Grounds for Appeal in High Court

By Radhika M


The evolution of Indian Legal system owes much to interpretations given by various High Courts at various points of time. The makers of Constitution gave as much as importance to the High Courts as much as it gave the Supreme Court.

In fact, the writ jurisdiction of High Courts under Article 226 is much wider than Article 32.

Other than its original jurisdiction in civil and criminal matters, the High Court has the power to hear appeals from the courts subordinate to it. It has criminal as well as civil appellate jurisdiction.

Appellate Jurisdiction under the Code of Criminal Procedure, 1973

As per section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter as Code) if a person is convicted for an imprisonment of seven years or more in a trial conducted by any Court, he may appeal to High Court against such order.

Also, persons who have been convicted by Sessions Court or Additional Sessions Court in a trial may also appeal to the High Court.

But as per Section 375 of the Code, if such person has pleaded guilty in furtherance of which he was convicted no appeal will lie except as to the extent or legality of such sentence. Also, no appeal shall lie to the High Court, if the sentenced imposed doesn’t exceed three months of imprisonment or fine not exceeding two hundred rupees or of both such imprisonment and fine. Such a sentence is appealable if any other sentence is combined with it.

But this would not include an order to furnish security to keep peace or provision for imprisonment in default of payment of fine.

Also, the State may prefer appeal against the acquittal, or the inadequacy of sentence passed by the Sessions Court in the High Court. In cases where the investigation is carried out by Central Government agencies, Central Government may prefer an appeal.

The appeal has to be presented by Public Prosecutor and it will be entertained only if the leave is granted by the High Court. But if the case was instituted upon any complaint made by the complainant, the complainant may prefer an appeal to the High Court if it grants special leave.

Special leave shall not be granted to the Complainant if the application is made after the expiry of sixty days from the order of acquittal. The period can be extended to six months if the complainant is a public servant. If the application for leave is disallowed, then the appeal does not lie against an order of acquittal.

The Appellate Courts are empowered to dismiss appeals summarily, but it shall not be done unless the appellant or his counsel has been provided with a reasonable opportunity to be heard. If the appeal is allowed and:

  • If it is preferred against an order of acquittal, the Appellate Court may reverse the order and order further inquiry. It may also commit the accused into a court of competent jurisdiction for re-trial or may pass a sentence on him according to the law.
  • If the appeal is filed against an order of conviction, the Appellate Court may reverse the order and acquit or discharge the accused. It may also commit him to a re-trial by a court of competent jurisdiction. The Appellate Court is empowered to alter the finding but may still maintain the sentence. It can also alter the nature and extent of the sentence but shall not enhance then sentence.
  • If the appeal is for enhancement of sentence, it may reduce or enhance or maintain the sentence. It may acquit or discharge the accused. It is also empowered to commit him to a re-trial.
  • If the appeal is against any other order, it may reverse or alter or amend such order to render it just or proper.

If the Appellate Court decides to enhance the quantum of punishment, it shall not do so without affording the accused a reasonable opportunity to be heard. It shall not also impose a greater punishment than what the trial Court would have imposed on the accused for the alleged offence.

If an appeal has been decided by the High Court, it shall certify its judgment or order or any finding to the lower court from which the appeal has arisen. If such Court is a Magistrate Court other than the Court of Chief Judicial Magistrate, the High Court’s judgment shall pass through Chief judicial Magistrate.

If such Court is that of an Executive Magistrate, then the judgment shall pass through the District Magistrate. The Court to which High Court certifies its judgment shall make its own orders conformable with the finding of the High Court.

As per Section 389 of the Code, if an appeal by a convicted person is pending before the Court, the Appellate Court may release such person on bail or may suspend the sentence imposed or the execution of the sentence. But the court must record its reasons for doing so in writing.

Also, if an appeal is filed against the acquittal of an accused, the Court may issue an arrest warrant and direct that the accused shall be brought before it or any other sub-ordinate court.

The High Court while deciding an appeal, may take additional evidence either by itself or direct the Court of Sessions or Magistrate to take it.

Chapter 25 of Delhi High Court Rules deals with filing of criminal appeals

The appeal shall be filed by the accused himself or any person authorised by him. Petitions by the prisoners shall be authenticated by the Jail Superintendent. Petitions received through the post other than from Jail or District authorities shall be returned to the person who sent it.

No Court fee shall be charged from a pleader or agent who files the appeal on behalf of a prisoner.

If the appellant or his counsel has been heard and a scrutiny of petition and the judgment under appeal shows there is no sufficient ground to interfere, the Court may reject such appeal summarily. If the appellate Court decides to hear an appeal, it shall issue notice of hearing to the appellant or his pleader and the officer appointed by the State in its behalf.

It shall also notify the District Magistrate and Advocate General (in certain cases). The order fixing the date of hearing of appeal shall also specify, under which section the hearing is being held. Sessions Judges and District Magistrates have the power under Section 438 to refer inadequate sentences to High Court for enhancement.

The appellate court shall provide legal assistance to the accused if the appeal is filed against his acquittal or for enhancement of punishment. The District Magistrate shall cause proper channelling of the documents (documents and copies of judgments related to the case in appeal) to the High Court.

Also, the report of whole proceedings and judgments should be in English and it must be typed.

Appellate Jurisdiction under Code of Civil Procedure, 1908

Section 96 to 112 of the Civil Procedure Code, 1908 (hereinafter as Code) speaks about general provisions relating to the appeals. Also Order XLI deals with appeals.

Subsection (1) to section 96 of the Code provides that Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.”

According to the hierarchy of civil Courts, an appeal shall lie to High Court from every decree passed by District Court or Additional District Court in exercise of its original jurisdiction. An appeal can lie from ex-parte decree, however if the decree was passed with the consent of the parties no appeal shall lie.

When the appeal is heard by a Bench, the decision of the majority will prevail. No decree shall be reversed or modified substantially by the Appellate Court on the ground of any irregularity or omission which does not affect the merit of the case or jurisdiction of the Court.

Second appeals are heard by High Courts and they are appeal from appellate decrees.

Section 100(1) of the Code of Civil Procedure, 1908 says that Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.”

So any decree passed by a court sub ordinate to the High Court in its appellate jurisdiction and in which a substantial question of law has arisen can be challenged before High Court. An ex parte decree can also be challenged.

No Second Appeals on any other ground will be entertained by High Court. Also, if the suit is about recovery of money which is below twenty five thousand rupees, no second appeal will be allowed.

A memorandum of appeal which states the substantial of question of law shall be filed. If the High Court is satisfied that. There is a substantial question of law involved in the said case, it may formulate such question.

The memorandum of appeal shall precisely set out the grounds under which the decree is challenged. Here the Respondent may defend that there is no substantial question of law involved in the case. Certain orders like imposition of costs under Section 35A, compensation under section 95 etc is appealable in High Court if it were passed by District Court in exercise of its original jurisdiction.

As per section 100A of the Code, if a decree passed by a court in its original or appellate jurisdiction has been heard by a Single Judge of High Court, then no appeal shall lie from such decision of the Single Judge.

The High Court is empowered to decide on any issue which the lower courts (Appellate Court or Court of first instance) failed to address or has wrongly determined, if there is sufficient evidence on record.

The Appellate Court shall have the power to:

  • To determine a case finally;
  • To remand a case;
  • To frame issues and refer them for trial;
  • To take additional evidence or to require such evidence to be taken.

Nevertheless, the Appellate Courts shall have the same powers and duties of a court of Original jurisdiction in respect of the suits instituted therein.

As per Delhi High Court Rules, the memorandum of appeal shall be accompanied by a copy of decree appealed against and the judgment corresponding there to. In the case of second appeal, it shall include judgment or order of the Court of first instance.

The time required for obtaining these copies from the Copy Department of the concerned lower court shall be excluded while determining the period of limitation. If the grounds of objection to the decree are not precisely set out in the petition, the same shall be returned by the Court for amendment.

If the appeal is admitted, the petition must be endorsed with date of presentation and date fixed for hearing. The court may issue notice to the appellant or his pleader and respondent after fixing the date of hearing. Also, the rules mandate that respondents shall not be put into unnecessary troubles.

If the High Court dismisses an appeal, it will be a decree. An amendment to the petition shall not be allowed once the appeal is admitted and registered with the Court. But the appellant can amend the petition after getting permission from the Court.

If the appellant or his agent fails to appear on the date fixed for hearing of appeal, the appeal should usually be dismissed for default. But the court may re admit the appeal, if he afterwards appears and shows a good cause for previous non-appearance.

The Court is also empowered to dismiss an appeal for default in case of non-appearance of a necessary party.

However, the Court has full discretion in deciding such matters. Appeals from orders in pending proceeding shall he disposed expeditiously because they can cause unnecessary delay in the original suit.

The judgment of the Appellate Court shall state brief facts, issues framed, and decisions arrived. The appellate Courts in its judgment must give a statement regarding the grounds of challenge, the evidence produced, deductions arrived etc.

The decree in appeal shall contain the number of the appeal, names, and description of parties. It should also specify the relief granted to parties and costs, if any imposed. The Appellate Court may remand the case to a lower Court, if a retrial is necessary.

The Appellate Court may fix a reasonable time after remanding for the lower Court to return its findings.

Appeals from tribunals

Apart from appeals arising from civil and criminal Courts, sometimes High Courts are empowered to entertain appeals from Tribunals. We have a lot of tribunals established under the law, which are very technical in dealing with subject matter of the suit.

Some of the tribunals from where the appeal lies to High Court are:

  • Motor Accident Claims Tribunal
  • Income Tax Appellate Tribunal
  • Customs, Excise and Service Tax Appellate Tribunal
  • Income tax Settlement Commission
  • Appellate Tribunal Established u/s 25 The Prevention of Money laundering Act, 2002
  • Appellate Tribunal Constituted u/s 30 The Benami Transactions (Prohibition) Amendment Act, 2016

Article 226 of Constitution of India empowers the High Court to issue any direction or order or any writ against any person or any authority including the Government. These authorities will include quasi-judicial authorities also.

Also, Article 227 (1) says that Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction”.

In the case of P.S. Sathappan (Dead) By Legal representative’s vs Andhra Bank Ltd[1], the Supreme Court held that Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail.

In the case of Madras Bar Association vs Union of India & Anr[2] the Supreme Court observed that “Under the Income Tax Act, 1961, Section 260A, provided an appellate remedy from an order passed by the Appellate Tribunal to the jurisdictional High Court. Similarly, Section 129A of the Customs Act, 1962, and Section 35G of the Central Excise Act, 1944, provided for an appellate remedy from the concerned Appellate Tribunal to the High Court. The jurisdictional High Court would hear appeals on questions of law, against orders passed by the Appellate Tribunals. It is, therefore, apparent, that right from the beginning, well before the promulgation of the Constitution, the core judicial appellate functions, for adjudication of tax related disputes, were vested with the jurisdictional High Courts. The High Courts have traditionally, been exercising the jurisdiction to determine questions of law, under all the above tax legislations.”

In the case of Umaji Keshao Meshram And Ors. vs Radhikabai[3], the Supreme Court observed that where a petition filed under Article 226 of the Constitution is according to the rules of a particular High Court heard by a Single Judge, an intra-court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a statute.

In the case of Umerkhan vs Bismillabi @ Babulal Shaikh[4] the Supreme Court observed that the power of High Courts to entertain a second appeal lies in the formulation of substantial question of law. If the High Court allows an appeal and decides the case without formulating the substantial question of law, it is patently illegal.

Section 96 and Section 100 of the CPC are not similar, while the later depends upon the formulation of a substantial question of law.

In the case of Ram Kumar Pande vs The State Of Madhya Pradesh[5] the court observed that in the case of an appeal against an acquittal the appellate Court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction.

In the case of Khedu Mohton And Ors vs State of Bihar[6] the Supreme Court opined that once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other.


The role of High Courts in the Judicial System is indispensable. And their role as appellate courts. It is common for District Courts to misapply laws due to the large burden of cases pending and focusing on facts of every case.

Even if law bars certain decisions by lower courts being challenged in High Courts, still they find a way through the misuse of jurisdiction of High Courts. Even though right to appeal is a statutory right and nowadays it is in par with fundamental rights, we shall not overlook the fact that a single case without merit is consuming too much energy of the judicial system.


  1. P.S. Sathappan (Dead) By Legal representative’s vs Andhra Bank Ltd. 2011 4 SCC 672
  2. Madras Bar Association vs Union of India & Anr. (2014) 10 SCC 1
  3. Umaji Keshao Meshram And Ors. vs Radhikabai AIR 1986 SC 1272
  4. Umerkhan vs Bismillabi @ Babulal Shaikh Civil Appeal no. 6034/2011
  5. Ram Kumar Pande vs The State of Madhya Pradesh 1975 AIR 1026
  6. Khedu Mohton And Ors vs State of Bihar 1971 AIR 66

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