Victim Cannot File Second Appeal Against Order Affirming Acquittal By Seeking Special Leave From HC U/S 419(4) BNSS: Kerala High Court

Relying on the Supreme Court's observations in Asian Paints Limited v. Ram Babu and Another, Justice Bechu Kurian Thomas remarked:

“It is evident from the above observations itself that once the appellate remedy is invoked by the victim, the same party cannot prefer another appeal as in the form of a second appeal. Hence, after filing an appeal under section 413 of the BNSS (or under the corresponding proviso of the Cr.P.C) before the Sessions Court, another appeal cannot be preferred by the same appellant under section 419(4) of the BNSS, against the order confirming the acquittal.”

The Court was considering a challenge to the defect noted by the Registry when a victim in a criminal case preferred a leave petition to appeal against the concurrent findings of acquittal by the trial court and the Sessions Court.

The Registry noted that a second criminal appeal by the same appellant is not maintainable and this was questioned by the victim/petitioner.

The petitioner had alleged that the accused had committed the offences under sections 420 and 415 r/w section 34 of IPC, sections 17 and 18 of the Kerala Money Lenders Act, 1958 and section 4 r/w section 76(1) of the Chit Funds Act, 1982.

The trial court acquitted the accused and the victim filed an appeal before the Sessions Court, which dismissed the same. At this juncture, the victim had sought to file a second appeal.

The petitioner's counsel contended that Section 413 BNSS permits the victim to prefer an appeal against acquittal and this is not limited to the order of acquittal by the court of first instance alone.

The amicus curiae referred to sections 413, 415, 419 and 434 of the BNSS to submit that a second appeal can be entertained at the instance of the same person. She also relied on the Apex Court decision in Asian Paints Limited v. Ram Babu and Another and submitted that right to appeal accrues the moment an accused is acquitted, which can be appealed against by the victim before the court that ordinarily entertains an appeal.

Reliance was placed on Mallikarjun Kodagali (dead) represented through legal representatives v. State of Karnataka and Others to submit that section 413 is the provision that grants the statutory right of appeal while section 419 is with respect to the grant of leave by High Courts.

The Court rejected the contention that that the victim has a right to appeal against every order of acquittal and orders affirming acquittal.

Clarifying the position, it observed that as per the proviso to Section 413, the victim has the right to prefer 'an appeal' and not 'appeals'. This right cannot be extended to an order affirming an earlier acquittal of the accused, it added.

The Court then clarified that this was not the case with respect to the appellate jurisdiction of the Supreme Court under Articles 132, 134 or even the Special Leave Petition under Article 136 of the Constitution.

The second appeal was found to be not maintainable and the defect noted by the Registry was upheld. The Court then observed that the time spent by the petition is pursuing the leave petition would be excluded from the limitation period.

Case No: Un No.Crl.L.P. (Filing No.366/2025)

Case Title: Gopala Krishnan v. State of Kerala and Ors.

Citation: 2026 LiveLaw (Ker) 15

Counsel for the petitioner: T.P. Pradeep, P.K. Sathees Kumar, R.K. Prasanth, Minikumary M.V., Jijo Joseph

Counsel for the respondents: Sreeja V. - Public Prosecutor

Amicus Curiae: Krishnapriya Sreekumar

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