A retrial ordered in an appeal against conviction is impermissible without a request from the convict, reaffirming that appellate courts cannot enhance sentences absent an appeal from other parties.

JUDGMENT :

Re: CRA 590 of 2016

1. This Court has heard the learned counsel for the State in extensio.

2. Challenging an original order of conviction and sentence dated 9^th March, 1987 passed by the Additional Sessions Judge, 3^rd Court at Midnapore, whereby the appellants were convicted under Sections 148 , 149 and 326 of the IPC and were sentenced to suffer rigorous imprisonment for 2 years with fine of Rs. 5,000/- under Section 148 of the and rigorous imprisonment for 5 years and to pay fine of Rs. 1,000/- for the offence punishable under Sections 326 and 149 ofthe , CRA 102 of 1987 was filed.

3. By the order dated 30^th March, 1987, a Co-ordinate Bench of thisCourt admitted the appeal but issued a suo motu Rule calling upon the appellants to show cause as to why the order of acquittal under Section 302 and 149 of the IPC should not be set aside. Admittedly, there was no appeal from either the State or the de facto complainantagainst such order of acquittal.

4. Pursuant thereto, CRA 102 of 1987 came to be heard before a Single Bench of this Court which made the Rule absolute in judgment and order dated 30^th June, 2016. The Single Bench found that the conviction of the appellants under Sections 326 and 149 of the IPC to be inadequate. The matter was remanded back to the Trial Judge, for hearing from the stage of arguments, to decide as to why the appellants should not be convicted under Section 302 and Section149 of the afresh.

5. Admittedly, in the original FIR and charge sheet, as also in the charges framed by the Trial Judge, the appellants were charged inter alia Section 302 and Section 149 of the IPC .

6. Upon remand, the Trial Judge convicted the appellants under Sections 302 and 149 of the IPC for life imprisonment and fine of Rs 1000. The present appeal CRA 590 of 2016 has been filed by the appellants challenging the fresh sentence imposed upon them under Section 302 of the .

7. As already recorded in the order dated December 18^th, 2025, Mr Sudipto Moitra, learned Senior Counsel, had urged that the order dated 30th March, 1987 was a nullity. The said order was in conflict with and in violation of Section 386 , Cr.P.C. Two decisions of the Hon'ble Supreme Court relied upon by Mr Moitra were referred to in the said order dated 18th December 2025, passed by this Court.

8. The learned counsel for the State, Ms Gaur, submits that the appellants are estopped from raising the infraction of Section 386 today after having participated in the appeal in the proceeding before the Co-ordinate Bench which issued the Suo motu Rule and before the Single Bench at the time of hearing of CRA 102 of 1987and the retrial before the Trial Judge,.

9. This Court has heard the arguments at length advanced by Mr.Sudipto Moitra, learned Senior Counsel for the appellants and Ms.Amita Gaur, learned counsel for the State.

10. The propriety of the order dated 30^th March, 1987 as argued by Mr. Moitra requires serious consideration. The legality and propriety of the said order dated 30th March,1987 has to be appreciated in light of section 386 of the Cr.P.C, which is set out below:-

386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may—

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, o