How and where to appeal for a criminal matter

Appeal on any criminal matter is dealt with the Code of Criminal Procedure, 1898 and this is the main procedural law for any criminal case, therefore, we will focus on the details of this law and would try to present the core of the criminal appeal in best possible way.

Appeal

An appeal is an application to the upper court when any party is aggrieved by any judgement or order by a lower court. In criminal matters appeal is also known as Petitioner of Appeal [u/s 419 of the code]. An appeal is acceptable on the matter of “question of fact”  and “question of law”.

Criminal Appeal

A criminal appeal is an appeal on the criminal matter to the higher court, these criminal matters can be classified into three categories, and they are as follows;

  1. Appeal on matters other than a sentence: where any party of any criminal case is aggrieved on any decision of a court and want it to be changed.
  2. Appeal against sentence: where any aggrieved party believes that the given punishment is less or more than what it should be.
  3. Appeal against acquittal: When a charged person declared not guilty by a court that is known as an acquittal.

Appeal on matters other than a sentence

In this case, we may call them Order as most of them are orders by a court by which a party of the case got aggrieved, the are as follows.

  • No provision, no appeal: The general rule is an appeal can only lie as “as of right” when it is  mentioned in any provision of law. This guideline is given under section 404 of the code of criminal procedure, 1898.  On the other hand, there is another option to present an appeal before High Court Division of Supreme Court but in that case, this is not the right of the petitioner, rather a privilege, the court will decide whether the case should be taken or not, this type of appeal is known as leave to appeal.
  • Matters of section 89: When under section 89 an application lies before a court to return the attached property and that application gets rejected then an appeal can lie against that rejection. [section 405]
  • Matters of section 118: An appeal can lie against any order for Bond for peace under section 118 [section 406]
  • Matters of section 112: When a person is aggrieved by an order that refusing to accept or reject a surety under section 122, may appeal against such an order under section  406A of the code.
  • Special appeal right: When one co-accused gets the right to appeal by means of leave to appeal then other co-accused gets the same right considering that as a special ground.  As mentioned under section 415A of the code.

Where to appeal

For the above-mentioned procedure appeal lies:

  • From Chief metropolitan magistrate,  chief judicial magistrate, district magistrate to session judge.
  • From metropolitan magistrate  to chief metropolitan magistrate
  • From any executive magistrate to district magistrate
about Criminal Appeal
Symbolic; Thinking about Criminal Appeal

Appeal against any sentence

  • From Second class and Third class magistrate to Chief judicial magistrate.  [section 407]
  • From the First-class magistrate and from Joint session judge to Session judge,
    • but, if joint session judge Convict any person for 5 or more years or under section 224 then the Appeal shall lie to the High court division of the supreme court. [section 408]
  • When appeal lies before the session court, the session court himself can try the case or it can also be sent to Additional session judge as mentioned under section 409.
  • From Session Court or Additional session court apple lies to the High court division of Bangladesh Supreme Court. [section 410]

Appeal against acquittal

Who can file such appeal?

1.By public prosecutor: against any order of punishment or acquittal, within six months. the public prosecutor can file an appeal up to two times; this is also known as the second appeal.

  • Second Appeal:

    • When an appeal is made against an acquittal of a magistrate and files an appeal to the session court is considered as a first appeal. Being aggrieved when the public prosecutor file another application against the decision of the session court to the High Court Division of the Supreme Court is known as the second appeal.

2.By the complainant: A complainant can appeal against an acquittal within 60 days of such order.

As per section 417 of the code of criminal procedure, 1898

Appeal against inadequate sentence

The public prosecutor or the party of the compliant can appeal against any inadequate sentence to the High Court Division of Supreme Court within 60 days. [section 417A]

Where no appeal is permitted

There are some situations where appeal is not permitted.

  • When a person pleads guilty then no appeal lies against that guilty plea but the appeal can be presented where there is a question of law. As mentioned in section 412 of the code.
  • No appeal lies in petty cases where the punishment is not more than one-month imprisonment or where the fine does not exceed 50 takas. [Section 413]
  • No appeal from certain summary conviction where the fine does not exceed 200 takas. [Section 414]

Some general procedure of criminal appeal

What to do when the appellant is in jail?

  • The appellant may present his petition of appeal and the other documents via the officer in charge of the jail. [Section 420]

Procedure after the appeal is received

  • The appellate court if considers that there is no sufficient ground shall dismiss that appeal. [Section 421]
  • If the appellate court does not dismiss the appeal then the court will provide notice to the government to take necessary steps and to be present on the time of appeal hearing. [Section 422]

Powers of the appellate Court to dispose of such appeal:

  • After hearing the appeal the court may, Dismiss the appeal or keep the same judgment or can change, reserve, enhance the punishment. [Section 423]

Hope this conclusive idea with the easy explanation will help the readers to have a compact idea of Criminal appeal under Code of Criminal Procedure, 1898.

Rayhanul Islam

Legal activist & Practitioner - Editor - Researcher - Learner; A person who uses Logic & Law as his tool. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: [email protected]

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