How to File an Appeal in Sessions Court Kolkata – Complete Guide

An appeal is a legal remedy by which a person aggrieved by a judgment, decree, or order of a lower court approaches a higher court for a review and reversal or modification of the decision. Unlike a revision, which is a discretionary remedy, an appeal is a statutory right — the right to appeal is conferred by statute, and where a statute provides for an appeal, the appellate court must hear it. The right of appeal is a substantive right and is not merely a matter of procedure.

In the context of criminal law in Kolkata, appeals from the judgments and orders of Magistrates (Judicial Magistrates and Metropolitan Magistrates) lie to the Sessions Court. The City Sessions Court, Kolkata, located at B.B.D. Bagh, is the primary appellate court for cases decided by Magistrates in the city. The Sessions Court has both appellate and revisional jurisdiction, and it is the first level of appeal in the criminal justice hierarchy. Appeals from the Sessions Court lie to the Calcutta High Court, and from the High Court, a Special Leave Petition (SLP) lies to the Supreme Court under Article 136 of the Constitution.

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 (which replaced the Code of Criminal Procedure, 1973), the provisions relating to appeals are found in Sections 440-460 (previously Sections 372-394 of the CrPC). The BNSS has expanded the right of appeal for victims and complainants, and has streamlined the appellate procedure. Appeals in criminal cases can be against: (a) conviction — the convicted person can appeal against the conviction and the sentence, (b) acquittal — the State Government (through the Public Prosecutor) can appeal against an order of acquittal, and in certain circumstances, the complainant can also appeal, (c) sentence — an appeal can be limited to the sentence alone (pleading that the sentence is excessive or inadequate), and (d) certain interlocutory orders — though appeals against interlocutory orders are generally barred, specific orders (such as orders under Section 446 CrPC for forfeiture of bond) are appealable.

The procedure for filing a criminal appeal before the Sessions Court in Kolkata involves several steps. Here is the detailed process:

Step 1: Obtain a Certified Copy of the Judgment. The first and most critical step is to obtain a certified copy of the judgment/order against which you wish to appeal. Under the BNSS, the limitation period for filing an appeal starts from the date of the judgment (not from the date of obtaining the certified copy). However, the time taken to obtain the certified copy (from the date of application to the date of delivery) is excluded from the limitation period. It is therefore essential to apply for the certified copy immediately after the judgment is pronounced. In Kolkata, the certified copy is obtained from the Copying Department of the concerned court (Metropolitan Magistrate Court or the City Sessions Court). The application is made on a prescribed form, and the certified copy is typically delivered within 7-15 days.

Step 2: Prepare the Appeal Memorandum. The appeal must be in the form of a memorandum of appeal, which must contain: (a) the name, address, and description of the appellant, (b) the name, address, and description of the respondent (the State, represented by the Public Prosecutor, or the complainant, as applicable), (c) the details of the judgment/order being appealed — the court, the case number, the date of the judgment, and the offences for which the appellant was convicted and the sentence imposed, (d) the grounds of appeal — specific and clear grounds on which the judgment is challenged, including errors of law, errors of fact, and procedural irregularities, (e) the relief sought — setting aside the conviction, reducing the sentence, acquittal, or any other relief, (f) a copy of the judgment/order appealed against (certified copy), and (g) an affidavit in support of the appeal. The memorandum of appeal must be signed by the appellant or their advocate. The grounds of appeal should be framed with precision. Vague and general grounds (such as "the judgment is against law and evidence") are not sufficient. The grounds should identify specific errors in the judgment — misreading of evidence, failure to consider material evidence, incorrect application of the law, failure to follow mandatory procedural requirements, and so on.

Step 3: Pay the Court Fee. The court fee for a criminal appeal is nominal (typically Rs. 5-50). The fee is paid through a court fee stamp affixed to the memorandum of appeal.

Step 4: Limitation Period. A criminal appeal against a conviction must be filed within 60 days from the date of the judgment (for appeals to the Sessions Court) and within 90 days for appeals to the High Court. The time taken to obtain the certified copy is excluded. If the appeal is filed beyond the limitation period, an application for condonation of delay must be filed along with the appeal, explaining the reasons for the delay. The court has the discretion to condone the delay if sufficient cause is shown. However, inordinate delays without satisfactory explanation are unlikely to be condoned.

Step 5: Application for Suspension of Sentence and Bail. If the appellant has been convicted and sentenced to imprisonment, the appellant must, along with the appeal, file an application for suspension of sentence and grant of bail pending the appeal. Under Section 452 of the BNSS (previously Section 389 CrPC), the appellate court has the power to suspend the execution of the sentence and release the appellant on bail pending the appeal. The application must show that: (a) the appeal has been filed and is likely to be heard, (b) the appellant was on bail during the trial and did not misuse the liberty, (c) the sentence is short and the appeal is likely to take time for disposal, or (d) there are other compelling grounds for suspension. The court examines the merits of the appeal to a limited extent — it does not conduct a detailed examination (which is the function of the final hearing) but satisfies itself that the appeal is not frivolous and that there are arguable grounds. If the sentence is up to 3 years, suspension of sentence and bail is generally granted as a matter of course. For longer sentences or serious offences, the court applies stricter scrutiny.

Once the appeal is admitted, the Sessions Court proceeds to hear it. The appellate process involves several stages:

Calling for Records: The appellate court calls for the records of the lower court — the case file, the evidence recorded (depositions of witnesses), the exhibits, and the judgment. The records are essential for the appellate court to review the case. The Public Prosecutor or the respondent also files their reply or written submissions.

Perusal of Records and Hearing: The Sessions Judge peruses the records and hears the arguments of both sides — the appellant or their advocate and the Public Prosecutor (or the advocate for the complainant, if applicable). The hearing is a full hearing — the appellate court examines the entire evidence and re-appreciates the evidence independently. The appellate court can: (a) affirm the conviction and sentence, (b) set aside the conviction and acquit the appellant, (c) alter the conviction (convict for a lesser offence), (d) reduce the sentence, (e) enhance the sentence (after giving the appellant an opportunity to be heard on the enhancement), (f) order a retrial (if there is a fundamental procedural error that vitiates the trial), or (g) remand the case to the lower court for a fresh decision on specific issues.

Disposal: The Sessions Court is required to dispose of criminal appeals expeditiously. The appeal is heard on priority, and the judgment is pronounced, typically within 3-6 months of admission, though this timeline can vary depending on the workload of the court and the complexity of the case. The judgment of the appellate court must contain: (a) the points for determination, (b) the decision on each point, and (c) the reasons for the decision. The judgment must demonstrate that the appellate court has independently applied its mind to the evidence and the law.

Judgment of Acquittal: If the appellate court acquits the appellant, the judgment must specify the offence of which the appellant is acquitted, direct that the appellant be set at liberty (if in custody), and direct the refund of any fine paid. The State can appeal against the order of acquittal to the High Court, and the complainant can also appeal with the leave of the High Court.