Appeal in Criminal Cases

 

Introduction:

The criminal justice system may have substantial negative impacts on a person's life, especially with regard to their right to life and freedom. As courts, like any other human-made institution, are prone to error, it follows that their rulings are likewise susceptible to this danger of error. There should be systems in place to carefully evaluate the decisions of inferior courts in order to avoid a major miscarriage of justice. This has led to certain adjustments being made to the criminal procedure for appealing a criminal court's decision or order. There are specific conditions for appeals in the Criminal Process Code, which are found from Section 372 through Section 394.

However, the appeal option is not always available. Therefore, even in cases where the right of appeal is limited by the Cr P C, legislators integrate the concept of a review procedure called review into the legislative process to fully prevent any abuse. The review powers of the superior courts and their exercise are set out in sections 397 to 405. These powers are broad and temporary and must be considered.

 Although litigants are guaranteed the opportunity to appeal in most cases, criminal courts have broad discretion to decide whether or not to review a case, so review is not a guaranteed legal right. By law, the accused has at least one right of appeal in criminal cases, but no right of appeal in an appellate situation. The difference between an appeal and an amendment has been repeatedly examined in court. According to the judgment of the Supreme Court in the case of Hari Shankar Vs. Rao Ghari Chowdhury (1963) "the distinction between appeal and review is real. Unless the appellate statute provides otherwise, an appellate hearing involves a review. of both law and fact. In most cases, a higher court has the power to review a previous decision to ensure that the original decision was made according to the law.

 

Appeal under criminal law

Although the term "appeal" is not defined in the Criminal Procedure Act 1973, it can be understood as a review of a decision of a lower court by a higher court. It must be emphasized that the decision or order of the criminal court cannot be appealed otherwise than according to the legislative procedure defined in the Criminal Procedure Act 1973 or other applicable law. This means that even the original complaint is barred; thus, there is no "vested right" to appeal. This principle is based on the assumption that the courts dealing with the case dealt with the test fairly. However, in the case of acquittal, the commission of a lesser crime, or the payment of insufficient compensation, the victim can appeal the decision of the court. Appeals in Sessions Courts and High Courts are usually governed by the same rules and procedures. The Supreme Court is the state's highest appellate court and has greater jurisdiction over matters where an appeal is allowed. As the highest appellate court of the Supreme Court, the Supreme Court has supreme discretion and absolute authority in all appeals. The powers of the Supreme Court are largely determined by the Constitution of India and the Supreme Court (Extension of Criminal Appellate Jurisdiction) Regulations, 1970. If the Supreme Court overturns the acquittal and sentences the accused to life imprisonment, 10 years imprisonment or death, the defendant has the right to appeal to the Supreme Court. Article 13 (1) of the Constitution of India establishes the same law for the Court of Appeal of the Supreme Court and recognizes the importance of criminal appeals before that court. Under Article 13 (2) of the Constitution of India, the parliament also passed the Supreme Court (Extension of Criminal Appellate Jurisdiction) Act, 1970, which empowers the Supreme Court to hear appeals from the Supreme Court in certain cases. If there were several defendants at the trial and the court made a verdict for all of them, each defendant has the same right to appeal the decision. However, the right to appeal may be waived under certain conditions. These rules are found in sections 265G, 375 and 376. The Criminal Procedure Act 1973 provides that judgments and orders cannot be appealed, except in certain circumstances. This indicates the critical status of complaints.

 The accused may appeal to the Supreme Court, the Supreme Court or the Court of Sessions, depending on the nature of the case. According to the judgment of the Supreme Court in the case of Arun Kumar Vs. State of Uttar Pradesh (1989), the Allahabad High Court set aside the acquittal of the Sessions Judge and convicted the appellants, finding that the opinion of the Sessions Judge was clearly erroneous and aiding and abetting. into a miscarriage of justice. In Satya Pal Singh v State of Madhya Pradesh (2015), the Supreme Court of India ruled that the next of kin of a victim has the right to appeal to a higher court under the provisions of Article 372, provided that the father of the deceased victim meets the definition of a victim. A victim needs leave of the Supreme Court to appeal against acquittal, as the Supreme Court held in Satya Pal Singh Vs. State of Madhya Pradesh. These are the cornerstones of the CrPC complaint process:

·         The right to appeal must be established by law.

·         No automatic right to seek an appeal.

·         No appeal only against conviction.

·         Petty cases are final and cannot be appealed.

·         A plea of guilt results in an automatic conviction; there is no right of appeal.

 

Who can Appeal:

A person who has been judicially convicted can appeal the sentence. Filing an appeal does not mean that the matter will be reconsidered. Issues raised in the court record are used for appeal. The court may hear new evidence from the applicant if the circumstances require it. To prove this, the court must submit witnesses detailing their prepared statements for the new trial. It is the applicant's duty to convince the court that:

·         claims that the jury’s judgement should be overturned because it was arbitrary or not supported by the evidence,

·         the judge made an error in interpreting the law, or

·         there was a miscarriage of justice.

When an appeal is filed, the court can do almost anything. The court can confirm the decision, cancel the decision, replace the acquittal or order a new trial. Even if the court rules in favor of the appellant due to a technicality of the law, it may still decide to dismiss the appeal if it finds that no serious error has occurred. The head of the prosecution can also file a complaint with the appellate court and request that the appellate court overturn the acquittal and re-examine the case or appeal the provisional decision.

 

Subsequent appeals

A person convicted in court may file a second or subsequent appeal with the permission of the Court of Appeal. The person applying for leave to appeal must demonstrate to the court that there is new and convincing evidence that must be taken into account. If the court finds that there has been a material error in sentencing, it can hear a new appeal, overturn the conviction and replace the acquittal, or order a new trial.

 

Kinds of Appeal

 

Section 373 CrPC – Appeal in court of session

If a person receives a bond to keep the peace or for good behaviour, the order can be appealed to the Court of Appeal under section 117.

When a person is wronged. with an order refusing to accept or reject the guarantee, the person can apply for compensation under section 121.

 

Section 374 CrPC – Appeal from convictions

·         High Court orders of conviction issued while exercising original criminal jurisdiction have the right to be appealed to the Supreme Court.

·         Conviction orders issued by the Court of Session or Additional Court of Session are appealable to the High Court.

·         If the Court of Session or the Additional Court of Session imposes a sentence of more than seven years in prison, the defendant may appeal the decision to the High Court.

·         Appeals may be taken to the Court of Session from convictions handed down by the Metropolitan Magistrate, Judicial Magistrate I, or Judicial Magistrate II.

·         The court of session hears appeals from anyone who is dissatisfied with the results of a criminal proceeding under Sections 325 and 360 of the Criminal Procedure Code.

Exception to Section 374

The exceptions to Section 374 of the Criminal Procedure Code are found in Sections 375 and 376 of the CrPC as given below:

·         There is no right to appeal a conviction where the defendant has made a guilty plea and been found guilty on the basis of that plea.

·         A person who has been found guilty and sentenced by a high court to a period of imprisonment of not more than six months or a fine of not more than one thousand rupees, or to both such imprisonment and fine, shall not be permitted to file an appeal against that sentence.

·         A person who has been found guilty and sentenced by a court of the session or a metropolitan magistrate to a period of imprisonment of not more than three months or a fine of not more than two hundred rupees, or to both such imprisonment and fine, shall not be permitted to file an appeal against that sentence.

·         A person who has been fined by a first-class magistrate of not more than one hundred rupees shall not be permitted to file an appeal against that sentence.

 

Section 377 and 378 CrPC – State appeals

State government appeals:

ü  Under Section 377, to increase the severity of a punishment;

ü  Under Section 378, to overturn an acquittal of an accused person

Section 377 CrPC – Appeal against sentence

The State Government can appeal the judgment to the Court of Session or the Court of Appeal on the ground that it is not sufficient under this clause, which can be done through the Attorney General.

If someone disagrees with the judge's decision, he has the right to appeal to the administrative court.  If the lower court makes a decision, it can be appealed to the Supreme Court.

When the investigation is conducted by the Delhi Special Police Agency or any other central agency, the central government issues an order to the public prosecutor.

Defendants are expected to receive a fair trial before an appeal or decision to increase their sentence.

Section 378 CrPC – Appeal in case of acquittal

If a judge makes an acquittal in a case involving a cognizable and a non-cognizable offence, the district judge can order the  prosecutor to appeal the decision to the Sessions Court. If the acquittal decision is made by a court other than the Supreme Court, the state can still request a review of the decision by appealing to that court.

If the investigation was conducted by the Delhi Special Police Agency or any other government agency, the Central Government will issue instructions for filing a complaint.

It is worth mentioning that the permission of the Supreme Court is requested before filing an appeal there.

If the Supreme Court grants special leave to appeal, the appeal may be filed if the case initiated on the basis of the appeal is later dismissed. An acquitted civil servant may file a new application within six months of being acquitted.

The request can be submitted within 60 days of the acquittal decision, if the applicant is not a public official. An acquittal cannot be appealed if the appeal is dismissed.

Section 379 CrPC- Appeal against conviction by High Court in certain cases:

If the Supreme Court's acquittal  is overturned and he is subsequently  sentenced to death, life imprisonment, or at least 10 years in prison,  the accused may appeal to the Supreme Court.

Section 380 CrPC- Special right of appeal in certain cases

If a co-defendant has received an appealable sentence, then the other defendant has the right to appeal his own non-appealable punishment under this provision.

 

Non-appealable cases

Section 375 CrPC- Certain guilty pleas are non-appealable

No appeal shall lie if the defendant enters a plea of guilty before the high court and the court records such a plea and finds the defendant guilty.

If the accused enters a guilty plea in a lower court, an appeal of the sentence may be made to the high court.

There is a right to appeal a sentence based on:

ü  The totality of the punishment.

ü  The sentencing process was followed per the law.

 

Section 376 CrPC- No appeal in petty cases

Petty misdemeanours shall not be subject to appeal. The procedures for handling petty matters vary by jurisdiction. The following are examples of minor offences:

·         In the instance of the High Court, the possible penalties include either imprisonment for up to 6 months or a fine of up to Rs 1000, or both.

·         Up to three months in jail time, a Rs. 200 fine, or both if found guilty in court of session.

·         Up to 3 months in jail, or a fine of Rs. 200, whichever is greater, if prosecuted by a metropolitan magistrate.

·         There is a Rs 100 fine if you are caught breaking a law in front of a judicial magistrate.

·         Up to Rs. 200 in the instance of a Magistrate authorised under Section 260 of the Criminal Procedure Code.

 

#Criminal_appeal #prithwish_ganguli #criminal_procedure

 

Fake Reviews: The Dark Side of Google My Business

Discover the risks of fake reviews and learn practical tips to spot and prevent your online reputation. Don't let fake reviews destroy your business!

Google My Business is an online platform that assists businesses in managing their online presence across Google, including Search and Maps. With the growing importance of online reviews, Google My Business has become a go-to platform for businesses to showcase their reputation. However, fake reviews on Google My Business are a growing concern for businesses, as they can severely impact their reputation and customer trust.

This article focuses on the issue of fake reviews and their impact on businesses, customers, and the overall online ecosystem.

Fake Reviews on Google My Business

Fake reviews are those reviews that are written by individuals who have not used the product or service they are reviewing. These reviews are usually generated by fake review service providers who charge businesses for positive reviews or generate negative reviews for their competitors. The impact of fake reviews is significant, as they can influence potential customers to make a purchase or not. Fake reviews not only affect businesses but also impact the overall online ecosystem, as it creates distrust among customers towards online reviews.

Tactics used by fake review service providers

Fake review service providers use various tactics to generate fake reviews. They use bot accounts to generate large numbers of reviews, post multiple reviews from the same account, use review farms to generate fake reviews, and pay individuals to write reviews.

 

Failure of Google's reporting system

Google My Business has a system to report fake reviews, but the system has its limitations. It relies on algorithms to detect fake reviews, and in some cases, it can be challenging to distinguish between genuine and fake reviews. Also, fake review service providers constantly find ways to circumvent Google's system, making it a never-ending battle.

 

Law on Fake Reviews on E-commerce Websites

In India, the Department of Consumer Affairs recently released new guidelines that aim to prevent the sale of goods and services based on fake reviews on e-commerce platforms. Failure to comply with the guidelines can result in penalties for the e-commerce platform.

Questions related to Search Engines

As search engines play a vital role in shaping customer opinions, they also have a responsibility to ensure that the information they display is accurate and genuine. In the case of fake reviews, search engines have a responsibility to prevent the display of fake reviews and dishonest acts. The consequences of allowing fake reviews can be severe, as it can impact customer trust.

Probable Solution

 To address the issue of fake reviews, search engines, and e-commerce platforms must work together to develop effective solutions. This includes implementing measures to identify and remove fake reviews, as well as educating consumers about the importance of accuracy and transparency in review systems. One potential solution is to implement a system of verified reviews, in which reviews are only accepted by verified customers.

Conclusion

Fake reviews are a serious issue that can badly affect businesses and consumers alike. By working together and implementing effective measures to filter out fake reviews, search engines and e-commerce platforms can promote transparency and build trust with their customers.

Social Media Post and Cyber Law

 

 

Introduction: social media has become a part and portion of our daily life and on regular basis most of us remain engaged in the social media by posting some text or picture or video or otherwise.  The burning question in this regard is liability of a person who made a post in social media.

To be more precise, what is the liability of a person who posted something on the social media which seems to be defamatory to another.

What is defamation:

As per section 499 of Indian Penal Code, 1860 defamation is

“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgrace­ful. Illustrations

(a) A says—“Z is an honest man; he never stole B’s watch”; in­tending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the exceptions.

(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s watch. This is defama­tion unless it fall within one of the exceptions.

(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s watch. This is defamation, unless it fall within one of the exceptions. First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever re­specting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Illustration It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situa­tion in the efficient discharges of the duties of which the public is interested. Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Jus­tice, is a Court within the meaning of the above section. Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Illustrations

(a) A says—“I think Z’s evidence on that trial is so contradic­tory that he must be stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as the opin­ion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further.

(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he express of Z’s character, is an opinion not founded on Z’s conduct as a witness. Sixth Exception.—Merits of public performance.—It is not defa­mation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation.—A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Illustrations

(a) A person who publishes a book, submits that book to the judgment of the public.

(b) A person who makes a speech in public, submits that speech to the judgment of the public.

(c) An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.

(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further.

(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine”. A is not within this exception, in as much as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book. Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Illustration A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censur­ing in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception. Eighth Exception.—Accusation preferred in good faith to autho­rised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Illustration If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception. Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the inter­ests of the person making it, or of any other person, or for the public good. Illustrations

(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opin­ion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superior offi­cer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception. Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is inter­ested, or for the public good.”

 

Freedom of speech:

Article 19(1) (a) of the Constitution of India states that, all citizens shall have the right to freedom of speech and expression. The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizen, liberty of thought and expression. The exercise of this right is, however, subject to reasonable restrictions for certain purposes being imposed under Article 19(2) of the Constitution of India.

 

Section 66A of Information Technology Act:

Section 66A of Information & Technology Act 2000 (IT Act), was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, due to ambiguity in the definition of the word ‘offensive’ in the Section. The section stated that sending any offensive message to a computer or any other communication device would be an offence. Such unfettered power, under section 66A, was misused by the Government in curtailing and suppressing people’s freedom of speech and expression and hence repealed.

 

How and where to complaint:

Anybody who has been the victim of online defamation can file a complaint with the Cyber Crime Investigation Cell via the National Cyber Crime Reporting Portal.

Yet, it is important to highlight that filing a cyber defamation case against someone is a serious matter, since the act of making a complaint puts the accused's reputation in jeopardy.

Furthermore, the burden of establishing that he or she has been defamed falls fully on the complainant, and if he or she is unable to do so, the defendant has the right to sue for defamation, false and frivolous complaint, and damages.

 

Provisions Governing Online Defamation In India

Section 499, Indian Penal Code

This section says that whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

 

Section 500, Indian Penal Code

This section provides for punishment. Any person held liable under section 499 will be punishable with imprisonment of two years or fine or both.

 

Section 469, Indian Penal Code

This section deals with the forgery, in this if anyone creates false document or fake account by which it harms the reputation of a person. The punishment of this offence can extend up to 3 years and fine.

 

Elements Of Defamation

·         The statement should be made – Statement can be made orally by words or visible gestures and by written statement intended to be read.

·         The statement must refer to the plaintiff – The defamatory statement made to the person shall be expressed or implied. Name of the plaintiff shall not be necessarily mentioned.

·         The statement must be defamatory – The most important essential of the offence is that the statement must be defamatory and untrue.

·         The intention of the doer – The person making the statement must know that the statement published will damage the reputation of another person.

·         The statement should be false – The statement published should be forced because the truth is a defence to defamation. The law does not punish anyone publishing the truth.

·         The statement must be published – Publication of statement to a third person other than the person being defamed makes the person liable for the offence.

·         Statement must cause injury – The statement made should in some way harm or injure the plaintiff.

 

Burden Of Proving Defamation

The liability to prove the statement made is defamatory and untrue lies upon the plaintiff. The plaintiff has to prove that the statement was made and that the statement shall be published, or heard by a person other than the person being defamed. The statement made should be false and untrue and must cause injury to the person being defamed. He/she has to prove that the statement made is referred to him/her.

 

Defamation and its Nature:

·         Defamation by nature is both a civil and criminal offence.

·         In civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages awarded to the aggrieved party.

·         In Criminal law, Defamation is a bailable, non-cognizable offence and can be compounded.

Criminal Defamation:

·         In matters of criminal defamation, imprisonment can be awarded, as per Indian Penal Code (IPC) section 500.

·         Under a criminal suit, the intention of the allegation must involve a criminality, i.e. to defame, with malicious intent.

·         Must be established beyond reasonable doubt that the action was meant for lowering, harming the reputation of the affected party.

Case law on Social Media Post:

Allahabad HC stays criminal proceedings against man booked for Facebook Post expressing anguish over wife’s death during Medical Treatment; Ashok Kumar Gautam v. State of UP Application U/S 482 No. - 7716 of 2022.

Gauhati High Court grants bail to writer who allegedly questioned Martyr status of 22 CRPF involved in anti naxal operation; Sikha Sarma v. State of Assam, 2021 SCC OnLine Gau 1070, decided on 19-04-2021.

Conclusion:

Defamation is antithetical to reputation, fame, public image, and is a valued asset for an individual. The courts have balanced freedom of speech, expression, and dignity with the right to life with dignity. The wisdom of lawmakers is reflected in treating slander and label at par with each other, and discouraging malicious intent to harm.

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