An Exposition of Section 386 of the Code of Criminal Procedure, 1973: Powers of the Appellate Court in India

An Exposition of Section 386 of the Code of Criminal Procedure, 1973: Powers of the Appellate Court in India

Introduction

Section 386 of the Code of Criminal Procedure, 1973 (Cr.P.C.) stands as a cornerstone of the appellate framework within the Indian criminal justice system. It delineates the extensive powers vested in an Appellate Court when seized of an appeal. These powers range from dismissing an appeal to reversing an order of acquittal or conviction, ordering a retrial, altering a finding or sentence, and passing consequential orders. The judicious exercise of these powers is paramount to ensuring that justice is not only done but is also seen to be done, rectifying errors of lower courts and upholding the rule of law. This article seeks to provide a comprehensive analysis of Section 386 Cr.P.C., drawing upon statutory provisions and significant judicial pronouncements that have shaped its interpretation and application in India.

The Supreme Court of India in Dharam Pal And Others v. State Of Uttar Pradesh[9] emphasized that any interpretation of Section 386 must be "in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed." This underscores the judiciary's commitment to ensuring that the powers under this section are wielded to achieve substantive justice.

The Statutory Mandate: Powers of the Appellate Court under Section 386 Cr.P.C.

Section 386 of the Cr.P.C. enumerates the specific powers of the Appellate Court after it has perused the record, heard the appellant or their pleader, the Public Prosecutor, and in cases of appeals under Section 377 (appeal by State against sentence) or Section 378 (appeal against acquittal), the accused. The Kerala High Court in Benny P. Jacob Revision v. Rajesh Kumar Unnithan And Another[12] and the Madras High Court in G.Sankar v. A.B.Varadarajan[19] have quoted the section extensively. The powers are as follows:

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—
    1. 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
    2. alter the finding, maintaining the sentence, or
    3. 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—
    1. 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
    2. alter the finding maintaining the sentence, or
    3. 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.

A crucial proviso, particularly relevant to clause (b), is 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." This was noted in Suganthi Suresh Kumar Petitioner v. Jagadeesan.[22]

Judicial Scrutiny and Elucidation of Section 386 Cr.P.C.

The judiciary has, through numerous pronouncements, clarified the scope and limitations of the powers conferred by Section 386 Cr.P.C.

Appeals from an Order of Acquittal (Section 386(a))

The power to reverse an acquittal is exercised with considerable caution, keeping in mind the presumption of innocence, which is further fortified by an acquittal.

Presumption of Innocence and Scope of Interference

In Chandrappa And Others v. State Of Karnataka[5], the Supreme Court, while restoring a trial court's acquittal overturned by the High Court, emphasized that appellate courts must respect the trial court's judgment, especially when reasonable doubts exist. The Court referenced precedents like Sheo Swarup v. R. Emperor and Sanwat Singh v. State of Rajasthan to delineate the scope of appellate review, affirming that while appellate courts have the power to review evidence and reverse acquittals, this power must be exercised judiciously.[5]

Similarly, the Kerala High Court in State Of Kerala Rep. By The State Public Prosecutor /Complainant v. Madhu /Accused[25] summarized the settled legal principles, stating that the High Court, while exercising power under Section 386 Cr.P.C., must give proper weight to the trial judge's views on witness credibility, the presumption of innocence (strengthened by acquittal), the accused's right to the benefit of doubt, and the appellate court's slowness in disturbing factual findings of a judge who saw the witnesses. This echoes the principles laid down in cases like Sanwant Singh v. State of Rajasthan and Sohrab v. State Of M.P.[25]

Evidentiary Considerations in Reversing Acquittals

The Supreme Court in K. Ramachandra Reddy And Another v. Public Prosecutor[6] set aside a High Court conviction that had reversed a trial court acquittal. The reversal was based solely on a dying declaration, the authenticity of which the Supreme Court found doubtful. This case highlights the stringent scrutiny appellate courts must apply to evidence when considering the reversal of an acquittal, ensuring that convictions are based on reliable and incontrovertible proof. The principles from Khushal Rao v. State Of Bombay regarding the reliability of dying declarations were central to this analysis.[6]

Procedural Gateways: Leave to Appeal

Before the powers under Section 386(a) can be fully exercised in an appeal against acquittal by the State, leave to appeal might be necessary. In State Of Rajasthan v. Sohan Lal And Others[7], the Supreme Court set aside a High Court order refusing leave to appeal against an acquittal, directing the High Court to grant leave and dispose of the appeal on merits, emphasizing that the interest of justice required it.

Power to Order Arrest of Accused

In the context of an appeal against acquittal, Section 390 Cr.P.C. empowers the High Court to issue a warrant for the arrest of the accused. As noted in SUDERSHAN SINGH WAZIR v. STATE (NCT OF DELHI)[11], upon presentation of an appeal under Section 378, the High Court may direct the accused's arrest and commit them to prison or grant bail pending appeal disposal. This power complements the appellate process initiated under Section 378 leading to adjudication under Section 386(a).

Appeals from a Conviction (Section 386(b))

When dealing with appeals against conviction, the Appellate Court has wide powers, including reversing the conviction, altering the finding or sentence, or ordering a retrial.

Scope of Review and Alteration of Findings/Sentence

The Supreme Court in State Of Madhya Pradesh v. Badri Alias Bhuru[14] criticized a High Court for reducing a sentence in a "most unsatisfactory manner exhibiting complete non-application of mind" and writing a "very short and cryptic judgment." The Court reiterated the duty of the appellate court, as outlined in Sections 385 and 386 Cr.P.C., to properly consider the evidence. This judgment, citing Amar Singh v. Balwinder Singh, underscores that altering a sentence under Section 386(b)(iii) requires careful consideration and reasoned justification.

Limitation on Enhancement of Sentence

A significant limitation under Section 386(b)(iii) is that the appellate court cannot enhance the sentence when hearing an appeal from a conviction. This was affirmed in G.Sankar v. A.B.Varadarajan[19], where the Madras High Court noted that a direction by the first appellate court to the trial court merely to enhance punishment after confirming conviction was improper. Furthermore, Suganthi Suresh Kumar Petitioner v. Jagadeesan[22] highlighted the second proviso to Section 386, emphasizing that the appellate court cannot inflict greater punishment than the trial court could have, referencing K. Bhaskaran v. Sankaran Vaidhyan Balan regarding limits on fines.

Consideration of Settlements

While Section 386 Cr.P.C. does not explicitly deal with compounding, appellate courts, particularly in their revisional jurisdiction (which incorporates Section 386 powers via Section 401 Cr.P.C.), have considered settlements. In Girdharbhai Mohanbhai Patel v. State Of Gujarat[23], the Gujarat High Court, while noting that non-compoundable offences cannot be compounded after conviction, exercised its powers under Section 401 read with Section 386(b)(iii) to alter and reduce the sentence on account of a settlement between the parties, citing Supreme Court precedents like Ishwar Singh v. State Of Madhya Pradesh.

Appeals for Enhancement of Sentence (Section 386(c))

Section 386(c) empowers the Appellate Court, in an appeal for enhancement of sentence (typically filed by the State under Section 377 Cr.P.C.), to alter the sentence so as to enhance or reduce it. The Supreme Court in Eknath Shankarrao Mukkawar v. State Of Maharashtra[1] dealt with an appeal by the State against the inadequacy of a sentence under Section 377 Cr.P.C. While the Court ultimately allowed the appellant's appeal against the High Court's enhancement, the case affirms the High Court's authority to review and enhance sentences, a power exercised under Section 386(c). The judgment emphasized judicial discipline and proper application of statutory provisions.[1]

Appeals from Any Other Order (Section 386(d)) & Consequential or Incidental Orders (Section 386(e))

Section 386(d) allows the appellate court to alter or reverse any other appealable order not covered by clauses (a), (b), or (c). Section 386(e) grants a general power to make any amendment or any consequential or incidental order that may be just or proper, ensuring the court can pass orders necessary to give effect to its main decision or to meet the ends of justice.

The Imperative of Retrial: A Power to be Exercised Judiciously

Both Section 386(a) (in appeals against acquittal) and Section 386(b)(i) (in appeals against conviction) empower the Appellate Court to order a retrial. This power, however, is to be exercised sparingly and only in exceptional circumstances.

The Supreme Court in Issac Alias Kishore v. Ronald Cheriyan And Others[16] elaborated that a retrial should not be ordered for mere infirmities or irregularities that do not cause prejudice. It may be warranted when the original trial was unsatisfactory due to reasons like an inappropriate charge, wrongful rejection or admission of evidence. The Court cited K. Chinnaswamy Reddy v. State of A.P., emphasizing that retrial is for exceptional cases.[16]

In Ukha Kolhe v. State Of Maharashtra[8], the Supreme Court cautioned against ordering retrial merely to allow the prosecution to fill in lacunae in its case, setting aside a Sessions Court order for retrial that was deemed to be an opportunity for the prosecution to rectify procedural lapses. The case of Dinubhai Boghabhai Solanki (S) v. State Of Gujarat & Ors. (S)[21] also noted the argument that Section 386 Cr.P.C. confers power on the appellate court to order retrial, implying it's a post-trial appellate remedy.

Procedural Tenets in Appellate Adjudication

Duty of Application of Mind and Reasoned Orders

Appellate courts are expected to apply their minds to the facts and law involved and pass reasoned orders. As seen in State Of Madhya Pradesh v. Badri Alias Bhuru[14], cryptic and unreasoned judgments are deprecated. The appellate process demands a thorough consideration of the evidence and arguments presented.

Hearing the Parties

Section 386 Cr.P.C. begins with the phrase "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..." This underscores the importance of the audi alteram partem principle. In B. Raghunandan Reddy v. V. Rajasekhar Reddy Another[24], the Andhra Pradesh High Court, relying on the Supreme Court's decision in Beni Singh v. State of Uttar Pradesh, indicated that an appeal can be decided on merits under Section 386 Cr.P.C. even if a served party fails to attend.

Synergistic Operation with Other Procedural Safeguards

The powers under Section 386 Cr.P.C. do not operate in isolation but are often read in conjunction with other provisions of the Cr.P.C.

Additional Evidence under Section 391 Cr.P.C.

Section 391 Cr.P.C. empowers an appellate court to take further evidence or direct it to be taken if it "thinks additional evidence to be necessary." This power is often invoked in appeals being decided under Section 386. The Allahabad High Court in Aditya Kumar Bajpai v. State Of U.P.[15] noted that "necessary" means necessary for deciding the appeal. Courts have been cautious about allowing additional evidence merely to fill gaps in the prosecution's case, as discussed in Mr. Kishor Sharma v. THE STATE OF UTTARAKHAND[17] and N. Somi Reddy & Anr. v. State Of A.P & Ors.[18] The latter case, however, involved the appellate court permitting additional evidence deemed necessary for a just conclusion.

Revisional Jurisdiction and Section 386 Powers

Section 401 Cr.P.C., dealing with the High Court's powers of revision, explicitly states that the High Court may exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390, and 391. This was clearly articulated in Benny P. Jacob Revision v. Rajesh Kumar Unnithan And Another[12], [20]. However, this is subject to limitations, such as Section 401(3) which prohibits a High Court from converting a finding of acquittal into one of conviction in its revisional jurisdiction. Cases like Girdharbhai Mohanbhai Patel[23] and Suganthi Suresh Kumar[22] illustrate the exercise of S.386-analogous powers in revision.

A Note on Section 386 of the Indian Penal Code

It is pertinent to note that some of the provided reference materials, such as Kapil Garg (Dr.) And Another Petitioners v. State[10] and SALIB @ SHALU @ SALIM v. THE STATE OF UTTAR PRADESH[13], refer to Section 386 of the Indian Penal Code, 1860 (IPC), which defines the offence of "Extortion by putting a person in fear of death or grievous hurt." While appeals arising from convictions under Section 386 IPC would be adjudicated by the appellate court using its powers under Section 386 Cr.P.C., the substantive discussion of extortion under Section 386 IPC is distinct from the procedural powers of the appellate court detailed in Section 386 Cr.P.C. The focus of this article is strictly on Section 386 of the Cr.P.C.

The Guiding Principle: Upholding the Spirit of Section 386

The Supreme Court's observation in Dharam Pal And Others v. State Of Uttar Pradesh[9] serves as a guiding light: the interpretation and application of Section 386 Cr.P.C. must align with its "spirit and language" to ensure it serves as a correct instrument of law. This implies that the powers, though wide, must be exercised with a commitment to fairness, reason, and the overarching goal of achieving justice. The procedural framework for hearing appeals, as mentioned in SUDERSHAN SINGH WAZIR v. STATE (NCT OF DELHI)[11], is designed to facilitate this objective.

Conclusion

Section 386 of the Code of Criminal Procedure, 1973, is a comprehensive provision that equips appellate courts in India with the necessary powers to review and rectify judicial outcomes from lower courts. The judiciary, through consistent interpretation, has sought to balance these extensive powers with fundamental principles of criminal jurisprudence, such as the presumption of innocence, the right to a fair hearing, and the need for reasoned decision-making. The careful and principled exercise of powers under Section 386 Cr.P.C. is crucial for maintaining public confidence in the appellate process and for the effective administration of criminal justice. As appellate forums continue to apply this provision, they must remain guided by the statutory text, established precedents, and the fundamental imperative of ensuring that justice prevails.

References

  1. Eknath Shankarrao Mukkawar v. State Of Maharashtra . (1977 SCC 3 25, Supreme Court Of India, 1977)
  2. Sunil Kumar Sambhudayal Gupta (Dr.) And Others v. State Of Maharashtra . (2010 SCC 13 657, Supreme Court Of India, 2010)
  3. Mst Dalbir Kaur And Others v. State Of Punjab . (1976 SCC 4 158, Supreme Court Of India, 1976)
  4. Sadhu Ram And Another v. State Of Rajasthan . (2003 SCC 11 231, Supreme Court Of India, 2003)
  5. Chandrappa And Others v. State Of Karnataka . (2007 SCC CR 2 325, Supreme Court Of India, 2007)
  6. K. Ramachandra Reddy And Another v. Public Prosecutor . (1976 SCC 3 618, Supreme Court Of India, 1976)
  7. State Of Rajasthan v. Sohan Lal And Others (2004 SCC 5 573, Supreme Court Of India, 2004)
  8. Ukha Kolhe v. State Of Maharashtra . (1963 AIR SC 1531, Supreme Court Of India, 1963)
  9. Dharam Pal And Others v. State Of Uttar Pradesh . (Supreme Court Of India, 2008)
  10. Kapil Garg (Dr.) And Another Petitioners v. State (Delhi High Court, 2003)
  11. SUDERSHAN SINGH WAZIR v. STATE (NCT OF DELHI) (Supreme Court Of India, 2025)
  12. Benny P. Jacob Revision v. Rajesh Kumar Unnithan And Another S/Accused/Complainant. (Kerala High Court, 2019)
  13. SALIB @ SHALU @ SALIM v. THE STATE OF UTTAR PRADESH (Supreme Court Of India, 2023)
  14. State Of Madhya Pradesh v. Badri Alias Bhuru . (Supreme Court Of India, 2005)
  15. Aditya Kumar Bajpai v. State Of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko (Allahabad High Court, 2023)
  16. Issac Alias Kishore v. Ronald Cheriyan And Others (Supreme Court Of India, 2018)
  17. Mr. Kishor Sharma v. THE STATE OF UTTARAKHAND (Uttarakhand High Court, 2024)
  18. N. Somi Reddy & Anr. v. State Of A.P & Ors. (Andhra Pradesh High Court, 2005)
  19. G.Sankar v. A.B.Varadarajan (2007 CRIMES 3 590, Madras High Court, 2007)
  20. Benny P. Jacob Revision v. Rajesh Kumar Unnithan And Another S/Accused/Complainant. (2019 SCC ONLINE KER 3055, Kerala High Court, 2019)
  21. Dinubhai Boghabhai Solanki (S) v. State Of Gujarat & Ors. (S) (2017 SCC ONLINE SC 1268, Supreme Court Of India, 2017)
  22. Suganthi Suresh Kumar Petitioner v. Jagadeesan (2001 SCC ONLINE MAD 350, Madras High Court, 2001)
  23. Girdharbhai Mohanbhai Patel v. State Of Gujarat (2014 SCC ONLINE GUJ 13577, Gujarat High Court, 2014)
  24. B. Raghunandan Reddy v. V. Rajasekhar Reddy Another (Andhra Pradesh High Court, 2014)
  25. State Of Kerala Rep. By The State Public Prosecutor /Complainant v. Madhu /Accused. (Kerala High Court, 2021)