
as to the correctness, legality, or propriety of any finding, sentence or order, whether recorded or
passed, and

as to the regularity of any proceedings of an inferior court.

Moreover, they have the powers to direct the execution of any sentence or an order to be suspended.
Not just this, but to even direct to release the accused on bail or on his own bond if the accused is in
confinement. They may even order an inquiry subject to certain limitations.[19] It is clearly evident that
the appellant courts have been granted such powers so as to obviate any failure of justice.

The Honourable Supreme Court of India, in the context of this provision, held in the case of Amit Kapoor
vs Ramesh Chander & Anr[20] that “the revisional jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded
is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or
perversely.” The same Court, further explaining this provision, held in the case of State Of Rajasthan vs
Fatehkaran Mehdu[21] that “the object of this provision is to set right a patent defect or an error of
jurisdiction or law or the perversity which has crept in the proceeding.”

The High Court has the power to take up a revision petition on its own motion i.e. suo moto or on the
petition by an aggrieved party or any other party. The Allahabad High Court held in the case of Faruk @
Gaffar vs State Of U.P.[22] that “whenever the matter is brought to the notice of the Court and the Court
is satisfied that in the facts and circumstances of the case, a case is made out for exercising the
revisional powers suo motu, it can always do so in the interest of justice.”

There are certain statutory limitations that have been imposed on the High Court for exercising its
revisional powers as per Section 401 of CrPC, however the only statutory requirement to exercise this
power is that the records of the proceedings are presented before it, after which it is solely the
discretion of the Court:

An accused is to be given due opportunity to hear him and on order cannot be passed unless this is
followed.

In instances where a person has forwarded a revisional application assuming that an appeal did not lie in
such a case, the High Court has to treat such application as an appeal in the interests of justice.
An application of revision cannot be proceeded with if it has been filed by a party where the party could
have appealed but did not go for it.

The High Court, as well as the Sessions Court, may call for record of any proceeding of any inferior
criminal Court situated within its jurisdiction for the purpose of satisfying itself as to the correctness,
legality of propriety of any finding, sentence, etc. Thus, the Sessions Judge could examine the question
in relation to the inadequacy of sentence in view of the powers conferred on him by Section 397(1) of
CrPC.[23]

The difference between the powers of the High Court and the Sessions Court being that the Sessions
Judge can only exercise revisional powers which he has called for by himself, whereas the High Court has
the power to take up a revisional matter by itself or when it is brought to its knowledge. The powers of a
Sessions Court are the same as that of the High Court while dealing with revisional cases. The Madras
High Court in the case S. Balasubramaninan vs The State Of Tamil Nadu[24] held that “a Sessions Judge
can entertain an application in revision against sentence and enhance the sentence in revision in certain
cases.” It has also been previously held by the Hon’ble Supreme Court in the case Alamgir vs State of
Bihar[25] that “in respect of enhancement of sentence in revision the enhancement can be made only if
the Court is satisfied the sentence imposed by the trial Court is unduly lenient, or that in passing the
order of sentence, the trial court has manifestly failed to consider the relevant facts”

CONCLUSION

It can thus be clearly seen that through the process of appeals, a person gets an opportunity to get any
legal, or factual error in an order or judgment corrected. Nevertheless, appeals against any judgment, or
order, or sentence of a criminal court can only be preferred when it has been specifically provided in the
statutes. Thus, the right to appeal can only be exercised within the limits laid down by CrPC or any other
law which is in force and hence, this is a constricted right. As far as the decision to appeal is considered,
it is discretionary except in cases when an accused person has been sentenced to death by Sessions
Court. Not only this, there are certain cases as well in which appeal is not allowed at all, in fact the
judgment, or order, or sentence delivered by the criminal court will attain finality.

Moreover, there is no doubt that the revisional jurisdiction of the High Court is quiet extensive. In fact, it
can be said that no form of any judicial injustice can permeate through this power. It has been held in
various decisions that the High Court is allowed to exercise it inherent powers when dealing with cases
of revision. These inherent powers apply to both substantive as well as procedural matters. However, it
cannot re-examine any evidence.
Provision of Appeal under
Criminal Procedure Code
By Hiteshi.Kakkar | October 10, 2017
2 Comments
Introduction
The term “appeal” has not been defined in
the code. According to the dictionary
meaning, an appeal is a complaint or
grievance to a superior court for
reconsideration or review of a decisi

ision, verdict or sentence of a lower court.[1] It

has been said that every human being is fallible
and a judge is not an exception. It is thus
possible that even a judge may err or commit
mistake and his decision may be wrong or
faulty. Article 25 of the Constitution Of India
guarantees life and liberty to every citizen,
small or big, rich or poor, as one of the
Fundamental Rights. It is therefore, necessary
that a person aggrieved by an order of the court
of the first instance may be able to challenge it
by preferring an appeal. An appeal is a method
of correction of manly error or solution of
human frailty.

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Chapter XXXIX (Section 372 – 394 of Cr.PC) deals with Appeals.

A right of Appeal is not a natural or

inherent right. It is a statutory right and
must be governed by the statute which
grants it.[2]
SECTION 372 provides, no appeal lies
except otherwise provided by the Code or
by any other law for the time being in
force. Under Articles 132, 134 and 136 of
the Constitution of India, it may be
possibto present an appeal to the
Supreme Court against the order of
acquittal passed by the High Court.
 SECTION 373 – APPLIES TO APPEALS
FROM
1. Orders requiring security for keeping
peace or good behavior and
2. Against order refusing to accept or
rejecting to accept or rejecting a surety
under s. 121.
The appeal lies to Court of Session,
except, of course, in cases where
under sub-s. (2) Or (4) of S. 122, the
proceedings are already laid before the
Session Judge. SECTION 374:
APPEALS FROM
CONVICTIONS
 Any person convicted on a trial held by a
High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
 Any person convicted on a trial held by a
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 convicted at the
same trial]; may appeal to the High Court
 Save as otherwise provided in sub-section
(2), any person,
o convicted on a trial held by a
Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the
second class,
o sentenced under section 325, or
 in respect of whom an order has been made
or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court
o

o of Session.

While disposing of appeals from the

sentences of the Sessions Court under
this Section, the High Court should
specify the reasons for rejection of appeal
and should not reject it summarily. This
will enable the Supreme Court to know
the view of the High Court, in case the
appellant moves the Supreme Court in
appeal. For computing the sentence of
imprisonment for seven years for the
purpose of ascertaining the appellate
forum under Section 374 (2), the
sentence in default of payment of a fine is
not to be added to the substantive
sentence of imprisonment.
An appeal from an order of acquittal must
be filed within the period of limitation
prescribed by Article 114 of the Schedule
of the Limitation Act, 1963. For the
extension of the period of limitation, and
for exclusion of time in computing the
period of limitation, Sections 5 and 12 of
the Limitation Act, 1963 would be useful.

NO RIGHT OF APPEAL
Section 375 and 376 bar appeals in
certain cases, though a provision of
 Revision is maintainable. Thus no
appeal shall lie-
 Where a High Court passes a sentence of
imprisonment not exceeding six months or fine
not exceeding one thousand rupees or both;
 Where a Court of Session or a Metropolitan
Magistrate passes a sentence of imprisonment
not exceeding three months or fine not
exceeding two hundred rupees or both;
 Where a Magistrate of the F

First Class passes a sentence of fine not

exceeding one hundred rupees; or
 Where in a summary case, a Magistrate
passes a sentence of fine not exceeding two
hundred rupees.

APPEAL FOR
ENHANCEMENT OF
SENTENCE
Section 377 confers right on the
Government to file an appeal against the
inadequacy of sentence awarded by any
court other than a High court. If the
sentence appears to be manifestly
inadequate resulting in failure of justice,
the appellate court can interfere with it
and can enhance the sentence. But at the
same time, the high court can also
exercise its revisional jurisdiction, suo
motto call for the record and enhance the
sentence in appropriate cases after giving
an opportunity to the accused.[4] The
appellate court must pass a speaking
order for enhancing the sentence. A bold
statement that

the ends of justice demanded

enhancement of sentence was held
insufficient by courts.
An appeal under Section 377 must be
filed by the State within a period of 60
days and the contention of the State that
it was under a mistaken belief that period
of limitation is ninety days would be no
excuse for condonation of the delay.

APPEAL IN CASE OF
ACQUITTAL
Under Articles 132, 134 and 136 of the
Constitution of India, it may be possible to
present an appeal to the Supreme Court
against the order of acquittal passed by
the High Court.
An appeal from an order of acquittal must
be filed within the period of limitation
prescribed by Article 114 of the Schedule
of the Limitation Act, 1963. For the
extension of the period of limitation, and
for exclusion of time in computing the
period of limitation

Sections 5 and 12 of the Limitation Act,

1963 would be useful.
 Appeal against an order of acquittal is an
extraordinary remedy. In exercising this
power the High Court should give proper
weight and consideration to “Very
substantial and compelling reasons.
“Very substantial and compelling
reasons” exist when:
 The trial court’s conclusion with regard to
the facts is palpably wrong;
 The trial court’s decision was based on an
incorrect view of law;
 The trial court’s judgment is likely to result in
“grave miscarriage of justice”;
 The entire approach of the trial court in
dealing with the evidence was patently illegal;
 The trial court’s judgment was manifestly
unjust and unreasonable;
 The trial court has ignored the evidence or
misread the material evidence or has i

ignored material documents like dying

declarations/ report of the Ballistic expert, etc.
 This list is intended to be illustrative, not
exhaustive.
The Appellate Court must always give
proper weight and consideration to the
findings of the trial court. If two
reasonable views can be reached – one
that leads to acquittal, the other to
conviction – the High Court’s/appellate
courts must rule in favour of the accused.

POWERS OF APPELLATE
COURT IN APPEAL
AGAINST ACQUITTAL
In Chandrappa & Others v. State of
Karnataka [6], Supreme Court held:
1. An appellate court has full power to
review, re-appreciate and reconsiders the
evidence upon which the order of
acquittal is founded.
The Code of Criminal Procedure

 1973 puts no limitation, restriction or condition on

the exercise of such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and of law.
 Various expressions, such as, “substantial and compelling reasons”,
“good and sufficient grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal against acquittal.
Such phraseology are more in the nature of “flourishes of language” to
 reluctance of an appellate court to interfere
emphasize

with acquittal than to curtail the power of the court

to review the evidence and to come to its own
conclusion.
 An appellate court, however, must bear in mind that in case of
acquittal, there is double p

 presumption in favour of the accused. Firstly, the presumption of

innocence is available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and strengthened by the
trial court.
 If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
 finding of acquittal recorded by the trial court.”

SECTION 379 – APPEAL

AGAINST CONVICTION BY
HIGH COURT IN CERTAIN
CASES
Where the High Court has, on appeal,
reversed an order of acquittal of an
accused person and convicted him and
sentenced him to death or to
imprisonment for life or to imprisonment
for a term of ten years or more, he may
appeal to the Supreme Court.
An appeal to would lie to the Supreme
Court as a matter of right when High
Court, on appeal,
1. Reversed an order of Acquittal of an
accused person and
2. Convicted and sentenced him to death
or to imprisonment for life or to
imprisonment for a term of ten years or
more.[8]
In other cases appeal can be filed, if the
High Court certifies that the case is a fit
one for appeal to the Supreme Court.
Only grave injustice mani

ifest on record can induce the Supreme

Court to interfere with the concurrent
finding of guilt of Courts below. The Court
would be slow in reversing the finding
entered by the High Court unless there is
a perverse and erroneous appreciation of
evidence. If the High Court, for acquitting
the accused has given certain tenable
reasons, the Supreme Court would not be
justified in interfering with such acquittal.
[9] The word “acquittal” doesn’t mean that
the trial must have ended in a complete
acquittal but would also include the case
where an accused has been acquitted of
the charge of murder and has been
convicted of a lesser offense.[10]
SECTION 380- SPECIAL
RIGHT OF APPEAL IN
CERTAIN CASES
Notwithstanding anything contained in this
Chapter, when more persons than one
are convicted in

one trial, and an appealable judgment or

order has been passed in respect of any
of such person, all or any of the persons
convicted at such trial shall have a right of
appeal.

Form of Appeal  -SECTION 382 – Petition of appeal.

Every appeal shall be made in the form of

a petition in writing presented by the
appellant or his pleader, and every such
petition shall (unless the Court to which it
is presented otherwise directs) be
accompanied by a copy of the judgment
or order appealed against. A copy of the
judgment or order means a certified copy.
The court has, however, discretion to
dispense with the copy of the judgment.
[11]

SECTION 383 – APPEAL

FROM JAIL
Where a convict is in jail and intends to
challenge his conviction, he can file an
appeal from jail by presenting it to the
officer in charge of the jail. It is the duty of
the jail officer to forward such appeal to
an appropriate court. No Jail Appeal can
be dismissed without affording the
reasonable opportunity to the appellate
court of being heard.
 SECTION 384 – Summary
Dismissal of Appeal or
Dismissal in Limine
 If upon examining the petition of appeal and
copy of the judgment received under section
382 or section 383, the Appellate Court
considers that there is no sufficient ground for
interfering, it may dismiss the appeal
summarily.
 DISMISSAL IN LIMINE (U/S 384)
 The Appellate court’s power to dismiss
an appeal to dismiss an appeal must be
exercised sparingly and with great
circumspection. The Apex court has dealt
with cases where the summary dismissal
of criminal appeal is permissible. Even if
the records of the case is destroyed or is
not available, it would justify
acquittal. Bolin v. Jagdish (2005) AIR
2005 SC 1872; State v. Abhai Roy
(2004)4 SCC 6
SECTION 385 – Procedure
for hearing of the appeal
which has been admitted
and not dismissed
summarily under Section
384
The section lays down the procedure for
hearing of the appeal which has been
admitted and not dismissed summarily
under Section 384.
An order of the High Court setting aside
the acquittal of the accused in appeal
without notice having been sent to the
accused was held to be illegal. The
accused must be heard and
and his appearance must be ensured
while disposing of the appeal.
Where the appeal is not dismissed
summarily under Section 384, the
Appellate Court is bound to call for the
record if such record has not already
been sent by the Court and then give a
hearing to the parties However, the Court
may dispose of the appeal even without
asking for the record where the appeal is
only as to the legality of the sentence.

POWERS OF APPELLATE
COURT

SECTION 386 Of the Code specifies

powers of the appellate court. It provides
that after persuing the record and after
hearing the parties, the court may dismiss
the appeal, allow the appeal or pass any
other order that may appear to it be just
and proper.
 It includes appeal –
 Against Acquittal
 Against conviction
 For enhancement of sentence
 From other orders
Clause (d) of section 386 applies to all
orders other than that of conviction, or of
acquittal, or for enhancement of sentence.
The power which the appellate court
possess is of alteration or reversal of the
order of the lower court.[12] According to
Section 386(e) of the Code, the appellate
Court may make any amendment or any
consequential or incidental order that may
be just or proper.
CONCLUSION
An appeal is a creature of statute and the
power and jurisdiction of the appellate
court must be circumscribed by the words
of the statute. At the same time, a court of
appeal is a ‘court of error’ and its normal
function is to correct the decision
appealed from if necessary, and its
jurisdiction should be co-extensive with
that of the trial court. It cannot and ought
not to do something which the trial court
was not competent to do.

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All about Appeals under
Code of Criminal Procedure
By: Rohit Soni

     
10 Jun 2018

Categories : Articles
June 10,2018:
All about Appeals under Code of
Criminal Procedure By Rohit Soni
(Download PDF)
The Author, Rohit Soni, is a 4th year
student of Vivekananda Institute of
Professional Studies (VIPS), New Delhi.
He is currently interning with
LatestLaws.com
Introduction-
It has been well said by Mr. Wilt
chamberlain that “nobody is perfect”.
The same is true with respect to the
judges as well. Judgments by them are
not infallible. There are chances of
mistake and error being occurred despite
all the provisions for ensuring a fair trial
and a just decision. To make sure that the
victim to the case do not suffer any harm
and the society is not put into danger
because of any sort of error or mistake by
the judges concerned, the law provides
for the provisions of appeal by which the
cases concerned can be reheard by the
higher court to provide every possible
remedy to person aggrieved by the
adjudication of the court.Thus, the code
of criminal procedure deals with the
appeal under Chapter 29 from Section
372 to 394.

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High Courts should not pass oral
directions to restrain arrest; such
directions irregular [Read Order]

 
Q1. What is an Appeal?
Ans- Appeal is basically a case that is
filed to a superior court to make the
correction in the decision of the inferior
court.

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As per Black law dictionary, an appeal is

a complaint to a superior court of an
injustice done or error committed by an
inferior one, whose judgment or decision
the court above is called upon to correct
or reverse.
Q2. What is the form in which the
appeal is filed?
Ans- An appeal has to be filed in the
form of petition in writing only. Section
382 talks about petition of appeal as-

Read also :  -
नाराज सु पर् ीम कोर्ट ने सीबीआई से कहा ऐसा तंतर् बनाएं , जिससे अपील
दायर करने में देरी न हो

“Every appeal shall be made in the form

of a petition in writing presented by the
appellant of his pleader and every such
petition shall (unless the court to which it
is presented otherwise directs) be
accompanied by a copy of the judgment
or order appealed against”.
Q3. Does the victim have the right to
prefer an appeal and what are the
order against which it can be filed?
Ans-Yes, the victim has the right to go
for an appeal.  There are following orders
against which the appeal can be filed:

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1. Order acquitting the accused

2. Order convicting the accused for a
lesser offence
3. Order imposing inadequate
compensation
 
Q4. When are the appeals filed?
Ans- Appeals are filed in the following
cases:
Read also : Indiabulls Promoters,
directors booked; firm moves Court to
get FIR quashed

1. Appeals from conviction: where the

accused is convicted and the trial is
conducted by high court then an appeal
would lie to the supreme court. But if the
trial is held by the session judge or
additional session judge or any other court
in which a sentence of imprisonment
passed is more than 7 years then an appeal
would lie to the high court
 
2. Appeal from orders requiring security
or refusal to accept or rejecting surety for
keeping peace or good behavior. —Any
person, —
(i) who has been ordered under section
117 to give security for keeping the
peace or for good behavior, or
(ii) who is aggrieved by any order
refusing to accept or rejecting a surety
under section 121,

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may appeal against such order to the

Court of Session:
Provided that nothing in this section shall
apply to persons the proceedings against
whom are laid before a Sessions Judge in
accordance with the provisions of sub-
section (2) or sub-section (4) of section
122.
3. Appeal by the state government against
sentence: It is mentioned in the sec.377 of
the CrPC that where the sentence passed
by the court is inadequate then the state
government or Central government can
direct the public prosecutor to file an
appeal
If the conviction is done by the court
other than a high court then state
government but if such conviction is in a
case wherein the offence has been
investigated by the Delhi special police
establishment or any agency under any
central act then Central government, can
file the appeal-
1. To the court of session, if the sentence
is passed by the magistrate; and
 2. To the high court, if the sentence is
passed by any other court
 
Q5. What are the cases in which the
appeal is not filed?
Ans- They are as follows: -
1. No appeal to lie if not provided by law:
It is a general rule that the appeal is filed
only when it is provided by the law.
Section 372 says that – “No appeal shall
lie from any judgment or order of a
criminal court except as provided for by
this Code or by any other law for the time
being in force”
 
 2. No appeal in petty Cases-Sec. 376 says
that there shall be no appeal by the
convicted person if
(a) where a High Court passes only a
sentence of imprisonment for a term not
exceeding six months or of fine not
exceeding one thousand rupees, or of
both such imprisonment and fine;
(b) where a Court of Session or a
Metropolitan Magistrate passes only a
sentence of imprisonment for a term not
exceeding three months or of fine not
exceeding two hundred rupees, or of both
such imprisonment and fine;
(c) where a Magistrate of the first class
passes only a sentence of fine not
exceeding one hundred rupees; or
(d) where, in a case tried summarily, a
Magistrate empowered to act under
section 260 passes only a sentence of fine
not exceeding two hundred rupees:
Provided that an appeal may be brought
against such sentence if any other
punishment is combined with it, but such
sentence shall not be appealable merely
on the ground—
(i) that the person convicted is ordered to
furnish security to keep the peace; or
(ii) that a direction for imprisonment in
default of payment of fine is included in
the sentence; or
(iii) that more than one sentence of fine
is passed in the case, if the total amount
of fine imposed does not exceed the
amount hereinbefore specified in respect
of the case.
3. No appeal where the accused pleads
guilty: -where an accused person has
pleaded guilty and has been convicted on
such plea, there shall be no appeal, —
(a) if the conviction is by a High Court;
or
(b) if the conviction is by a Court of
Session, Metropolitan Magistrate or
Magistrate of the first or second class,
except as to the extent or legality of the
sentence.
 
Q6.  What are the powers of the
appellate court?
Ans-The Appellate court has the
following powers: -
1. It has the power to dismiss the appeal
if there is no sufficient ground for
interfering in it
2. It may reverse the order of the acquittal
and direct the further inquiry or retry the
accused and pass the sentence in
accordance with the law.
3. It may reverse, alter or maintain the
order of conviction in an appeal
4. It may enhance the sentence by
reversing, altering the finding or altering
the nature of the sentence
5. It may make amendments, or any
consequential or incidental order  that may
be just or proper.
 
Q7. What if the judges of the appellate
court are equally divided?
Ans-This question has been dealt with by
the section 392 of this Code according to
which if the judges are divided in opinion
equally then the matter shall be laid
before another judge of that court whose
decision shall be followed. But if one of
the Judges constituting the Bench, or,
where the appeal is laid before another
Judge under this section, that Judge, so
requires, the appeal shall be re-heard and
decided by a larger Bench of Judges.
 
Q8. Are the judgment and the order of
the appellate court final?
Ans- Yes, the judgment and the order of
the appellate court are final except as
provided in section 377, section 378,
sub-section (4) of section 384 or chapter
XXX:
Provided that notwithstanding the final
disposal of an appeal against conviction
in any case, the Appellate Court may
hear and dispose of, on the merits, —
(a) an appeal against acquittal under
section 378, arising out of the same case,
or
(b) an appeal for the enhancement of
sentence under section 377, arising out of
the same case
 
Q9. What are the cases when the
appeal can be abated?
Ans-According to the section 394 of
CrPC, an appeal is finally abated on the
death of the accused except an appeal
from a sentence of fine.
But where the appeal is against a
conviction and sentence of death or of
imprisonment, and the appellant dies
during the pendency of the appeal, any of
his near relatives may, within thirty days
of the death of the appellant, apply to the
Appellate Court for leave to continue the
appeal; and if leave is granted, the appeal
shall not abate.
Explanation. —In this section, "near
relative" means a parent, spouse, lineal
descendant, brother or sister
 
Q10. What if the appellant is in jail?
Ans- If the appellant is in jail then the
petition of appeal can be presented by
him to the officer in charge of the jail
who has to forward the petition to the
proper authority
Thereafter, the Appellate Court may, for
reasons to be recorded by it in writing,
order that the execution of the sentence
or order appealed against be suspended
and, also, if he is in confinement, that he
be released on bail, or on his own bond:
Provided that the Appellate Court shall,
before releasing on bail or on his own
bond a convicted person who is
convicted of an offence punishable with
death or imprisonment for life or
imprisonment for a term of not less than
ten years, shall give opportunity to the
Public Prosecutor for showing cause in
writing against such release:
Provided further that in cases where a
convicted person is released on bail it
shall be open to the Public Prosecutor to
file an application for the cancellation of
the bail.

All about Appeals under the

Code of Civil Procedure
All about Appeals under the Code of Civil Procedure
     

08 Jan 2021

 
By : Ashi Kaim
 
Categories : Articles
The Author, Ashi Kaim is a 3rd Year,
BBA.LLB student at University School of
Law and Legal Studies, GGSIPU. She is
currently interning with LatestLaws.com.
INTRODUCTION
In the Code of Civil Procedure, there is
no concept of appeal, but their Lordships
have no doubt that any request by a party
to an appeal court seeking the ruling of a
lower court to be set aside or overturned
is an appeal beyond the ordinary
acceptance of the term. Therefore, an
appeal requires the removal of a case
from an inferior court to a supreme court
for the purpose of checking the validity
of the inferior court's decision. It is a
relief given by statute to have the lower
court's decree set aside. It is an appeal to
the higher court stating that the decree
passed by the lower court is unsound and
inaccurate. It is a right to enter a superior
court and to invoke its support and
interposition in order to resolve an error
of the court below.
APPEAL FROM ORIGINAL
DECREES 
An appeal can be filed under the Section
96 of the CPC, which states that, unless
otherwise provided for in the CPC or any
other statute in effect, an appeal is based
on any decree passed by a court
exercising original jurisdiction before the
Court of Appeal which is authorized to
hear the appeal in the Court's decision.

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It is clearly mentioned in Section 96 that
with the consensus of the parties, no
appeal lies from appeal decree passed by
the Judge. An appeal can however be
focused on original decrees passed ex
parte, i.e. without the parties' hearing. If
the sum of the subject-matter does not
exceed Rs. 10,000, except on the appeal
question of law, no appeal lies against the
decree passed by the small court of
cause. Ordinarily, an appeal can be
brought either by an appeal party
adversely affected by an appeal decree or
by either of its representative in the
interest of the appeal party.

ESSENTIALS  
There are three essential elements of any
appeal- 
 i. a decision (judgment of a judge or an
administrative authority);
ii. A person aggrieved (who is often, a party
to the original proceeding)  (iii) A
reviewing agency that is willing and ready
to hear appeals.

RIGHT OF APPEAL 
A right to appeal is not a right which is
natural or intrinsic. It is well settled that
an appeal is a contractual body and there
is no right to appeal until a statute offers
it explicitly and expressly. Although an
appeal is often a matter of right, it also
relies on the decision of the court to
which such an appeal rest.  If a specific
Act does not give a right to appeal, it
can't be declared ultra vires exclusively
on that ground as it is a substantive right
and not just a matter of procedure. It is a
Read also : किसी भी मंदिर के नाम मौजूद
सारी संपत्ति के मालिक मंदिर के अधिष्ठाता
दे वता ही होते हैं, पुजारी नहीं : सु पर् ीम कोर्ट

vested privilege which is unique to the

litigant and remains as from and on the
date on which the lis begins and while it
can indeed be exercised where an adverse
judgment is pronounced, the right is to be
regulated by the law existing at the time
of the commencement of the case or
litigation and not by the law prevailing at
the time of its decision or at the time of
the appeal.
Right to appeal is conferred under the
Code of Civil Procedure, although it does
not prescribe a limitation time for filing
an appeal.
However, the Limitation Act, 1963,
specifies the time for filing appeals. It
provides that an appeal against a decree
or order can be brought before the High
Court within ninety days and before any
other court within thirty days of the date
of the appeal against the decree or order.

Read also : फिर खारिज हुई गहना वशिष्ठ

की अग्रिम जमानत याचिका, वकील ने
कहा- सु पर् ीम कोर्ट जाएंगे

GROUNDS OF AN APPEAL
An appeal under the Civil Procedure
Code can be made under the following
grounds:
i. A decision has already been made by a
judicial or administrative authority.
ii. A person is aggrieved of such decision,
whether or not he is a party to the
proceeding. (iii)     The appeal is
entertained by a reviewing body.
WHO CAN FILE AN APPEAL?
First, any party or his/her legal
representatives to the original
proceeding. Second, any person claiming
under such party or a transferee of
interests of such party. Third, any person
appointed by the court as the legal
guardian of a minor and, ultimately, any
other aggrieved person after taking leave
of the court. The ordinary rule is that an
appeal can be filed only by a party to a
suit adversely affected by the decree or
any of its representatives in the interest  
However, with the leave of the court, a
person who is not a party to a decree or
order can prefer an appeal against such
decree or order. which he is either bound
or aggrieved by it or is maliciously
influenced by it. The test of whether a
party is an aggrieved party would be to
see if he has a legitimate case that a
judgment has been made that affects his
rights either financially or otherwise
unjustly. A judgment cannot be said to
adversely impact a party unless in any
future litigation it will act as res judicata
against him.   The content of the
judgment and decree must be evaluated
in order to decide whether a judgement
will act as res judicata and will
consequently adversely affect a party,
and not the form, 
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के लिए कर सकेंगें आवे दन: सु पर् ीम कोर्ट

Section 96(2) specifies remedies which

are available to the defendant against
whom an ex parte order is passed. One is
to file an appeal against such a decree
and another is that they can also file a
motion for an ex parte decree to be set
aside. The remedies are both
simultaneous and can be resorted to
concurrently. One should not deter the
other. Section 96(3) states that a consent
decree cannot be appealed against. This
provision is based on the broad principle
of estoppel. It presupposes that, by any
lawful agreement or settlement or even
by behavior, the parties to a suit may,
expressly or implicitly, forfeit or abandon
their right of appeal. The consideration
for a consent decree concerning the
agreement is that both parties gave up
their right to appeal.
WHO CANNOT FILE AN APPEAL?
i. A party that has given up its right to
appeal in compliance with an arrangement
which is explicit and unambiguous.
ii. A party who has benefited from the
incentives derived from a decree.
(iii)Parties with a consent decree.

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iv. Parties whose evidence or compromises
are or have not been expressed in a
dispute.
v. Parties involved in trivial instances.
vi. There shall be no legal representatives
allowed file an appeal against a deceased
individual.

CHARACTERISTICS OF AN
APPEAL
The right to appeal is not implicit and
must therefore be established by the
statue in express terms. Thus, these rights
vary from the rights found in the act of
filing cases. It is a right of substance and
not a procedural one. The rights under
this provision accrue from the day of the
institution of the suit. Such privileges
will not be declared invalid, except by a
statue (either expressly or by
implication). The discretion of the
appellate authority is conclusive.

MEMORANDUM OF APPEAL
The memorandum of appeal is a
document which contains the grounds of
appeal. A memorandum of appeal would
support any appeal under these
conditions. The components of a valid
memorandum of appeal shall include: the
grounds for filing an appeal, the
appellant's signature, the attachment of a
signed copy of the original judgment and
the remittance of the decree or protection
amount (money decree). The appellant is
not entitled to consider any grounds or
claims other than those stated to in the
memorandum. The court can, however,
consider such complaints on its own
accord, providing that the opposing party
has sufficient opportunity to appeal such
grounds. The court is free to refuse or
change any memorandum it deems to be
unreasonable. The court will have to
document the basis for such a denial.

FORM OF APPEAL: RULES 

In order for an appeal to be validly filed,
all the provisions of the Memorandum of
Appeal have to be met. Rule 2 prohibits
the appellant from applying for any
reasons of objection not set out in the
memorandum of appeal, but only with
the leave of the court. The underlying
intent of this provision is to notify the
respondent of the case which he is
expected to meet at the hearing of the
appeal. If the memorandum of appeal is
not in suitable form, the court may refuse
it or return it to the appellant for the
purpose of being amended. Rule 4 states
that where a decree proceeds on a ground
common to all the plaintiffs or
defendants, each of the plaintiffs or
defendants may appeal against the whole
decree, and the court may reverse or vary
the decree in favor of all the plaintiffs or
defendants.

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CONDONATION OF DELAY  
The Amendment Act of 1976 Inserted
Rule 3 A. It specifies that if an appeal has
been filed after the expiry of the
restriction date specified for that reason,
it must be followed by a submission to
the effect that the applicant has
reasonable reasons for failure to lodge an
appeal within the time limit. The purpose
of this clause is twofold: first, to notify
the appellant that the delayed appeal may
not be sustained until the delayed appeal
is followed by an application justifying
the delay; and secondly, to inform the
respondent that it might not be
appropriate for the appellant to be
prepared on the merits, as the court must
first deal with an application for
condonation of the delay as a precedent
condition. However, the clause is a
directory and not compulsory.
STAY OF PROCEEDINGS
RULES 5¬8 Rule 5 provides for stay of
an execution of a decree or an order. The
appeal court may order the stay of
proceedings under the decree or the
enforcement of such a decree after an
appeal has been lodged. But the
implementation of a decree is not
interrupted by the mere filing of an
appeal. If appropriate grounds are
identified, the stay can be granted. 
The purpose underlying Rule 5 is to
secure the interests of both the issuer of
the order and the debtor of the judgment.
Therefore, the following conditions must
be met before the stay is issued by the
court:
a.The application was submitted without
undue delay;
 b. The claimant incur significant damages
until such an order is made
c.Security has been provided by the
applicant for the due performance of the
declaration or order. If the aforementioned
conditions are met, the court can also
make an ex parte order for a stay of
execution pending the hearing of the
appeal.

SUMMARY DISMISSAL 
Rule 11 deals with the trial court's right
to summarily deny an appeal. This
provision applies to the phase following
the submission of the memorandum of
appeal and the filing of the appeal in
compliance with Rule 9. Rule 11
embodies the basic principle that if an
appeal is preferred, the appeal court, after
hearing the appellant or his counsel, is
free to refuse the appeal summarily if
there is no merit in the appeal prima
facie. Nevertheless, discretion must be
exercised judiciously and not arbitrarily.
Such control can be used only in rare
situations and rather sparingly.

DOCTRINE OF MERGER 
The doctrine of merger theory is based on
the principle that there should not be
more than one operating decree
governing the same subject matter at the
same time. Therefore, the decree of the
trial court ceases to exist under the
context of the statute as soon as an appeal
is resolved by an appeal court, which is
superseded by a decree by an appeal
court. The decree passed by the trial
court, in other words, merges with the
appeal court's decree.
CROSS OBJECTIONS
Order 41 Rule 22 is a special provision
which allows the respondent who has not
appealed against the decree to object to
the decree by filing cross-objections in
the appeal filed by the other party. 
However, the respondent's filing of cross-
objections is discretionary and voluntary.
The provision is permissive and
encouraging and not mandatory or
peremptory. An appeal by a respondent
in which the plaintiff has little
involvement should not be viewed as a
cross-objection. The challenge is brought
by the appellant against the respondent,
and the cross-objection by the respondent
against the appellant would be an
objection. Cross appeals can be filed on
the following grounds by the
respondent- 
1. if he could have filed an appeal against
any part of the decree 
2. if he is aggrieved by a finding in the
judgment, even though the decree is in his
favor because of some other finding.
The terms of Order 41 Rule 22 allow for
the right to file cross-appeals only where
an appeal is filed and even when the
appeal is accepted by the court of appeal
and a notice is issued to the respondent.
Only after an appeal is accepted and the
court orders notice to be given to the
respondent should the process of filing
cross-objections begin.
Therefore, no cross objections can be
brought where no appeal has been filed
by the appellant or an appeal has been
filed but has not been accepted.

POWERS OF APPELLATE
COURT
a.Power to decide a case finally- Section
107(l)(a) and Rule 24 of Order 41 enable
the appellate court to dispose of a case
finally. Where the proof on record is
adequate to allow the appellate court to
pronounce a decision, the case may
eventually be decided, notwithstanding
that the judgment of the court of appellate
court occurred solely on some other basis
than that on which the appellate court
continues.
b. Power of remand- Section 107(1)(b),
Rule 23 of Order 41 of the Code states that
if the trial court has decided the case on a
preliminary point without documenting
 findings on other issues and if the court of
appeal reverses the decree thus passed, it
may send the case back to the court of
appellate court to decide other issues and
reach a decision. An appellate court can
order the lower court to reconsider and
retry the case by passing an order of
remand
c.Power to frame issues and refer them
for trial- Section 107 (1)(c), Rules 25 and
26 provides that where the lower court has
omitted to frame any issue or to try any
issue or to determine any question of fact,
which is crucial to the just decision of the
case  upon merits, the appellate court can
frame issues and refer them for trial to the
lower court and direct that court to take the
additional evidence required. 
d. Power to take additional evidence-
Section 107(1)(d), Rules 27 29, as a
general rule, an appeal shall be decided by
the court of appellate court on the facts
 adduced by the parties before the court of
appeal and no further evidence shall be
accepted for the purposes of the appeal.
The fundamental principle of admission of
additional evidence is that it should be
sufficient for the person demanding
admission of additional evidence to prove
that such additional evidence may not have
been admitted as evidence at first instance
with the best efforts. There should be an
opportunity for the party affected by the
admission of additional facts to contradict
such additional evidence. The additional
evidence must be relevant for the
determination of the issue.
e.Power to modify decree- Rule 33 of
Order 41 allows an appellate court to make
whatever decision it deems fit, not only
between the appellant and the respondent
but also between two respondents. It
empowers an appellate court not only to
give or refuse relief to the appellant by
 allowing or dismissing the appeal, but also
to give any other such relief to the
respondents as the case may require.
SECOND APPEAL 
Section 100 of the Code as amended by
the Amendment Act of 1976 declares that
an appeal shall lie to the High Court from
every decree passed in appeal by any
court subordinate to the High Court if the
High Court is satisfied that the case
involves a substantial question of law.
Such appeal lies also against an appellate
decree passed ex parte. The appellant has
to precisely state in the memorandum of
appeal the substantial question of law
involved in the appeal. Where the High
Court is satisfied that a substantial
question of law is involved in the case, it
shall formulate such question. 
It, however, permits the respondent
(opposite party) to argue at the hearing of
the appeal that the question formulated
by the court as a substantial question of
law does not involve such question. The
Law Commission in its Fifty fourth
Report reviewed the position and
recommended that the right of second
appeal should be confined to cases where
substantial question of law is involved.
The appropriate test to decide if the
question of law challenged in the case is
substantial would be if it is of general
public interest or if it concerns the
interests of the parties explicitly and
significantly and, if not, if it is still an
open question in the sense that it is not
ultimately decided by that court or by the
Privy Council or by the Federal Court. 
Thus, it should be argued that where a
question is legitimately arguable, or
where there is space for a contrary
interpretation, or where an alternate view
is similarly probable, or where it is not
finally resolved, or where there is no
uncertainty, the question can be said to
be a 'substantial question of law.' The
following questions are some the
examples of substantial questions of law: 
 A question of law on which there is
dispute of judicial opinion; 
 Recording finding without any evidence
on record; 
 Non consideration of relevant or
admissible evidence; 
 Considering irrelevant or inadmissible
evidence; 
 Misconstruction of evidence or
documents; 
  A question on admissibility of evidence;
 Placing burden of proof on a wrong
party; 

CHARACTERISTICS OF
SECOND APPEAL
A second appeal lies in the High Court
and such an appeal is maintainable only
on a substantial question of law alone. A
second appeal can also lie against an ex
parte decree. No appeal cart be filed on a
question of fact, question of law, or
mixed question of fact and law. There is
no second appeal in a money decree,
where the amount does not exceed
twenty-five thousand rupees. The High
Court should formulate a substantial
question of law while admitting an
appeal. In certain circumstances, a High
Court can also decide an issue of fact.
POWER OF HIGH COURT TO
DECIDE ISSUE OF FACT
Section 103 provides that although no
second appeal lies on a question of fact
when such appeal is before the High
Court and the evidence is sufficient, the
Court may decide any issue of fact
necessary for the disposal of the appeal.
This is only allowed in two conditions. 
Firstly, if such issue has not been
determined either by the trial court or by
the appellate court or by both and
secondly if the issue has been wrongly
decided by such court by reason of its
decisions on a substantial question of
law. This provision empowers a High
Court to decide even an issue of fact in
certain circumstances.
APPEALS FROM ORDERS
SECTIONS 104 to 108 and Order
43 provides for appeals against orders.
They state that certain orders are
appealable and other orders are not
appealable. But it is possible to attack
such orders in an appeal against the final
decree. These sections also provide the
forum for an appeal.  Order can be
defined as "the formal expression of any
decision of a civil court which is not a
decree"  Therefore, an adjudication by a
court that does not come under a "decree"
is an "order". An appeal of an order can
be filed within ninety days before the
High Court and within thirty days from
the date of the order, before another
court.  SECTION 106 states that appeals
against orders in cases in which they are
appealable shall be brought before the
court to where an appeal would lie from
the original suit.   
Some of the instances of appealable
orders are- 
i. An order awarding compensatory costs in
respect of false or vexatious claims or
defence. 
ii. An order refusing leave to institute a suit
against public nuisance.
(iii)An order rejecting an application
to set aside the dismissal of a suit for
default. 
iv. An order rejecting an application to set
aside an ex parte decree. 
v. An order dismissing a suit or striking out
defense for non- compliance with an order
for discovery. 
 vi. An order granting or refusing to grant
interim injunction.
vii. An order refusing to restore an appeal
dismissed for default of appearance by
appellant. 
viii. An order refusing to rehear an appeal
heard ex parte.
ix. An order of remand.
x. An order granting an application for
review 

OTHER ORDERS
Section 105 enacts that every order
whether appealable or not, except an
order of remand, can be attacked in an
appeal from the final decree on the
ground that there is an error, defect or
irregularity in the order and that such
error, defect or irregularity affects the
decision of the case. The principle
underlying Section 105 is that when an
interlocutory order is appealable, the
party against whom such order is made is
not bound to prefer an appeal against it.
There is no such law which compels a
party to appeal from every interlocutory
order by which he may feel affected.
Section 105 makes it clear that an order
appealable under Section 104 may be
questioned under this section in an appeal
from the decree in the suit, even though
no appeal has been preferred against the
interlocutory order. 
ORDER WITH SUITS BY
INDIGENT PERSONS.
Order 44 deals with appeals made by
indigent persons.   Any person entitled to
file an appeal who is unable to pay the
court fee needed for the memorandum of
appeal must file an appeal followed by a
memorandum of appeal and then the
Court may permit him to appeal as an
indigent person. The present situation is
that, on all the grounds applicable to an
ordinary citizen, an indigent person can
also file an appeal. Also, an indigent
individual can file cross-objections. 
Rule 3 states that if the appellant has
been permitted to sue in the trial court as
an indigent party, no further investigation
is required if the appellant files an
affidavit claiming that he has not ceased
to be an indigent person since the date of
the appeal of the decree. . Where the
appellant is said to have been an indigent
person after the date of the decree of
appeal, the appellant's inquiry shall be
carried out by the appellate court or, on
its request, by the officer of that court.  
The question to be considered by the
court at the point of hearing an appeal is
whether the applicant is an indigent
citizen. 
The appeal will be allowed, if he is
indigent, and the memorandum of appeal
will be registered. If he is not indigent,
the appeal would be denied. The period
of limitation for presenting an application
for leave to appeal as an indigent person
is sixty days (High Court) and to other
courts it is thirty days. The limitation
starts from the date the decree is appealed
from. 
GENERAL APPEALS TO THE
SUPREME COURT 
General appeals to the Supreme Court are
laid down under provisions of Articles
132, 133 and 134A of the Constitution of
India with regard to civil matters. An
appeal shall lie to the Supreme Court
from any judgment, decree or final order
in a civil proceeding of a High Court, if
the High Court certifies that— 
a.The case involves a substantial question of
law of general importance; and 
b. In the opinion of the High Court the
said question needs to be decided by the
Supreme Court. 

CONDITIONS
Under Section 109 of the Code, an appeal
would lie to the Supreme Court only if
the following conditions are satisfied-
 Judgment, decree or final order- An
appeal lies before the Supreme Court
only against the High Court's decision,
decree or final order. A verdict, decision
or final ruling to which an appeal can be
brought before the Supreme Court must
be one aimed at bringing the dispute
between the parties to an end. In respect
of an interlocutory order, no certificate
can be granted. The test whether the
order is final or not will not depend on
whether the controversy is finally over,
but whether the controversy raised
before the High Court is finally over or
not.
 Substantial question of law of general
importance- If the High Court certifies
that the dispute concerns a substantial
question of law of general significance,
an appeal will fall to the Supreme
Court. The substantive question of law
must be such that the general public,
 aside from the parties to the case,
should be involved in the Supreme
Court's resolution of the question, i.e.
that it will influence a significant
number of people or a number of cases
concerning the same matter.
 Need to be decided by Supreme
Court- The High Court must take the
view that the Supreme Court has to
decide such a matter. There has to  be a
necessity for a Supreme Court ruling on
the subject, and the need could be seen
to exist where, for example, two
viewpoints on the issue are available
and the High Court takes one view of
the views referred to. Such a necessity
may also be said to occur where another
High Court has held a different opinion.
APPEALS UNDER
CONSTITUTION 
Article 136 of the Constitution confers on
the Supreme Court very broad and
plenary powers to issue special leave to
appeal against any verdict, decree,
opinion, sentence or order (final or
interlocutory) passed down by any court
or tribunal. Section 112 of the Code
preserves the powers bestowed by the
Constitution on the Supreme Court and
declares that those powers will not be
impaired by anything in the Code of Civil
Procedure.
CASES
Kaleidoscope India Pvt. Ltd. v.
Phoolan Devi AIR 1995 Delhi
316
In this case, the Judge of the Trial Court
banned the screening of films both in
India and abroad. The Session Judge
allowed the film to be shown abroad. A
party which moved in appeal
subsequently did not have locus standi. It
was overturned by the division bench
stating that as he entertained the suit in
which party had no locus standi, it is not
reasonable on the part of the judge.
Ram Chandra Abhyankar v.
Krishnaji Dalladarya AIR 1970
SC 1
In this case, the Supreme Court
established three requirements for the
application of the Merger Doctrine:
1. The superlative jurisdiction should be
appellate or revisional in nature
2. Jurisdiction should have been
exercised after notice had been given.
3. After a complete hearing in the
presence of both sides, i.e. on the point
where the order of the superior court goes
through the detail of the issue, only the
order of the inferior court is combined to
that degree.
It would depend on the extent of the
authority exercised, the substance of the
challenge and the subject matter capable
of being established. The superior court
should be able to reverse or alter or
affirm the order that has been put in
question before it. The power is not
appealed or revisional of written
jurisdiction, but it is a collateral disputed
on the principle of natural justice.

R.V. Dev v. Chief Secretary,

Govt. of Kerala (2007) 5 SCC
698
In the subsequent case, the Court ruled
that 'Order 33 of the Code of Civil
Procedure deals with cases brought
against indigent persons, while Order 44
deals with appeals brought against
indigent persons. When an application is
filed by a person who is said to be
indigent, it is important to take into
account those considerations to
determine whether that person is indigent
under the context of the clause. An
individual who is entitled to sue as an
indigent person is responsible for paying
the court fee that he would have paid if
he were not allowed to sue in that
capacity if he failed in the courtroom or
simply without a trial. The payment of
court fines, as shown by the policy, is
merely postponed. It is not totally
cleaned clean.
In H. Siddiqui (dead) by LRs v. A.
Ramalingam, AIR 2011 SC 1492, the
apex court held as under “It must be
evident from the judgment of the
appellate court that the court has properly
appreciated the facts/evidence, applied its
mind and decided the case considering
the material on record. Being the final
court of fact, the first appellate court
must not record a mere general
expression of concurrence with the trial
court judgment rather it must give
reasons for its decision on each point
independently to that of the trial court.
Thus, the entire evidence should be done
after formulating the points for
consideration in terms of the said
provisions and the court must proceed in
adherence to the requirements of the said
statutory. ”
State of West Bengal & Ors. v.
Kamal Sengupta & Anr. (2008)
8 SCC 612
The Supreme Court held that a review on
the basis of discovery of fresh and
important matter or facts could be taken
into account if the same is of such a type
that the judgment under review would
have been altered if it had been generated
earlier, and the Court must be sure that
the party adducing the new ground did
not have the same information even after
due diligence had been exercised. The
evident mistake denotes an error that is
apparent per se from the case record and
does not require either the evidence or
the legal situation to be investigated,
examined and elucidated in detail. In the
event that the mistake is not self-evident
and that its identification involves a
lengthy debate and thought process, it
cannot be viewed as an obvious error on
the face of the record for the purpose of
analysis.

Garikapati Veeraya v. Subbiah

Chaudhary
In the current case, it was held that there
appeared to be a pre-existing right of
appeal to the Supreme Court, and the old
statute that established such a right still
continued to exist. It interpreted the
protection of this right while
acknowledging the shift from the Federal
Court to the Supreme Court of its judicial
machinery. The introduction of the old
laws, however, is subject to the laws of
the Constitution.

Chunnilal v. Mehta v. Century

Spining and Manufacturing Co.
Ltd., AIR 1962 SC 1314 
The facts of this case are that the
respondent corporation dismissed the
appellants as managing agents well
before the expiry of the contractual term.
The appellants filed a complaint seeking
damages in the Bombay High Court. In
favor of the respondent corporation, the
H.C agreed. By special leave, the
Appellants have moved to SC. The
concern was whether the creation of a
title document that forms the basis of the
parties' rights poses a question of law and
does the interpretation of that document
pose a substantial question of law? In an
earlier Bombay case, it was argued that
no significant question of law would
occur simply because an inference was to
be made from a complex decree. Also, in
Nagpur case, it was held that if it is
relevant between the parties and the case
turns on that, a substantial question of
law exists. SC disagreed with both of
these views and agreed with that of the
High Court of Madras (R. Subba Rao v.
N. Veeraja) and established following
principles of a substantial question of
law- 
A) It impacts the interests of the parties
explicitly and significantly. It need not be
a topic of general significance.
 b. It is an open question, not finally
resolved by this Court, or there is a doubt
as to the legal theory at hand, whether it
calls for alternate opinions to be discussed.
c.Whether the matter is Either well decided,
or if the general principles are well settled,
and only its application persists, or if the
plea put out is qualitatively unreasonable,
that is Not a serious question of law.

Koppi Setty v. Ratnam. V.

Pamarti Venka 2009 RLR 27
(NSC) 
Section 100 was amended by the 1973
Recommendation of the Law
Commission, which compelled it to
formulate a substantial question of law.
For the satisfaction of the failed litigant,
an unqualified right of first appeal might
be necessary, but the broad right of 2nd
 appeal is more a privilege. High courts
now only have cases where there is a
substantial question of law and those
matters have been specifically
formulated in the Memo of Appeal.