An accused acquitted by a Magistrate, and then convicted for the first time by a Sessions Court sitting in appeal, has no right of appeal to the High Court. The only remedy is criminal revision. That is the effect of the judgment delivered by the Supreme Court on 30 July 2026 in Vishnu Kumar Gupta v. State of Madhya Pradesh, a decision that settles a point on which High Courts had not spoken with one voice.
The question that was referred
The point before the Supreme Court was narrow in its statement and wide in its consequence. Where a Magistrate acquits an accused, and the complainant's appeal against that acquittal succeeds before the Sessions Court so that the accused stands convicted for the first time at the appellate stage, is an appeal to the High Court maintainable under Section 374 of the Code of Criminal Procedure, 1973, or its successor provision, Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023?
The Bench of Justice Aravind Kumar and Justice Prasanna B. Varale answered the question in the negative. No such appeal lies. The only statutory remedy is a criminal revision.
How the matter reached the Supreme Court
The appellant's wife had lodged a first information report alleging offences under Sections 498-A and 323 read with Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961. It was registered as a Zero FIR at Indore and thereafter transferred to Bhind, Madhya Pradesh. After trial, the Judicial Magistrate First Class acquitted all three accused persons by judgment dated 20 December 2024.
The complainant filed an appeal against the acquittal before the Seventh Additional Sessions Judge, Bhind. On 27 May 2025 the Sessions Court dismissed the appeal so far as the husband's parents were concerned, but convicted the husband under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, sentencing him to rigorous imprisonment for three years and two years respectively, with fine.
He then filed an appeal before the High Court of Madhya Pradesh at Gwalior. The High Court dismissed it on 11 July 2025 as not maintainable, holding that only a revision would lie because an appeal would amount to a second appeal, which neither the Code nor the Sanhita provides for. That order was carried to the Supreme Court.
What the Supreme Court held
The reasoning proceeds from two settled propositions. The first is that a right of appeal is a creature of statute and cannot be assumed where the legislature has not conferred it. The second concerns the meaning of the word "trial".
Section 374(2) confers a right of appeal on any person "convicted on a trial held by a Sessions Judge or an Additional Sessions Judge". The Court held that the statutory emphasis falls on the nature of the jurisdiction exercised by the court recording the conviction. A Sessions Judge deciding an appeal against acquittal exercises appellate jurisdiction, not trial jurisdiction. The familiar principle that an appeal is a continuation of the original proceedings explains procedural continuity; it does not convert an appellate court into a court that has held the trial. The doctrine of merger, similarly, determines which judgment remains operative after an appeal is decided; it does not alter the source or character of the jurisdiction exercised.
On that basis the Court held that the expression "on a trial held by" refers to the court before which proceedings commenced and culminated in the judgment of conviction and the order of sentence, and cannot be extended to a court exercising appellate jurisdiction. The decision of the High Court of Himachal Pradesh in Arun Sharma, which had taken the contrary view, was held not to lay down the correct law and was overruled.
The remedy that remains
The Court was alive to the practical difficulty that its conclusion creates. An accused convicted for the first time by an appellate court has not had the benefit of any appeal against that conviction, whereas an accused convicted by a trial court and unsuccessful in appeal has had one full re-appreciation of the evidence. The Court addressed this asymmetry in three ways.
Revision under Section 397 read with Section 401 CrPC, corresponding to Sections 438 and 442 BNSS, is the available remedy, and it is a real one.
Section 401(1) permits the High Court, while exercising revisional jurisdiction, to exercise any of the powers conferred on a court of appeal. Where the conviction is a first conviction recorded on reversal of an acquittal, the High Court is expected to act with greater circumspection and scrutiny than in a revision arising from concurrent findings of guilt.
The bar in Section 401(3) prevents the High Court from converting an acquittal into a conviction. It does not restrict the scope of examination. Where a convicted person is the revisionist, the revisional court may examine the entire evidentiary record and, if the conviction is found to be perverse or otherwise unsustainable, may set it aside and acquit.
The Court described this as a calibrated safeguard: the legislative intent of not providing a second appeal is preserved, while the accused is not left remediless. Revisions of this class, it observed, stand on a distinct footing and warrant a more liberal exercise of revisional jurisdiction.
Practical significance
The situation is not unusual. A very large share of matrimonial prosecutions under Section 498-A, of offences under the Dowry Prohibition Act, and of other magistrate-triable cases end in acquittal at trial and are then carried in appeal to the Court of Session by the complainant or the State. Where such an appeal succeeds, the choice of remedy is now settled.
Conviction by the trial court
Appeal lies under Section 374 CrPC / Section 415 BNSS. Full re-appreciation of evidence as of right.
First conviction by the Sessions Court in appeal
No appeal. Revision under Sections 397 and 401 CrPC / Sections 438 and 442 BNSS, to be examined with greater scrutiny.
Two consequences follow for practice. The first concerns limitation and forum. A revision carries a different limitation period from an appeal, and filing the wrong proceeding may cost valuable time. The second concerns the framing of grounds. A revision petition in this class of case should be drafted to invite the searching examination the Supreme Court has said is warranted, setting out with precision where the appellate court's re-appreciation of evidence is said to be perverse or illegal, rather than inviting a general re-hearing.
The appeal before the Supreme Court was dismissed, with liberty to the appellant to file a revision against the Sessions Court's judgment dated 27 May 2025. The Court declined to examine a challenge to Rule 48 of the Madhya Pradesh High Court Rules, 2008, that question being pending before the High Court.
Frequently Asked Questions
Does the accused lose the right to challenge the conviction altogether?
No. The Supreme Court held that the remedy of criminal revision under Sections 397 read with 401 CrPC, corresponding to Sections 438 read with 442 BNSS, remains fully available. What is unavailable is a statutory appeal. The Court also observed that in such revisions the High Court should adopt a more searching and liberal approach than in ordinary revisions.
Why is an appellate Sessions Court treated differently from a trial court?
Section 374 confers a right of appeal on a person "convicted on a trial held by" a Sessions Judge. The Supreme Court read that phrase as pointing to the court which itself conducted the trial. A Sessions Judge hearing an appeal against acquittal exercises appellate and not trial jurisdiction, so the conviction is not one recorded "on a trial held by" that court.
Can the High Court in revision re-examine the evidence?
Yes, to the extent necessary to prevent a miscarriage of justice. The Court held that where a convicted person files a revision, the revisional court may examine the entire evidentiary record to see whether the conviction suffers from patent illegality, perversity or failure of justice, and may set aside the conviction and acquit. The bar in Section 401(3) operates only against converting an acquittal into a conviction.
Does this apply to prosecutions under the BNSS as well?
Yes. The judgment expressly deals with Section 374 CrPC and its corresponding provision, Section 415 BNSS, and with Sections 397 and 401 CrPC and their corresponding provisions, Sections 438 and 442 BNSS. The reasoning applies equally to proceedings governed by the new Sanhita, which has been in force since 1 July 2024.