PROCEDURE IN APPEALS NOT DISMISSED SUMMARILY
When a criminal appeal is admitted and not dismissed summarily, Section 426 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines the mandatory procedure that the appellate court must observe.
First, formal notice detailing the time and place of the hearing must be issued to the appellant or their lawyer, the State-designated prosecutor, the complainant (in private complaint cases), and the accused (where the appeal challenges an acquittal under Section 419 BNSS or sentence inadequacy under Section 418 BNSS).
Second, copies of the grounds of appeal must be served to these relevant parties.
Third, the appellate court must summon the trial court records unless the appeal strictly targets the extent or legality of the sentence.
Finally, the court must hear oral arguments, provided that an appellant who appealed solely against sentence severity cannot raise other legal or factual grounds without explicit leave of the court.
5. POWERS OF APPELLATE COURT TO GRANT BAIL, ETC.
Sections 430 and 431 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) govern the legal powers regarding the suspension of sentence, release of an appellant on bail, and the arrest and bail procedures when an acquittal is appealed.
When admitting appeals, High Courts are required to provide clear written reasons for suspending a sentence or granting bail, as unreasoned orders risk being quashed on review by the Supreme Court; in addition, appellate courts hold the power to suspend the conviction itself in appropriate circumstances.
A distinct jurisdictional boundary exists between courts: while appellate courts hold general authority under Section 430(1) and (2) BNSS (corresponding to Section 389(1) and (2) CrPC) to grant bail in any conviction case, the trial or convicting court’s jurisdiction under Section 430(3) BNSS (Section 389(3) CrPC) is strictly limited to short-term sentences falling under specific statutory clauses.
Finally, these specific statutory bail provisions under Section 430 BNSS do not apply to criminal appeals pending before the Supreme Court.
6. POWER OF APPELLATE COURT TO OBTAIN EVIDENCE
Under Section 432 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), an appellate court possesses the statutory authority to obtain additional evidence if it considers such material necessary, provided it explicitly records its reasons in writing.
The appellate court may record this extra evidence itself or direct a subordinate court or Magistrate to take the evidence and certify it back to the appellate tribunal.
During this process, which must adhere strictly to statutory inquiry provisions, the accused person or their counsel retains the absolute right to be present.
However, courts are required to exercise this power sparingly and with extreme caution; additional evidence must not be admitted to prejudice the accused, alter the nature of the trial, or serve as a disguised retrial.
Crucially, this provision exists to serve substantial justice rather than to remedy prosecution negligence, plug procedural gaps, or allow the state to engage in a fishing expedition for evidence.
7. POWERS OF APPELLATE COURT IN DISPOSING OF APPEALS
Section 427 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) equips appellate courts with comprehensive powers for the proper adjudication and disposal of diverse criminal appeals.
Before an appellate court can exercise any of these statutory powers, it must satisfy two indispensable prerequisites grounded in natural justice and judicial accountability.
First, the court must thoroughly peruse the entire case record—including the trial judgment, the petition of appeal, and all supporting materials—and demonstrate in its judgment that it has actively applied its judicial mind to the specific nuances of the appeal.
Second, the court must afford a fair and reasonable opportunity of being heard to the appellant or their counsel, the Public Prosecutor, and, in cases involving appeals against acquittal under Section 419 BNSS or sentence inadequacy under Section 418 BNSS, the accused person.
Only upon fulfilling these essential statutory conditions may the appellate court proceed to exercise its authority to dispose of the appeal.
(1) In an appeal deserving dismissal.
Regarding an appeal deserving dismissal, if the appellate court evaluates the case and concludes that there is no sufficient legal or factual ground for interfering with the lower court’s judgment, it holds the statutory authority to dismiss the appeal outright.
This power ensures that the appellate court will not disturb a trial court’s decision unless the appellant demonstrates compelling reasons or significant legal errors that justify judicial intervention.
(2) In an appeal from an order of acquittal.
Under Section 427(a) of the BNSS, an appellate court dealing with an appeal against an order of acquittal holds extensive statutory authority to reverse the acquittal, order further inquiry, direct a complete or partial retrial starting from the point of legal error, or directly convict and sentence the accused according to law.
However, as articulated in Sanwat Singh v. State of Rajasthan and Sheo Swarup v. King Emperor, this power is governed by strict principles: while the appellate court can fully re-evaluate trial evidence, it must respect the trial judge’s assessment of witness credibility, give weight to the double presumption of innocence fortified by the acquittal, and articulate explicit reasons why the trial court’s reasoning was unjustified.
Crucially, if two reasonable views of the evidence exist, the view favoring acquittal must prevail, and the appellate court cannot overturn an acquittal merely because it would have decided differently as a trial court.
Furthermore, when an appellate court reverses an acquittal and finds the accused guilty, it cannot exceed the maximum sentencing authority of the original trial court, and such a conviction retroactively dates back to the day the trial court issued the original acquittal.
(3) In an appeal from a conviction.
When adjudicating an appeal against conviction under Section 427(b) of the BNSS, an appellate court does not require the extra caution reserved for acquittal appeals, though it must intervene and grant the benefit of the doubt whenever the prosecution fails to prove guilt beyond a reasonable doubt.
In disposing of such an appeal, the court can choose among three statutory paths: first, under Section 427(b)(i) BNSS, it may reverse the finding and acquit the accused or order a retrial—a rare remedy permitted only for major defects such as lack of jurisdiction or severe procedural illegality.
second, under Section 427(b)(ii) BNSS, it may alter the finding of conviction while maintaining the sentence, provided it does not convert an unappealed implied acquittal into a higher conviction.
third, under Section 427(b)(iii) BNSS, it may modify the nature or extent of the sentence, strictly subject to the prohibition against enhancing the sentence severity or remitting the case to the trial court solely for sentence reconsideration.
(4) In an appeal for enhancement of sentence.
In an appeal filed for the enhancement of a sentence under Section 427(c) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the appellate court exercises the same fundamental powers as it does in standard conviction appeals, supplemented by the explicit authority to either increase or reduce the sentence.
However, two key statutory caveats restrict this power under the provisos of Section 427 BNSS: first, the sentence cannot be enhanced without affording the accused a fair opportunity to show cause against such an increase; second, the enhanced punishment can never exceed the maximum sentencing limit that the original trial court was legally empowered to impose.
(5) In an appeal from any other order.
Regarding an appeal from any other order under Section 427(d) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the appellate court is vested with residual authority to address appealable judicial decisions that fall outside standard categories such as conviction, acquittal, or sentence enhancement.
In handling such miscellaneous appeals, the court holds full judicial discretion to either alter or reverse the lower court’s order as it deems necessary to secure justice.
(6) Consequential or incidental order.
Under Section 427(e) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), an appellate court possesses broad ancillary powers to make any amendment or issue any consequential or incidental order necessary to achieve a just and proper outcome.
To ensure full compliance with the principles of natural justice, the Supreme Court has emphasized that High Courts are strictly required to articulate and discuss the reasons behind their decisions when adjudicating criminal appeals.
8. PROCEDURE WHERE THE JUDGES OF THE HIGH COURT BENCH ARE EQUALLY DIVIDED
Under Section 433 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), when a High Court Bench is equally divided in opinion during a criminal appeal, the case along with the conflicting opinions is referred to a third Judge of that High Court, whose decision following a hearing determines the final judgment or order.
However, according to the proviso to Section 433 BNSS, if either member of the original Bench or the newly assigned third Judge explicitly requires it, the appeal must instead be reheard and decided by a larger Bench of judges.
9. ORDER OF HIGH COURT ON APPEAL TO BE CERTIFIED TO LOWER COURT
Under Section 429 BNSS, whenever a case is decided on appeal by the High Court, it shall certify its judgment or order to the court by which the finding, sentence or order appealed against was recorded or passed.
The lower court shall thereafter make such orders as are conformable to the judgment or order of the High Court.
Thus, when the High Court decides an appeal, its decision is communicated to the concerned lower court, and the lower court is required to pass the necessary orders and give effect to the High Court’s judgment or order.
10. RULES REGARDING JUDGMENT OF SUBORDINATE APPELLATE COURT
Under Section 428 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the procedural rules governing criminal court judgments under Chapter XXIX (Sections 392–406 BNSS) apply, as far as practicable, to appellate judgments delivered by subordinate appellate courts such as a Sessions Court or Chief Judicial Magistrate.
According to the proviso to Section 428 BNSS, the accused is ordinarily exempt from being brought up or required to attend court merely to hear the delivery of the appellate judgment unless specifically directed by the court.
Furthermore, once an appellate judgment is formally pronounced by the subordinate appellate court, it attains legal finality and cannot subsequently be reviewed or altered by that court.
11. FINALITY OF JUDGMENTS AND ORDERS ON APPEAL
According to Section 434 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), judgments and orders passed by an appellate court are final and binding, barring statutory exceptions under Section 418 BNSS (appeal against inadequacy of sentence), Section 419 BNSS (appeal against acquittal), Section 425(4) BNSS (regular appeal following dismissal of a jail appeal), or reference/revision proceedings under Chapter XXXII.
Even after a conviction appeal is disposed of, the appellate court retains jurisdiction to hear cross-appeals for acquittal or sentence enhancement arising out of the same case.
The appellate court is prohibited from reviewing its own judgment, nor can the inherent powers under Section 528 BNSS (formerly Section 482 CrPC) be used to circumvent finality; however, an appeal dismissed solely for default of appearance does not constitute a formal judgment under Section 403 BNSS (formerly Section 362 CrPC) and may be restored by a Sessions Court.
Beyond specific statutory exceptions for acquittal or sentence enhancement, no second appeal lies against an appellate decision—making revision the primary legal recourse—while the Supreme Court has confirmed that favorable appellate relief can be extended even to non-appealing co-accused.
12. ABATEMENT OF APPEALS
Under Section 435 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), appeals concerning inadequacy of sentence or acquittals automatically abate upon the death of the accused, while appeals against conviction generally abate upon the death of the appellant.
However, two primary exceptions exist: first, near relatives—defined as a parent, spouse, lineal descendant, brother, or sister—may apply within 30 days of the appellant’s death for leave to continue an appeal against a death sentence or imprisonment; second, an appeal involving a sentence of fine does not abate, as the fine remains a financial liability on the deceased’s estate, entitling the legal heirs to contest the conviction to safeguard their inherited property.