Section 385 CrPC: Procedure for Hearing Appeals Not Dismissed Summarily
Understand the notice and hearing process for criminal appeals under Section 385 of the Code of Criminal Procedure, 1973 and its corresponding provision, Section 426 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
What does Section 385 CrPC provide?
Section 385 governs the next stage of a criminal appeal after the appellate court decides not to dismiss it summarily. It requires notice of the hearing, ordinarily obtaining the lower court record, and hearing the parties. A summary dismissal is dealt with separately under Section 384 CrPC.
Section 385 CrPC - Original statutory text
(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given:
- to the appellant or his pleader;
- to such officer as the State Government may appoint in this behalf;
- if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
- if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.
Section 426 BNSS - Corresponding current provision
Section 426 of the Bharatiya Nagarik Suraksha Sanhita, 2023 retains the essential appeal-hearing framework, using the term advocate instead of pleader and referring to BNSS Sections 418 and 419 in place of CrPC Sections 377 and 378.
(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given:
- to the appellant or his advocate;
- to such officer as the State Government may appoint in this behalf;
- if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
- if the appeal is under section 418 or section 419, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.
Official source: Bharatiya Nagarik Suraksha Sanhita, 2023 - India Code (PDF).
Who must receive notice of the appeal hearing?
Under Section 385(1) CrPC and Section 426(1) BNSS, the appellate court gives notice of the time and place of hearing to the appellant or legal representative, the designated State officer, the complainant in an appeal from conviction in a complaint case, and the accused in specified State appeals concerning sentence or acquittal. The grounds of appeal must also be furnished to the designated officer, complainant and accused as provided by the section.
Calling for records and hearing the parties
Under subsection (2), the appellate court ordinarily calls for the case record if it is not already before the court, and hears the parties. Where an appeal concerns only the extent or legality of the sentence, the statute permits disposal without calling for the record. This is a limited statutory exception, not a general exemption from a fair hearing.
Appeals limited to severity of sentence
Subsection (3) restricts the appellant who challenges a conviction only on the ground that the sentence is too severe. Such an appellant cannot argue an additional ground without the appellate court's permission (leave).
CrPC and BNSS references
| Subject | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Summary dismissal | Section 384 | Section 425 |
| Hearing appeals not dismissed summarily | Section 385 | Section 426 |
| Appeal by State against sentence | Section 377 | Section 418 |
| Appeal against acquittal | Section 378 | Section 419 |
| Powers of appellate court | Section 386 | Section 427 |
Practical points for appellants
- Check the appeal notice for the hearing date, place and court.
- Keep the petition, grounds of appeal and impugned judgment or order available.
- Ensure counsel is informed and prepared to address the appeal grounds.
- Where the challenge concerns only the sentence, consider the limits imposed by subsection (3).
- For proceedings initiated before 1 July 2024, examine the savings clause and relevant judicial directions before determining which procedural code applies.
Frequently asked questions
Is a full appeal hearing automatic after filing an appeal?
No. The appellate court may first consider summary dismissal under the applicable provision. If it does not dismiss the appeal summarily, the notice and hearing procedure under Section 385 CrPC or Section 426 BNSS applies.
Must the appellate court call for the trial record?
Ordinarily yes, unless already available. The law expressly allows an exception where the appeal relates only to the extent or legality of the sentence.
Can an appellant raise new grounds when only sentence severity was appealed?
Not as of right. Leave of the appellate court is required under subsection (3).
Official legal reference
India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 (official Act text). The CrPC section reproduced above is the historical text retained for reference. The governing law in an individual matter depends on commencement, savings, and the status of the proceeding.
Updated: 18 October 2026. This article provides general legal information, not case-specific legal advice.