S.413 BNSS | Victim Can Appeal Against Acquittal Before Competent Forum Without Leave Of Court: Kerala High Court

Justice A. Badharudeen was considering a woman's appeal under Section 413 BNSS challenging the acquittal of a man who was accused of offences under IPC Sections 354 (Assault or criminal force to woman with intent to outrage her modesty)and 354D (Stalking).

The complainant had moved the appeal directly before the high court against the sessions court's order, without seeking the high court's leave to file the appeal.

The Court examined whether a victim who is the complainant in a private criminal complaint, can file an appeal against acquittal before the High Court without obtaining leave, or whether such an appeal must be filed before the Sessions Court.

It examined proviso to Section 413 BNSS, which is pari materia, to the proviso to Section 372 CrPC.

For context, the proviso confers on a “victim” a right to appeal against an order of acquittal, conviction for a lesser offence, or imposition of inadequate compensation, to the court where an appeal against conviction ordinarily lies.

The Court relied on M/s Celestium Financial v. A. Gnanasekaran [(2025) 4 KHC 189], and reiterated that the expression “victim” includes a complainant who has suffered loss or injury due to the offence, even in cases instituted on private complaints.

"Thus, if a victim, who is a complainant in a complaint case, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim whether he is a complainant or not, files an appeal in terms of proviso to Section 372 of Cr.P.C. or under Section 413 of BNSS, then the mandate of seeking special leave to appeal would not arise," the court said.

The court held that complainants, whose status is of the victims in relation to cases instituted upon private complaints of all stature, have a remedy to file an appeal, in view of the proviso to Section 372 Cr.P.C. as well as under Section 413 BNSS and the same is a statutory remedy, for which leave of the Court is not at all necessary.

It however said that the right must be exercised before the correct appellate forum.

“When the right of appeal, without leave of the Court and with leave of the Court is available to an appellant as complainant, who occupies the status of a victim, the appellant has to exercise the remedy available as of right, without seeking leave of the High Court to file an appeal, since such grant of leave to file an appeal does not arise, as the grievance of the appellant is much efficaciously remedied by right of appeal, provided without obtaining leave….a complainant, who filed a private complaint and his status is as that of 'victim', when suffers judgment of acquittal, his remedy is to file an appeal before the Court, where an appeal would lie ordinarily against the judgment of conviction of such Court,” Court noted.

"In view of the above legal position, a complainant who filed a private complaint and his status is as that of 'victim', when suffers judgment of acquittal, his remedy is to file an appeal before the Court, where an appeal would lie ordinarily against the judgment of conviction of such Court," the court added.

The Court observed that since an appeal against a Magistrate's conviction would ordinarily lie before the Sessions Court, an appeal against acquittal by the same court must also be presented there.

Accordingly, the High Court declined to entertain the appeal on merits and directed that the memorandum of appeal be returned for re-presentation before the competent Sessions Court.

Noting that similar appeals are repeatedly being filed before the High Court despite the settled legal position, the Court directed the Registry not to number such appeals in future and to return them, citing this judgment, so that they may be filed before the appropriate Sessions Court.

Case Title: Soumya Gopal v State of Kerala and Ors.

Case No: CRA(V) 2/ 2026

Citation: 2026 LiveLaw (Ker) 40

Counsel for Appellant: T R Krishnadas, S Abhilash, Rahul R Pai

Counsel for Respondents: Noushad A (Sr. PP)