Criminal Appeal Against Conviction: Step-by-Step Procedure

A person convicted by a criminal court can appeal against the conviction, and usually against the sentence as well, to the court above it. A conviction by a Magistrate is appealed to the Court of Session, and a conviction by a Court of Session is appealed to the High Court. The appeal must be filed within the time fixed by law, and it is normally accompanied by an application to suspend the sentence so that the appellant is not in custody while the appeal is pending.

Which court hears your appeal against conviction

In and around Kolkata, appeals from convictions by the Metropolitan Magistrates go to the City Sessions Court at Bankshall, while appeals from convictions by the district Sessions courts go to the Calcutta High Court on its Appellate Side. Appeals from Alipore and other district courts follow the same broad route.

The change of law: CrPC to BNSS

From 1 July 2024 the Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure 1973, and the Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860. The appeal provisions are the same in substance but have been renumbered. The provision on appeals from convictions, which was Section 374 of the CrPC, is carried into the BNSS appeal chapter in substantially the same terms, and the provision on appeals in the case of acquittal, old Section 378 CrPC, is renumbered alongside it. Because the numbers have changed, a reference to the old sections still identifies the right provision, but the current section number should be confirmed against the BNSS before it is cited in a filing.

The remedy of quashing, on the other hand, is cited by its new number: the power that was old Section 482 CrPC is now Section 528 of the BNSS. Our note on the appeal process under the BNSS sets out the renumbering in more detail.

Time limit for filing the appeal

The period for filing a criminal appeal is governed by Article 115 of the Limitation Act 1963. In general, an appeal against a sentence must be filed within sixty days from the date of the judgment or order, and within thirty days where the sentence is one of death. Time is counted strictly, and the schedule is technical, so confirm the current position before relying on the outer limit.

If the period has run, the appeal can still be filed with an application for condonation of delay supported by an affidavit showing sufficient cause. Courts are often willing to condone delay in criminal appeals where liberty is involved, but a late appeal is a risk that should not be taken voluntarily.

What you must file

• A memorandum of appeal setting out the facts, the grounds and the judgment or order under appeal.
• A certified copy of the judgment and, in a conviction appeal, of the order of sentence.
• An application for suspension of the sentence and release on bail pending the appeal, where the appellant is in custody.
• A vakalatnama or memorandum of appearance, and the prescribed court fee.
• An application for condonation of delay, where the appeal is filed beyond the period allowed.

Suspension of sentence and bail pending appeal

The appellate court can suspend the sentence and release the appellant on bail while the appeal is pending, and this power is exercised under old Section 389 CrPC, renumbered in the BNSS. Suspension is especially important where the sentence is short and may be served out before the appeal is heard, or where the appellant has already undergone a substantial part of it. It is applied for separately from the appeal and is decided on the facts of the case. An order suspending the sentence is not the same as a finding on the appeal, and the appeal is still decided on its merits.

Grounds on which a conviction is usually challenged

• An error of law in the framing of the charge or in the appreciation of the evidence.
• A misreading of the evidence, or a failure to consider material evidence and the defence version.
• Failure of the prosecution to prove the charge beyond reasonable doubt, with the benefit of doubt not given.
• Defective investigation, or a material irregularity that caused prejudice to the accused.
• Non-compliance with a mandatory procedural requirement, where the statute makes compliance essential.
• An excessive or disproportionate sentence, even where the conviction itself is not seriously disputed.

When no appeal lies, or a different remedy applies

In petty cases, where the sentence is very light, an appeal may be barred by the express terms of the law, unless a question of law is involved or the sentence itself is challenged. Where the order complained of is not a conviction, the remedy may be a revision rather than an appeal. Where the complaint is that the proceedings themselves should not have been allowed to continue, the remedy is a petition to quash, now under Section 528 of the BNSS.

The memorandum of appeal is the document that defines the appeal, and a court is confined broadly to what it sets out. It should state the case briefly, set out the points on which the trial court is said to have gone wrong, and end with the relief sought, whether that is acquittal, reduction of sentence or a fresh trial.

• A concise statement of the facts and the charge on which the appellant was convicted.
• The judgment or order under appeal, identified by the court, the date and the case number.
• The grounds, set out point by point, each tied to a specific error or omission in the judgment.
• The relief sought, such as setting aside the conviction or reducing the sentence.
• A verification or affidavit, and the signature of the appellant or the advocate as the rules require.

Appeal, revision and quashing: which remedy

These three remedies are sometimes confused, and choosing the wrong one wastes time. An appeal is a right, and it is heard on the facts and the law by the court above the trial court. A revision is not a right but a discretionary supervisory power, exercised by the Sessions Judge or the High Court over the records of a subordinate court, and it is narrower. A petition to quash, now under Section 528 of the BNSS, asks the High Court to stop proceedings that should not have been allowed to continue. Where an appeal is available, the court will usually expect the party to use it rather than a revision.

The appellant is heard through his advocate, and the State is represented by the public prosecutor, who defends the conviction and the sentence. The appellate court reads the judgment, the evidence and the grounds, and it may also call for the trial court record. In a conviction appeal the court does not retry the case from the beginning, but it does examine whether the findings are supported by the evidence on record. Where the appellant is unrepresented, the court may appoint an amicus curiae, but it is far better to be represented from the start, because the grounds and the bail application are settled at the very beginning.

How long it takes, and what happens meanwhile

A criminal appeal does not begin to be heard until the record of the trial court is prepared and sent up to the appellate court, which itself takes time. The appeal is then numbered, listed and heard, and the appellate court may confirm, set aside or alter the conviction and the sentence. Because the appeal can take considerable time, the application for suspension of sentence is what protects the appellant liberty in the meantime, and it is usually pressed at the very start. A lawyer who handles the matter will first study the judgment, the charge, the evidence and the sentence before settling the grounds, because a good appeal is built on specific defects, not on a general re-argument of the whole case.

For a conviction in or around Kolkata, the remedy usually runs through the City Sessions Court at Bankshall or the Calcutta High Court on its Appellate Side. Our notes on criminal appeals in Kolkata under the BNSS and on the BNSS criminal appeal process cover the filing side, and the chamber at 14 Hare Street can be reached through a free consultation to have the judgment and the grounds reviewed.