Power of the Appellate Court
Section 386 of the Code of Criminal Procedure, 1973 deals with power 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 interfer The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
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 386, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 427 Powers of Appellate Court Text carried over almost unchanged 93%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Referred to by 1
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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State of M.P. v. Mulli
Court's Decision & Legal Precedent
Judgment of Main Case order-1.pdf 2005-10-04 DATE VERIFIED. 3-judge Lahoti CJI / G.P. Mathur / P.K. Balasubramanyan. Crl A 1288/2005. CrPC 386 makes it mandatory for the appellate court to peruse the record (including witness statements) before reversing a conviction; a cryptic reduction of sentence below the s.376 minimum without considering evidence is an infraction of 386 (Amar Singh v. Balwinder Singh). Remand to the High Court. Map crpc 386 + BNSS 427 successor (near-identical 0.9301). Do not pad ipc 376 or crpc 384/385.
On this section: Under CrPC 386 an appellate court must peruse the record and the evidence before interfering with a conviction; a cryptic judgment that ignores the testimony is illegal (State of M.P. v. Mulli).
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Ajay Kr. Ghoshal Etc vs State of Bihar
Court's Decision & Legal Precedent
The power to order retrial under Section 386(b) of the Code of Criminal Procedure is an exceptional power to be exercised only when the appellate court is satisfied that: (a) the trial was undertaken by a court lacking jurisdiction, or (b) the trial was vitiated by serious illegality or irregularity occasioning failure of justice, or (c) there was a misconception of the nature of proceedings such that there was no real trial. Mere procedural lapses or irregularities in investigation or conduct of trial, without demonstrable miscarriage of justice, are insufficient to order retrial. The appellate court must independently evaluate evidence and arrive at its own conclusions on guilt or innocence rather than remitting to trial court merely because procedural defects exist. De novo trial is a last resort remedy reserved for exceptional circumstances and must be guided by the demand of justice, balancing the accused's right to fair and speedy trial against societal interest in prosecution of serious crimes.
On this section: Powers of appellate court in appeal from conviction - extensively discussed to define when retrial can be ordered under Section 386(b)
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Rohtas vs The State of Haryana Home Department Home Secretary
Court's Decision & Legal Precedent
When an accused is charged under Sections 148 and 149 IPC as part of an unlawful assembly, but some members of the assembly are acquitted during trial such that the number falls below five, the conviction under Sections 148 and 149 cannot be sustained. However, the accused can be individually convicted under Section 307 IPC (or other applicable provisions) if the evidence establishes that his individual act caused the injury or death, provided that: (1) the facts to be proved and evidence to be adduced would be substantially the same as under the group charge; (2) the accused was expressly confronted with his specific role in the offence; and (3) no prejudice is caused to the accused by the charge alteration. Additionally, the credibility of eyewitness testimony from closely related family members (such as the victim's brother) can be relied upon in violent crime cases if the testimony is consistent, detailed, corroborated by medical evidence, and the gravity of injuries makes false implication inconceivable.
On this section: Powers of appellate court. Court held that appellate courts have wide powers to amend charges which may have been erroneously framed earlier.
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Surya Baksh Singh vs State Of Uttar Pradesh
Court's Decision & Legal Precedent
The High Court possesses inherent powers under Section 482 of the CrPC to dismiss criminal appeals filed by convicts who deliberately obtain bail or exemption from surrender and thereafter wilfully abscond or fail to prosecute their appeals, provided the Court has first taken reasonable steps to secure the appellant's presence (including proceedings against sureties). However, such dismissal should be preceded by examination of the case on merits where practicable, and the Court must ensure that the appellant has had a fair opportunity to be heard. The ends of justice, which include protection of society and victims' rights alongside convict rights, justify application of Section 482 to prevent abuse of the appellate process by convicts seeking to circumvent their sentences.
On this section: Requires Appellate Court to peruse records and hear appellant or pleader; may dismiss if insufficient ground for interference; proviso mandates opportunity to show cause before sentence enhancement
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Tarsem Singh vs State of Punjab
Court's Decision & Legal Precedent
The essential ingredients of dowry death offense under Section 304B IPC, particularly the requirement that cruelty or harassment must be 'for or in connection with demand for dowry' and must occur 'soon before death,' are mandatory conditions that must be proved by the prosecution. A legal presumption under Section 113B of the Evidence Act cannot be invoked unless the prosecution first proves all these essential ingredients, and specifically demonstrates that dowry was demanded temporally proximate to the death. Absence of evidence of dowry demand soon before death, notwithstanding proof of harassment or cruelty on other grounds, is fatal to prosecution under Section 304B IPC.
On this section: Appellate court power to alter conviction nature/extent/sentence without enhancement
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Shiv Kumar Agarwal vs State of Rajasthan
Court's Decision & Legal Precedent
An Appellate Court cannot remand a criminal case back to the Trial Court merely for the purpose of writing a fresh judgment after considering grounds raised before the Appellate Court. Such remand violates Section 386 of the Criminal Procedure Code. The proper course available to an Appellate Court when not satisfied with the Trial Court's order is to decide the case itself or send it for retrial. Remand is permissible only in exceptional circumstances where there are serious lacunae in the trial that vitiate the entire trial, such as the need for fresh medical evidence or other critical evidence that was omitted during the original trial.
On this section: Deals with appeal from an order of acquittal wherein the Appellate Court can direct further inquiry to be made
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Vilas Bhai vs State& ANR.
Court's Decision & Legal Precedent
The appellate court's power to remand a matter to the trial court is implicit in the wide powers conferred under Section 454(2) of the Criminal Procedure Code to 'modify, alter or annul the order and make any further orders that may be just.' This power applies to appeals filed by persons aggrieved by orders under Section 452 or 453, and is not restricted by the limitations of Section 386, which applies only to appeals by the Public Prosecutor or accused persons. When there are rival claims to recovered property, the appellate court may remand the matter to the trial court to decide the ownership after hearing all parties.
On this section: Cited to establish the powers of appellate courts in appeals filed by accused persons or the Public Prosecutor. The court distinguished between Section 386 appeals (by accused or Public Prosecutor) and Section 454 appeals (by other aggrieved persons), holding that Section 386 does not restrict the power of appellate courts under Section 454.
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Dalpat Bhai vs State& ANR.
Court's Decision & Legal Precedent
The power of an appellate court under Section 454(2) of the Criminal Procedure Code to 'modify, alter or annul the order and make any further orders that may be just' includes the inherent power to remand a case to the trial court for fresh adjudication, even though the word 'remand' is not explicitly mentioned in Section 454. This power applies to appeals filed by any person aggrieved by an order under Section 452 or 453 Cr.P.C., and is not restricted by Section 386 Cr.P.C., which applies only to appeals by the Public Prosecutor or accused persons. When there are rival claims to seized property, the appellate court may remand the matter to the trial court to properly adjudicate the competing claims after hearing all interested parties.
On this section: Cited to establish the limited powers of appellate courts in appeals by accused persons - power to 'alter or reverse' orders. Court held this section does not apply to appeals under Section 454.
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Dinesh Prasad vs Nitesh Kumar Sharma
Court's Decision & Legal Precedent
When a complaint under Section 138 of the Negotiable Instruments Act is filed during a period when the Supreme Court has extended the limitation period through a Suo Motu order (as was done during the COVID-19 pandemic from March 15, 2020 to February 28, 2022), the trial court must take judicial notice of such extension order and cannot hold the complaint to be barred by limitation if it was filed within the extended period. The trial court's failure to consider such a binding Supreme Court order and acquitting the accused solely on the ground of limitation, without examining the merits of the case, constitutes an error of law that warrants interference by the appellate court.
On this section: Power to remand case - the appellate court used this provision to remand the case to the trial court for fresh consideration and judgment
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… - 12) We may point out at this stage that the accused persons had opposed the prayer of the complainant in the said writ petition inter alia on the ground that such writ petition was not maintainable and the Court could not order retrial before the judgment is pronounced by the trial court. It was argued that Section 386 of the Code of Criminal Procedure, 1973 (Cr.P.C.) confers powers on the appellate court to order retrial and, therefore, it was necessary to await the judgment of the trial court and if the circumstances warranted, depending upon the outcome of the trial court verdict, such a plea could be taken in the appeal only. …
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… - 12) We may point out at this stage that the accused persons had opposed the prayer of the complainant in the said writ petition inter alia on the ground that such writ petition was not maintainable and the Court could not order retrial before the judgment is pronounced by the trial court. It was argued that Section 386 of the Code of Criminal Procedure, 1973 (Cr.P.C.) confers powers on the appellate court to order retrial and, therefore, it was necessary to await the judgment of the trial court and if the circumstances warranted, depending upon the outcome of the trial court verdict, such a plea could be taken in the appeal only. …
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… - 12) We may point out at this stage that the accused persons had opposed the prayer of the complainant in the said writ petition inter alia on the ground that such writ petition was not maintainable and the Court could not order retrial before the judgment is pronounced by the trial court. It was argued that Section 386 of the Code of Criminal Procedure, 1973 (Cr.P.C.) confers powers on the appellate court to order retrial and, therefore, it was necessary to await the judgment of the trial court and if the circumstances warranted, depending upon the outcome of the trial court verdict, such a plea could be taken in the appeal only. …
Questions about Section 386
What have the courts held on Section 386 of the Code of Criminal Procedure?
State of M.P. v. Mulli (04 Oct 2005) is the leading judgment on this section among those set out below: Under CrPC 386 an appellate court must peruse the record and the evidence before interfering with a conviction; a cryptic judgment that ignores the testimony is illegal (State of M.P. v. Mulli). Another 8 judgments on this section are set out below, 5 of them from the Supreme Court. They run from 2005 to 2026.
How do I find court cases under Section 386 of the Code of Criminal Procedure?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: CRPC 386, section 386 CRPC, section 386 of the Code of Criminal Procedure. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 9 reported judgments on this section are set out on this page, beginning with State of M.P. v. Mulli (04 Oct 2005).
What should I read with Section 386 of the Code of Criminal Procedure, and has it changed?
Its own text turns on section 377 (Appeal by the State Government against sentence), section 378 (Appeal in case of acquittal), so none of them can safely be read on its own. 1 other provision in this corpus refers back to it. For anything done on or after 1 July 2024 the provision to read is BNSS 427 (Powers of Appellate Court), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 386 of the Code of Criminal Procedure come into force?
Section 386 of the Code of Criminal Procedure, cited as CRPC 386, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.