Memorandum of Appeal and Revision under Section 378 Cr.P.C.

The human mind and by extension human actions are not beyond fallacy and errors. This is particularly important to remember in the course of criminal justice. With this perspective, it is important to understand in-depth how the memorandum of appeal and revision work under section 378 of the Criminal Procedure Code.

Criminal Procedure Code comprises detailed provisions regarding memorandum of appeal and revision.

Meaning of Appeal and Revision

Beginning with the meaning of these terms, a memorandum of appeal denotes a written document containing among other details the grounds on which the decision of a court is challenged. The person who files a memorandum of appeal is called an appellant. Interestingly, the word ‘appeal’ has not been defined in the Criminal Procedure Code. A Memorandum of revision similarly is a document filed when the person alleges that the decision passed by the court is erroneous and should, therefore, be revised and set right. Unlike, review where usually the case is re-examined in the same court by the same judge, revision implies revising the judgment by a higher court than the one that delivered it. Section 397 to Section 405 includes powers of revision whereas section 372 to Section 394 includes provisions related to the memorandum of appeal.[1]

It should also be noted that while an appeal is a legal right conferred upon the citizens by the laws of India, revision is left to the discretion of the courts. In Hari Shankar v. Rao Ghari Chowdhury,[2] the difference between revision and appeal was briefly discussed. It was observed by the Supreme Court that while appeal included within itself the right to re-examine facts as well as the questions of law, revision is a way for the superior courts to intimate itself with the details of the proceedings of the case satisfy itself that the case has been decided according to the laws that govern the land.

Format of a Memorandum of Appeal and Revision

The format of a memorandum of appeal is different from that of a petition. A petition requires all the facts and details to be included in the petition. This is not the case in the memorandum of an appeal. The rules for a memorandum of appeal are the same for both the Supreme Court and High Courts.

The format for a memorandum of appeal is as follows:

The format is broadly divided into two parts formal and material part.

  1. Formal Part
  2. Material Part

The heading of the case should include details such as the name of the court, addresses of the parties. It is a common practice to mention the address of the appellant first. The introductory details of the appellant are inclusive of the particulars of the orders/decrees from which the appeal arises.

It should be noted that while the valuation of the appeal is not required to be paid beforehand according to the Criminal Code of Procedure but it should be mentioned in the memorandum of appeal. The memorandum of appeal can be filed by any of the parties involved in the case. There is no restriction as to who can file the memorandum of appeal.

The grounds for appeal should be written concisely and clearly and should not be argumentative in tone. It is important to present all the grounds with great clarity and lucidity and in an economical manner. It is preferable to write the grounds for appeal in pointers.

After having written the details such as the court name, name of the judges and the parties, a general statement such as “May it Please Your Honour,
For the following among other grounds, the appellant herein begs to prefer this appeal against the judgment dated……of the Judicial Magistrate ……………………………convicting the appellant under Section 411, I.P.C. and sen­tencing him to undergo 6 months’ R.I. and to pay a fine of Rs. ____” can begin the memorandum of appeal.

Having written about the memorandum of appeal, it is now time to see how a memorandum of revision is written.

Before beginning with the format of the memorandum of revision, it is important to understand that in a memorandum of revision, one calls for examination of correctness and legality of the order or judgment passed. Again, the Criminal Code of Procedure has not defined the term ‘revision’.The Supreme Court in Amit Kapoor vs Ramesh Chander & Anr[3] observed “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.”

Two essentials have to be satisfied before filing a memorandum of review. These are:

  1. Calling for records of the case: The most fundamental requirement is that the records of the case should be called for by the court. The records can consist of FIRs, statements made by the witnesses, and any other statements or records that are involved in the case.
  2. Unsatisfaction of the parties with the judgment delivered: While it is implied and evident that a memorandum of revision is filed for when there is unsatisfaction with the judgment delivered but it should be noted again to highlight the importance of this essential. Either party involved in the case can file for a memorandum of revision. If they are unsatisfied with the decision or judgment delivered by the judge. However, the court exercising the revisional jurisdiction cannot revise the judgment on its merit and only revise the procedural aspect of the judgment.[4]

Similar to the memorandum of appeal, the memorandum should involve the details of the parties, the name of the case, and the grounds for revision. Similarly, the grounds should be written with clarity and with concise use of the words. The tone of the writing style of the author while writing down the grounds for revision in a memorandum of revision should not be argumentative.

It can again be divided into formal and material parts according to the details that come under each head.

Limitation Period

Appeal in High Court can and should be filed within 60 days starting from the date on which the trial court or the lower court passed the judgment or the order against which the appeal is being sought.

Joint Petition Appeal

Joint petition appeal is permitted against several individuals accused of some offense/crime and are subsequently acquitted by a trial court or some subordinate court. It was held in Mulla v. Emperor[5] joint appeals by persons convicted in the same trial was in congruence with the law. Their interests must conflict with each other for this to follow.

Principles for Grant of Appeal

  1. It can be granted in a case where the High Court has reversed an order of acquittal and sentenced the accused to capital punishment.
  2. In case the High Court has ordered a case to be withdrawn from a trial court for it to be tried before it and has convicted the accused to either imprisonment for life, imprisonment for a period not less than 10 years, or sentenced the accused to death.
  3. If the High Court grants a certificate for special leave.
  4. If the person accused has committed an offense that comes under original criminal jurisdiction.

A person cannot file for a grant of special leave of appeal if the judgment passed against him or her calls for imprisonment for 6 months and an amount of fine that does not exceed Rs. 1000.

Dismissal of Appeal

The court may summarily dismiss an appeal after it is satisfied that there are no grounds for interfering. Before that certain essentials that have to be fulfilled. They are as follows –

  1. An opportunity has been given to the appellant or the pleader on behalf of the appellant to be heard.
  2. The court may dismiss before giving an opportunity to the appellant to be heard if it considers that the appeal is frivolous.
  3. Before the period of preferring the appeal has expired.

Relevant Sections of CrPC

  1. Section 378: Section 378 is divided into 6 sub-sections and provides for rules in appeal in case of acquittal.
  2. Section 382: It requires that every appeal shall be presented in form of a petition in writing which should be presented by either the appellant himself or herself or by a pleader on his or her behalf. It should contain a copy of the original judgment/order against which the appeal has been filed.
  3. Section 383: This section provides that if the appeal has been filed by someone who is in jail then he or she shall be required to present his petition of appeal and the other accompanying documents to the officer in charge of the jail who shall then resent it to the appropriate appellate court.
  4. Section 384: It lays down the essentials that need to be fulfilled to dismiss an appeal summarily. It is provided that no appeal shall be dismissed before the appellant or his or her pleader has been allowed to be heard and until the period allowed for preferring such appeal has expired. Sub-section 2 also empowers the court to call for the records of the case if not done already.
  5. Section 385: This section provides for the procedure to be followed if the appeal is not dismissed summarily. It states that a notice specifying the time and place at which the appeal will be heard should be given to the appellant or his pleader. If the notice is not provided then it would amount to not giving an opportunity to the appellant or his or her pleader an opportunity to be heard. It is obligatory on the part of the court to provide a notice of hearing.
  6. Section 397: This section empowers the High Courts to call for records of the case from any inferior court or session court to examine the proceedings of the case for entertaining a petition of review. It also empowers the High court to suspend any order passed by the inferior court and for the accused if in confinement to be released. Sub-section 2 also states that “The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings”[6].
  7. Section 398: This section provides that the High Court judge or Session Judge may direct the Chief Judicial Magistrate or any other subordinate judge for further inquiry into the matter or complaint which had been dismissed under section 203, 204(4) or for an offense for which the accused has been discharged.
  8. Section 399: This section enumerates the revision power of a judge. It states that a session judge may exercise all or any powers under section 400(1) which are exercised by the High Court in relation to the call for any records of the case or proceedings. It also states that the call for revision by the person when entertained by the session judge and then subsequently an order is passed in this regard, then such an order is final and the person will not be allowed to file a petition of revision in High Court or any other court.
  9. Section 400: Section 400 provides that an Additional Session shall have the same power and the power to exercise those powers as a session judge.
  10. Section 401: This section is divided into five sub-parts and lists the powers of the High Court in relation to a petition of revision. It states that no order should be made to the prejudice of the accused or until the accused has been given adequate opportunity to be heard. It is also stated that nothing in this section empowers the High Court to convert a verdict of acquittal into one of conviction. “In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.”[7]

Conclusion

It is important to understand that while an appeal is a legal right, review is not. Review is awarded at the discretion of the court. To write a memorandum of appeal or review, the rules are very similar and simple. The format in both these memoranda involve a formal part where the necessary details such name of the case, the court, and the parties are specified and in the second part which is called the material part of the memorandum, grounds for details for either the appeal or revision should be written concisely with a neutral tone that does not represent any grounds in an argumentative tone.

This memorandum of appeal and revision can be filed by either of the parties. There is no limitation imposed by law or statutory provision in this regard. Section 397 to Section 405 includes powers of revision and section 372 to Section 394 includes provisions related to the memorandum of appeal.

Justice is a tricky business. It is not beyond errors and faults and for this reason, the Constitution of India provided the parties an opportunity for appeal and revision. The Code of Criminal Procedure specifies a very detailed and balanced procedure for each and every step and situation that may arise in the path of seeking justice.

References:

[1] Blog.ipleaders[https://blog.ipleaders.in/appeal-reference-and-revision-under-crpc/] (last accessed- 15/1/21).

[2] Hari Shankar v. Rao Ghari Chowdhury 1963 AIR 698, 1962 SCR Supl. (1) 93.

[3] Amit Kapoor vs Ramesh Chander & Anr (2012) 9 SCC 460.

[4] Blog.ipleaders[https://blog.ipleaders.in/appeal-reference-and-revision-under-crpc/] (last accessed- 15/1/21).

[5] (AlR 1936 Lah. 859)

[6] Section 397(2) of the Code of Criminal Procedure,1973

[7] Section 400(1) of the Code of Criminal Procedure,1973