Criminal Appeal in the Supreme Court Against a Conviction

Two routes: special leave or appeal as of right

Special Leave Petition under Article 136

Article 136 lets the Supreme Court grant special leave to appeal from any judgment of any court in India. It is a discretionary power, not a right. The petition must show that the High Court's judgment involves a substantial question of law, a serious misreading of evidence, a breach of the fair-trial protections, or a result that would cause grave injustice if left standing. If the Court grants leave, the petition is converted into a criminal appeal and is heard on its merits. A petition against a final judgment is filed within 90 days of the judgment.

Statutory appeals

A small set of cases carries an appeal as of right. Article 134(1) of the Constitution provides one where a High Court, on appeal, reverses an acquittal and sentences the accused to death, or withdraws a case to itself and sentences the accused to death, or certifies the case as fit for appeal. The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 extends the right where the High Court reverses an acquittal and sentences the accused to imprisonment for life or for ten years or more. The criminal procedure code carries the same rule forward. In these cases the Court must hear the appeal; it cannot simply decline leave.

What the Supreme Court will examine

Under Article 136 the Court does not normally reappraise evidence that two courts have already assessed. It intervenes where findings are perverse, where material evidence was ignored or inadmissible evidence relied on, where the law on a point such as dying declarations, last-seen evidence, recoveries said to follow an accused's disclosure statement, or the sanction for prosecution was misapplied, or where the trial was unfair. A petition that merely repeats the High Court arguments in different words is unlikely to be admitted.

A conviction recorded for the first time by the High Court, on an appeal against acquittal, is examined more closely. The trial court had the advantage of seeing the witnesses, and the presumption of innocence is reinforced by the acquittal, so the question is whether the High Court had compelling reasons to set it aside. Where the High Court took a view that was merely possible rather than the only reasonable one, that is a strong ground.

The surrender rule and exemption from surrendering

The Supreme Court Rules, 2013 require a petition challenging a sentence of imprisonment to state whether the petitioner has surrendered. If the petitioner has not, the Registry will not list the petition unless it is accompanied by an application for exemption from surrendering. The application must explain why the petitioner should not be sent to custody before the Court has even looked at the case: for example, that a substantial part of the sentence has already been served, that the petitioner was on bail throughout the trial and the appeal and never misused it, or that there are serious health reasons.

The Court decides the exemption application at the first hearing. It may grant exemption, refuse it and direct surrender within a short time, or grant it for a limited period. Petitioners should be ready for either outcome and should never assume exemption will be granted.

Bail and suspension of sentence pending the appeal

Once the appeal or special leave petition is pending, the Court can suspend the sentence and release the appellant on bail. The power mirrors section 430 BNSS, which gives every appellate court that power. The considerations differ by sentence:

• For a fixed-term sentence, the Court in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) said suspension should ordinarily be considered liberally once the appeal is admitted, unless there are exceptional reasons against it, because the appeal may not be heard before the sentence runs out.
• For a life sentence, the Court looks at whether there is a fair prospect of success on the record, the period already spent in custody, conduct in jail and while on bail, and the gravity of the offence.
• A long period in custody with no prospect of the appeal being heard soon is itself a weighty factor.

The application should set out the custody period with a certificate from the jail, the dates of any earlier bail and how it was used, and a short note on why the conviction is open to serious doubt. Our wider bail practice covers the earlier stages.

Preparing the petition

1. 1.Obtain certified copies of the High Court judgment and the trial court judgment, and the High Court's record of evidence if available.
2. 2.Prepare a chronology and a list of dates, with the custody period in each phase.
3. 3.Draft the grounds, identifying each specific error in the High Court's reasoning with page references to the record.
4. 4.Translate any vernacular depositions or documents that the Court must read, with a certificate of translation.
5. 5.Prepare the application for exemption from surrendering or the bail application, as the case needs.
6. 6.File through an Advocate-on-Record and appear for the first hearing, where notice, exemption and interim bail are usually decided.

Delay in filing can be condoned, but a petitioner who is not in custody and files late without explanation weakens the request for exemption from surrendering. Many of the appeals we take to the Supreme Court come up from the Punjab & Haryana High Court at Chandigarh, where we also handle the criminal appeal itself.