Appellate Court That Reverses Acquittal Must Sentence the Accused Itself, Supreme Court Holds

A bench of Justices K. V. Viswanathan and Vijay Bishnoi holds that an appellate court reversing an acquittal cannot remit sentencing to the trial court, and remits the matter to the Calcutta High Court to hear the convict on sentence.

The Supreme Court has held that when an appellate court reverses an acquittal and convicts an accused for the first time, it is obligated under Section 386(a) of the Code of Criminal Procedure, 1973 to hear the convict on sentence and impose an appropriate sentence itself. It cannot delegate that function to the trial court. The ruling came in a criminal appeal arising from a conviction recorded by the Calcutta High Court (Circuit Bench at Port Blair) in a rape and abortion case from the Andaman and Nicobar Islands. The High Court had convicted the appellant but then directed him to surrender before the trial judge for sentencing — a procedure the Supreme Court found to be contrary to both the statute and settled precedent. The matter has been remitted to the High Court to complete the sentencing exercise.

How the Case Reached the Supreme Court

Mukesh Kumar Yadav stood trial before the Sessions Judge, Andaman and Nicobar Islands at Port Blair, in Sessions Case No. 32 of 2015. He faced charges under Sections 376, 312 and 417 of the Indian Penal Code, 1860. By a judgment dated 24 April 2024, the Sessions Judge acquitted him of all charges.

Two separate appeals were filed before the Calcutta High Court (Circuit Bench at Port Blair) challenging the acquittal: one by the State in CRA (DB)/4/2024 and one by the victim, Ms. X, in CRA (DB)/6/2024. The High Court, by its judgment dated 23 April 2026, reversed the acquittal and found Yadav guilty of offences punishable under Sections 376 and 312 IPC.

In paragraph 108 of its judgment, the High Court recorded that the victim had been sexually abused on the pretext of a false promise of marriage, and that Yadav had persuaded her to consume pills to terminate her pregnancy while knowing his promise to marry was false. The High Court found that the Sessions Judge had failed to analyse the evidence in its proper perspective, that the acquittal had occasioned a failure of justice, and accordingly set it aside.

Having recorded the conviction, however, the High Court did not proceed to hear Yadav on sentence. Instead, it directed him to surrender before the learned Trial Judge by 22 May 2026, and directed the Trial Judge to take him into custody and pronounce and impose the proper sentence under Sections 376 and 312 IPC after hearing on the point of sentence. The High Court further directed that if Yadav failed to surrender, the Trial Judge should issue a warrant of arrest, and that within seven days of surrender the Trial Judge should pronounce sentence.

Yadav challenged this order before the Supreme Court by way of Special Leave Petitions (Criminal) Nos. 8660–61 of 2026. Leave was granted and the appeals were numbered Criminal Appeal Nos. 2863–2864 of 2026. When the matter first came before the bench on 12 May 2026, the Court noticed what it described as an incongruity in the procedure adopted by the High Court and issued notice to the respondents on the correctness of that procedure.

The Statutory Framework: Sections 235 and 386 CrPC

The Court's analysis began with Chapter XVIII of the Code of Criminal Procedure, 1973, which governs trials before a court of session. Section 235(1) requires a judge, after hearing arguments, to deliver a judgment. Section 235(2) provides that if the accused is convicted, the judge shall, unless proceeding under Section 360, hear the accused on the question of sentence and then pass sentence according to law. The equivalent provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 258.

The Court noted that Section 235(2) is the procedure a trial court follows upon conviction. The rationale for the hearing requirement was explained in Allauddin Mian and Others v. State of Bihar, (1989) 3 SCC 5, where the Supreme Court held that the requirement of hearing was intended to satisfy the rule of natural justice. That judgment observed that since courts are generally required to make a choice from a wide range of discretion in sentencing, it is only fair that the accused is asked if he has anything to say on the issue of sentence. The provision was described as serving a dual purpose: satisfying natural justice and helping the court choose an appropriate sentence.

The Court then turned to Section 386(a) CrPC, which governs the powers of an appellate court in an appeal from an order of acquittal. That provision empowers the appellate court, after finding the accused guilty, to “pass sentence on him according to law.” The Court read this as imposing an obligation, not merely conferring a power.

Precedent on Appellate Sentencing After Reversal of Acquittal

The Court drew on three lines of authority to reach its conclusion.

First, in Dagdu and Others v. State of Maharashtra, (1977) 3 SCC 68, the Supreme Court had addressed what happens when a convicting court sentences an accused without first hearing him on sentence. It held that the higher court, on confirming the conviction, can remedy the breach by giving the accused a hearing on sentence itself. The Court in Dagdu added that this procedure must inevitably occur where the conviction is recorded for the first time by a higher court, and that remand is an exception, not the rule.

Second, in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513, the Supreme Court had directly addressed the situation where a High Court, after convicting an accused in an appeal from acquittal, remitted the matter to the Magistrate for sentencing. The Court held that this course was “unknown to law.” It held that the powers of an appellate court under Section 386(a) CrPC do not contemplate remitting sentencing to the trial court, and that the judicial function of imposing an appropriate sentence can be performed only by the appellate court when it reverses the acquittal. The Court described it as the “bounden duty” of the High Court to impose an appropriate sentence commensurate with the facts.

Third, the Court referred to two instances where the Supreme Court itself, having convicted an accused for the first time, adjourned the matter to hear the accused on sentence before imposing it. In Suryamoorthi and Another v. Govindaswamy and Others, (1989) 3 SCC 24, the Court listed the matter after ten days for hearing on sentence. In Kamalakar Nandram Bhavsar and Others v. State of Maharashtra, (2004) 10 SCC 192, the Court found that the High Court had not heard the accused on sentence when reversing the acquittal, took upon itself to hear the accused on sentence, and then modified the sentences imposed by the High Court after considering individual roles, ages and family circumstances of the accused.

The Court's Holding

Drawing these threads together, the Court stated the applicable rule in clear terms: a court that convicts an accused for the first time must hear the accused on sentence. If it is a trial court, Section 235(2) CrPC applies. If it is an appellate court convicting for the first time after reversing an acquittal, the appellate court itself must hear the convict on sentence. The appellate court cannot relegate the matter to the court below only for the purpose of imposing a sentence after it has recorded a conviction. To do so would be contrary to Section 386(a) CrPC and the judgments of the Supreme Court.

Applying this to the facts, the Court held that the High Court had committed an error in directing the trial judge to pronounce and impose a proper sentence. The relevant portion of paragraph 108 of the High Court's judgment — directing Yadav to surrender before the Trial Judge and directing the Trial Judge to impose sentence — was set aside.

The Court was careful to note that the rest of the High Court's judgment, including the conviction itself, had not been considered at this stage, as it would be premature to do so. The conviction recorded by the High Court therefore stands for the present.

Outcome

The Supreme Court partly allowed the appeals. CRA (DB)/6/2024 and CRA (DB)/4/2024 were restored to the file of the Calcutta High Court. The High Court is directed to fix a date for hearing Yadav on the issue of sentence, and after hearing him, to impose an appropriate sentence in accordance with law. Once sentence is imposed, Yadav will be at liberty to challenge both the conviction and the sentence afresh.

The Court directed that a copy of the judgment be sent to the Registrar General of the Calcutta High Court, who is to place it before the Chief Justice of that Court for appropriate action.

The bench comprised Justice K. V. Viswanathan and Justice Vijay Bishnoi. The appellant was represented by Mr. Rauf Rahim, Senior Counsel. The respondent-victim was represented by Mr. Kunal Chatterji and the respondent-State by Mr. Mukesh Kumar Verma. The judgment was delivered on 26 May 2026.