Appellate Interventions in Criminal Jurisprudence before the Supreme Court

A small number of criminal appeals lie to the Supreme Court as of right. Article 134(1) provides for an appeal where a High Court has, on appeal, reversed an acquittal and sentenced the accused to death, or has withdrawn a case to itself for trial and passed a sentence of death. The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 extends this to cases in which a High Court reverses an acquittal and sentences the accused to imprisonment for life or for ten years or more. An appeal also lies where the High Court certifies under Article 134A that the case is fit for appeal.

Everything else reaches the Court as a special leave petition under Article 136. In criminal practice that covers appeals against conviction and sentence, petitions by the State or the complainant against acquittals, challenges to orders granting or refusing bail and anticipatory bail, petitions against orders refusing to quash an FIR or a prosecution, and challenges to interlocutory orders such as summoning orders, framing of charges and discharge.

Since 1 July 2024 the Code of Criminal Procedure, 1973 (CrPC) has been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Indian Penal Code by the Bharatiya Nyaya Sanhita, 2023. Cases registered before that date continue to be governed by the old Codes in many respects, so petitions frequently cite both sets of provisions.

The Court does not ordinarily reappreciate evidence that has been examined by the trial court and the High Court. In Ganga Kumar Srivastava v. State of Bihar, it summarised the occasions for interference with concurrent findings in a criminal appeal under Article 136: where the findings are perverse or based on no evidence, where material evidence has been ignored or misread, where there is an error of law or of procedure that has caused prejudice, or where the conclusion results in a grave miscarriage of justice.

A criminal SLP therefore needs to identify, with reference to the record, the specific evidence that was overlooked or the specific legal error that infects the judgment. A petition that simply argues the case afresh on the facts rarely survives the first hearing.

Order XXII of the Supreme Court Rules, 2013 requires a petition against a sentence of imprisonment to state whether the petitioner has surrendered, and to file proof of surrender, such as a certificate from the jail. If the petitioner has not surrendered, the Registry will not accept the petition unless it is accompanied by an application seeking exemption from surrendering, which the Court decides on its merits.

Pending the appeal, the convict may seek suspension of sentence and release on bail under Section 430 BNSS (Section 389 CrPC). The considerations include the length of the sentence, the period already undergone, the nature of the offence and the likelihood of the appeal being heard soon. In Kashmira Singh v. State of Punjab, the Court observed that it would be unjust to keep a person in jail for years while the appeal awaited hearing, only for the conviction to be set aside later; the observation is still cited in support of suspending fixed-term sentences where the appeal is unlikely to be heard in the near future.

Many criminal appeals turn on whether a conviction based on circumstantial evidence can stand. The governing test is the one stated in Sharad Birdhichand Sarda v. State of Maharashtra: the circumstances from which guilt is to be inferred must be fully established; they must be consistent only with the hypothesis of guilt; they must be conclusive in nature; they must exclude every possible hypothesis except the one sought to be proved; and they must form a chain so complete that there is no reasonable ground for a conclusion consistent with innocence.

Where a conviction rests on 'last seen together' evidence, recoveries, motive or an extra-judicial confession, the petition should show precisely which link in the chain is missing or unproved.

An acquittal strengthens the presumption of innocence. In Chandrappa v. State of Karnataka, the Court explained that an appellate court hearing an appeal against acquittal has full power to review the evidence, but must bear in mind that the accused has a double presumption in his favour, and that where two reasonable views are possible on the evidence, the view in favour of the accused should not be disturbed.

When a High Court reverses an acquittal, the Supreme Court examines whether the High Court identified the trial court's findings that were perverse or unreasonable, rather than merely preferring its own view of the evidence. When the State or a victim challenges an acquittal before the Supreme Court, the same restraint applies with greater force.

High Courts can quash FIRs, complaints and prosecutions in exercise of their inherent power under Section 528 BNSS (Section 482 CrPC) and under Article 226. The categories in which the power may be exercised were illustrated in State of Haryana v. Bhajan Lal: among them, cases where the allegations, taken at face value, do not disclose an offence; where the allegations are so absurd or improbable that no prudent person could reach a just conclusion that there is sufficient ground to proceed; and where the proceedings are manifestly attended with mala fides or instituted with an ulterior motive.

Where the parties have settled, Gian Singh v. State of Punjab holds that a High Court may quash proceedings even for non-compoundable offences if the dispute is predominantly civil, commercial, matrimonial or personal in character, but not for heinous offences such as murder or rape, or for offences under special statutes that affect society at large.

In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, a three-judge Bench cautioned High Courts against passing blanket orders of 'no coercive steps' while declining to decide a quashing petition, and required such interim protection, if granted, to be supported by reasons. An SLP against an order refusing to quash must therefore show that the case falls clearly within a recognised category, not merely that the accused has a good defence at trial.

Bail matters form a large part of the criminal docket. The Court has repeatedly insisted that arrest is not automatic. Arnesh Kumar v. State of Bihar requires police officers to record reasons under the arrest provisions before arresting a person accused of an offence punishable with up to seven years' imprisonment, and requires magistrates to scrutinise those reasons before authorising detention. Siddharth v. State of U.P. held that an accused who has not been arrested during investigation need not be arrested merely because a charge sheet is being filed, and Satender Kumar Antil v. CBI set out a framework for bail across categories of offences.

The grounds of arrest must be communicated. In Prabir Purkayastha v. State (NCT of Delhi), the Court held that a person arrested under the Unlawful Activities (Prevention) Act, 1967 must be given the grounds of arrest in writing, and in Vihaan Kumar v. State of Haryana it held that failure to inform an arrested person of the grounds of arrest, as Article 22(1) requires, vitiates the arrest and the remand. In Mihir Rajesh Shah v. State of Maharashtra, the Court required the grounds to be given in writing, in a language the person understands, for arrests for any offence, including under the Bharatiya Nyaya Sanhita, at the latest two hours before production for remand; the direction applies to arrests made after the judgment.

Statutes such as the UAPA and the Prevention of Money Laundering Act, 2002 impose stricter conditions for bail. NIA v. Zahoor Ahmad Shah Watali explains the prima facie standard applied under Section 43D(5) of the UAPA. At the same time, Union of India v. K.A. Najeeb holds that such restrictions do not prevent a constitutional court from granting bail where prolonged incarceration without trial violates the right to a speedy trial, and the same principle was applied to money-laundering prosecutions in Manish Sisodia v. Directorate of Enforcement and Prem Prakash v. Union of India.

The practical routes, from an SLP against a refusal of bail to interim bail and suspension of sentence, are set out in the guide to bail in the Supreme Court.

Appeals involving a sentence of death receive particular procedural care. In Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India, a Constitution Bench held that review petitions in death sentence cases are to be heard in open court rather than decided by circulation. The Court also examines sentencing questions in other cases, including whether the sentence is proportionate and whether the courts below considered mitigating circumstances.

A criminal SLP is filed with a certified copy of the impugned judgment, the relevant parts of the trial court record (the FIR, charge sheet, depositions and exhibits relied on), English translations of documents in other languages, and proof of surrender or an application for exemption. Where the petitioner is in custody and cannot afford a lawyer, legal assistance is available through the Supreme Court Legal Services Committee, as explained in the guide to free legal aid in the Supreme Court.

A prisoner who cannot engage a lawyer may also send a petition to the Supreme Court through the jail authorities. Such jail petitions are registered by the Registry, and an advocate is assigned through the Supreme Court Legal Services Committee to prepare the case and argue it.

Where the offence is compoundable and the parties have settled, the Court may permit compounding under Section 359 BNSS (Section 320 CrPC) even at the stage of the special leave petition, and in suitable cases it has quashed proceedings on the basis of a settlement in exercise of its power to do complete justice. Where the conviction is upheld but the offence carries no minimum sentence, the Court may consider whether the sentence should be reduced, for example to the period already undergone, having regard to the age of the case, the conduct of the accused and the nature of the offence.

Matters involving liberty are listed with greater urgency. A request for urgent listing is made through the Registry's mentioning procedure, stating why the matter cannot wait for its ordinary turn.