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Appeal

জাজক

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Rabiul Islam
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18 views8 pages

Appeal

জাজক

Uploaded by

Rabiul Islam
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Acquittal
Q. When an accused could be acquitted in a case tried by the Court of
Magistrate? Describe the ground of such acquittal.

Answer.
In the case of a magistrate trial, an accused could be acquitted in three
different situations.
(1) As per Section 245 of the Code, If the Magistrate upon taking
necessary evidence and, if he thinks fit, examining the accused, finds
the accused not guilty, he shall record an order of acquittal.
This acquittal is normally given after taking all the evidence of the
persecution under section 244.
But If the Magistrate finds the accused guilty, he or she will pass
sentence upon the accused according to law.

(2) Acquittal or Adjournment for Non-appearance of Complainant

As per Section 247 of the Code, If the summons has been issued on
complainant and on the day fixed for the appearance of the accused, or
any day subsequent thereto to which the hearing may be adjourned,
the complainant does not appear, the Magistrate will acquit the
accused, unless for some reasons he or she thinks proper to adjourn the
hearing of the case to some other day. However, where the complainant
is a public servant and his or her personal appearance is not required,
the Magistrate may dispense with the complainant's attendance and
proceed with the case.

(3) Acquittal upon Withdrawal of Complaint

As per Section 248 of the Code, If a complainant, at any time before the
Magistrate passes a final order, satisfies the Magistrate that there are
sufficient grounds for permitting him or her to withdraw the complaint,
the Magistrate may permit to withdraw it and must thereupon acquit
the accused.

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When no Appeal Lies

An appeal does not lie in the cases discussed below,

• First: When the Accused Pleads Guilty

As per Section 412 of the Code, Where an accused has pleaded guilty
and has been convicted by a Court of Sessions, Metropolitan Magistrate
or Magistrate of the first class on such plea, there will be no appeal
except as to the legality of the sentence.

Thus, the right of appeal of a convicted accused is taken away if the


court has accepted the plea of guilty and convicted him or her on such
plea. Such a plea of guilty should be related to the facts of the
prosecution case as stated against the accused and as disclosed in the
accusation. The principle underlying this provision is that a plea of guilty
by the accused person operates as a waiver of his or her right to
question the legality of the conviction based on such pleas.
In Ayaruddin v State (2004) 56 DLR, it was held that The conviction of a
person on his or her plea of guilty must be shown to have admitted
distinctly each and every fact necessary to constitute an offence.
However, if second class and third class magistrate convict a person on a
guilty plea, appeal shall lie as there is no bar in case of Second and
third class magistrate.

• Secondly: Petty Cases

As per Section 413 of the code, A convicted person cannot file an


appeal in any cases in which a Court of Sessions passes a sentence of
imprisonment not exceeding one month only, or in which a Court of
Sessions or Metropolitan Magistrate or Chief Judicial Magistrate or
other Magistrate of the first class passes a sentence of fine not
exceeding fifty taka only.
However, as per section 415, an appeal may be brought against any
such sentence by which any punishment therein mentioned is
combined with any other punishment.

• Thirdly Certain Summary Convictions:


As per Section 414 of the code, There will not be an appeal by a
convicted person in any case tried summarily in which a Magistrate is
empowered to act under sec. 260 CrPC passes a sentence of fine not
exceeding two hundred only.
However, as per section 415, an appeal may be brought against any
such sentence by which any punishment therein mentioned is
combined with any other punishment.

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Who can Appeal and under What Circumstances

In criminal proceedings, appeals can be filed by-


(a) any person aggrieved by an order of the criminal court, or
(b) any person convicted on a trial held by the criminal court, or
(c) the Public Prosecutor, or
(d) the complainant.

• Appeal by Person Aggrieved by Order of the Court

A person aggrieved by an order of the criminal court may prefer an


appeal under the following circumstances:
(1) Appeal from order rejecting application for restoration of attached
property:

Section 405, CrPC provides that Any person whose application under s
89 CrPC for the delivery of property or the proceeds of the sale thereof
has been rejected by any court may appeal to the court to which
appeals ordinarily lie from the sentences of the former court.

(2) Appeal from order requiring security for keeping the peace or for
good behaviour:

Section 406 of CrPC, says that Any person who has been ordered by a
Magistrate under sec. 118 CrPC to give security for keeping the peace or
for good behaviour may appeal against such order to the Court of
Session.

(3) Appeal from Order Refusing to accept or reject a surety:


Section 406A of CrPC, provides that Any person aggrieved by an order
refusing to accept or rejecting a surety under s 122 CrPC may appeal
against such order-
(a) If made by the Chief Metropolitan Magistrate or the Chief Judicial
Magistrate or District Magistrate, to the Court of Sessions;
(b) If made by a Metropolitan Magistrate other than the Chief
Metropolitan Magistrate, to the Chief Metropolitan Magistrate; or
(c) If made by any other Magistrate, whether Executive or Judicial, to
the District Magistrate or the Chief Judicial Magistrate.
• Appeal by a Convicted Person

(1) Appeal from sentence of Magistrate of the second or third class:

Section 407 of CrPC, provides that Any person convicted on a trial held
by any Magistrate of the second or third class may appeal to the Chief
Judicial Magistrate who may him/herself hear and dispose of the appeal
or transfer it to an Additional Chief Judicial Magistrate for disposal, and
may withdraw an appeal so transferred.

(2) Appeal from sentence of Joint Sessions Judge and Magistrates of the
first class:

As per Section 408 of CrPC, Any person convicted on a trial held by a


Joint Sessions Judge, Metropolitan Magistrate or any Judicial Magistrate
of the first class, may appeal to the Sessions Judge.
Proviso to the section says that
(a) However, when in any case a Joint Sessions Judge passes any
sentence of imprisonment for a term exceeding five years, the appeal of
all or any of the convicted persons will lie to the High Court Division.
(b) Moreover, when any person is convicted by a Metropolitan
Magistrate or Judicial Magistrate specially empowered to try an offence
under sec. 124A PC, the appeal will lie to the High Court Division.
(3) Appeal from sentence of Court of Sessions:

Section 410 of CrPC provides that Any person convicted on a trial held
by a Sessions Judge or Additional Sessions Judge may appeal to the High
Court Division.

• Appeal by the Public Prosecutor

The Public Prosecutor may appeal in the case of acquittal or inadequacy


of sentence as follows-
(1) As per section 417(1), In the case of an acquittal the Government
may direct the Public Prosecutor to present an appeal:
(a) to the High Court Division from an original or appellate order of
acquittal passed by any Court of Sessions; and
(b) to the Court of Sessions from an original or appellate order of
acquittal passed by any Magistrate.

(2) As per section 417A(1), In any case of conviction on trial held by any
court, the Government may direct the Public Prosecutor to present an
appeal to the High Court Division against the sentence on the ground of
its inadequacy.
It is to be noted that the Public Prosecutor cannot suo motu file an
appeal against the order of acquittal or against inadequacy of sentence
unless the Government directs him or her so to do.
• Appeal by the Complainant

A complainant may file an appeal against an order of acquittal or


against the inadequacy of sentence under the following circumstances-

(1) As per Section 417(2), In the case of an order of acquittal, if such


order is passed in any case instituted upon complaint, and if the order
involves an error of law occasioning failure of justice the complainant
may present an appeal:
(a) to the High Court Division from an original order of acquittal passed
by any Court of Sessions; and
(b) to the Court of Session from an original order of acquittal passed by
any Magistrate.

(2) Section 417A(2) provides that In any case of conviction on trial held
by any court, the complainant may present an appeal to the appellate
court against the sentence on the grounds of its inadequacy.

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