Section 386 CrPC: Powers of the Appellate Court and Section 427 BNSS
Understand the powers of a criminal appellate court to affirm, reverse or alter findings, order a retrial, modify a sentence and decide appeals against acquittal or conviction.
What does Section 386 CrPC provide?
Section 386 sets out the orders an appellate court may pass after considering the record and hearing the relevant parties who appear. It distinguishes appeals against acquittal, appeals against conviction, appeals seeking enhancement of sentence and appeals against other orders. Section 427 BNSS continues these principal powers, with updated terminology and cross-references.
Powers of the Appellate Court explained
Appeal against acquittal - clause (a)
The appellate court may reverse an acquittal and direct further inquiry, order a retrial or committal for trial, or find the accused guilty and impose a lawful sentence. These powers are exercised subject to the applicable legal standards governing appeals against acquittal.
Appeal against conviction - clause (b)
The court may reverse the conviction and sentence, acquit or discharge the accused, order retrial or committal, change the finding while maintaining the sentence, or alter the nature or extent of the sentence without enhancing it under this clause.
Appeal for enhancement of sentence - clause (c)
In an appeal seeking enhancement, the court may reverse the finding and sentence, direct a retrial, alter the finding while maintaining the sentence, or increase or reduce the sentence as authorised by law.
Appeal against another order - clause (d)
For other appealable orders, the appellate court may alter or reverse the order under appeal.
Consequential and incidental orders - clause (e)
The court may make amendments and consequential or incidental orders that are just or proper in deciding the appeal.
Safeguards against enhancement of punishment
Before enhancing a sentence, the accused must have an opportunity to show cause against enhancement. Further, the appellate court cannot impose a punishment greater than the punishment the court whose decision is under appeal could lawfully have imposed for that offence.
CrPC and BNSS section references
| Subject | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Powers of appellate court | Section 386 | Section 427 |
| Appeal for enhancement of sentence | Section 377 | Section 418 |
| Appeal against acquittal | Section 378 | Section 419 |
| Procedure for hearing appeal | Section 385 | Section 426 |
| Suspension of sentence pending appeal | Section 389 | Section 430 |
Section 386 CrPC - original statutory provision
The following reproduces the substantive provision retained from the original page, including its provisos.
Section 386 of Code of Criminal Procedure 1973 - 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 or 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
(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:
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 427 BNSS - current corresponding provision
Section 427 is titled Powers of Appellate Court. It provides the same categories of appellate relief described above. Its introductory text refers to an appellant's advocate and to appeals under Sections 418 and 419 BNSS in place of the earlier CrPC cross-references. For the full authoritative wording, consult the official enactment below.
Official statutory sources
India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023)
Bureau of Police Research and Development - BNSS statutory text (PDF)
India Code - official legislation repository for the Code of Criminal Procedure, 1973
Frequently asked questions
What is the corresponding BNSS section for CrPC Section 386?
Section 427 BNSS corresponds to Section 386 CrPC.
Can an appellate court increase a sentence?
Yes, where legally authorised, including in an enhancement appeal, but the accused must first receive an opportunity to show cause against the proposed enhancement.
Can an appellate court order a retrial?
Yes. The provision expressly permits retrial or committal for trial in the circumstances described in clauses (a), (b) and (c).
Does Section 386 CrPC apply to every pending appeal after July 2024?
Not necessarily. The applicable transitional treatment depends on Section 531 BNSS and the procedural status of the particular matter.
Legal information: This article explains the statutory framework and is not a substitute for advice on the facts of a particular case.