CHAPTER XXVIII

OF APPEALS

316. An appeal shall not lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force.

A—APPEALS FROM MAGISTRATES'COURTS TO THE COURT OF APPEAL

317. (1) An appeal shall not lie from a Appeals not

conviction— to lie in certain cases.

(a) where in the case of a male offender under sixteen years of age the sentence is one of whipping only;

(b) where an accused has under section 183 made an unqualified admission of his guilt and been convicted by a Magistrate's Court.

(2) An appeal upon a matter of law shall lie in all cases except in the case referred to in paragraph (a) of subsection (1).

318. An appeal shall not lie from an Appeal from acquittal by a Magistrate's Court except at acquittal.

the instance or with the written sanction of the Attorney-General.

319. Where a Magistrate's Court has refused to issue process a mandamus shall lie to compel such court to issue such process, but an appeal shall not lie against such refusal except at the instance or with the written sanction of the Attorney-General.

Appeal against refusal to issue process.

(3) On the trial of an issue on a plea of a previous acquittal or conviction the depositions transmitted to the court on the former trial, together with the Judge's notes if available and the depositions transmitted to the court on the subsequent charge, shall be admissible in evidence to prove or disprove the identity of the charges.

320. (1) Subject to the provisions of Right of sections 317, 318 and 319 any person who appeal shall be dissatisfied with any judgment or

final order pronounced by any Magistrate's Court in a criminal case or matter to which he is a party may prefer an appeal to the Court of Appeal against such judgment for any error in law, or in fact—

CODE OF CRIMINAL PROCEDURE [Cap. 26

Computation of time.

What petition of appeal shall state.

(a) by lodging within fourteen days from the time of such judgment or order being passed or made, with such Magistrate's Court a petition of appeal addressed to the Court of Appeal, or

(b) by stating within the time aforesaid to the Registrar of such court or to the jailer of the prison in which he is for the time being confined his desire to appeal and the grounds therefor, providing at the same time a stamp of the value of five rupees, and it shall thereupon be the duty of such Registrar or jailer as the case may be;, to prepare a petition of appeal and lodge it with the court by which such judgment or

order was pronounced.

(2) Subject to the relevant provision of section 317 the Attorney-General may prefer an appeal to the Court of Appeal against any judgment or final order pronounced by a Magistrate's Court in any criminal case or matter, and where he so appeals, or where he sanctions an appeal, the time within which' the petition of appeal must be preferred shall be twenty-eight days.

Explanation.— An order made under section 154 committing an accused for trial or an order made under section 153 discharging an accused is not a judgment or final order.

321. (I) In computing the time within which an appeal must be preferred, the day on which the judgment or order complained of was pronounced shall be included, but all public holidays shall be excluded.

(2) If the time for preferring a petition of appeal expires on a day on which the office of the court is closed the appeal shall be deemed in time if such petition be preferred on the first day next thereafter on which such office is open.

322. (1) Every petition of appeal shall state shortly the grounds of appeal and shall be signed by the appellant or his attorney-at-law.

(2) Where the appeal is on a matter of law the petition shall contain a statement of the matter of law to be argued and shall

bear a certificate by an attorney-at-law that such matter of law is a fit question for adjudication by the Court of Appeal.

(3) Every such petition shall bear a stamp of five rupees:

Provided that such stamp shall not be necessary—

(a) if the appeal is preferred by the Attorney-General under section 320 (2), or

(b) in the case of an appeal against a judgment or final order pronounced by a Magistrate's Court in any proceedings instituted on a written report made under section 136 (1) (b), if the appeal is preferred by the person who made such report:

Provided further that the court from which an appeal is preferred may if it sees fit allow the payment of the stamp fee to stand over until judgment on the appeal shall have been given.

(4) If the appeal be decided in whole or in part in favour of the appellant the amount of stamp fee when such fee has been paid shall be returned to him.

(5) If the appeal be decided against the appellant such stamp fee when such fee has not been paid shall be paid by him or recovered from him in the way of fine unless the Court of Appeal shall deem fit to remit all or any part of such stamp fee, in which case only such part as shall not be so remitted shall be recovered.

323. (1) When an appeal has been preferred the court from which the appeal is preferred shall order the appellant if in custody to be released on his entering into a recognizance in such sum and with or without a surety or sureties as such court may direct conditioned to abide the judgment of the Court of Appeal and to pay such costs as may be awarded :

Provided always that the appellant may if the court from which the appeal is preferred t h i n k s fit instead of entering into a

Appellant to be released on giving security.

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Proceedings tobe forwarded to Court of Appeal and notice to be given to parly in whose favour the judgment or

order appealed against was pronounced.

Procedure in Court of Appeal on appeal.

recognizance give such other security by deposit of money with such court or otherwise as that court may deem sufficient.

(2) Upon the appellant's entering into such recognizance or giving .such other security as aforesaid he shall be released from custody.

(3) Such recognizance may if the appellant is in prison be entered into before the superintendent or jailer of the prison and if so entered into shall be as valid in all respects as if it had been entered into before the court from which the appeal is preferred ; and for this purpose the court shall endorse on the warrant of committal the amount and nature of the security which is to be given in case an appeal is

preferred-(4) when a person sentenced to a term of rigorous imprisonment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the judgment of the Court of Appeal is made known to. the superintendent of the prison.

(5) The Court of Appeal may order that the time so spent by such appellant in custody or any part thereof shall be reckoned as part of the term of his sentence.

(6) On a petition of appeal being lodged the Magistrate shall transmit the record of the case to the Court of Appeal together with the petition of appeal and shall forthwith issue notice thereof to the party, whether complainant or accused, in whose favour the judgment or order appealed against was pronounced or made or adversely to whom the appeal is preferred.

324. (1) When the record and petition of appeal have been transmitted to the Court of Appeal the Registrar shall number the appeal and enter it on the list of appeals and such list shall be kept suspended in the Registry of the Court of Appeal,

(2) The appeal shall come on for hearing in its order without further notice to the parties concerned:

, Provided that the court may of its own motion or on the application of a party concerned accelerate or postpone the hearing of an appeal upon any such terms as to the prosecution or the costs of the appeal or otherwise as it may think fit.

325. (1) When the appeal comes on for hearing the appellant if present shall be first heard in support of the appeal and then the respondent if present shall be heard against it.

(2) If the appellant does not appear to support his appeal the court shall consider the appeal and may make such order thereon as it may deem fit.

326. If at the hearing of an appeal the respondent is not present and the court is not satisfied that the notice of appeal was duly served upon him the court may adjourn the hearing of the appeal to a future day for his appearance and in that case shall issue the requisite notice to him for service through the Fiscal, but unless the court is so satisfied as aforesaid it shall not, in the absence of the respondent, make any order to his prejudice.

327. When an appeal is presented against an acquittal the Court of Appeal may issue a warrant directing that the accused be arrested and brought before it and may commit him to prison pending the disposal of the appeal or admit him to bail.

328. At the hearing of the appeal the court may if it considers that there is no sufficient ground for interfering dismiss the appeal or may—

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made or that the accused be re-tried or committed for trial as the case may be or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction—

(i) reverse the verdict and sentence and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction or committed for

trial, or

Appellant to be heard first.

Procedure if respondent not present.

Arrest of accused in appeal from acquittal.

Power of Court of Appeal on appeals.

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