The right of appeal is not an inherent or a natural right. It must be expressly given by statue. It is not possible for the right of appeal to arise by implication. The power of a superior Court to cancel or vary an order of an inferior Court, as for instance, under S. 123(9) or under S. 122, sub sec. (2) cannot be constructed as giving the right of appeal in such cases. It is incumbent on the Court to avoid a construction denying the right of appeal, although it is not allowed to supply a clear and obvious lacuna in a statute and imply a right of appeal; if reasonably permissible on the language which renders a part of the statue devoid of any meaning of application.
A right of appeal is a vested right which inheres in a party from the commencement of the action in the Court of first instance, and is not a mere matter of procedure. The legislature is competent to affect the vested right of appeal retrospectively. Only if there are clear indications therein, can the right of appeal be taken away by a subsequent legislation to that effect. S.484 of the new Code does not contain any provision which affects the right of appeal in cases pending at the commencement of the new code. Hence, the right of appeal as conferred on accused under S. 408 of old Code remains intact. Where a right of appeal is given by statute subject to certain conditions and limitation, the right cannot be enlarged so as to nullify such conditions or limitations. Transfer of a case cannot result in the right of appeal duly conferred on a person being taken away. A right of appeal has been given by sections contained in this chapter as well as by other sections of the Code. (See sec.86,351,449.) The procedure to be adopted in all such appeals under the Code is the one prescribed by this chapter (Ss. 382 to 394(1)(2)) unless any of the provisions thereof specifically restrict the application of such provisions to appeals under this chapter. Section 391 applies to appeals under this chapter only; it consequently does not apply to appeals anywhere else)
The words “judgment, order, conviction and sentence” have not been used in a consistent manner in this chapter, as a result a clear and consistent scheme as to appeals cannot be evolved from the chapter. The real criterion to determine if an appeal lies or not is whether there is conviction and not undergoing sentence. The term “order” in this section refers to a final order. An interlocutory order is thus not open to appeal. Order directing temporary custody of property which is an interlocutory order is neither appeal able under any express provision of Code nor revisable under S. 397(2). Finality of judgment serves as a predicate for appellate jurisdiction. “Final decisions” constitutes the pre-trial denial of a motion to dismiss an indictment on double jeopardy grounds. Since an appeal is a mere continuation of the trial, consequently the appellate Court, unless otherwise provided has powers to do only what the subordinate Court could do and should have done and not to pass any order under any circumstances. The appellate Court could not pass appropriate orders without going through the record in instances where in an appeal against forfeiture of bond, the record of the case was weeded out and could not be reconstituted.
Since the appellate powers depend on the words of a statute, in case the words of the statute are in themselves precise and unambiguous they must be held to have their natural and ordinary sense. In case the High Court while setting aside the order of acquittal in an appeal against acquittal sent the case to the trial Court for passing sentence; appeal would not lie from the order of trial Court sentencing the accused. It is an idle exercise in trying to tract out appeal power by implication in the absence of express provision, in view of the general ban contained in S.372. In a trial for offences under Prevention of Food Adulteration Act, in case there is conviction by Municipal Magistrate and consequently the Sessions Judge in appeal sets aside conviction on ground that there was no sanction for prosecution under S.20, such judgment of Sessions Judge is order of discharge and not of acquittal. An appeal to High Court will be treated as revision since appeal did not lie.