The proviso to Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — carried forward from the proviso to Section 372 CrPC — gives a victim the right to appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation. What the provision does not say in terms is which court hears that appeal when the acquittal comes from a Magistrate. In a judgment delivered on 22 September 2026, a Bench of Justices J.B. Pardiwala and K. Vinod Chandran has answered the question: the appeal follows the ordinary appellate ladder, and from a Magistrate that ladder leads to the Court of Session.
The case: a father’s appeal filed in the wrong court
The appellant’s child died in a hospital, allegedly by suicide, and the prosecution proceeded against the treating doctor and a nurse for causing death by negligence under Section 304A IPC (now Section 106 of the Bharatiya Nyaya Sanhita, 2023). The Judicial Magistrate acquitted the accused. The father — a “victim” as defined in Section 2(y) BNSS — carried an appeal directly to the High Court under the proviso to Section 413 BNSS. The High Court held the appeal was not maintainable before it, and the matter reached the Supreme Court by special leave.
What the Supreme Court held
The Bench of Justices J.B. Pardiwala and K. Vinod Chandran dismissed the challenge and confirmed the forum rule. The proviso itself supplies the answer: a victim’s appeal “shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” The Court reasoned that the appellate destination is therefore fixed by asking a single question — if this Magistrate had convicted, where would the accused’s appeal go? Under Section 415(3) BNSS (Section 374(3) CrPC), an appeal against a conviction by a Magistrate lies to the Court of Session. The victim’s appeal against an acquittal by that Magistrate must travel the same road.
The Court balanced the forum ruling with fairness on limitation: the appellant was allowed one month to file his appeal before the Sessions Court without being penalised for the time spent litigating in the wrong forum.
The appellate ladder after the ruling
| Acquitting court | Victim’s appeal lies to | Anchor provision |
|---|---|---|
| Judicial Magistrate (First or Second Class) | Court of Session | Proviso to S. 413 read with S. 415(3) BNSS |
| Court of Session / Additional Sessions Judge | High Court | Proviso to S. 413 read with S. 415(2) BNSS |
| High Court (original criminal jurisdiction) | Supreme Court | S. 415(1) BNSS |
Why the forum question matters in practice
Filing a victim’s appeal in the wrong court is not a technicality that can be waved away. An appeal presented to a forum lacking jurisdiction is liable to be returned or dismissed as not maintainable, and the limitation clock keeps running while the error is discovered. The Supreme Court softened the blow in this case by granting a one-month window, but litigants cannot count on that indulgence in every matter. The safer course is to fix the forum before filing, by identifying the court that acquitted and reading across to the conviction-appeal route from that court.
Position under the old and new codes
Section 372 proviso, CrPC 1973
Victim’s right of appeal introduced by the 2009 amendment; the same closing words — “shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court” — generated conflicting High Court views on the forum.
Section 413 proviso, BNSS 2023
Text carried forward unchanged. The Supreme Court’s reading in 2026 INSC 1052 now settles the position for both regimes: from a Magistrate’s acquittal, the victim goes to the Sessions Court.
Points for victims and for the defence
For a victim, the ruling is largely enabling: the Sessions Court is nearer, faster and less expensive than the High Court, and no special leave is required. For an acquitted accused, the ruling supplies a threshold objection — an appeal filed by a victim directly in the High Court against a Magistrate’s acquittal can be met with a maintainability plea at the first hearing. Either way, the forum should now be treated as settled law, and appellate strategy built around the Sessions Court as the first station for Magistrate-level acquittals.
This article is for general information only and is not legal advice. Appellate remedies are time-sensitive and fact-specific; parties should obtain advice on their own matter.
Frequently Asked Questions
Which provision gives a victim the right to appeal?
The proviso to Section 413 BNSS (formerly the proviso to Section 372 CrPC) permits a victim to appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation. The Supreme Court has now confirmed that such an appeal lies to the court to which an appeal against a conviction by the same court would ordinarily lie.
So where does a victim challenge a Magistrate’s acquittal?
Before the Court of Session. Since appeals against convictions recorded by a Magistrate go to the Sessions Court under Section 415 BNSS (Section 374 CrPC), the victim’s appeal against an acquittal by a Magistrate follows the same route. Filing it straight in the High Court is not maintainable.
Does the victim need leave to appeal, like the State does?
No. The requirement of special leave applies to State and complainant appeals against acquittal under Section 419 BNSS (Section 378 CrPC). The victim’s appeal under the proviso to Section 413 BNSS is a distinct statutory right and does not depend on a grant of leave, though it must be filed in the correct forum.
What happened to the appellant in this case?
The Supreme Court upheld the High Court’s view that the appeal did not lie before it, but protected the victim on limitation: he was permitted to file the appeal before the Sessions Court within one month, without the delay being counted against him.