A is charged and tried for the offence of ‘criminal (dishonest) misappropriation’ and convicted. He files an appeal under Section 386 (b) (ii), Cr.P.C. against the judgment of conviction passed by the trial court. On appeal, the appellate court alters the finding … Is the order passed by the appellate court under Section 386(b) (i) legal?

Question: A is charged and tried for the offence of ‘criminal (dishonest) misappropriation’ and convicted. He files an appeal under Section 386 (b) (ii), Cr.P.C. against the judgment of conviction passed by the trial court. On appeal, the appellate court alters the finding in regard to the offence of 'criminal breach of trust’ and enhances the sentence of imprisonment passed by the trial court. Is the order passed by the appellate court under Section 386(b) (i) legal? Give reasons in support of your answer and refer to the case law, if any, on the point.

Find the answer only on Legal Bites. [A is charged and tried for the offence of ‘criminal (dishonest) misappropriation’ and convicted. He files an appeal under Section 386 (b) (ii), Cr.P.C. against the judgment of conviction passed by the trial court. On appeal, the appellate court alters the finding … Is the order passed by the appellate court under Section 386(b) (i) legal?]

Answer

The appellate court’s task is to determine whether or not the law was applied correctly in the trial court. The appellate courts can either reverse the lower court’s decision or uphold it. Section 386 of CrPC defines the powers of the appellate Courts in dealing with appeals. In exercise of appellate power under section 386, the High Court has full power to reverse an order of acquittal, and if the accused are found guilty, they can be sentenced according to law.

As observed in the case of Kantilal Chandulal Mehta v. State of Maharashtra, 1970 AIR 359, the apex court opined that the Code gives ample powers to the Courts to alter or amend a charge, whether by the trial Court or by the appellate Court, provided that the accused is not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him.

If the appellate court finds the accused guilty, it may reverse the order of acquittal and pass sentence on him according to law. But in such a case as the appellate court is to do what the trial court ought to have done, it should not impose a punishment higher than the maximum that could have been imposed by the trial court. An appellate court is, after all, “a court of error, ” a court established for correcting an error. [Jagat Bahadur v. State of M.P., AIR 1966 SC 945]

It was also held in In re Tirumal Raju (A.I.R. 1947 Mad. 868.) it has been held that an appellate court is not competent to impose a punishment higher than the maximum that could have been imposed by the trial court. It seems to us that these cases lay down the correct law. An appeal court is, after all, “a court of error, ” a court established for correcting an error.

It has also been expressly provided by the second proviso to Section 386 that the appellate court shall not inflict greater punishment for the offence, which in its opinion, the accused has committed than might have been inflicted for that offence by the court passing the order or sentence under appeal.

Therefore, both on principle and authority it is clear that the power of the appellate court to pass sentence must be measured by the power of the court from whose judgment an appeal has been brought before it. The High Court was thus in error in sentencing the appellant to undergo imprisonment in respect of the offence of 'criminal breach of trust’ with enhanced punishment. The order passed by the High Court is not sustainable in law.

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