Section 386 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!

Legal Provisions of Section 386 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.

Powers of the Appellate Court:

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This section deals with the powers of the Appellate Courts relating to appeals. These powers are vested in all Courts, whether the High Court or subordinate Courts. The provision contained in sub-clause (a) of sub-section (1) of this section is restricted to the appellate powers of a High Court only because appeal against an order of acquittal lies only to the high Court. While clause (b) of the sub-section is not so restricted and applies to all Courts.


There exists no provision for withdrawal of an appeal which is admitted for hearing. Therefore, once an appeal is admitted, it has either to be allowed or dismissed. The Court may, however, dismiss an appeal in limine under Section 482 of the Code in order to prevent abuse of the process of the Court. But this summary dismissal of appeal may be possible only before it is admitted for hearing and not thereafter.

The Code of Criminal Procedure makes no difference between an appeal against a conviction and that of an appeal against an order of acquittal except that in the former case the appeal is as of right and lies to Courts of different jurisdictions depending on the nature of evidence, the kind of trial and the Court by which the order of conviction was passed, whereas in the latter case it can be only made to the High Court by the Government or by the complainant (where the case is started on a private complaint) with special leave of the High Court. Such appeal lies on a matter of fact as well as law and the procedure for dealing with these both kinds of appeal is similar.

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The High Court is vested with full power to review the entire evidence upon which the conviction or acquittal, as the case may be, was founded and reach its own independent conclusion whether the order should be reversed or not.


Thus where the High Court, after reviewing the evidence, had taken a view that the conviction of the accused person under Section 304, Parts I & II be converted under Sections 323/324/325 I.P.C., the Supreme Court refused to interfere in the altered conviction and sentence.

It is the bounden duty of the Appellate Court to go through the record of evidence and dispose of the appeal on merits. Where the reasons given by the trial Court are weighty and cogent, the High Court should not interfere with the findings of the trial Court.

Where the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal but it must give a reasonable judgment indicating application of its mind to the questions of fact and law involved in the case.

Appeal against Acquittal:


As stated earlier, there is no distinction as regards the powers of the Appellate Court, in dealing with appeal against acquittal and an appeal against a conviction and the Court has to concentrate and see that whether the conclusions reached by the trial Court upon the evidence are proper and correct.

Where the finding is wrong and unreasonable, it may be reversed. In this regard, the Privy Council decision in Sheo Swarup v. Emperor has laid down the broad principles which the Appellate Courts should follow while dealing with appeal against acquittal and Supreme Court has also affirmed these guidelines in its subsequent decisions. These principles are briefly stated as follows:

(1) That there is the initial presumption of innocence of an accused;

(2) That the trial Court had the opportunity of closely considering the evidence of eye­witnesses.

(3) The right of accused to the benefit of doubt; and

(4) The Appellate Court should be slow and cautious in disturbing the finding of fact arrived at by the trial Judge who had the opportunity of personally examining the witnesses;

In view of the aforesaid guidelines as approved by the Supreme Court in its decisions, it may be stated that in appeal against acquittal the High Court will not generally interfere with the finding of the trial Court unless there are substantial and compelling reasons or the view taken by the trial Court is unreasonable and perverse. However, in reversing the judgment of acquittal it is not necessary for the High Court to specifically mention that the findings recorded by trial Court are ‘perverse’.

In the reversal order of acquittal the High Court must state sufficient grounds for holding the appreciation of evidence by trial Court as unsupportable.

The High Court’s interference in an appeal against an order of acquittal will not be justified if two conclusions can be drawn upon the evidence recorded by the trial Court. The reason being that in such a case it cannot be said that the view taken by the trial Court in acquitting the accused is unreasonable and hence there is no justification for the reversal of that view by the High Court. Where the view taken by the trial Court is reasonably possible, the High Court will not be justified in reversing the judgment of acquittal.

In Karuppana Thever v. State of Tamil Nadu, AIR 1976 SC 980, the accused was charged of murder under Section 302, I.P.C. and the Sessions Judge convicted him under Section 304, I.P.C., therefore, the order of the Sessions Court amounted to acquittal in respect of offence under Section 302.

The Supreme Court held that in appeal against the conviction the Appellate Court cannot alter the finding of acquittal and convict the accused under Section 302, I.P.C. of which he had already been acquitted.

The Supreme Court in the case of Dwarka Das v. State of Haryana, reprimanded the High Court of Haryana for transgressing its limits of jurisdiction. In this case, twenty persons had died due to consumption of illicit country liquor and the Sessions Court upon appreciation of evidence convicted the seller and vendor of liquor and acquitted others.

The High Court swayed by the nature of incident directed the State Government to file appeal against acquittal of persons who were acquitted. In appeal against this order of the High Court, the Supreme Court held that the High Court had not only exceeded its jurisdiction but transgressed all limits of its powers. This was neither fair nor reasonable and, therefore, could not be sustained.

Where the Appellate Court finds that the trial Court was wrong not only on the point of law but also on the point of fact, it would be justified in reversing the order of acquittal and finding the accused guilty and convict him.

Where a person is convicted in appeal, it means that the Appellate Court has exercised its power in place of the original Court, and therefore, guilt and sentence so substituted in place of acquittal, shall have effect from the date of the judgment of the trial Court.

The Supreme Court in Kallu v. State of Madhya Pradesh, elaborating the power of the Court while dealing with an appeal against acquittal under Section 386, Cr. P.C. observed that in deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction.

In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an Appellate Court, where the judgment of the Trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial Court merely because a different view is possible.

Appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it must assign reasons for differing with the decision of the trial Court.

The Supreme Court in State of Uttar Pradesh v. Ram Veer Singh reiterated that in an appeal against acquittal, the Appellate Court has the power to review evidence in terms of Section 386, Cr. P.C. However, it should interfere only when there are compelling and substantial reasons for doing so.

The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The Apex Court pointed out, “a miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent person. In a case where admissible import and evidence is ignored by the trial Court, a duty is cast upon the Appellate Court to reappreciate the evidence, where the accused has been acquitted. In the instant case involving murder, the reasons stated by the High Court for recording the order of acquittal did not suffer from any infirmity to warrant interference. The appeal was, therefore, dismissed.

Power to order Further Inquiry:

In an appeal against the order of acquittal, the Appellate Court can direct a further inquiry, but no such inquiry can be ordered in an appeal against the order of conviction. The Court may take additional evidence if necessary, under Section 391 of the Code. The word ‘further inquiry’ does not include ‘fresh inquiry.’

Power to order re-trial:

The High Court has the discretion to order retrial of the case where it finds that the trial held by the lower Court was incurably defective. But it should not be ordered merely because the Appellate Court differs from the conclusions arrived at by the trial Court. Retrial may be ordered from the stage at which an error or illegality had crept in.

When the circumstances of the case indicate that the lower Court had exercised its jurisdiction improperly or there has been no proper and fair trial and it is vitiated by serious allegations or irregularities, the Appellate Court is justified in directing a re­trial.

When a re-trial is ordered, it wipes out from the record the earlier proceeding and provided opportunity for the prosecution to rectify its infirmities, as the accused is to be tried again on all the charges originally framed against him.

Re-trial is in fact, continuation of the same trial, and therefore, it should not be misunderstood as a fresh trial. An Appellate Court also has the power under this section to order an accused person to be committed for trial by the Court of Session in cases where it is not exclusively triable by the Court of Session.

In Gafoor Shah v. State of Uttar Pradesh, the accused was charged for committing offence of dacoity under Section 396, I.P.C. But no averment was made in F.I.R. that accused entered the house with intention to commit dacoity.

In fact, allegations made in F.I.R. had disclosed offence of murder, attempt to commit murder and theft punishable under Sections 302, 307 and 379, I.P.C. The accused was, therefore, “tried for an offence which was not at all made out even for the purpose of framing charge on the basis of material available in case diary and version given by witnesses.

It had seriously prejudiced the prosecution as well as the accused. In such case, it would be in the interest of justice that accused should be tried for the offences which they had committed. Re-trial was, therefore, ordered and the trial Court was directed to frame charges under appropriate sections.

Appeal Against an Order of Conviction:

Clause (b) of sub-section (1) provides that in an appeal against an order of conviction, the Appellate Court may reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction or commit him for trial.

In hearing an appeal against conviction, the Appellate Court can scan the evidence and weigh the probabilities. It may accept the evidence rejected by the Court or reject the evidence accepted by the trial Court.

The Supreme Court has ruled that it will not interfere with the order of acquittal passed by the High Court appeal against conviction if the view expressed by the High Court is not perverse or unreasonable, but it will certainly not hesitate to interfere if the evidence of important eye-witnesses is rejected by the High Court on general grounds or broad probabilities.

The Appellate Court may also order the accused to be re-tried by a Court of competent jurisdiction where the trial by the trial Court appears to be vitiated by serious illegalities or irregularities.

However, a re-trial will not be ordered, (1) where the accused has undergone a considerable portion of the sentence; or (2) where the evidence is unsatisfactory to support a conviction; or (3) where the offence is a petty one or (4) where the case is covered by the provisions of Section 221 (1) and (2) of the Code.

The decision of the High Court against the order of conviction must contain an analysis and discussion of the evidence, in the absence of which it cannot sustain as a valid judgment. Whatever may be the nature of the offence or the action of the accused, the Appellate Court must ensure fair trial to the appellant.

In the case of State of Madhya Pradesh v. Makhmal Khan the Supreme Court while disposing of an appeal under Sections 385/386, Cr. P.C. against conviction for the offence of rape held that the sentence in that case was reduced to a term far below than the prescribed minimum, by a very short and cryptic judgment without assigning any special or satisfactory reasons.

It showed complete non-application of mind by the High Court and was disposed of in a very unsatisfactory manner. Also, the evidence adduced by parties was not considered. Therefore, the matter was remitted back for fresh consideration.

In State of Punjab v. Ajaib Singh, the accused, a police Sub-Inspector was convicted by the Sessions Court for murder of ASI and a constable, and the High Court acquitted him on the ground that the accused having received nine injuries from the victims developed a reasonable apprehension that if he did not use fire-arm, then his death was an imminent consequence. The Supreme Court upheld the High Court’s view as it could not be said to be a palpably erroneous decision.

In Kaluram v. State of Delhi the accused (appellant) was convicted under Section 304, Part I of IPC whereas other co-accused were acquitted by the Court. The appellant appealed against his conviction while the complainants appealed against conviction of the accused only under Section 304, Part I and acquittal of the co-accused persons.

The High Court dismissed the appeal of the appellant on the ground that the revision petition of the complainants had been dismissed. On appeal against this decision of the High Court, the Supreme Court held that the judgment of the High Court was not proper and the Court should not have dismissed the appellant’s appeal merely because the revision petition filed by the complainants was also dismissed. Instead, the appeal should have been disposed of on merits. The case was therefore, remanded to the High Court for reconsideration.

In Sambhaji Patil v. State of Karnataka there was some land dispute between the deceased and the accused. Appellant was merely a friend of the accused and he had nothing to do with the land dispute between the deceased and the accused.

Therefore, it appeared improbable that the appellant might have gone to the field of the deceased along with the accused and his six colleagues and hit the deceased by hammer. Since, hammer is generally not used as an agricultural instrument, the prosecution story that the appellant lifted the hammer and hit the deceased does not seem to be believable and therefore the acquittal of the appellant was proper and needed no interference.

The Supreme Court in Appa Saheb v. State of Maharashtra, while dealing with an appeal against conviction of the accused, observed that powers of Court could not be exercised for converting order of acquittal into order of conviction.

The Court pointed out that Section 423 (1) (b) (i) of Cr. P.C. which corresponds to Section 386 (b) (i) of the Code is clearly confined to cases of appeal preferred against orders of conviction and sentence. The powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found to have been proved.

The Appellate Court is also empowered to alter the nature and extent of the sentence, under Section 386 (b) (ii). But it cannot enhance the punishment unless the accused is given an opportunity to show cause against such enhancement. Thus in a dacoity case, the accused murdered two inmates to facilitate dacoity and the Sessions Judge awarded imprisonment for life to the accused instead of death sentence without recording the reasons for not awarding the death penalty.

Therefore, the High Court altered the finding into the sentence of death by hanging. The Supreme Court held that alteration of the sentence of life imprisonment to that of death penalty was justified in the circumstances of the case.

In a case, where the accused was convicted by the trial Court for a lesser offence than the charged one and no appeal was preferred by the State against this decision, the High Court of Rajasthan refused to alter the conviction to grave offence while dealing with an appeal against the same accused in another case, as it was not competent to do so under Section 386 (b)(ii).

Appeal for Enhancement of the Sentence:

Section 386 (c) (iii) makes provision for an appeal against inadequacy of sentence at the instance of the State or Central Government, as the case may be.

Proviso (1) to Section 386 however, provides that no sentence shall be enhanced unless accused has been given opportunity of showing cause against such enhancement. This provision is already included in Section 377 (3).

In the case of State of Gujarat v. Somaji Jamaji, the accused was found guilty of possessing illicit liquor which was recovered from him. He pleaded guilty and was sentenced to fine of rupees twenty only as against the prescribed minimum of Rs. 1000/- under the Bombay Prohibition Act of 1949. In appeal, the High Court remanded the case back for reconsideration holding that the sentence imposed on the accused was perverse, illegal and “suffered from a patent vice of plea-bargaining”.

The Court also pointed out at the admission stage of appeal for enhancement of sentence, that where the Court finds glaring illegality, there is no need of issuing show-cause notice to the accused, particularly when the case is being remanded back.

Under clause (e), the appellate Court is empowered to make an amendment or pass any consequential or incidental order that may be just and proper. But such an amendment or order should not be prejudicial to the accused.

This clause deals with the orders which may be passed only after the appeal has been heard such as an order as to costs or an order for further inquiry etc. But the clause has no application to matters that may arise during the hearing of appeal such as release of the accused on bail on condonation of death etc.

There is no provision in the case for dismissal of appeal in default or an appeal being infructuous. Therefore, once the Court decides not to dismiss the appeal summarily, it has got to be disposed of giving reasons for its conclusion except where it abates in pursuance of the provisions of Section 394 of the Code.


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