A victim’s appeal against an order of acquittal passed by a Magistrate lies to the Court of Session, and not to the High Court, the Supreme Court held, clarifying the effect of the proviso to Section 413 of the Bharatiya Nagarik Suraksha Sanhita on a victim’s right of appeal.
New Delhi: The Supreme Court has held that where a victim seeks to appeal against an order of acquittal passed by a Judicial Magistrate, the appeal lies to the Court of Session, to which an appeal against a conviction by that Magistrate would ordinarily lie, and not to the High Court, clarifying the operation of the proviso to Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) [Subhas Chandra Sarkar v. State of West Bengal and Others].
A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran dismissed the special leave petition and upheld a Calcutta High Court order that had rejected the appellant’s appeal as not maintainable before the High Court, while leaving him liberty to appeal to the Sessions Court.
The case
The petitioner, who appeared in person and was assisted by an amicus curiae appointed by the Court, is the father of a man who died in a hospital. Following the registration of an FIR alleging an offence under Section 304A read with Section 34 of the Indian Penal Code, a bailable offence, the Judicial Magistrate acquitted the accused. The petitioner, attributing the death to alleged negligence, sought to appeal that acquittal, and the question that reached the Supreme Court was the narrow one of the forum: whether the High Court had rightly held that the appeal lay before the Sessions Court rather than before itself. (LawChakra is not setting out the circumstances of the death; the underlying allegations were not gone into.)
The petitioner first argued that, once his matter had been admitted by a Single Judge of the High Court, a coordinate Bench could not later reject it on the ground of maintainability, relying on the Court’s decision in Rajan Chadha v. Sanjay Arora. The Supreme Court rejected that contention, holding that the cited decision did not support the proposition. It was, the Court held, “perfectly in order” for another Single Judge, at the stage of final hearing, to find on the basis of the statutory provisions that the appeal was not maintainable before the High Court, notwithstanding that the matter had earlier been admitted.
The appeal-forum scheme under the BNSS
Turning to the substantive question, the Court analysed the appeal provisions of the BNSS. It noted that Section 378(2), the analogue of the corresponding CrPC provision, deals with appeals against acquittal where the investigation was conducted by the Delhi Special Police Establishment or another agency empowered under a Central Act, requiring the Central Government’s sanction; neither was involved in the present case. Section 419 of the BNSS, in turn, provides for an appeal against an acquittal to the Court of Session, with the sanction of the District Magistrate, only from an acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence, while in other cases an appeal against acquittal lies to the High Court with the State Government’s sanction. The Court noted that this represented a “slight deviation” in the BNSS from the CrPC, in that a State’s appeal against an acquittal in a bailable offence would lie only before the High Court.
The decisive provision, however, was the proviso to Section 413 of the BNSS, which governs a victim’s right of appeal. Section 413 is couched in the negative, prohibiting any appeal from a judgment or order of a Criminal Court except as provided by the Sanhita, but its proviso carves out a specific right for victims. The Court set out the proviso:
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”
Why the appeal lies to the Sessions Court
The proviso, the Court held, confers on a victim a right to appeal against any order of acquittal, conviction for a lesser offence, or inadequate compensation, and directs that such an appeal “shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” Section 419, which provides for appeals against acquittal generally, would therefore not apply where the victim’s proviso is invoked. To locate the correct forum, the Court held, one must ask where an appeal against a conviction by that court would lie.
On that inquiry, the Court turned to Section 415(3) of the BNSS, which provides that a person convicted on a trial held by a Magistrate of the first or second class may appeal to the Court of Session. It followed, the Court held, that since a conviction by a Magistrate is appealable to the Sessions Court, a victim’s appeal against an acquittal passed by a Magistrate must, under the proviso to Section 413, likewise be filed before the Sessions Court, and not the High Court. The Court accordingly found the High Court’s order to be “perfectly in order” and upheld it.
Liberty granted, no view on merits
Dismissing the special leave petition, the Court granted the petitioner liberty to approach the jurisdictional Sessions Court, and directed that if an appeal is filed within one month from the date of its order, it shall be admitted and heard on merits without the delay being counted against him, the delay having been occasioned only by a bona fide proceeding. The Court expressly clarified that it had made no observation on the merits of the matter or on the order of acquittal passed by the Magistrate, and that the appeal shall be dealt with in accordance with law.
Why the judgment matters
The judgment settles a question of practical importance under the new criminal procedure code: the forum for a victim’s appeal against an acquittal. The BNSS, like the CrPC before it, recognises a victim’s right of appeal, an important reform that allows a victim to challenge an acquittal, a conviction for a lesser offence, or an inadequate compensation order, independently of the State. But the proviso to Section 413 ties the forum for that appeal not to the general acquittal-appeal provision (Section 419), but to wherever an appeal against a conviction by the same court would lie. The Court’s clarification, that a victim’s appeal from a Magistrate’s acquittal therefore goes to the Sessions Court, prevents such appeals from being misdirected to the High Court and gives litigants and courts a clear rule to apply.
The decision also offers two useful subsidiary clarifications: that a Single Judge, at final hearing, may dismiss a matter as not maintainable even after it was admitted by a coordinate Bench, admission not being a bar to a later maintainability finding grounded in statute; and that the BNSS’s appeal-against-acquittal scheme differs subtly from the CrPC, including on where a State’s appeal in a bailable-offence acquittal lies. By protecting the petitioner’s ability to pursue his remedy in the correct forum within a month, and expressly reserving the merits, the Court ensured that the procedural correction did not extinguish the victim’s substantive right of appeal.
Case Title: Subhas Chandra Sarkar v. State of West Bengal and Others [SLP (Crl.) No. 3418 of 2026]
Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran
Citation: 2026 INSC 1052
Date of Order: September 22, 2026
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