In Shivdhar Upadhyay v. Union of India & Anr., 2026:DHC:7414-DB (decided 2 September 2026), a Division Bench of the High Court of Delhi comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia dismissed a writ petition that questioned the constitutional validity of the proviso to Section 372 of the Code of Criminal Procedure, 1973 — now carried forward as the proviso to Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Bench held that a victim's statutory right to appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation is independent and unconditional, and is not subject to any requirement of leave.
The challenge before the Court
The petitioner, who faced a victim's appeal against his acquittal before the Sessions Court, approached the High Court contending that the proviso appended to Section 372 CrPC — and its successor, the proviso to Section 413 BNSS — violates Articles 14 and 21 of the Constitution. The grievance, in substance, was one of asymmetry: the State, when it appeals an acquittal under Section 378 CrPC, must first obtain leave of the High Court, while a victim appealing under the proviso faces no such filter. The petitioner argued that an acquitted person is thus exposed to appeals without any preliminary judicial screening, and, in the alternative, that the proviso should at least be confined to cases instituted on private complaints.
The Division Bench rejected both limbs. It described the constitutional challenge as "highly misconceived" and the discrimination argument as fallacious, holding that the victim's right of appeal and the State's right of appeal operate on entirely different footings and cannot be tested against one another.
What the Court held
The proviso is constitutionally valid. The challenge under Articles 14 and 21 was dismissed. Parliament consciously conferred on victims a right of appeal without preconditions, recognising the victim's distinct position in the criminal process.
No leave to appeal is required. A victim appealing against an acquittal, a conviction for a lesser offence, or inadequate compensation does not need leave — unlike the State under Section 378 CrPC / Section 419 BNSS.
The proviso is not confined to complaint cases. The alternative prayer to read the proviso down so that it applied only to cases instituted on private complaints was also rejected.
The Bench endorsed the line of Supreme Court authority requiring that the proviso be construed in a manner that is realistic, liberal, progressive and beneficial to the victim, and affirmed the order of the Sessions Judge which had permitted the victim's appeal to proceed without any requirement of leave.
The statutory scheme at a glance
| Provision | Who appeals | Against what | Leave required? |
|---|---|---|---|
| Proviso to S. 372 CrPC / S. 413 BNSS | Victim | Acquittal; conviction for a lesser offence; inadequate compensation | No |
| S. 378(3) CrPC / S. 419 BNSS | State / Central Government | Acquittal | Yes — leave of the High Court |
| S. 378(4) CrPC | Complainant (complaint case, not a victim) | Acquittal | Yes — special leave |
Why the ruling matters in practice
The judgment settles, for the National Capital Territory of Delhi, a question that arises routinely in trial courts: whether a victim's appeal filed under the proviso can be resisted at the threshold on the ground that leave was never sought. After this decision, such an objection is no longer available. The victim — defined in Section 2(wa) CrPC and Section 2(y) BNSS as a person who has suffered loss or injury by reason of the act or omission for which the accused is charged, including the victim's guardian or legal heir — files the appeal as of right.
For an acquitted person, the practical consequence is that the first substantive stage of a victim's appeal is the hearing of the appeal itself, not a leave motion. The defence must therefore be prepared to support the acquittal on merits from the outset. It remains open to the respondent in such an appeal to point out limitation issues, the appellant's status as a "victim" within the statutory definition, and the settled appellate reluctance to interfere with acquittals unless the view taken by the trial court was not a possible view.
The ruling does not enlarge the grounds of appeal. It addresses only the maintainability gateway. The appellate court hearing a victim's appeal against acquittal continues to apply the established standards governing interference with acquittals, including the double presumption of innocence that operates in favour of an acquitted accused.
Positioning under the new criminal codes
Because the BNSS replicates the CrPC scheme on this point, the judgment carries forward seamlessly to FIRs registered on or after 1 July 2024. Appeals in Delhi filed by victims under Section 413 BNSS proceed on the same footing: no leave, same forums, same substantive standards. Practitioners should, however, continue to cite the provision applicable to the case at hand — CrPC for proceedings governed by the old code and BNSS for the new — since Section 531 BNSS preserves pending proceedings under the repealed code.
Frequently Asked Questions
Does a victim need leave of the High Court to appeal an acquittal?
No. Under the proviso to Section 372 CrPC — now the proviso to Section 413 BNSS — a victim has a statutory right to appeal against an acquittal, a conviction for a lesser offence, or inadequate compensation, and the Delhi High Court has confirmed that no leave to appeal is required for such an appeal.
How is the victim's appeal different from a State appeal against acquittal?
The State's appeal against acquittal under Section 378 CrPC (Section 419 BNSS) requires leave of the High Court. The victim's appeal under the proviso to Section 372 CrPC carries no such precondition. The Delhi High Court held that the two operate on different footings and the distinction is constitutionally valid.
Which court hears a victim's appeal against acquittal by a Magistrate?
The proviso directs that the victim's appeal lies to the court to which an appeal ordinarily lies against an order of conviction of that court. An acquittal by a Magistrate is therefore ordinarily appealable by the victim before the Court of Session, and Sessions acquittals before the High Court.
Does the same position continue under the BNSS?
Yes. Section 413 BNSS reproduces the scheme of Section 372 CrPC, including the proviso conferring the victim's right of appeal. The Delhi High Court dealt with both provisions together and upheld the validity of each.