As per case facts, the appellant, initially acquitted by the Trial Court on charges of dowry harassment and cruelty, was subsequently convicted for the first time by the Sessions Court ...
2026 INSC 770 SLP (Crl.) No.13891 of 2025 Page 1 of 93
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO (S). OF 2026
(Arising out of SLP (Crl.) No(s). 13891/2025)
VISHNU KUMAR GUPTA ...APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH
AND ANR. …RESPONDENT (S)
J U D G M E N T
ARAVIND KUMAR, J.
For the convenience of exposition, this judgment is divided into
the following Chapters and Sub-Chapters:
I N D E X
CHAPTER
NO.
NAME OF THE CHAPTER PAGE
NO(S).
I. INTRODUCTION 4-6
II. BRIEF FACTS 6-13
SLP (Crl.) No.13891 of 2025 Page 2 of 93
III. SUBMISSIONS OF THE PARTIES 13-23
IV. STATUTORY FRAMEWORK
(TO BE READ WITH THE APPENDIX)
23
(71-93)
V. THE SETTLED PRINCIPLES 23-40
V.1. APPEAL: A CREATURE OF
STATUTE
24-27
V.2.
THE MEANING OF THE
WORD ‘TRIAL’ IN THE
CODE OF CRIMINAL
PROCEDURE
27-40
VI. ANALYSIS AND ADJUDICATION
OF THE POINT FORMULATED
HEREINABOVE
40-69
VI.1. NO SUCH APPEAL GIVEN IN
THE STATUTE
40-43
VI.2. THE INTERPRETATION OF
SECTION 374 OF CODE OF
CRIMINAL PROCEDURE
43-54
VI.2.1. THE
INTERPRETATION
OF THE WORDS OF
SECTION 374 ‘ON A
TRIAL HELD BY’
44-47
VI.2.2. THE APPELLATE
COURT IS
EXERCISING
APPELLATE
JURISDICTION TO
REVERSE SUCH
ORDER OF
ACQUITTAL AND IS
CONVICTING THE
ACCUSED
47-54
SLP (Crl.) No.13891 of 2025 Page 3 of 93
VI.3. THE POWER OF THE
APPELLATE COURT
EXERCISING APPELLATE
JURISDICTION AND THE
POWER OF THE
REVISIONAL COURT
EXERCISING REVISIONAL
JURISDICTION.
54-69
VI.3.1. THE POWER OF THE
APPELLATE COURT
EXERCISING
APPELLATE
JURISDICTION
UNDER CR.P.C.
54-58
VI.3.2. THE POWER OF THE
REVISIONAL
COURT
EXERCISING
REVISIONAL
JURISDICTION
UNDER CR.P.C.
58-61
VI.3.3. THE REMEDY
AVAILABLE TO
THE APPELLANT
AND TO OTHER
PERSONS IN SUCH
CASES.
61-69
VII. CONCLUSION 69-70
APPENDIX 71-93
IV.1. PROVISIONS UNDER THE
CRIMINAL PROCEDURE
CODE, 1973
71-82
IV.2. PROVISIONS UNDER THE
BHARATIYA NAGARIK
SURAKSHA SANHITA, 2023
83-93
SLP (Crl.) No.13891 of 2025 Page 4 of 93
1. Heard. Leave Granted.
I. INTRODUCTION
2. The Appellant/ Accused
1
is before this Court challenging
the judgment/order of the High Court of Madhya Pradesh at
Gwalior Bench
2
dated: 11.07.2025 in Criminal Appeal No.
5615/2025, wherein the appeal filed by the Accused under
Section 415 of Bharatiya Nagarik Suraksha Sanhita, 2023
3
(Section 374 of the Code of Criminal Procedure, 1973
4
)
came to be dismissed on the ground of maintainability. The
Accused/Appellant i.e. Vishnu Kumar Gupta was the
legally wedded husband of the Complainant/Respondent
No.2 i.e. Smt. Shilpi Gupta
5
, who had lodged Zero FIR
under Sections 498-A, 323, 34 of Indian Penal Code
6
and
Sections 3 and 4 of Dowry Prohibition Act, 1961, against
the accused, the mother of the accused and the father of the
accused before Police Station Lasudia, Indore. After the
Zero FIR was transferred to jurisdictional Police Station the
1
Hereinafter referred to as ‘the Accused’ or ‘the Appellant’ or ‘the
Husband’.
2
Herein after referred to as ‘the High Court’.
3
Hereinafter referred to as ‘the BNSS’
4
Hereinafter referred to as ‘the CrPC’.
5
Hereinafter referred to as ‘the Complainant’ or ‘the Respondent’ or
‘the Wife’.
6
Hereinafter referred to as ‘the IPC’
SLP (Crl.) No.13891 of 2025 Page 5 of 93
same came to be registered as FIR No.32 of 2020 by the
Kotwali, Police Station, District Bhind, State of M.P. After
the investigation was completed, the police filed a
chargesheet against the accused persons before Judicial
Magistrate First Class, Bhind, District Bhind. The Court of
Judicial Magistrate First Class
7
(Trial Court), after the trial
and upon appreciation of the evidence on record vide
judgment and order dated: 20.12.2024, acquitted all the
Accused Persons. The complainant, filed a Criminal Appeal
in Criminal Appeal No. 3/2025 before the Seventh
Additional Sessions Judge, District Bhind
8
under Section
419 BNSS (Section 378 Cr.P.C.). On re-appreciation of the
evidence, the Sessions Court vide Judgment and Order
dated: 27.05.2025 dismissed Appeal in so far as the mother
and father of the Appellant. However, the Sessions Court
convicted the Appellant herein under Section 498-A of IPC
and Section 4 of the Dowry Prohibition Act and sentenced
him to undergo rigorous imprisonment for a period of 3
years under Section 498A of IPC and 2 years of rigorous
imprisonment under Section 4 of Dowry Prohibition Act
along with a fine of Rs. 10,000 each and the sentences were
ordered to run separately. Challenging the above conviction,
7
Here in after referred to as ‘the Trial Court’
8
Here in after referred to as ‘the Sessions Court’
SLP (Crl.) No.13891 of 2025 Page 6 of 93
the Appellant filed an Appeal before the High Court under
Section 415 of the BNSS, 2023 (Section 374 of Cr.P.C.), the
High Court on a thorough examination of the provisions of
the Cr.P.C. as well as BNSS, vide impugned order
dismissed the criminal appeal filed by the Appellant on the
ground that only a Revision Petition is maintainable and not
a criminal appeal challenging conviction as it would amount
to 2
nd
appeal which is not provided under the provisions of
the Cr.P.C. or the BNSS. Challenging the above order, the
Appellant is before this Court. The question that arises
before us in the given factual matrix is ‘Whether an appeal
under Section 374 of the Code of Criminal Procedure, 1973
(corresponding to Section 415 of the Bharatiya Nagarik
Suraksha Sanhita, 2023) is maintainable against a
judgment of conviction recorded by a Sessions Court while
exercising appellate jurisdiction and reversing an order of
acquittal passed by a Trial Court?’
II. BRIEF FACTS:
3. Though the facts in brief have been reproduced above, for
the purposes of completion, the same are reiterated below:
3.1. The marriage between the Appellant, Vishnu Kumar
Gupta, and Respondent No. 2 was solemnized on
01.02.2013 at Vidisha, Madhya Pradesh. Following the
SLP (Crl.) No.13891 of 2025 Page 7 of 93
marriage, the couple shifted to the United States, where
they resided together and were blessed with a son,
Agastya, on 14.02.2015. According to the record and
as per the Appellant, the Appellant bore the family's
expenses, including those relating to the respondent's
travel, pregnancy, and delivery. In March 2018,
Respondent No. 2 travelled to India with the minor
child on the pretext of attending her brother's wedding
but allegedly she did not return to the matrimonial
home thereafter, resulting in the parties living
separately.
3.2. The matrimonial relationship subsequently
deteriorated, with each side attributing the breakdown
to the other. The complainant alleged that she was
subjected to cruelty, harassment, physical assault, and
persistent demands for dowry by the Appellant and his
family members during the subsistence of the
marriage. These allegations culminated in the
registration of a Zero FIR on 19.01.2020 at Police
Station Lasudia, Indore, for offences under Sections
498-A, 323 read with Section 34 IPC and Sections 3
and 4 of the Dowry Prohibition Act, 1961. The FIR
was thereafter transferred to the competent jurisdiction
SLP (Crl.) No.13891 of 2025 Page 8 of 93
at Police Station City Kotwali, Bhind, where it was
registered as FIR No. 32 of 2020.
3.3. Following registration of the FIR, the investigating
agency recorded the statements of the complainant and
other material witnesses and conducted the
investigation into the allegations of matrimonial
cruelty, physical assault, and dowry demand. Upon
completion of the investigation, the police concluded
that sufficient material existed to proceed against the
accused persons and accordingly filed a charge sheet
before the Court of the Judicial Magistrate First Class,
Bhind. The criminal case was registered as RCT No.
2176 of 2020, where the accused were required to face
trial for the offences alleged in the FIR.
3.4. The charge sheet specifically arraigned the Appellant,
his father, and his mother as accused, alleging that they
had acted in furtherance of a common intention in
subjecting the complainant to cruelty in connection
with unlawful dowry demands and had voluntarily
caused hurt to her. On the basis of the evidence
collected during investigation, the prosecution sought
to prosecute the accused for offences punishable under
Sections 498-A and 323 read with Section 34 of the
Indian Penal Code and Sections 3 and 4 of the Dowry
SLP (Crl.) No.13891 of 2025 Page 9 of 93
Prohibition Act, 1961, asserting that the allegations
disclosed is a continuing course of matrimonial
harassment involving all the accused family members.
3.5. Consequently, cognizance was taken on the police
report, and the matter proceeded to trial before the
Judicial Magistrate First Class, Bhind. The filing of the
charge sheet formed the foundation of the prosecution
case by attributing distinct as well as collective acts of
cruelty and dowry harassment to the Appellant and his
parents, thereby requiring them to stand trial for the
aforementioned offences. The subsequent criminal
proceedings arose entirely from the allegations
contained in the FIR and the material collected during
investigation, as incorporated in the charge sheet.
4. The Judicial Magistrate First Class, Bhind, after a full-
fledged trial in RCT No. 2176 of 2020, acquitted the
Appellant and his family members of all charges under
Sections 498-A, 323 read with Section 34 IPC and Sections
3 and 4 of the Dowry Prohibition Act. The Trial Court held
that the prosecution had failed to establish the allegations of
dowry demand, cruelty and physical assault beyond
reasonable doubt. It found material inconsistencies and
omissions in the testimony of the complainant, including the
improbability of the alleged dowry demands, the absence of
SLP (Crl.) No.13891 of 2025 Page 10 of 93
contemporaneous complaints despite opportunities to do so,
and the lack of reliable corroborative evidence. Concluding
that the prosecution version did not inspire confidence and
that the evidence fell short of the standard required for
conviction, the Trial Court acquitted all the accused by a
reasoned judgment dated 20.12.2024.
5. Aggrieved by the acquittal, the complainant preferred an
appeal before the Sessions Court under Section 419 BNSS
(corresponding to Section 378 Cr.P.C.). By judgment dated
27.05.2025 in Criminal Appeal No. 3/2025, the Seventh
Additional Sessions Judge, Bhind, partly allowed the appeal
by reversing the acquittal insofar as the Appellant was
concerned. The appellate court convicted the Appellant for
offences under Section 498-A IPC and Section 4 of the
Dowry Prohibition Act, while affirming the acquittal of his
parents. The Sessions Court re-appreciated the evidence,
accepted the complainant's version regarding matrimonial
cruelty and dowry harassment, and imposed substantive
sentences, directing that the terms of imprisonment would
run separately (consecutively). The conviction recorded by
the Sessions Court constituted the Appellant's first
conviction, as he had been acquitted by the Trial Court.
Challenging the conviction, the Appellant filed an Appeal
SLP (Crl.) No.13891 of 2025 Page 11 of 93
before the High Court under Section 374 Cr.P.C. (Section
415 BNSS).
6. The High Court by its judgment dated 11.07.2025 in
Criminal Appeal No. 5615 of 2025, did not examine the
merits of the Appellant's conviction but dismissed the
appeal solely on the ground of maintainability. The
principal issue before the Court was whether an appeal
under Section 374 of the Code of Criminal Procedure, 1973
(corresponding to Section 415 of the Bharatiya Nagarik
Suraksha Sanhita, 2023) is maintainable against a judgment
of conviction recorded by a Sessions Court while exercising
appellate jurisdiction and reversing an order of acquittal
passed by the Trial Court. The High Court framed this as a
pure question of law concerning the availability of a
statutory remedy against a first-time appellate conviction.
6.1. Upon interpreting Section 374 Cr.P.C./Section 415
BNSS, the High Court held that the statutory right of
appeal is confined to convictions recorded by a court
in the exercise of its original trial jurisdiction and does
not extend to convictions recorded by a Sessions Court
while deciding an appeal against acquittal. Relying
upon the decisions of the Karnataka High Court in
Jayanthilal Dave v. State Assistant Drug Controller
SLP (Crl.) No.13891 of 2025 Page 12 of 93
Mysore
9
and the Madras High Court in Purushoth and
Others v. Jayabal and Others
10
, the Court concluded
that no second statutory appeal is contemplated against
such an appellate conviction and that the appropriate
remedy would be to invoke the High Court's revisional
jurisdiction. The Court reiterated that the right of
appeal is a creation of statute and cannot be inferred in
the absence of an express legislative provision.
6.2. The High Court further held that the appeal was also
hit by Rule 48 of Chapter X of the Madhya Pradesh
High Court Rules, 2008, as the Appellant had not
surrendered after his conviction by the Sessions Court.
Holding that both the absence of a statutory right of
appeal and the Appellant's failure to surrender
rendered the proceedings non-maintainable, the High
Court dismissed the criminal appeal at the threshold
without entering into the correctness of the findings of
conviction or re-appreciating the evidence on record.
Consequently, the judgment of conviction and
sentence passed by the Sessions Court remained
undisturbed.
9
ILR 2010 KAR 3103.
10
AIR Online 2022 MAD 1046.
SLP (Crl.) No.13891 of 2025 Page 13 of 93
7. It is this judgment of the High Court which is challenged
before this Court.
III. SUBMISSIONS OF THE PARTIES
8. Learned Counsel, Mr. A Velan, appearing for the Appellant
contended as follows:
8.1. The Appellant contends that the High Court committed
a fundamental error in dismissing his appeal as not
maintainable despite the fact that the Sessions Court
had convicted him for the first time by reversing a
judgment of acquittal. According to the Appellant, the
appeal before the High Court was not a "second
appeal" but the first effective appeal against his
conviction, and denial of such an appeal deprives him
of a substantive statutory right as well as the
constitutional guarantee of fair procedure envisaged
under Article 21. It is argued that High Court had
adopted an unduly narrow interpretation of Section
374 Cr.P.C. (now Section 415 BNSS) by confining it
only to convictions recorded by a trial court, thereby
extinguishing the Appellant's first opportunity to
challenge his conviction on facts and law.
8.2. The Appellant further submits that High Court
erroneously equated the remedy of criminal revision
SLP (Crl.) No.13891 of 2025 Page 14 of 93
with that of a criminal appeal. It is argued that a
revision is a limited supervisory remedy confined
primarily to jurisdictional and legal errors, whereas a
first appeal against conviction carries a vested right to
a complete re-appreciation of evidence. Since the
Appellant was acquitted by the Trial Court and
convicted only by the Sessions Court in appeal, the
presumption of innocence continued until the appellate
conviction, entitling him to one full appellate scrutiny
before his conviction attained finality. In support of
this proposition, reliance is placed upon Dilip S.
Dahanukar v. Kotak Mahindra Co. Ltd. and
Another
11
, Babu Rajirao Shinde v. State of
Maharashtra
12
, Kamlesh Prabhudas Tanna and
Another v. State of Gujarat
13
, and Nagarajan v. State
of Tamil Nadu
14
, which emphasize that the right of
appeal against conviction is a substantive and valuable
safeguard of personal liberty.
8.3. The Appellant also challenges the reliance placed by
the High Court on Rule 48 of Chapter X of the Madhya
Pradesh High Court Rules, 2008, contending that a
11
(2007) 6 SCC 528.
12
(1971) 3 SCC 337.
13
(2013) 15 SCC 263.
14
(2025) 8 SCC 331.
SLP (Crl.) No.13891 of 2025 Page 15 of 93
procedural rule cannot curtail a substantive statutory
remedy or override Article 21 of the Constitution of
India. It is argued that requirement of surrender before
entertaining an appeal is merely procedural and cannot
be used to deny the right of appeal itself. The Appellant
points out that the validity of Rule 48 is already under
challenge and further relies upon the decision of the
Madhya Pradesh High Court in Narendra Sharma v.
State of Madhya Pradesh
15
, wherein exemption from
surrender was granted in exceptional circumstances.
The Appellant submits that his case, involving
employment in the United States and serious civil
consequences flowing from conviction, warranted
similar protection.
8.4. In support of his interpretation of the appellate remedy,
the Appellant relies extensively upon constitutional
and precedential principles. He would rely upon the
judgment of this Court in Maru Ram v. Union of India
and Others
16
to contend that an appellate conviction
relates back to and substitutes the trial court's
judgment, thereby reinforcing that the conviction by
the Sessions Court constitutes the first conviction in
15
Criminal Revision No. 426 of 2025 before the High Court of Madhya
Pradesh at Gwalior.
16
(1981) 1 SCC 107.
SLP (Crl.) No.13891 of 2025 Page 16 of 93
law. Reliance is also placed upon Garikapati Veeraya
v. N. Subbiah Choudhry
17
to argue that the right of
appeal is a vested substantive right, Bhavya Apparels
(P) Ltd. and Another v. Union of India and Another
18
to submit that statutory conditions cannot destroy the
right of appeal, and Arun Sharma v. State of
Himachal Pradesh
19
to demonstrate that High Courts
have converted revisions into appeals in order to
preserve an accused's valuable first appellate remedy.
The Appellant thus contends that the High Court's
interpretation is inconsistent with established criminal
jurisprudence favouring preservation, rather than
extinction, of appellate rights.
8.5. It is further submitted that the expression employed in
Section 374 Cr.P.C. is "convicted on a trial" and not
"convicted in the trial". The legislative choice of the
preposition "on" is deliberate and cannot be rendered
otiose by reading it as "in". The expression "on a trial"
denotes a conviction founded upon, or arising out of, a
trial, without confining the conviction to the court
17
1957 SCC OnLine SC 28.
18
(2007) 10 SCC 129.
19
Criminal Revision No. 467 of 2019 along with Criminal Revision Nos.
468 to 472 of 2019 before the High Court of Himachal Pradesh at
Shimla.
SLP (Crl.) No.13891 of 2025 Page 17 of 93
which conducted the trial. Thus, where an accused is
acquitted by the trial court but is convicted for the first
time by the appellate court upon re-appreciation of the
evidence recorded during the same trial, such
conviction is nevertheless one rendered "on a trial", as
it is intrinsically founded upon and flows from the trial
conducted by the court of first instance. He would
contend that the Legislature intended to restrict the
scope of Section 374 only to convictions recorded by
the trial court itself, it would have employed the
expression "convicted in the trial" or other restrictive
language. The use of the words "on a trial", therefore,
manifests a wider legislative intent to encompass every
conviction founded upon a criminal trial, irrespective
of whether such conviction is recorded by the trial
court or by the appellate court exercising appellate
jurisdiction.
8.6. In the rejoinder affidavit, the Appellant specifically
refutes the respondents' contention that he is seeking
remedy in a "second appeal." He reiterates that the
proceedings before the High Court represented his first
and only effective appeal against his conviction, which
arose only because the Sessions Court reversed his
acquittal. The Appellant maintains that the respondents
SLP (Crl.) No.13891 of 2025 Page 18 of 93
have fundamentally misunderstood the nature of the
statutory remedy and that the insistence on treating the
matter as a second appeal defeats both legislative intent
and settled criminal jurisprudence. The rejoinder
further reiterates that the right to appeal following a
first-time conviction cannot be denied through a
restrictive interpretation of the Cr.P.C. or BNSS.
8.7. Lastly, the Appellant rejects the respondents'
reliance upon Rule 48 and the allegation that he
deliberately avoided surrender. He asserts that he has
consistently pursued his legal remedies before the
appropriate courts and has sought exemption from
surrender in accordance with law. The rejoinder
emphasizes that subordinate procedural rules must yield
to substantive statutory rights and constitutional
guarantees under Article 21, particularly where denial of
an appeal would result in irreversible prejudice to
personal liberty. It is further stated that the rejoinder
introduces no new grounds but merely elaborates upon the
submissions advanced before the High Court and
reinforces them through binding precedents and the
compendium of judgments filed along with the petition.
SLP (Crl.) No.13891 of 2025 Page 19 of 93
9. Shri. Rajan Chourasia Ga, Learned Counsel appearing for
the State contended as follows:
9.1. Respondent No. 1/State contends that the High Court
rightly dismissed the Appellant's criminal appeal as not
maintainable, as neither the Code of Criminal
Procedure, 1973 nor the Bharatiya Nagarik Suraksha
Sanhita, 2023 contemplates a second statutory appeal
against a judgment of conviction rendered by a
Sessions Court in exercise of its appellate jurisdiction.
It is submitted that Section 374 Cr.P.C. (Section 415
BNSS) permits an appeal only against convictions
recorded by a court exercising original trial jurisdiction
and does not extend to convictions recorded while
deciding an appeal against acquittal. According to the
State, the Appellant's remedy, if any, lay only in
invoking the revisional jurisdiction of the High Court,
and the High Court correctly declined to entertain a
criminal appeal in the absence of an express statutory
provision. The State further argues that the right of
appeal is purely a creation of statute and cannot be
expanded through judicial interpretation merely
because the Appellant has been convicted for the first
time. In support of this proposition, reliance is placed
upon the Karnataka High Court decision in Jayanthilal
SLP (Crl.) No.13891 of 2025 Page 20 of 93
Dave v. State Assistant Drug Controller (supra),
which held that no appeal lies under Section 374
Cr.P.C. against a conviction recorded by the Sessions
Court while reversing an acquittal, and upon the
Madras High Court decision in Purushoth and Others
v. Jayabal and Others (supra), which adopts the same
interpretation.
9.2. The State also supports the High Court's reliance upon
Rule 48 of Chapter X of the Madhya Pradesh High
Court Rules, 2008, contending that the Appellant had
admittedly not surrendered after the Sessions Court
recorded his conviction and sentence. It is argued that
compliance with the surrender requirement is a
mandatory precondition for entertaining such
proceedings and that the Appellant's failure to
surrender rendered the appeal incompetent. The State
relies upon this Court's order in Daulat Singh v. State
of Madhya Pradesh
20
to contend that exemption from
surrender is not a matter of right and submits that no
exceptional circumstances existed in the Appellant's
case warranting relaxation of the Rule. Accordingly,
the State maintains that the High Court correctly
rejected the appeal both on the ground of absence of
20
SLP(Crl.) No. 10183/2024.
SLP (Crl.) No.13891 of 2025 Page 21 of 93
statutory maintainability and on account of non-
compliance with the procedural requirement of
surrender.
10. Sri. Sankalp Sharma, Learned Counsel for the Complainant
contended as follows:
10.1. Respondent No. 2/Complainant substantially adopts
the submissions advanced by the State and contends
that the Appellant is, in substance, seeking recognition
of a second appeal, which the criminal procedural law
does not provide. It is submitted that once the
complainant's appeal against acquittal was allowed by
the Sessions Court under Section 378 Cr.P.C./Section
419 BNSS, the conviction recorded by the appellate
court attained the character of a final appellate
judgment, against which only the revisional
jurisdiction of the High Court could be invoked.
According to the complainant, the Appellant's attempt
to characterize the proceedings as a "first appeal" is
contrary to the statutory scheme governing criminal
appeals. Respondent No. 2 relies upon Jayanthilal
Dave v. State Assistant Drug Controller (Supra),
Purushoth v. Jayabal (Supra), and this Court's order
in Daulat Singh v. State of Madhya Pradesh (Supra),
all of which, according to the respondent, recognize
SLP (Crl.) No.13891 of 2025 Page 22 of 93
that no statutory appeal lies against a conviction
recorded by a Sessions Court while exercising
appellate powers.
10.2. The complainant further submits that the Appellant
cannot invoke constitutional principles to create an
appellate remedy where none exists under the statute.
It is argued that the right of appeal being entirely
statutory, Article 21 cannot be relied upon to override
the express legislative scheme. Respondent No. 2 also
disputes the Appellant's challenge to Rule 48,
contending that the requirement of surrender is
mandatory and uniformly applicable to convicted
persons approaching the High Court. The counter
affidavit therefore prays for dismissal of the Special
Leave Petition, asserting that the High Court correctly
interpreted the statutory provisions, faithfully followed
the precedents governing maintainability, and
committed no error warranting interference under
Article 136 of the Constitution.
11. Having heard the Learned Counsels appearing for the
parties and after perusal of the record available, the
following question arises for consideration:
I. ‘Whether an appeal under Section 374 of
the Code of Criminal Procedure, 1973
SLP (Crl.) No.13891 of 2025 Page 23 of 93
(corresponding to Section 415 of the
Bharatiya Nagarik Suraksha Sanhita,
2023) is maintainable against a judgment
of conviction recorded by a Sessions Court
while exercising appellate jurisdiction and
reversing an order of acquittal passed by a
Trial Court?’
IV. STATUTORY FRAMEWORK
12. In order to adjudicate the point formulated hereinabove, it
would be apposite to note the relevant provisions under
Cr.P.C. and BNSS which governs the filing of the appeal,
revision and the powers exercisable by the appellate court
and revisional court. The same is appended as Annexure I
to this Judgment.
V. THE SETTLED PRINCIPLE S
13. Before proceeding to answer the issue raised in the present
case, it is important for us to reiterate few of the settled
Principles of law which are necessary for the adjudication
of the issue at hand. The settled principles of law are:
V.1. Appeal: A creature of Statute,
SLP (Crl.) No.13891 of 2025 Page 24 of 93
V.2. The meaning of the word ‘Trial’ in the Code of
Criminal Procedure.
V.1. APPEAL: A CREATURE OF STATUTE
14. It is a well-settled principle of law that the right of appeal is
a creature of statute. In the absence of a specific statutory
provision conferring such a right, no party can maintain an
appeal. This principle finds statutory recognition in Section
372 of Cr.P.C., and its corresponding provision under the
BNSS, namely Section 413. Both provisions further
stipulate that a victim may prefer an appeal against an order
of acquittal before the Court which is competent to entertain
an appeal against the order of conviction passed against the
accused. In the case of National Commission for Women v.
State of Delhi and Another
21
, this Court held as follows:
“8. Chapter XXIX of the Code of Criminal
Procedure deals with "Appeal"(s). Section
372 specifically provides that no appeal shall lie
from a judgment or order of a Criminal Court except
as provided by the Code or by any other law which
authorizes an appeal. The proviso inserted
by Section 372 (Act 5 of 2009) w.e.f. 31st December,
2009, gives a limited right to the victim to file an
appeal in the High Court against any order of a
Criminal Court acquitting the accused or convicting
him for a lesser offence or the imposition of
inadequate compensation. The proviso may not thus
be applicable as it came in the year 2009 (long after
21
(2010) 12 SCC 599.
SLP (Crl.) No.13891 of 2025 Page 25 of 93
the present incident) and, in any case, would confer a
right only on a victim and also does not envisage an
appeal against an inadequate sentence. An appeal
would thus be maintainable only under Section 377 to
the High Court as it is effectively challenging the
quantum of sentence.
..xxxxxx…
11. An appeal is a creature of a Statute and cannot
lie under any inherent power. This Court does
undoubtedly grant leave to the appeal under the
discretionary power conferred under Article 136 of
the Constitution of India at the behest of the State or
an affected private individual but to permit anybody
or an organization pro-bono publico to file an appeal
would be a dangerous doctrine and would cause utter
confusion in the criminal justice system. We are,
therefore, of the opinion that the Special Leave
Petition itself was not maintainable.”
15. This Court in the case of Mallikarjun Kodagali (dead)
represented through legal representatives v. State of
Karnataka and Others
22
held that the Accused has the
substantive right to file an Appeal, and it should not be
easily recognised unless specifically conferred by a Statute.
This Court in the recent case of Parvinder Kansal v. State
(NCT of Delhi) and Another
23
held as follows:
“8. ….It is fairly well settled that the remedy of appeal
is creature of the Statute. Unless same is provided
either under Code of Criminal Procedure or by any
22
(2019) 2 SCC 752.
23
(2020) 19 SCC 496.
SLP (Crl.) No.13891 of 2025 Page 26 of 93
other law for the time being in force no appeal,
seeking enhancement of sentence at the instance of
the victim, is maintainable…..”
16. A plain reading of the statutory provisions governing
appeals makes it abundantly clear that the legislature has
consciously delineated both the circumstances in which an
appeal may be preferred and the forum before which such
appeal shall lie. The appellate forum is determined strictly
in accordance with the statutory scheme, and the jurisdiction
of the appellate court cannot be expanded or modified by
implication. The right to invoke appellate jurisdiction, as
well as the forum before which such right may be exercised,
must therefore be traced solely to the express provisions of
the statute.
17. It is equally well settled that a provision conferring a right
of appeal is required to be construed strictly. The Courts
cannot, on considerations of equity, convenience, or
perceived legislative omission, read into the statute a right
of appeal or an appellate forum which has not been
expressly provided by the legislature. Any interpretation
that creates or enlarges a substantive right of appeal beyond
the statutory framework would amount to judicial
legislation, which is impermissible in law.
18. Therefore, unless there exists an express statutory provision
conferring a right of appeal upon a person, no appeal can be
SLP (Crl.) No.13891 of 2025 Page 27 of 93
maintained. Such a right cannot be assumed or inferred by
adopting an erroneous or expansive interpretation of the
provisions of the Code.
V.2. THE MEANING OF THE WORD ‘TRIAL’ IN THE
CODE OF CRIMINAL PROCEDURE
19. As the provisions contained in the Chapter relating to
appeals under the Code employ the expression "trial" at
several places, it becomes necessary to ascertain its precise
meaning. In particular, since the expression "trial" is used in
Section 374 of the Cr.P.C., it is imperative to examine its
scope in the context of the said provision, including the
stage at which a trial commences and the point at which it
can be said to have concluded. In this regard, we shall
examine certain judicial pronouncements which have
endeavoured to define the expression "trial" and to
determine the stages marking its commencement and
conclusion. At the outset, however, it is necessary to clarify
that the expression "trial" also occurs in several other
provisions of the Cr.P.C., albeit in different contexts.
Consequently, the meaning attributed to the expression in
one provision cannot be mechanically imported into
another. The expression "trial" is inherently contextual and
must be construed in a manner that advances the object and
SLP (Crl.) No.13891 of 2025 Page 28 of 93
purpose of the particular provision in which it occurs, upon
a holistic reading thereof.
20. This Court, in the case of State of Bihar v. Ram Naresh
Pandey and Another
24
, in the context of Section 494 of
Cr.P.C., has held the following regarding the meaning of the
word ‘trial’ occurring in that provision:
“13. The whole argument of the learned counsel is
based upon the use of the word 'tried' and he
emphasises the well-known distinction between
'inquiry' and 'trial' in the scheme of the Code. Our
attention has also been drawn to the definition of the
word 'inquiry' in s. 4(k) of the Code which runs as
follows :
"'Inquiry' includes every inquiry other than a trial
conducted under this code by a Magistrate or
Court."
There is hardly anything in this definition which
throws light on the question whether the word 'trial' is
used in the relevant section in a limited sense as
excluding an inquiry.
14. The word 'trial' is not defined in the Code. 'Trial'
according to Stroud's Judicial Dictionary means "the
conclusion, by a competent tribunal, of questions in
issue in legal proceedings, whether civil or criminal"
[Stround's Judicial Dictionary, 3rd Ed., Vol. 4, p.
3092.] and according to Wharton's Law Lexicon
means "the hearing of a cause, civil or criminal,
before a judge who has jurisdiction over it, according
to the laws of the land" [Wharton's Law Lexicon, 14th
Ed., p. 1011.]. The words 'tried' and 'trial' appear to
have no fixed or universal meaning. No doubt, in
quite a number of sections in the Code to which our
24
AIR 1957 SC 389.
SLP (Crl.) No.13891 of 2025 Page 29 of 93
attention has been drawn the words 'tried' and 'trial'
have been used in the sense of reference to a stage
after the inquiry. That meaning attaches to the words
in those sections having regard to the context in which
they are used. There is no reason why where these
words are used in another context in the Code, they
should necessarily be limited in their connotation and
significance. They are words which must be
considered with regard to the particular context in
which they are used and with regard to the scheme
and purpose of the provision under consideration.
18. ……It may also be mentioned that the word
'inquiry' and 'trial' were both defined in the Code of
1872 but that the definition of the word 'trial' was
omitted in the 1882 Code and that later on in the 1898
Code the definition of the word 'inquiry' was slightly
altered by adding the phrase "other than a trial"
leaving the word 'trial' undefined. These various
legislative changes from time to time with reference
to s. 494 and the definition of the word 'inquiry'
confirm the view above taken that s. 494 is wide
enough to cover every kind of inquiry and trial and
that the word 'trial' in the section has not been used in
any limited sense. Substantially the same view has
been taken in Giribala Dasee v. Madar Gazi [[1932]
I.L.R. 60 Cal. 233.] and Viswanadham v. Madan
Singh [I.L.R. [1949] Mad. 64.] and we are in
agreement with the reasoning therein as regards this
question.”
21. Again, in the case of V. C. Shukla v. State through C.B.I.
25
,
this Court interpreting the provisions of the Special Courts
Act, 1979 held as follows:
“36. The last argument advanced by the learned
counsel for the appellant, which also appears to be
very attractive, is that accepting the theists referred to
25
1980 SCC Crl. 695.
SLP (Crl.) No.13891 of 2025 Page 30 of 93
above and applying to the facts of the present case,
the order impugned should be construed as a final
order inasmuch as the order completely terminates the
proceedings preceding the trial. In other words, it was
contended that until the charge is actually framed the
trial does not start and all proceedings up to the
framing of the charges are in the nature of an inquiry
or a sort of a pre- trial proceeding which finally
culminates either in the order of discharge or in the
order framing of charges. Thus, in any event, an order
framing charges must necessarily be held to be a final
order and not, an interlocutory one. In support of this
contention the learned counsel relied on a decision of
a Full Bench of the Jammu & Kashmir High Court in
the case of State v. Ghani Bandar in which the leading
judgment was delivered by one of us (Fazal Ali J.).
………
37. This decision, however, in our opinion, does not
appear to be of any assistance to the appellant for the
reasons that we shall give here after. In the first place,
the decision was rendered not on the provisions of the
Code of 1973 but under the provisions of the Criminal
Procedure Code of the Jammu & Kashmir State
which were quite different from the provisions of the
Code of 1973 which does not apply to that State.
Secondly, it would appear that the Criminal
Procedure Code of 1872 (Act X of 1872) expressly
contained a definition of the word trial which was
defined thus:
"Trial" means the proceedings taken in Court after
a charge has been drawn up, and includes the
punishment of the offender:
It includes the proceedings under chapters XVI
and XVIII, from the time when the accused
appears in Court."
Thus, the word 'trial' clearly meant the proceedings
after charges had been drawn up and included even
the punishment of the offender. Furthermore, the
SLP (Crl.) No.13891 of 2025 Page 31 of 93
definition was wide enough even to include
proceeding right from the time when the accused
appeared in Court to the culmination of the
proceedings. This definition is to be found in s. 4 of
the Act X of 1872. The said Act defined 'inquiry' thus:
"Inquiry" includes any inquiry which may be
conducted by a Magistrate or Court under this
Act."
38. Both the definition of the word 'trial' as also that
of 'inquiry' underwent. a radical change in the Code
of 1898. The Code of 1898 completely dropped the
definition of the word 'trial' and instead widened the
definition of the term 'inquiry'. Under s. 4(j) of the
Code of 1898, 'inquiry' was defined thus:
"Inquiry"- "inquiry" includes every inquiry other
than a trial conducted under this Code by a
Magistrate or Court."
Thus, the position was that under the Code of 1898,
trial was not defined at all but all proceedings except
the trial were held to be inquiry within the meaning
of s. 4(j). So far as the Code of 1973 is concerned,
with which we are dealing, while the definition of
inquiry is retained, trial has not been defined at all. In
the instant case, s. 9(1) of the Special Courts
Act clearly provides that the Special Court shall hl the
trial of cases before it follow the procedure prescribed
by the Court for trial of warrant cases before a
Magistrate. Let us examine the position and the
various aspects of the procedure laid down for the
trial of warrant cases under the Code as also under the
Code of 1898, as amended in 1955. So far as the
decision of the J&K High Court, referred to above, is
concerned it was given under the Criminal Procedure
Code of Jammu & Kashmir prior to the amendment
of 1955 which, though passed by the State
Legislature, was enforced sometime after 1964. Prior
to the amendment of 1955, under the Code of 1898,
the procedure for trial of warrant cases by a
SLP (Crl.) No.13891 of 2025 Page 32 of 93
Magistrate was the same whether the case was
instituted on a police report or otherwise than on a
police report. The procedure is found in the
unamended ss. 251 to 254 onwards which may be
extracted thus:
"251…….254…”
39. It is therefore, clear that under the provisions
extracted above, There was no question of the trial
starting until the charges were framed because under
s. 252 when the accused appeared or was brought
before the Magistrate, the Magistrate had to hear the
complainant and take evidence as may be produced
by him. After summoning the witnesses under s.
252(2), the Magistrate had to take the evidence and
after examining the same he had to determine whether
a case was made out by the prosecution which, if
unrebutted, would warrant the conviction of the
accused. If the Magistrate was of the opinion from the
examination of the evidence taken at the earlier stage
that the accused had committed an offence triable
under the said Chapter, then only charge was to be
framed…………… . For these reasons, therefore, we
are satisfied that the proceedings starting with s. 238
of the Code including any discharge or framing of
charges under s. 239 or s. 240 amount to a trial. the
question of a pre-trial, as suggested by the counsel for
the appellant, does not arise on a plain interpretation
of the language of ss. 238 and 239 which were the-
same as s. 251A under the Code of 1898 as amended
by the Act of 1955.”
22. In the context of the Army Act, 1950, this Court in the case
of Union of India and Others v. Major General Madan Lal
SLP (Crl.) No.13891 of 2025 Page 33 of 93
Yadav (Retd.)
26
gave a contextual definition to the word
‘trial commenced’ appearing in that Act and held:
“13. The words "trial commences" employed
in Section 123 [2] shall be required to be understood
in the light of the scheme of the Act and the Rules.
The question is as to when the trial is said to
commence? The word 'trial' according to Collins
English Dictionary means:
"the act or an instance of trying or proving; test
or experiment... Law. a. the judicial
examination of the issues in a civil or criminal
cause by a competent tribunal and the
determination of these issues in accordance
with the law of the land. b. the determination
of an accused person's guilt or innocence after
hearing evidence for the prosecution and nor
the accused and the judicial examination of the
issues involved".
14. According to Ballentine's Law Dictionary [2nd
ed.] 'trial' means:
"an examination before a competent tribunal
according to the law of the land, of the facts or
law put in issue in a cause, for the purpose of
determining such issue. When a court hears
and determines any issue of fact or law for the
purpose of determining the right of the parties,
it may be considered a trial"
15. In Block's Law Dictionary [Sixth Edition]
Centennial Edition, the word 'trial' is defined thus:
"A judicial examination and determination of
issues between parties to action, whether they
be issues of law or of fact, before a court that
has jurisdiction... A judicial examination, in
26
(1996) 4 SCC 127.
SLP (Crl.) No.13891 of 2025 Page 34 of 93
accordance with law of the land, of a cause,
either civil or Criminal, of the issues between
the parties, whether of law or facts, before a
court that has proper jurisdiction".
16. In Webster's Comprehensive Dictionary
International Edition, at page 1339, the word 'trial' is
defined thus:
"....The examination, before a tribunal having
assigned jurisdiction, of the facts or law
involved in ail issue in order to determine that
issue. A former method of determining guilt or
innocence by subjecting the accused to
physical tests of endurance, as by ordeal or by
combat with his accuser... In the process of
being tried or tested... Made or performed in
the course of trying or testing...".
17 to 18…………….
19. It would, therefore, be clear that trial means act of
proving or judicial examination or determination of
the issues including its own jurisdiction or authority
in accordance with law or adjudging guilt or
innocence of the accused including all steps necessary
thereto. The trial commences with performance of the
first act or steps necessary or essential to proceed with
trial.
xxxxxxx
27. Our conclusion further gets fortified by the
scheme of the trial of a criminal case under the Code
of Criminal Procedure, 1973, viz., Chapter XIV
"Conditions requisite for initiation of proceedings"
containing Sections 190 to 210, Chapter XVIII
containing Sections 225 to 235 and dealing with "trial
before a Court of Sessions" pursuant to committal
order under Section 209 and in Chapter XIX "trial of
warrant-cases by Magistrates" containing Sections
238 to 250 etc. It is settled law that under the said
SLP (Crl.) No.13891 of 2025 Page 35 of 93
Code trial commences the moment cognizance of the
offence is taken and process is issued to the accused
for his appearance etc. Equally, at a Sessions trial, the
court considers the committal order under Section
209 by the Magistrate and proceeds further. It takes
cognizance of the offence from that stage and
proceeds with the trial. The trial begins with the
taking of the cognizance of the offence and taking
further steps to conduct the trial.”
23. In “Common Cause”, A Registered Society through its
Director v. Union of India and Others
27
this Court held as
follows:
“II. The phrase “pendency of trials” as employed in
paras 1(a) to 1(c) and the phrase “non-
commencement of trial” as employed in paras 2(b)
to 2(f) shall be construed as under:
(i) In cases of trials before the Sessions Court the
trials shall be treated to have commenced when
charges are framed under Section 228 of the Code of
Criminal Procedure, 1973 in the cases concerned.
(ii) In cases of trials of warrant cases by magistrates
if the cases are instituted upon police reports the trials
shall be treated to have commenced when charges are
framed under Section 240 of the Code of Criminal
Procedure, 1973 while in trials of warrant cases by
magistrates when cases are instituted otherwise than
on police report such trials shall be treated to have
commenced when charges are framed against the
accused concerned under Section 246 of the Code of
Criminal Procedure, 1973.
27
(1996) 6 SCC 775.
SLP (Crl.) No.13891 of 2025 Page 36 of 93
(iii) In cases of trials of summons cases by
magistrates the trials would be considered to have
commenced when the accused who appear or are
brought before the magistrate are asked under Section
251 whether they plead guilty or have any defence to
make.”
24. Constitution bench of this Court in the case of Hardeep
Singh v. State of Punjab and Others
28
in the context of
Section 319 of Cr.P.C. has expounded the definition and
meaning of the word ‘trial’ occurring in said provision and
clarified the law regarding the usage of the word ‘trial’ as
under:
“38. In view of the above, the law can be summarised
to the effect that as ‘trial’ means determination of
issues adjudging the guilt or the innocence of a
person, the person has to be aware of what is the case
against him and it is only at the stage of framing of
the charges that the court informs him of the same,
the ‘trial’ commences only on charges being framed.
Thus, we do not approve the view taken by the courts
that in a criminal case, trial commences on
cognizance being taken.”
25. As we have dealt with the point as to when the trial
commences, we will also have to deal with the point when
the trial ends. This court in the recent case of Jamin and
28
(2014) 3 SCC 92.
SLP (Crl.) No.13891 of 2025 Page 37 of 93
Another v. State of Uttar Pradesh and Another
29
,
reiterating the judgment of this Court in the case of
Shashikant Singh v. Tarkeshwar Singh and Another
30
held
that, the conclusion of the trial in a criminal prosecution if
it ends in conviction, is complete only when the sentence is
imposed on the convict and in case of acquittal ends with
the judgment of acquittal. This Court has held:
“55. The relevant portions from the reasoning
assigned by the Court in arriving at the aforesaid
conclusions are reproduced hereinbelow:
27. From a perusal of the provisions extracted
above, it is seen that if the Sessions Court while
analysing the evidence recorded finds that there
is no evidence to hold the accused for having
committed the offence, the Judge is required to
record an order of acquittal. In that case, there is
nothing further to be done by the learned Judge
and therefore the trial concludes at that stage. In
such cases where it arises under Section 232
CrPC and an order of acquittal is recorded and
when there are more than one accused or the sole
accused, have/has been acquitted, in such cases,
that being the end of the trial by drawing the
curtain, the power of the court to summon an
accused based on the evidence as contemplated
under Section 319 CrPC will have to be invoked
and exercised before pronouncement of judgment
of acquittal. There shall be application of mind
also, as to whether separate trial or joint trial is to
be held while trying him afresh. After such order
29
2025 INSC 330
30
(2002) 5 SCC 738.
SLP (Crl.) No.13891 of 2025 Page 38 of 93
it will be open to pronounce the judgment of
acquittal of the accused who was tried earlier.
--xxx—
29. The above aspects would indicate that even
after the pronouncement of the judgment of
conviction, the trial is not complete since the
learned Sessions Judge is required to apply
her/his mind to the evidence which is available on
record to determine the gravity of the charge for
which the accused is found guilty; the role of the
particular accused when there is more than one
accused involved in an offence and in that light,
to award an appropriate sentence. Therefore, it
cannot be said that the trial is complete on the
pronouncement of the judgment of conviction
alone, though it may be so in the case of acquittal
as contemplated under Section 232 CrPC, since
in that case there is nothing further to be done by
the learned Judge except to record an order of
acquittal which results in conclusion of trial.
--xxx—
32. Therefore, from a perusal of the provisions
and decisions of this Court, it is clear that the
conclusion of the trial in a criminal prosecution if
it ends in conviction, a judgment is considered to
be complete in all respects only when the
sentence is imposed on the convict, if the convict
is not given the benefit of Section 360 CrPC.
Similarly, in a case where there are more than one
accused and if one or more among them are
acquitted and the others are convicted, the trial
would stand concluded as against the accused
who are acquitted and the trial will have to be
concluded against the convicted accused with the
imposition of sentence. When considered in the
context of Section 319 CrPC, there would be no
dichotomy as argued, since what becomes
relevant here is only the decision to summon a
SLP (Crl.) No.13891 of 2025 Page 39 of 93
new accused based on the evidence available on
record which would not prejudice the existing
accused since in any event they are convicted.”
26. Thus, from the foregoing discussion, it may be concluded
that, in the context of most provisions of the Code, a
criminal trial ordinarily commences upon the framing of
charges and concludes with the pronouncement of the
judgment and sentence imposed by the Trial Court. Where
the accused is convicted, the trial attains finality upon the
pronouncement of the order of sentence. Conversely, where
the accused is acquitted, the trial comes to an end upon the
passing of the order of acquittal by the Trial Court or the
Court conducting the trial. The meaning of the word trial
attains significance, although the principal question framed
for consideration in the present matter shall be answered in
the succeeding paragraphs while dealing with the contextual
interpretation of Section 374, it is clarified at this stage that
the expression "trial", as employed in the said provision,
must be understood in the aforesaid sense and would be
interpreted to mean that it commences upon the framing of
charges and concludes with the pronouncement of the
judgment by the Trial Court. Where the accused is
convicted, the trial attains finality upon the pronouncement
of the order of sentence. Conversely, where the accused is
SLP (Crl.) No.13891 of 2025 Page 40 of 93
acquitted, the trial comes to an end upon the passing of the
order of acquittal by the Trial Court or the Court conducting
the trial.
VI. ANALYSIS AND ADJUDICATION OF THE POINT
FORMULATED HEREINABOVE:
27. Having dealt with the general principles which have to be
kept in mind while adjudicating the issue which has been
framed before this court, now we proceed to answer the
point formulated hereinabove. Keeping in mind, the
principles which have been enumerated above, the answer
to the above question has to be negative i.e. an appeal under
Section 374 of Cr.P.C. would not be maintainable against
the judgement of conviction recorded by the Session Court
while exercising appellate jurisdiction and reversing an
order of acquittal passed by the Trial Court for the elaborate
reasons assigned hereinbelow:
VI.1. NO SUCH APPEAL GIVEN IN THE STATUTE
28. As held hereinabove, a conjoint reading of the relevant
provisions of the Code makes it abundantly clear that an
appeal of the nature contended for has not been
contemplated either under the Cr.P.C. or under the BNSS.
SLP (Crl.) No.13891 of 2025 Page 41 of 93
Since the right of appeal is a creature of statute, such a right
can exist only where it is expressly conferred by law. In the
absence of an express statutory provision, no appeal can be
maintained. It is equally well settled that, under the guise of
equity, justice, or any other equitable consideration, the
Court cannot judicially legislate or create a right of appeal
which the legislature has consciously not provided for under
the Code.
29. Section 372 of the Cr.P.C. and Section 413 of the BNSS
expressly prohibit the entertainment of appeals except as
provided under the respective enactments. Thus, where an
accused has been acquitted by a Magistrate upon the
conclusion of the trial, the victim or the State, as the case
may be, is entitled to prefer an appeal as contemplated under
proviso to Sections 372 and 378 of the Cr.P.C. respectively
and the corresponding provisions of the BNSS. In the
exercise of its appellate jurisdiction, the appellate court is
fully empowered to reverse the order of acquittal and record
a conviction, where the facts and law so warrant. However,
where the appellate court reverses the order of acquittal and
convicts the accused, the mere fact that the conviction is
recorded for the first time by the appellate court does not,
by itself, confer a further right of appeal before the High
Court. In the absence of an express statutory provision
SLP (Crl.) No.13891 of 2025 Page 42 of 93
conferring such a right, no appeal would lie. The remedy
available to the accused in such circumstances is to invoke
the revisional jurisdiction of the High Court under Sections
397 and 401 of the Cr.P.C., or the corresponding provisions
of the BNSS, subject to the limitations governing the
exercise of such jurisdiction.
30. This Court has consistently held that the right of appeal is
neither an inherent nor a natural right, but a substantive
statutory right. Such a right can be exercised only in the
manner and subject to the conditions prescribed by the
statute creating it. Consequently, the existence, scope, and
extent of an appellate remedy must be determined strictly
with reference to the statutory provisions, and no appellate
jurisdiction can be assumed or inferred in the absence of an
express legislative mandate.
31. It is equally well settled that where the legislature has
consciously provided for appeals in certain situations while
remaining silent in others, such silence cannot be supplied
by judicial interpretation. Courts are not empowered to
enlarge the scope of appellate remedies on considerations of
equity, hardship, or perceived anomalies, as doing so would
amount to creating a substantive right which falls
exclusively within the legislative domain. The scheme of
the Code, therefore, requires that every appeal must be
SLP (Crl.) No.13891 of 2025 Page 43 of 93
traceable to an express statutory provision, failing which the
jurisdiction of the appellate court cannot be invoked.
32. The contention that a further appeal should nevertheless be
held maintainable on the ground that the conviction has
been recorded for the first time by the appellate court cannot
be accepted. While such a circumstance may appear to
warrant an additional appellate scrutiny as a matter of
policy, it cannot furnish a legal basis for recognising a
substantive right of appeal. The question is not whether a
further appeal may be desirable, but whether the statute has
created such a remedy. In the absence of a clear legislative
provision conferring a right of appeal against a judgment of
conviction rendered by the Sessions Court in an appeal
against acquittal, the accused cannot claim such a remedy as
a matter of right.
VI.2. THE INTERPRETATION OF SECTION 374 OF
CODE OF CRIMINAL PROCEDURE .
33. For the purposes of clarity, this Chapter is divided into three
parts, which are connected to each other. The same are
VI.2.1. The interpretation of the words of Section 374 ‘on a
trial held by’ and VI.2.2. The Appellate Court is exercising
Appellate Jurisdiction to reverse such order of acquittal and
is convicting the Accused. VI.2.3. The power of the
SLP (Crl.) No.13891 of 2025 Page 44 of 93
Appellate Court exercising Appellate Jurisdiction and the
power of the Revisional Court exercising Revisional
Jurisdiction.
VI.2.1. THE INTERPRETATION OF THE WORDS OF
SECTION 374 ‘ON A TRIAL HELD BY’
34. The answer to the question framed hereinabove turns upon
the interpretation of the language employed in Section 374
of the Cr.P.C. Sections 374(1), 374(2), and 374(3)(a)
uniformly employ the expression "on a trial held by", and
the true import of this expression forms the foundation for
answering the issue under consideration. For the purpose of
the present discussion, it would suffice to examine the scope
of the said expression as occurring in Section 374(3)(a),
since the interpretation thereof would, ipso facto, govern
the corresponding expression employed in the other sub-
sections as well. Section 374(3)(a) provides that an appeal
shall lie to the Court of Session from a conviction on a trial
held by a Magistrate of the classes specified therein. If the
expression is construed according to its plain and ordinary
meaning, it necessarily conveys the following:
34.1. Firstly, the expression "on a trial" requires
consideration. Construed in its plain and ordinary
sense, the expression signifies that the court from
SLP (Crl.) No.13891 of 2025 Page 45 of 93
whose judgment an appeal lies must itself have
conducted the trial of the case. If the meaning of the
expression "trial", as discussed hereinabove under
Chapter IV.2, is imported into Section 374(3)(a), the
phrase "on a trial" would necessarily refer to the
proceedings commencing with the framing of charges
and culminating in the judgment of conviction and the
order of sentence. Consequently, in the context of
Section 374(3)(a), the expression denotes a trial
conducted by the Magistrate, commencing with the
framing of charges and concluding with the conviction
and sentencing of the accused. In other words, the
entire exercise constituting the trial must have been
conducted by the Magistrate for the provision to be
attracted.
34.2. Secondly, the expression "held by", which
immediately follows the words "on a trial", also
assumes significance. Construed according to its plain
and ordinary meaning, the expression "held by" refers
to the Court that conducts or presides over the trial. In
other words, it denotes the Court which is seized of the
trial proceedings and before which the entire trial is
held. Accordingly, in the context of Section 374(3)(a),
the expression "held by" necessarily refers to the
SLP (Crl.) No.13891 of 2025 Page 46 of 93
Magistrate who has conducted the trial from its
commencement until its conclusion.
34.3. A combined reading of the expressions "on a trial"
and "held by" leads to the inescapable conclusion that
the provision contemplates the Court which itself
conducts the trial, namely, the Court before which the
proceedings commence with the framing of charges
and culminate in the judgment of conviction and the
order of sentence. Thus, in the context of Section
374(3)(a), an appeal lies from the judgment of
conviction and sentence passed by the Magistrate who
has conducted the entire trial to the Court of Session
exercising appellate jurisdiction. The provision,
therefore, unmistakably contemplates an appeal only
from the Court which has itself held the trial and not
from a Court exercising appellate jurisdiction.
34.4. The principal contention advanced on behalf of the
appellant in the facts obtained is that, since Appellant
has been convicted for the first time by the Sessions
Court while exercising its appellate jurisdiction, he
would be entitled to prefer an appeal before the High
Court under Section 374 of the Cr.P.C. However, a
careful examination of the expression "on a trial held
by" occurring in Section 374, it would indicate that, in
SLP (Crl.) No.13891 of 2025 Page 47 of 93
the context of the said provision, the trial culminates in
the judgment of conviction and the order of sentence
pronounced by the Court conducting the trial. The
interpretation which was given by the Himachal
Pradesh High Court Arun Sharma v. State of
Himachal Pradesh (supra) holding appeal is
maintainable is dealt in the next sub-chapter.
34.5. Therefore, in the present case an Appeal from the
Sessions Court which has not conducted the ‘trial’ is
not maintainable in the eye of law, as there is no
provision under Cr.P.C. or BNSS to file such an
appeal.
VI.2.2. THE APPELLATE COURT IS EXERCISING
APPELLATE JURISDICTION TO REVERSE
SUCH ORDER OF ACQUITTAL AND IS
CONVICTING THE ACCUSED.
35. One of the principal contentions advanced on behalf of the
appellant is that the expression employed in Section 374 of
the CrPC is "convicted on a trial" and not "convicted in a
trial." It is submitted that the legislative choice of the
preposition "on" is deliberate and cannot be rendered otiose
by construing it as "in." According to the appellant, the
expression "on a trial" signifies a conviction founded upon
or arising out of a trial, without confining such conviction
SLP (Crl.) No.13891 of 2025 Page 48 of 93
to the Court which actually conducted the trial. It is,
therefore, contended that where an accused is acquitted by
the Trial Court but is convicted for the first time by the
appellate court upon a re-appreciation of the evidence
recorded during the same trial, such conviction would
nevertheless be one rendered "on a trial," since it is
intrinsically founded upon and flows from the trial
conducted by the Court of first instance. We are unable to
accept the aforesaid submission. A Court exercising trial
jurisdiction and a Court exercising appellate jurisdiction
perform distinct functions under the statutory scheme of the
Code and are vested with different powers. The nature,
scope, and incidents of trial proceedings are fundamentally
different from those of appellate proceedings. Although it is
well settled that an appeal is a continuation of the original
proceedings and that, upon the disposal of the appeal, the
judgment of the Trial Court merges with that of the appellate
court, these doctrines do not obliterate the distinction
between trial jurisdiction and appellate jurisdiction. The
doctrine of continuation of proceedings and the doctrine of
merger determine the legal consequences flowing from an
appeal; they do not alter the character of the jurisdiction
exercised by the respective Courts. The Court conducting
the trial continues to exercise trial jurisdiction, whereas the
SLP (Crl.) No.13891 of 2025 Page 49 of 93
Court hearing the appeal continues to exercise appellate
jurisdiction. Consequently, a conviction recorded by an
appellate court while exercising appellate jurisdiction
cannot, for that reason alone, be equated with a conviction
recorded "on a trial held by" that Court within the meaning
of Section 374 of the Cr.P.C.
36. It is also necessary to bear in mind that the provisions
governing trials before Courts of first instance including
trials before a Court of Session, trial of warrant cases by
Magistrates, trial of summons cases by Magistrates, and
summary trials are contained in Chapters XVIII to XXI of
Cr.P.C. (corresponding to Chapters XIX to XXII of the
BNSS). In contrast, the provisions relating to appeals are
contained in Chapter XXIX of the Cr.P.C. (corresponding
to Chapter XXXI of the BNSS). The legislative scheme,
therefore, clearly indicates that the trial before the Court of
first instance is distinct from the appellate proceedings. An
appeal arises only upon the culmination of the trial by the
Trial Court through the pronouncement of a judgment or
other appealable order and is thereafter adjudicated by a
different forum exercising appellate jurisdiction. The
separation of these chapters under the statutory framework
reinforces the distinction between the stage of trial and the
stage of appeal.
SLP (Crl.) No.13891 of 2025 Page 50 of 93
37. In the case of Arun Sharma v. State of Himachal Pradesh
(supra), the Himachal Pradesh High Court was deciding a
Criminal Revision. The accused in that case were tried by
the Court of the Additional Chief Judicial Magistrate,
Shimla, for offences under Sections 452, 147, 148, 323, 324,
506 read with Section 149 of the IPC and were acquitted by
ACJM. Aggrieved by the acquittal, the State preferred an
appeal under Section 378 CrPC before the Sessions Judge
(Forest), Shimla, who, by judgment dated 31.10.2019,
reversed the acquittal and convicted the accused for the first
time. Accused preferred criminal revision petitions under
Sections 397 and 401 Cr.P.C. on the premise that no
statutory appeal lies against a conviction recorded by the
Sessions Court in exercise of its appellate jurisdiction. This
gave rise to the preliminary legal issue before the High
Court as to whether the proper remedy against such a first-
time appellate conviction was a criminal appeal under
Section 374(2) Cr.P.C. or only a criminal revision. The
Court in that context held as follows:
“7. Another issue involved herein is that petitioners
have been convicted by learned Sessions Judge in an
appeal preferred by State after their acquittal by the
trial Court and Section 374 (2) Cr.P.C. provides
appeal to the convict on a trial' by the Sessions Judge
or Additional Sessions Judge. Considering the
pronouncements of the Apex Court in Kashmira
Singh Vs. The State of Punjab, (1977) 4 SCC 291,
SLP (Crl.) No.13891 of 2025 Page 51 of 93
Babu Singh and Others Vs. State of U.P. (1978) 1
SCC 579. Shailendra Kumar Vs. State of Delhi, 2004
(4) SCC 178 and Smt. Akhtari Bi Vs. State of M.P.
AIR 2001 SC 1528, it is clear that on filing appeal
which is a statutory right, the trial Court's verdict does
not attain finality during pendency of the appeal, trial
is deemed to be continuing. Therefore, the words used
in Section 374(2) of Cr.P.C. 'on a trial' shall include
the appeal preferred by the State against acquittal of
an accused and judgment of conviction passed in such
appeal by learned Sessions Judge or Additional
Sessions Judge is to be considered a judgment of
conviction passed by that Court, 'on trial', as the
appeal preferred by the State in that Court is to be
considered to be continuation of trial. Thus
petitioners have right to appeal to the High Court
against their conviction.”
38. We do not agree with the above proposition for more than
one reason and the same are as follows:
38.1. The first proposition is that an appeal is a
continuation of the trial or the original proceedings.
This principle is well settled in criminal jurisprudence
and has repeatedly been affirmed by this Court. It
signifies that the judgment of the Trial Court does not
attain finality during the pendency of the appeal; that
the appellate court is empowered to reappreciate the
evidence; and that, upon the disposal of the appeal, the
judgment of the appellate court supersedes or merges
with that of the Trial Court. These consequences flow
from the doctrine of continuity of proceedings and
assume relevance in diverse contexts, including the
SLP (Crl.) No.13891 of 2025 Page 52 of 93
doctrine of merger, suspension of sentence, limitation,
and the scope of appellate powers.
38.2. The second proposition, however, stands on a
different footing. Section 374(2) of the Cr.P.C. does
not merely refer to a person who has been convicted
during the course of criminal proceedings or upon the
disposal of an appeal. Rather, it confers a right of
appeal upon a person "convicted on a trial held by a
Sessions Judge or an Additional Sessions Judge."
The statutory emphasis is, therefore, upon the nature of
the jurisdiction exercised by the Court recording the
conviction. A Sessions Judge deciding an appeal under
Section 378 of the Cr.P.C. exercises appellate
jurisdiction and not trial jurisdiction. The mere fact that
an appeal is regarded as a continuation of the original
proceedings does not, by itself, alter the character of
the jurisdiction exercised by the appellate court.
38.3. The decision of the Himachal Pradesh High Court
in Arun Sharma appears to proceed from the first
proposition to the second without expressly
demonstrating why the latter necessarily follows from
the former. The reasoning adopted therein proceeds on
the premise that, since an appeal is a continuation of
the trial, a conviction recorded by the Sessions Judge
SLP (Crl.) No.13891 of 2025 Page 53 of 93
while exercising appellate jurisdiction must
necessarily be regarded as a conviction "on a trial"
within the meaning of Section 374(2). Such an
inference does not appear to flow inexorably from the
doctrine of continuity of proceedings. While the
doctrine explains the procedural continuity between
the trial and the appeal, it does not, by itself, convert
an appellate court into a court exercising trial
jurisdiction.
38.4. The same distinction applies in relation to the
doctrine of merger. The principle that the judgment of
the appellate court supersedes or merges with the
judgment of the Trial Court merely describes the legal
consequence that follows upon the disposal of the
appeal. It does not imply that the appellate court
retrospectively assumes the character of the Court
which conducted the trial. The doctrine of merger
determines which judgment remains operative after the
appeal; it does not alter the source, nature, or character
of the jurisdiction exercised by the appellate court.
39. To summarise, the jurisdiction exercised by a Trial Court is
fundamentally distinct from that exercised by an appellate
court. Consequently, the expression "on a trial held by"
necessarily refers to the Court which has itself conducted
SLP (Crl.) No.13891 of 2025 Page 54 of 93
the trial, namely, the Court before which the proceedings
commenced and culminated in the judgment of conviction
and the order of sentence. The said expression cannot be
construed to include a Court exercising appellate
jurisdiction, notwithstanding that the appeal is a
continuation of the original proceedings. Thus, we hold that
judgment in Arun Sharma (supra) does not lay down
correct law and therefore it is over-ruled.
VI.3.THE POWER OF THE APPELLATE COURT
EXERCISING APPELLATE JURISDICTION AND
THE POWER OF THE REVISIONAL COURT
EXERCISING REVISIONAL JURISDICTION.
40. One of the major contention put forth by the appellant
before this court is the difference between an appellate
jurisdiction and revisional jurisdiction under Cr.P.C. Hence,
we proceed to discuss the power of the appellate court and
the revisional court in the context of Cr.P.C. under the
following two heads.
VI.3.1. THE POWER OF THE APPELLATE COURT
EXERCISING APPELLATE JURISDICTION
UNDER Cr.P.C.
41. In Cr.P.C. the powers of the appellate court has been
specified in Section 386 and Section 391 of the Code
(Section 427 and 432 of BNSS). The provisions mentioned
SLP (Crl.) No.13891 of 2025 Page 55 of 93
above itself, are complete in itself and therefore one need
not go further except these provisions. The appellate court
exercising the appellate jurisdiction, for all practical
purposes can pass any orders which it deems fit, considering
the nature of the case. The considerations required to be
examined by an appellate court while dealing with an appeal
against conviction are distinct from those applicable in an
appeal against acquittal. Though in both the cases, similar
power would be exercised by the appellate court, the factors
which has to be looked into in both these cases are different
and the approach which the appellate court follows is
different. This court in the case of Chandrappa and Others
v. State of Karnataka
31
summarised the power of appellate
courts as follows:
“42. From the above decisions, in our considered
view, the following general principles regarding
powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded; (2) The Code of
Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and
an appellate Court on the evidence before it may
reach its own conclusion, both on questions of fact
and of law;
31
(2007) 4 SCC 415.
SLP (Crl.) No.13891 of 2025 Page 56 of 93
(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds',
'very strong circumstances', 'distorted conclusions',
'glaring mistakes', etc. are not intended to curtail
extensive powers of an appellate Court in an appeal
against acquittal. Such phraseologies are more in the
nature of 'flourishes of language' to emphasize the
reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to
review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind
that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of
innocence available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”
42. This Court in the cases of Dilip S. Dahanukar v. Kotak
Mahindra Co. Ltd. and Another (supra), Garikapati
Veeraya v. N. Subbiah Choudhry (supra), Chandrappa v.
State of Karnataka (supra), Nagarajan v. State of Tamil
Nadu (supra), have in detail dealt with the powers of the
appellate court under Cr.P.C.
43. The appellate jurisdiction under the Code of Criminal
Procedure is not merely supervisory but is substantive and
SLP (Crl.) No.13891 of 2025 Page 57 of 93
comprehensive in nature. Section 386 Cr.P.C. confers wide
powers upon the appellate court to examine the correctness,
legality and propriety of the judgment under challenge.
While exercising appellate jurisdiction, the court is
empowered to independently review and re-appreciate the
entire evidence on record, determine both questions of fact
and law, and arrive at its own conclusions without being
bound by the findings recorded by the trial court. The
appellate court is, therefore, vested with plenary powers to
render complete justice within the framework of the Code.
44. The appellate court is competent to affirm, reverse or
modify the findings of the trial court and, where the
circumstances so warrant, may acquit a convicted person,
convict an acquitted person, alter the nature or extent of the
sentence, order a retrial, or direct further inquiry. The width
of these powers demonstrates that an appeal under the Code
is not confined to a mere scrutiny of legal errors but
contemplates a comprehensive reconsideration of the case
on both facts and law. Nevertheless, such powers are to be
exercised in accordance with the settled principles
governing criminal appeals, particularly where an acquittal
is sought to be reversed.
45. The jurisprudence of this Court consistently recognises that
an appeal is a continuation of the original criminal
SLP (Crl.) No.13891 of 2025 Page 58 of 93
proceedings and that the appellate court, while exercising
jurisdiction under Chapter XXIX of the Code, effectively
steps into the shoes of the court whose decision is under
challenge for the purpose of adjudicating the correctness of
that decision. Consequently, the appellate court is not
restricted to examining procedural irregularities alone but is
duty-bound to independently assess the evidence, the
findings, and the conclusions reached by the court below
before recording its own judgment.
VI.3.2. THE POWER OF THE REVISIONAL COURT
EXERCISING REVISIONAL JURISDICTION
UNDER Cr.P.C.
46. The revisional jurisdiction under the Code of Criminal
Procedure is fundamentally distinct from appellate
jurisdiction. Unlike an appeal, which is a continuation of the
original proceedings and entails a rehearing on facts and
law, the power of revision is a discretionary supervisory
jurisdiction conferred upon the High Court and the Court of
Session, to satisfy themselves as to the correctness, legality
or propriety of any finding, sentence or order, and as to the
regularity of the proceedings of the subordinate criminal
court. The revisional court does not ordinarily function as a
court of appeal, nor is it expected to undertake a fresh
SLP (Crl.) No.13891 of 2025 Page 59 of 93
appreciation of the entire evidence merely because another
view is possible.
47. The object of revisional jurisdiction is to prevent
miscarriage of justice arising from jurisdictional errors,
manifest illegality, procedural irregularity or perversity in
the findings of the subordinate court. Consequently, the
revisional court ordinarily interferes only where there exists
a patent error of law, a material irregularity in the exercise
of jurisdiction, non-compliance with mandatory provisions
of law, or findings which are so unreasonable or perverse
that they occasion a failure of justice. It is well settled that
the revisional jurisdiction cannot be invoked as a substitute
for an appeal, nor can it be exercised to enable a re-hearing
of the case on facts in the manner contemplated under
Chapter XXIX of the Code.
48. The powers conferred under Sections 397 and 401 Cr.P.C.
are, therefore, supervisory and corrective rather than
appellate. While the Revisional Court possesses wide
powers to examine the record of the proceedings and to
rectify jurisdictional and legal errors, those powers are
exercised sparingly and in exceptional cases to secure the
ends of justice. The Revisional Court ordinarily refrains
from reassessing the credibility of witnesses or substituting
its own conclusions on questions of fact unless the findings
SLP (Crl.) No.13891 of 2025 Page 60 of 93
recorded by the subordinate court suffer from manifest
perversity or have resulted in a gross miscarriage of justice.
49. This Court in the case of Amit Kapoor v. Ramesh Chander
and Another
32
, has explained the Revisional Jurisdiction of
the Courts. It was held:
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well- founded error and it may not
be appropriate for the court to scrutinize the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance with
law. If one looks into the various judgments of this
Court, it emerges that the revisional jurisdiction can
be invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own
merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to
whether the charge has been framed properly and in
32
(2012) 9 SCC 460
SLP (Crl.) No.13891 of 2025 Page 61 of 93
accordance with law in a given case, it may be
reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within
the categories aforestated. Even framing of charge is
a much advanced stage in the proceedings under
the Cr.P.C.”
50. The revisional jurisdiction under Sections 397 and 401
Cr.P.C., though supervisory in nature, is by no means
confined to a mere examination of jurisdictional errors or
pure questions of law. The Revisional Court is empowered
to call for and examine the entire record of the proceedings
to satisfy itself as to the correctness, legality and propriety
of any finding, sentence or order, as well as the regularity of
the proceedings. In appropriate cases, the exercise of such
jurisdiction necessarily entails an examination of the
evidence on record, not for undertaking a fresh trial or
substituting a possible view merely because another view is
available, but to ascertain whether the findings recorded by
the subordinate court are perverse, unsupported by
evidence, based on misreading of material evidence, or have
resulted in a manifest miscarriage of justice.
VI.3.3.THE REMEDY AVAILABLE TO THE
APPELLANT AND TO OTHER PERSONS IN
SUCH CASES.
51. Having examined the distinct nature and scope of the
powers exercised by the Appellate Court and the Revisional
SLP (Crl.) No.13891 of 2025 Page 62 of 93
Court, it now becomes necessary to consider the remedy
available to the appellant and other persons similarly
situated. The contention advanced on behalf of the appellant
that the right of appeal against a conviction is a valuable and
substantive right is undoubtedly well founded. However,
where an appeal of the nature sought to be maintained
before the High Court is not contemplated by the statutory
framework, this Court cannot, by resorting to judicial
interpretation, create such a right. To do so would amount
to judicial legislation, which is clearly impermissible.
52. In view of the conclusions recorded hereinabove, the
statutory remedy presently available to the appellant is to
invoke the revisional jurisdiction of the High Court under
Sections 397 and 401 of the Cr.P.C., or the corresponding
provisions of the BNSS. The High Court has also reiterated
this position by observing that the appellant is at liberty to
re-approach it by way of a criminal revision, and that the
present appeal is, therefore, not maintainable.
53. The principal apprehension expressed on behalf of the
appellant, and shared by other persons similarly situated, is
that the revisional jurisdiction of the High Court cannot be
equated with its appellate jurisdiction. It is contended that,
while an appellate court is empowered to reappreciate the
entire evidence, reconsider both questions of fact and law,
SLP (Crl.) No.13891 of 2025 Page 63 of 93
and rehear the matter on merits, the revisional jurisdiction
is comparatively limited and is ordinarily exercised to
correct jurisdictional errors, legal infirmities, procedural
irregularities, or manifest perversity resulting in a
miscarriage of justice. Consequently, although the remedy
of revision is undoubtedly available, it cannot be regarded
as an effective substitute for a statutory right of appeal. This
contention, in our considered view, merits serious
consideration, as it is not without substance. The reason for
the same is as follows:
53.1. Firstly, there can be no dispute that the appellate
jurisdiction of the High Court is qualitatively different
from its revisional jurisdiction. While hearing an
appeal, the appellate court is vested with the power to
undertake a comprehensive reappreciation of the
evidence on record, reassess the findings of fact as well
as law, and determine the correctness of the judgment
under challenge on its own merits. The appellate court
ordinarily issues notice to the respondent, hears the
parties, and decides the appeal upon an independent
evaluation of the material available on record. The
exercise of revisional jurisdiction stands on an entirely
different footing. The High Court exercises such
jurisdiction within the limits prescribed by Sections
SLP (Crl.) No.13891 of 2025 Page 64 of 93
397 and 401 of the Cr.P.C. The power is discretionary
and supervisory in nature, and is ordinarily invoked to
correct jurisdictional errors, legal infirmities,
procedural irregularities, or findings suffering from
manifest perversity resulting in a miscarriage of
justice. Unlike an appeal, a revision does not confer
upon a litigant an unrestricted right to seek a complete
rehearing on facts and law.
53.2. The distinction assumes particular significance in
cases of the present nature. An accused who is
convicted for the first time by the appellate court is not
afforded a statutory right of appeal against such
conviction. Consequently, such an accused is left to
invoke only the revisional jurisdiction of the High
Court, notwithstanding the fact that the conviction has
never been subjected to appellate scrutiny at the
instance of the accused. In effect, the accused is
deprived of the opportunity to have the conviction
examined within the broader ambit of appellate
jurisdiction and is instead confined to the
comparatively limited scope of revisional jurisdiction.
53.3. It is also pertinent to note that, while an appellate
court proceeds to examine the evidence on record as a
matter of right in deciding the appeal on merits, a
SLP (Crl.) No.13891 of 2025 Page 65 of 93
revisional court does not do so in every case. Before
embarking upon an examination of the evidence or the
merits of the conviction, the High Court must first
determine whether the case warrants the exercise of its
revisional jurisdiction. Only upon being satisfied that
the matter discloses jurisdictional error, legal infirmity,
procedural irregularity, manifest perversity, or a
miscarriage of justice would the Court ordinarily
proceed to interfere. This fundamental distinction
underscores that the remedy of revision, though
available, is not equivalent in scope or efficacy to a
statutory right of appeal.
54. The legislature, keeping in mind the above anomaly has
explicitly provided in appropriate cases for the exercise of
Appellate jurisdiction by the revisional court under Section
401(1). The aforesaid legislative scheme is neither
accidental nor inadvertent. The Code consciously
recognizes that, where an accused who has been acquitted
by the trial court is convicted for the first time by the
appellate court, the absence of a statutory right of appeal
may, in an appropriate case, warrant corrective intervention.
It is for this limited purpose that Section 401(1) empowers
the High Court, while exercising revisional jurisdiction, to
exercise any of the powers conferred on a court of appeal,
SLP (Crl.) No.13891 of 2025 Page 66 of 93
thereby ensuring that a manifest miscarriage of justice does
not remain without an effective remedy.
55. At the same time, the conferment of appellate powers upon
the revisional court under Section 401(1) does not obliterate
the distinction between an appeal and a revision. The
revisional jurisdiction continues to remain supervisory and
discretionary in nature and cannot be equated with a
statutory appeal. Nevertheless, where the conviction is
recorded for the first time by the appellate court upon
reversal of an order of acquittal, the High Court is expected
to exercise its revisional jurisdiction with greater
circumspection and scrutiny than in cases where the
conviction has been concurrently recorded by both the trial
court and the appellate court.
56. Such an interpretation harmonizes the statutory framework
by preserving the legislative intent of not providing a second
appeal, while simultaneously ensuring that an accused is not
left remediless against a conviction recorded for the first
time by the appellate court. The revisional jurisdiction under
Section 401 thus operates as a carefully calibrated safeguard
against patent illegality, perversity, or miscarriage of justice
in such exceptional situations, without transforming the
revision into a regular appellate proceeding.
SLP (Crl.) No.13891 of 2025 Page 67 of 93
57. Consequently, although the remedy available to the accused
is one of revision and not appeal, the amplitude of the High
Court's powers under Section 401(1), read in the context of
a first conviction by the appellate court, obliges the High
Court to undertake a more searching examination of the
correctness, legality and propriety of the conviction than
ordinarily it would be warranted in revisions arising from
concurrent findings of guilt. Such an approach alone gives
meaningful effect to the legislative design underlying
Section 401(1) while maintaining the distinction between
appellate and revisional jurisdiction.
58. A plain reading of Section 401(3) would indicate that
nothing contained in Section 401 shall be deemed to
authorise the High Court to convert a finding of acquittal
into one of conviction. Significantly, the limitation imposed
by sub-section (3) is directed only against the ultimate relief
that may be granted in revision and not against the scope of
examination that may be undertaken by the revisional court.
Thus, while the High Court is prohibited from directly
recording a conviction in revision, it is not precluded from
scrutinising the evidence in detail to determine whether the
acquittal or conviction is legally sustainable. If such
scrutiny discloses manifest illegality or perversity, the
revisional court may set aside the impugned order and pass
SLP (Crl.) No.13891 of 2025 Page 68 of 93
such orders as are permissible in law, including ordering a
retrial or remanding the matter, while remaining within the
statutory limitation contained in Section 401(3).
59. Equally, where the revision is preferred by a convicted
person, the revisional court is competent to examine the
entire evidentiary record to determine whether the
conviction suffers from patent illegality, perversity or a
failure of justice. If such examination reveals that the
prosecution has failed to establish guilt beyond reasonable
doubt or that the conviction is otherwise unsustainable in
law, the revisional court is fully empowered to set aside the
conviction and acquit the accused. Thus, although revisional
jurisdiction is narrower than appellate jurisdiction, it
nevertheless permits an examination of factual issues to the
extent necessary to prevent a miscarriage of justice. The
restriction contained in Section 401(3) operates only against
converting an acquittal into a conviction and does not curtail
the revisional court's power to interfere with an erroneous
conviction.
60. Having held that the only statutory remedy available to the
appellant is to invoke the revisional jurisdiction of the High
Court, there being no provision under the Cr.P.C. or the
BNSS conferring a right of appeal in such circumstances,
we consider it appropriate to observe that revisions arising
SLP (Crl.) No.13891 of 2025 Page 69 of 93
out of convictions recorded for the first time by an appellate
court, upon reversal of an order of acquittal passed by the
Trial Court, stand on a distinct footing from revisions
arising out of concurrent findings of conviction. The former
category of cases warrants a more liberal and careful
exercise of the High Court's revisional jurisdiction, bearing
in mind that the accused has not had the benefit of a
statutory appeal against the conviction. In such cases, the
High Courts may appropriately adopt a more liberal
approach while exercising the revisional jurisdiction vested
in them and, where the facts and circumstances so warrant,
invoke the power conferred under Section 401(1) of the
Cr.P.C., or the corresponding provision of the BNSS, to
exercise any of the powers conferred upon an appellate
court, subject always to the well-settled principles
governing the exercise of revisional jurisdiction.
VII. CONCLUSION
61. Thus, from the above discussion, the question framed is
answered in negative i.e. an appeal under Section 374 of the
Code of Criminal Procedure, 1973 (corresponding to
Section 415 of the Bharatiya Nagarik Suraksha Sanhita,
2023) is not maintainable against a judgment of conviction
recorded by a Sessions Court while exercising appellate
SLP (Crl.) No.13891 of 2025 Page 70 of 93
jurisdiction and reversing an order of acquittal passed by a
Trial Court. The only remedy which is available, is that of
filing a revision under Section 397 r/w 401 (corresponding
to Section 438 r/w 442 of the Bharatiya Nagarik Suraksha
Sanhita, 2023).
62. Though submissions are made with regard to the
constitutionality or vires of Rule 48 of Madhya Pradesh
High Court Rules, 2008, we do not propose to examine the
same, as the said issue is pending adjudication before the
High Court and as such, we have not expressed any opinion
in that regard.
63. Therefore, from the above discussion, the present appeal
deserves to be dismissed, hence dismissed. However, we
give liberty to the appellant, if he so desires to file a revision
against the order of dismissal of Criminal Appeal 3/2025
dated: 27.05.2025 by the Seventh Additional Sessions
Judge, District Bhind.
...........................................................J.
(ARAVIND KUMAR)
............................................................J.
(PRASANNA B. VARALE)
NEW DELHI;
JULY 30
th
, 2026.
SLP (Crl.) No.13891 of 2025 Page 71 of 93
APPENDIX - I
IV.1. PROVISIONS UNDER CODE OF CRIMINAL
PROCEDURE:
Section 372. No appeal to lie unless otherwise provided. —No
appeal shall lie from any judgment or order of a Criminal Court
except as provided for by this Code by any other law for the time
being in force:
[Provided that the victim shall have a right to prefer an
ap+peal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing inadequate
compensation, and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such
Court.]
Section 374. Appeals from convictions. — (1) Any person
convicted on a trial held by a High Court in its extraordinary
original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions
Judge or an Additional Sessions Judge or on a trial held by any
other court in which a sentence of imprisonment for more than
seven years [has been passed against him or against any other
person convicted at the same trial], may appeal to the High Court.
SLP (Crl.) No.13891 of 2025 Page 72 of 93
(3) Save as otherwise provided in sub-section (2), any
person, —
(a) convicted on a trial held by a Metropolitan
Magistrate or Assistant Sessions Judge or Magistrate of
the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a
sentence has been passed under section 360 by any
Magistrate,
may appeal to the Court of Session.
[(4) When an appeal has been filed against a sentence passed
under section 376, section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section 376DB or
section 376E of the Indian Penal Code (45 of 1860), the appeal
shall be disposed of within a period of six months from the date
of filing of such appeal.]
Section 377. Appeal by the State Government against
sentence. — (1) Save as otherwise provided in sub-section (2),
the State Government may, in any case of conviction on a trial
held by any Court other than a High Court, direct the Public
Prosecutor to present 1 [an appeal against the sentence on the
ground of its inadequacy—
(a) to the Court of Session, if the sentence is passed by the
Magistrate; and
SLP (Crl.) No.13891 of 2025 Page 73 of 93
(b) to the High Court, if the sentence is passed by any other
Court.]
(2) If such conviction is in a case in which the offence has
been investigated by the Delhi Special Police Establishment,
constituted under the Delhi Special Police Establishment Act,
1946 (25 of 1946), or by any other agency empowered to make
investigation into an offence under any Central Act other than this
Code, [the Central Government may also direct] the Public
Prosecutor to present 1 [an appeal against the sentence on the
ground of its inadequacy—
(a) to the Court of Session, if the sentence is passed by the
Magistrate; and
(b) to the High Court, if the sentence is passed by any other
Court].
(3) When an appeal has been filed against the sentence on
the ground of its inadequacy, [the Court of Session or, as the case
may be, the High Court] shall not enhance the sentence except
after giving to the accused a reasonable opportunity of showing
cause against such enhancement and while showing cause, the
accused may plead for his acquittal or for the reduction of the
sentence.
SLP (Crl.) No.13891 of 2025 Page 74 of 93
[(4) When an appeal has been filed against a sentence passed
under section 376, section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section 376DB or
section 376E of the Indian Penal Code (45 of 1860), the appeal
shall be disposed of within a period of six months from the date
of filing of such appeal.
Section 378. Appeal in case of acquittal. — [(1) Save as
otherwise provided in sub-section (2), and subject to the
provisions of sub-sections (3) and (5), —
(a) the District Magistrate may, in any case, direct the
Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence;
(b) the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from
an original or appellate order of acquittal passed by any
Court other than a High Court [not being an order under
clause (a)] or an order of acquittal passed by the Court
of Session in revision.]
(2) If such an order of acquittal is passed in any case in which
the offence has been investigated by the Delhi Special Police
SLP (Crl.) No.13891 of 2025 Page 75 of 93
Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency
empowered to make investigation into an offence under any
Central Act other than this Code, 1 [the Central Government may,
subject to the provisions of sub-section (3), also direct the Public
Prosecutor to present an appeal—
(a) to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognizable and
non-bailable offence;
(b) to the High Court from an original or appellate order of
an acquittal passed by any Court other than a High
Court [not being an order under clause (a)] or an order
of acquittal passed by the Court of Session in revision].
(3) [No appeal to the High Court] under sub-section (1) or
sub-section (2) shall be entertained except with the leave of the
High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an application
made to it by the complainant in this behalf, grants special leave
to appeal from the order of acquittal, the complainant may present
such an appeal to the High Court.
SLP (Crl.) No.13891 of 2025 Page 76 of 93
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days in every
other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for
the grant of special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall lie under sub-
section (1) or under sub-section (2).
Section 379. Appeal against conviction by High Court in
certain cases. —Where the High Court has, on appeal, reversed
an order of acquittal of an accused person and convicted him and
sentenced him to death or to imprisonment for life or to
imprisonment for a term of ten years or more, he may appeal to
the Supreme Court.
Section 386. Powers of the Appellate Court. — After perusing
such record and hearing the appellant or his pleader, if he appears,
and the Public Prosecutor if he appears, and in case of an appeal
under section 377 or section 378, the accused, if he appears, the
Appellate Court may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such
order and direct that further inquiry be made, or that the
SLP (Crl.) No.13891 of 2025 Page 77 of 93
accused be re-tried or committed for trial, as the case
may be, or find him guilty and pass sentence on him
according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried
by a Court of competent jurisdiction subordinate
to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or 168
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, but not so as to enhance the same—
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried
by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or, the nature and extent, of
the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such
order;
(e) make any amendment or any consequential or incidental
order that may be just or proper:
SLP (Crl.) No.13891 of 2025 Page 78 of 93
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against such
enhancement:
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for that
offence by the Court passing the order or sentence under appeal.
Section 391. Appellate Court may take further evidence or
direct it to be taken. — (1) In dealing with any appeal under this
Chapter, the Appellate Court, if it thinks additional evidence to
be necessary, shall record its reasons and may either take such
evidence itself, or direct it to be taken by a Magistrate or, when
the Appellate Court is a High Court, by a Court of Session or a
Magistrate.
(2) When the additional evidence is taken by the Court of
Session or the Magistrate, it or he shall certify such evidence to
the Appellate Court, and such Court shall thereupon proceed to
dispose of the appeal.
(3) The accused or his pleader shall have the right to be
present when the additional evidence is taken.
SLP (Crl.) No.13891 of 2025 Page 79 of 93
(4) The taking of evidence under this section shall be
subject to the provisions of Chapter XXIII, as if it were an
inquiry.
Section 397. Calling for records to exercise powers of
revision.— (1) The High Court or any Sessions Judge may call
for and examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself; to the correctness, legality
or propriety of any finding, sentence or order, recorded or passed,
and as to the regularity of any proceedings of such inferior Court,
and may, when calling, for such record, direct that the execution
of any sentence or order be suspended, and if the accused is in
confinement that he be released on bail or on his own bond
pending the examination of the record.
Explanation. — All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate jurisdiction,
shall be deemed to be inferior to the Sessions Judge for the
purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1)
shall not be exercised in relation to any interlocutory order passed
in any appeal, inquiry, trial or other proceeding.
SLP (Crl.) No.13891 of 2025 Page 80 of 93
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by the
other of them.
Section 398. Power to order inquiry.— On examining any
record under section 397 or otherwise, the High Court or the
Sessions Judge may direct the Chief Judicial Magistrate by
himself or by any of the Magistrates subordinate to him to make,
and the Chief Judicial Magistrate may himself make or direct any
subordinate Magistrate to make, further inquiry into any
complaint which has been dismissed under section 203 or sub-
section (4) of section 204, or into the case of any person accused
of an offence who has been discharged:
Provided that no Court shall make any direction under this
section for inquiry into the case of any person who has been
discharged unless such person has had an opportunity of showing
cause why such direction should not be made.
Section 399. Sessions Judge's powers of revision.— (1) In the
case of any proceeding the record of which has been called for by
himself, the Sessions Judge may exercise all or any of the powers
which may be exercised by the High 171 Court under sub-section
(1) of section 401.
SLP (Crl.) No.13891 of 2025 Page 81 of 93
(2) Where any proceeding by way of revision is
commenced before a Sessions Judge under sub-section (1), the
provisions of sub-sections (2), (3), (4) and (5) of section 401 shall,
so far as may be, apply to such proceeding and references in the
said sub-sections to the High Court shall be construed as
references to the Sessions Judge.
(3) Where any application for revision is made by or on
behalf of any person before the Sessions Judge, the decision of
the Sessions Judge thereon in relation to such person shall be final
and no further proceeding by way of revision at the instance of
such person shall be entertained by the High Court or any other
Court.
400. Power of Additional Sessions Judge.— An Additional
Sessions Judge shall have and may exercise all the powers of a
Sessions Judge under this Chapter in respect of any case which
may be transferred to him by or under any general or special order
of the Sessions Judge.
Section 401. High Court's powers of revision. —(1) In the case
of any proceeding the record of which has been called for by itself
or which otherwise comes to its knowledge, the High Court may,
in its discretion, exercise any of the powers conferred on a Court
of Appeal by sections 386, 389, 390 and 391 or on a Court of
Session by section 307, and, when the Judges composing the
SLP (Crl.) No.13891 of 2025 Page 82 of 93
Court of Revision are equally divided in opinion, the case shall
be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has had an
opportunity of being heard either personally or by pleader in his
own defence.
(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one conviction.
(4) Where under this Code an appeal lies and no appeal is
brought, no proceeding by way of revision shall be entertained at
the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application
for revision has been made to the High Court by any person and
the High Court is satisfied that such application was made under
the erroneous belief that no appeal lies thereto and that it is
necessary in the interests of Justice so to do, the High Court may
treat the application for revision as a petition of appeal and deal
with the same accordingly.
SLP (Crl.) No.13891 of 2025 Page 83 of 93
IV. 2. PROVISIONS OF BHARATIYA NAGARIK
SURAKSHA SANHITA, 2023.
Section 413. No appeal to lie unless otherwise provided.— No
appeal shall lie from any judgment or order of a Criminal Court
except as provided for by this Sanhita or by any other law for the
time being in force: 143 Provided that the victim shall have a right
to prefer an appeal against any order passed by the Court
acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation, and such appeal shall lie to
the Court to which an appeal ordinarily lies against the order of
conviction of such Court.
415. Appeals from convictions. — (1) Any person convicted on
a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions
Judge or an Additional Sessions Judge or on a trial held by any
other Court in which a sentence of imprisonment for more than
seven years has been passed against him or against any other
person convicted at the same trial, may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any
person, -
SLP (Crl.) No.13891 of 2025 Page 84 of 93
(a) convicted on a trial held by Magistrate of the first class,
or of the second class; or
(b) sentenced under section 364; or
(c) in respect of whom an order has been made or a
sentence has been passed under section 401 by any Magistrate,
may appeal to the Court of Session.
(4) When an appeal has been filed against a sentence
passed under section 64, section 65, section 66, section 67,
section 68, section 70 or section 71 of the Bharatiya Nyaya
Sanhita, 2023, the appeal shall be disposed of within a period of
six months from the date of filing of such appeal.
Section 418. Appeal by State Government against sentence.
— (1) Save as otherwise provided in sub-section (2), the State
Government may, in any case of conviction on a trial held by any
Court other than a High Court, direct the Public Prosecutor to
present an appeal against the sentence on the ground of its
inadequacy—
(a) to the Court of Session, if the sentence is passed by the
Magistrate; and
(b) to the High Court, if the sentence is passed by any other
Court.
SLP (Crl.) No.13891 of 2025 Page 85 of 93
(2) If such conviction is in a case in which the offence has
been investigated by any agency empowered to make
investigation into an offence under any Central Act other than this
Sanhita, the Central Government may also direct the Public
Prosecutor to present an appeal against the sentence on the ground
of its inadequacy—
(a) to the Court of Session, if the sentence is passed by the
Magistrate; and
(b) to the High Court, if the sentence is passed by any other
Court.
(3) When an appeal has been filed against the sentence on
the ground of its inadequacy, the Court of Session or, as the case
may be, the High Court shall not enhance the sentence except
after giving to the accused a reasonable opportunity of showing
cause against such enhancement and while showing cause, the
accused may plead for his acquittal or for the reduction of the
sentence.
(4) When an appeal has been filed against a sentence
passed under section 64, section 65, section 66, section 67,
section 68, section 70 or section 71 of the Bharatiya Nyaya
Sanhita, 2023, the appeal shall be disposed of within a period of
six months from the date of filing of such appeal.
SLP (Crl.) No.13891 of 2025 Page 86 of 93
Section 419. Appeal in case of acquittal. — (1) Save as
otherwise provided in sub-section (2), and subject to the
provisions of sub-sections (3) and (5),—
(a) the District Magistrate may, in any case, direct the
Public Prosecutor to present an appeal to the Court of Session
from an order of acquittal passed by a Magistrate in respect of a
cognizable and nonbailable offence;
(b) the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court from an
original or appellate order of acquittal passed by any Court other
than a High Court not being an order under clause (a) or an order
of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in a case in which
the offence has been investigated by any agency empowered to
make investigation into an offence under any Central Act other
than this Sanhita, the Central Government may, subject to the
provisions of sub-section (3), also direct the Public Prosecutor to
present an appeal—
(a) to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognizable and non-bailable
offence;
SLP (Crl.) No.13891 of 2025 Page 87 of 93
(b) to the High Court from an original or appellate order of
an acquittal passed by any Court other than a High Court not
being an order under clause (a) or an order of acquittal passed by
the Court of Session in revision. 145 (3) No appeal to the High
Court under sub-section (1) or sub-section (2) shall be entertained
except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an application
made to it by the complainant in this behalf, grants special leave
to appeal from the order of acquittal, the complainant may present
such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days in every
other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for
the grant of special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall lie under sub-
section (1) or under sub-section (2).
Section 420. Appeal against conviction by High Court in
certain cases.—Where the High Court has, on appeal, reversed
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an order of acquittal of an accused person and convicted him and
sentenced him to death or to imprisonment for life or to
imprisonment for a term of ten years or more, he may appeal to
the Supreme Court.
Section 427. Powers of Appellate Court.— After perusing such
record and hearing the appellant or his advocate, if he appears,
and the Public Prosecutor if he appears, and in case of an appeal
under section 418 or section 419, the accused, if he appears, the
Appellate Court may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such
order and direct that further inquiry be made, or that the accused
be re-tried or committed for trial, as the case may be, or find him
guilty and pass sentence on him according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried
by a Court of competent jurisdiction subordinate
to such Appellate Court or committed for trial; or
(ii) alter the finding, maintaining the sentence; or
SLP (Crl.) No.13891 of 2025 Page 89 of 93
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried
by a Court competent to try the offence; or
(ii) alter the finding maintaining the sentence; or 147
(iii) with or without altering the finding, alter the
nature or the extent, or, the nature and extent, of
the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such
order;
(e) make any amendment or any consequential or
incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against such
enhancement:
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
SLP (Crl.) No.13891 of 2025 Page 90 of 93
accused has committed, than might have been inflicted for that
offence by the Court passing the order or sentence under appeal.
Section 438. Calling for records to exercise powers of
revision.— (1) The High Court or any Sessions Judge may call
for and examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order, recorded
or passed, and as to the regularity of any proceedings of such
inferior Court, and may, when calling, for such record, direct that
the execution of any sentence or order be suspended, and if the
accused is in confinement that he be released on his own bond or
bail bond pending the examination of the record. Explanation.—
All Magistrates, whether Executive or Judicial, and whether
exercising original or appellate jurisdiction, shall be deemed to be
inferior to the Sessions Judge for the purposes of this subsection
and of section 439.
(2) The powers of revision conferred by sub-section (1)
shall not be exercised in relation to any interlocutory order passed
in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions Judge, no
SLP (Crl.) No.13891 of 2025 Page 91 of 93
further application by the same person shall be entertained by the
other of them.
Section 439. Power to order inquiry.— On examining any
record under section 438 or otherwise, the High Court or the
Sessions Judge may direct the Chief Judicial Magistrate by
himself or by any of the Magistrates subordinate to him to make,
and the Chief Judicial Magistrate may himself make or direct any
subordinate Magistrate to make, further inquiry into any
complaint which has been dismissed under section 226 or
subsection (4) of section 227, or into the case of any person
accused of an offence who has been discharged: Provided that no
Court shall make any direction under this section for inquiry into
the case of any person who has been discharged unless such
person has had an opportunity of showing cause why such
direction should not be made.
Section 440. Sessions Judge's powers of revision.— (1) In the
case of any proceeding the record of which has been called for by
himself, the Sessions Judge may exercise all or any of the powers
which may be exercised by the High Court under sub-section (1)
of section 442.
(2) Where any proceeding by way of revision is
commenced before a Sessions Judge under sub-section (1), the
provisions of sub-sections (2), (3), (4) and (5) of section 442 shall,
SLP (Crl.) No.13891 of 2025 Page 92 of 93
so far as may be, apply to such proceeding and references in the
said sub-sections to the High Court shall be construed as
references to the Sessions Judge.
(3) Where any application for revision is made by or on
behalf of any person before the Sessions Judge, the decision of
the Sessions Judge thereon in relation to such person shall be final
and no further proceeding by way of revision at the instance of
such person shall be entertained by the High Court or any other
Court.
Section 441. Power of Additional Sessions Judge.—An
Additional Sessions Judge shall have and may exercise all the
powers of a Sessions Judge under this Chapter in respect of any
case which may be transferred to him by or under any general or
special order of the Sessions Judge.
Section 442. High Court's powers of revision. — (1) In the case
of any proceeding the record of which has been called for by itself
or which otherwise comes to its knowledge, the High Court may,
in its discretion, exercise any of the powers conferred on a Court
of Appeal by sections 427, 430, 431 and 432 or on a Court of
Session by section 344, and, when the Judges composing the
Court of revision are equally divided in opinion, the case shall be
disposed of in the manner provided by section 433.
SLP (Crl.) No.13891 of 2025 Page 93 of 93
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has had an
opportunity of being heard either personally or by advocate in his
own defence.
(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one of
conviction.
(4) Where under this Sanhita an appeal lies and no appeal
is brought, no proceeding by way of revision shall be entertained
at the instance of the party who could have appealed.
(5) Where under this Sanhita an appeal lies but an
application for revision has been made to the High Court by any
person and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto and
that it is necessary in the interests of justice so to do, the High
Court may treat the application for revision as a petition of appeal
and deal with the same accordingly.
In a significant pronouncement, the Supreme Court of India recently addressed a critical question surrounding the **appeal from acquittal conviction** and the scope of **revisional jurisdiction High Court**. This landmark judgment, now available on CaseOn, delves into the intricacies of criminal procedural law, particularly concerning the maintainability of appeals when a Sessions Court reverses an acquittal by a Trial Court and records a conviction for the first time.
The case originated from a marital dispute between Vishnu Kumar Gupta (the Appellant) and Shilpi Gupta (Respondent No. 2), who were married in 2013. Following a deterioration of their relationship, Shilpi lodged a Zero FIR in January 2020, accusing Vishnu and his parents of cruelty and dowry demands under Sections 498-A, 323, 34 of the Indian Penal Code and Sections 3 & 4 of the Dowry Prohibition Act, 1961. The FIR was subsequently registered as FIR No. 32 of 2020 by Kotwali Police Station, Bhind.
After investigation, a chargesheet was filed, leading to a trial before the Judicial Magistrate First Class, Bhind (Trial Court). On December 20, 2024, the Trial Court acquitted all accused persons, including Vishnu Kumar Gupta, concluding that the prosecution failed to establish the allegations beyond reasonable doubt, citing material inconsistencies and lack of corroborative evidence.
Aggrieved by this acquittal, the complainant (Shilpi Gupta) filed a criminal appeal before the Seventh Additional Sessions Judge, Bhind (Sessions Court), under Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 378 of the Code of Criminal Procedure, 1973 (Cr.P.C.). On May 27, 2025, the Sessions Court partly allowed the appeal. While upholding the acquittal of Vishnu's parents, it convicted Vishnu Kumar Gupta for the first time under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, sentencing him to rigorous imprisonment. This conviction marked Vishnu's first judicial finding of guilt.
Challenging his conviction, Vishnu Kumar Gupta filed an appeal before the High Court of Madhya Pradesh at Gwalior Bench under Section 415 BNSS (corresponding to Section 374 Cr.P.C.). However, the High Court, in its judgment dated July 11, 2025, dismissed the appeal solely on the ground of maintainability. It held that a second statutory appeal, particularly against a conviction recorded by a Sessions Court exercising *appellate jurisdiction* (as opposed to original trial jurisdiction), is not contemplated under the Cr.P.C. or BNSS. The High Court opined that the appropriate remedy was a Revision Petition and also noted the Appellant's non-compliance with Rule 48 of the Madhya Pradesh High Court Rules, 2008, regarding surrender.
The central question that arose for the Supreme Court's consideration was:
"Whether an appeal under Section 374 of the Code of Criminal Procedure, 1973 (corresponding to Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is maintainable against a judgment of conviction recorded by a Sessions Court while exercising appellate jurisdiction and reversing an order of acquittal passed by a Trial Court?"
The Supreme Court reiterated a fundamental principle of criminal jurisprudence: the right to appeal is not an inherent or natural right but a creation of statute. Section 372 Cr.P.C. (and Section 413 BNSS) clearly stipulates that no appeal lies from a criminal court judgment "except as provided for by this Code or by any other law." This means that courts cannot judicially legislate or infer a right of appeal where the legislature has not expressly provided one, regardless of considerations of equity or hardship.
The Court delved into the meaning of the term "trial" as used in the Code, drawing upon previous pronouncements. It clarified that, in the context of most provisions, a criminal trial ordinarily commences with the framing of charges and concludes with the pronouncement of the judgment and sentence by the Trial Court. If the accused is acquitted, the trial concludes with the order of acquittal. The specific definition of "trial" is contextual and must be understood within the provision it appears in.
A crucial aspect of the judgment hinged on the interpretation of the phrase "convicted on a trial held by" found in Section 374 Cr.P.C. The Court held that this expression signifies a conviction based on a trial *conducted* by the court itself, from its commencement (framing of charges) to its conclusion (judgment and sentence). It specifically does not extend to convictions recorded by an *appellate court* that is reversing an order of acquittal, as the appellate court is exercising a different type of jurisdiction.
The Supreme Court clearly distinguished between appellate and revisional powers:
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The Appellant's contention that a conviction by an appellate court reversing an acquittal should still be considered "on a trial" because it arises from the original trial evidence was rejected by the Supreme Court. The Court emphasized that while an appeal is a continuation of the original proceedings, and the appellate judgment merges with the trial court's, these doctrines describe *legal consequences* and do not alter the *character* of the jurisdiction being exercised. A Sessions Judge, when deciding an appeal under Section 378 Cr.P.C., exercises *appellate jurisdiction*, not *trial jurisdiction*. The legislative scheme, with separate chapters for trials and appeals, underscores this distinction.
The Court specifically disagreed with and overruled the decision of the Himachal Pradesh High Court in Arun Sharma v. State of Himachal Pradesh. The High Court in that case had held that an appeal against a conviction by a Sessions Judge (after reversing an acquittal) was maintainable, considering the appeal a continuation of the trial. The Supreme Court clarified that this interpretation was incorrect, as Section 374 Cr.P.C. explicitly limits appeals to convictions "on a trial held by" the court, referring to its original trial jurisdiction.
The Supreme Court concluded that, in the absence of an express statutory provision for a second appeal, the only statutory remedy available to an accused convicted for the first time by an appellate court (after an acquittal reversal) is to invoke the revisional jurisdiction of the High Court under Sections 397 read with 401 Cr.P.C. (or the corresponding provisions in BNSS).
Crucially, the Court acknowledged the apprehension that revisional jurisdiction is generally narrower than appellate jurisdiction. To address this, it observed that when dealing with convictions recorded for the first time by an appellate court reversing an acquittal, High Courts should exercise their revisional jurisdiction with "greater circumspection and scrutiny." Section 401(1) of the Cr.P.C. empowers the High Court, in revision, to exercise any of the powers conferred on a Court of Appeal. This provision enables the High Court to conduct a more thorough examination of the correctness, legality, and propriety of the conviction, including a detailed scrutiny of the evidence, even though Section 401(3) prohibits converting an acquittal into a conviction in revision. The Court clarified that this limitation applies to the *ultimate relief* (not converting an acquittal into a conviction), but not to the *scope of examination* by the revisional court, thereby ensuring an effective remedy for the accused.
The Supreme Court explicitly stated that it did not examine the constitutionality or vires of Rule 48 of the Madhya Pradesh High Court Rules, 2008 (which requires an appellant to surrender after conviction), as this issue was pending adjudication before the High Court.
The Supreme Court has authoritatively ruled that a criminal appeal under Section 374 Cr.P.C. (or Section 415 BNSS) is not maintainable against a judgment of conviction passed by a Sessions Court while it is exercising *appellate jurisdiction* to reverse an acquittal by a Trial Court. The Court held that such an appeal would amount to a "second appeal" not provided by statute. Instead, the appropriate and only available statutory remedy for an accused in these specific circumstances is to file a revision petition under Sections 397 read with 401 Cr.P.C. (or Sections 438 read with 442 BNSS). Furthermore, the Supreme Court mandated that High Courts, when exercising revisional jurisdiction in such cases, must adopt a more liberal and careful approach, utilizing the full extent of their powers under Section 401(1) to conduct a thorough review and prevent any miscarriage of justice, considering that it is the accused's first opportunity for an effective challenge to their conviction.
This judgment is an indispensable read for legal professionals and students due to its profound implications for criminal procedure:
All information provided in this article is for general informational purposes only and does not constitute legal advice. For specific legal advice related to your circumstances, please consult with a qualified legal professional.
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