appeal

Nature of Right Right of an appeal is statutory right and hence a substantive right . But being part of procedural code , it also embraces both procedural and substantive aspects . Unless the legislature grants right to appeal , till then there is no right to appeal , it has to be expressly granted by the legislature . Appeal and revision difference : In State of Kerala vs. K.M. Charia Abdullah & Co. (AIR 1965 SC 1585) this Court has highlighted the difference between the two jurisdictions in the following words:

"There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the reversional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power." Supreme Court of India

The Associated Cement Co. Ltd vs Keshvanand on 16 December, 1997

It is trite legal position that appellate jurisdiction is coextensive with original court's jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate court is free to reach its own conclusion on evidence untrammeled by any finding entered by the trial court. Reversional powers on the other hand belong to supervisory jurisdiction of a superior court. While exercising reversional powers the court has to confine to the legality and propriety of the findings and also whether the subordinate court has kept itself within the bounds of is jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces. 372 In Legal Representatives vs. State of Karnataka & Ors, 2018 (14) SCALE 32 has observed that the victim should be heard by the Court before awarding an appropriate punishment/sentence to the accused person Whether proviso allows the victim to appeal for enhancement of sentence? victim (as defined in Section 2(wa) of the Code) shall have a right to prefer an Appeal in the following 3 types of cases under 372 proviso:

(i) Acquittal of the Accused

(ii) Convicting of the Accused for a lesser offence

(iii) Imposing inadequate Compensation In other words, the victim has no right to prefer an Appeal against „inadequacy of sentence‟, a right which is available only to the State. The State, however, does not have any right to file any Appeal against "inadequacy of Compensation", a right, which is available only to a victim.

The term „inadequacy of sentence‟ has a special connotation and a distinct statutory demarcation if the provisions of Section 375(d) and Section 377 of the Code are compared. Scheme of Section 377, which provides for right of Appeal to the State/Prosecution, is entirely different from the right of Appeal conferred upon a victim under the Proviso to Section 372 of the Code. Under the scheme of Section 377 not only the State/Prosecution can file an Appeal based upon inadequacy of sentence, but even the Accused can plead for his acquittal or for reduction of the sentence as contemplated under Section 377(3) of the Code.

As against this, if the scheme of Proviso to Section 372 of the Code is compared, only a victim has an absolute right to file an Appeal challenging imposition of inadequate Compensation in addition to the right of Appeal against acquittal and also challenging the conviction based on lesser offence. There is, however, no provision in the entire Code empowering the State Prosecution to file an Appeal against an order imposing inadequate Compensation.

In light of different types of right of Appeal provided to the victim and to the State/Prosecution, it will not be proper to hold that the right of either of them is dependent upon the other. To put it differently, only victim can file an Appeal against an order of imposing „inadequate Compensation‟ in addition to his right of Appeal against acquittal and convicting the Accused for a lesser offence and therefore, to club his right and make it dependent upon the exercise of right of Appeal at the instance of the State would be not only be unworkable, but would run contrary to the scheme and lead to absurdity Supreme Court in National Commission for Women vs State of Delhi and Anr. (2010) 12 SCC 599, while examining Section 372 Cr.P.C., has categorically observed that though the provision does confer a right of appeal on the victim, yet it does not envisage an appeal against inadequate sentence. The relevant portion of the said judgment is reproduced hereinbelow:-

"8. Chapter XXIX of the Code of Criminal Procedure deals with "Appeal(s)". Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal court except as provided by the Code or by any other law which authorises an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31-12-2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under Section 377 to the High Court as it is effectively challenging the quantum of sentence."

(emphasis supplied)

13. This Court in a catena of judgments has also held that an appeal by the victim under Section 372 Cr.P.C. is not maintainable if it only challenges the order on sentence on the ground that it imposes inadequate punishment. Ashok Malhotra Vs. State (Govt. of NCT Delhi) and Another, 2019 SCC OnLine Del 10864 wherein it has been held as under:-

"19. The proviso to Section 372 of the CrPC does not contemplate an appeal against an order of a Court imposing an inadequate sentence/punishment. It is well settled that there is no inherent right of an appeal and the said right is a statutory right and is available only if it is conferred by a statute. In several decisions, an appeal has been described as a creature of a statute. (See: Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh: (2014) 9 SCC 102). In National Commission for Women (supra), the Supreme Court had observed that "an appeal is a creature of a statute and cannot lie under any inherent power". In view of the above, the contention that respondent no. 2 has an inherent right to appeal against an order of a court imposing inadequate punishment on the accused, is unmerited.

20. The proviso to Section 372 of the CrPC provides a limited right to the victim to file an appeal. The plain language of the said proviso indicates that it does not contemplate an appeal against an inadequate sentence."

Sarathi in Interpretation of Statutes at pages 294-295 has collected the followin