Appeals Against Acquittal Under the BNSS: Leave to Appeal, Limitation and the Jurisdictional Divide Between The High Court And The Court of Session.

INTRODUCTION:

The law on appeals against acquittal has received a fresh focus with the passage of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”). The substantive framework as inherited from the Code of Criminal Procedure, 1973 (“CrPC”) continues to remain substantially intact, yet significant questions continue to emerge with respect to the requirement of leave to appeal, the applicable period of limitation and most importantly the appropriate appellate forum.

The appeal against acquittal in complaint cases was traditionally associated with the jurisdiction of the High Court under Section 378 CrPC now replaced by Section 419 BNSS. But recent judicial developments have brought into focus the independent right of a victim to challenge an acquittal and raise an important jurisdictional question: whether in appropriate cases, an appeal against acquittal may be maintained before the Court of Session rather than the High Court.

The issue has acquired practical importance following the recognition of victim-centric appellate remedies and the corresponding provisions contained in Section 413 BNSS. The operation of ss 413 and 419 BNSS has created a unique procedural landscape in which the forum of appeal, the requirement for leave and the applicable limitation period all depend on the capacity in which the appellant is seeking to approach the court.

The article discusses the statutory evolution from Section 417 of Code of Criminal Procedure, 1898 to Section 378 CrPC and finally Section 419 BNSS. It also considers the continuous application of Article 114 of the Limitation Act, 1963 and Section 8 of the General Clauses Act, 1897. while examining the emerging jurisprudence concerning victim appeals and the circumstances in which an appeal against acquittal may properly lie before the Court of Session.

Whether Leave to Appeal Continues Under the BNSS

The answer is definitely in the affirmative.

Section 378(3) of the CrPC provided that no appeal against an order of acquittal by the State or the Central Government in the High Court could be entertained without leave of the High Court. Section 419(3) of the BNSS repeats the same requirement and thereby preserves the legislative policy that an acquittal should not be lightly disturbed.

Likewise, Section 378(4) CrPC required a complainant in a complaint case to seek special leave before filing an appeal against acquittal before the High Court. The corresponding provision in the BNSS is s 419(4). Hence, in respect of appeals under Section 419, the condition of leave or special leave remains in force and continues to operate in substantially the same manner. as under the CrPC.

The enactment of the BNSS has therefore not diluted the safeguards traditionally associated with appellate interference against acquittal. The presumption of innocence, which stands reinforced after an acquittal, continues to justify the requirement that the High Court first grant leave before the appeal is entertained.

Limitation Governing Appeals Against Acquittal

The question of limitation requires a distinction between appeals by complainants and appeals by the State.

In complaint cases, limitation is expressly prescribed by Section 419(5) BNSS. The provision provides for a period of six months where the complainant is a public servant and sixty days in all other cases, counted from the date of the order of acquittal. This provision is a large copy of the position which was there under Section 378(5) CrPC. The more interesting problem is with appeals from State. No particular period of limitation has been prescribed under Section 378 CrPC or Section 419 BNSS for filing of appeals by the State Government or the Central Government. Such limitation has historically been governed by Article 114 of the Limitation Act, 1963.

Article 114 still mentions appeals against acquittal under section 417 of the code of criminal procedure 1898. The survival of a reference to a repealed enactment might appear anomalous at first sight. But the position is settled by Section 8 of the General Clauses Act of 1897. The provision provides that, where an enactment is repealed and re-enacted, any reference to the repealed provision in any other enactment must, in general, be read as a reference to the re-enacted provision.

The reference in Article 114 to Section 417 of the Code of Criminal Procedure, 1898, should be treated as a reference to its statutory successors, namely, Section 378 CrPC and now Section 419 BNSS. The limitation regime contained in Article 114 therefore continues to operate notwithstanding the enactment of the BNSS. The period of limitation for a State appeal against acquittal accordingly remains ninety days.

The Traditional Position: Appeal Before the High Court

For decades it was the accepted legal position that an order of acquittal passed in a complaint case including a prosecution under Section 138 NI Act is challengeable under Section 378(4) CrPC and after the coming into force of BNSS under Section 419(4) BNSS. Under the framework the complainant had to approach the High Court and seek special leave and then prosecute the appeal. The complainant was treated only as a complainant and not as a victim of the offence. In the past appeals against acquittal in proceedings for cheque dishonour were filed in the High Court.

The Emergence of the Victim’s Independent Right of Appeal

A significant change in the legal landscape was introduced with the establishment of the victim’s right of appeal under the proviso to Section 372 of the Code of Criminal Procedure (CrPC). The corresponding provision under the Bangladeshi Code of Criminal Procedure (BNSS) is Section 413. These provisions grant the victim of a criminal offence the right to appeal against the acquittal of the accused, the conviction for a lesser offence, or the grant of inadequate compensation for the victim.The main question to be answered was whether the complainant under Section 138 of the Negotiable Instruments Act (NI Act) could be regarded as a victim for the purpose of invoking this independent right of appeal.

The Supreme Court answered this question in the affirmative in the case of Celestium Financial v. A. Gnanasekaran. The Court stated that the complainant in a case under Section 138 of the NI Act has suffered direct economic loss as a result of the dishonoured cheque, and therefore falls within the statutory definition of a victim. As a result, the complainant is entitled to invoke the victim’s right of appeal under the proviso to Section 372 CrPC.

The Appellate Forum Debate: High Court or Court of Session?

The most significant consequence of the decision in Celestium Financial lies in the determination of the appropriate appellate forum.

The Supreme Court reiterated that a victim’s appeal lies before the court to which an appeal against conviction would ordinarily lie. Since a conviction recorded by a Magistrate is ordinarily appealable before the Court of Session, an appeal against acquittal preferred by a victim arising from a Magistrate’s judgment must also lie before the Court of Session.

This reasoning marks a departure from the traditional route contemplated under Section 378(4) CrPC and Section 419(4) BNSS. Once the complainant is recognised as a victim and elects to proceed under the victim’s appellate remedy contained in Section 413 BNSS, the appeal is maintainable before the Court of Session rather than the High Court.

Equally important is the consequence that the requirement of special leave, which attaches to an appeal under Section 419(4) BNSS, does not arise in the case of a victim’s appeal under Section 413 BNSS.

Conclusion

The BNSS has preserved the traditional statutory framework governing appeals against acquittal through Section 419, which corresponds to Section 378 CrPC and Section 417 of the Code of Criminal Procedure, 1898. Consequently, the requirement of leave or special leave continues wherever an appeal is preferred under Section 419. Likewise, limitation continues to be governed partly by Section 419(5) BNSS and partly by Article 114 of the Limitation Act, whose applicability survives by virtue of Section 8 of the General Clauses Act, 1897.

The more significant development, however, concerns the appellate forum itself. Modern victim-right jurisprudence has demonstrated that an appeal against acquittal need not invariably travel through the route contemplated by Section 419 BNSS. Where the appellant qualifies as a victim and invokes the independent right of appeal preserved in Section 413 BNSS, the appeal lies before the court to which an appeal against conviction would ordinarily lie. In cases originating before a Magistrate, this may result in the Court of Session exercising appellate jurisdiction over an acquittal that would traditionally have been challenged before the High Court.

The emerging jurisprudence therefore does not merely alter the forum of appeal; it reshapes the relationship between Sections 413 and 419 BNSS and requires a reconsideration of long-standing assumptions concerning leave to appeal, limitation and appellate hierarchy. The future development of criminal appellate practice under the BNSS is likely to turn upon this distinction

Bibliography

Statutes

1. The Bharatiya Nagarik Suraksha Sanhita, 2023
   • Section 2(1)(y)
   • Section 413
   • Section 419
2. The Code of Criminal Procedure, 1973
   • Section 2(wa)
   • Section 372 (Proviso)
   • Section 378
3. The Code of Criminal Procedure, 1898
   • Section 417
4. The Limitation Act, 1963
   • Article 114
5. The General Clauses Act, 1897
   • Section 8
6. The Negotiable Instruments Act, 1881
   • Section 138

Cases

1. Celestium Financial v. A. Gnanasekaran, MANU/SC/0823/2025.
2. Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors., (2019) 2 SCC 752.
3. Joseph Stephen & Ors. v. Santhanasamy & Ors., (2022) 13 SCC 115.

Secondary Sources

1. The Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973.
2. Committee on Reforms of Criminal Justice System (Justice V.S. Malimath Committee Report), Government of India, 2003.
3. Statement of Objects and Reasons, Bharatiya Nagarik Suraksha Sanhita, 2023.

BY Pradhuman Singh Sikarwar 4th year B.COM LL.B (hons.)
Institute of law, Nirma University