Section 426 of BNSS, 2023 — Procedure for Hearing Appeals Not Dismissed Summarily

Introduction

Section 426 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure for hearing an appeal that has not been dismissed summarily under Section 425. Once the appellate court decides that an appeal should proceed beyond the preliminary stage, the section provides for notice to the concerned parties and gives them an opportunity to be heard.

The provision ensures that an appeal receives a proper hearing before it is finally decided.

Meaning of Procedure for Hearing Appeals Not Dismissed Summarily

An appeal not dismissed summarily is an appeal that proceeds for regular appellate consideration after the preliminary stage.

Section 426 regulates the next stage of the appellate process. The appellate court gives notice of the time and place at which the appeal will be heard and provides an opportunity to the relevant parties to appear and be heard.

Statutory Basis

The statutory basis is Section 426 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The provision applies where an appeal presented under the BNSS has not been dismissed summarily under Section 425.

The appellate court must then follow the procedure prescribed for giving notice and hearing the appeal.

Procedure

1. Appeal Is Not Dismissed Summarily

The procedure under Section 426 begins when the appellate court does not dismiss the appeal summarily under Section 425.

The appeal then proceeds for further hearing.

2. Fixing the Time and Place of Hearing

The appellate court fixes the time and place for hearing the appeal.

This ensures that the concerned parties receive notice of when and where the appellate proceedings will take place.

3. Notice to the Parties

Notice of the time and place at which the appeal will be heard is given to the parties specified under the provision.

The persons entitled to receive notice depend upon the nature of the appeal and the circumstances of the case.

4. Notice to the Public Prosecutor

Where required, notice of the appeal hearing is given to the Public Prosecutor.

This enables the prosecution to participate in the appellate proceedings and present its case before the court.

5. Opportunity of Hearing

The appellate court hears the appellant or the appellant’s advocate, where they appear.

The Public Prosecutor is also heard where the prosecution is required to participate in the appeal.

The court may additionally hear the complainant where the law permits or requires such participation.

6. Calling for the Record

The appellate court may call for the record of the case before hearing and deciding the appeal.

However, the record need not be called for where the court considers that it is unnecessary for deciding the appeal.

7. Final Disposal

After following the applicable procedure and hearing the parties, the appellate court proceeds to dispose of the appeal in accordance with the powers and provisions governing appellate decisions under the BNSS.

Notice to the Appellant and Other Persons

The purpose of notice is to ensure that persons entitled to participate in the appeal are informed about the hearing.

Depending on the nature of the appeal, notice may be given to:

• the appellant or the appellant’s advocate;
• the Public Prosecutor;
• the complainant in appropriate cases;
• other persons required to receive notice under the provision.

The precise procedure depends upon the nature and category of the appeal.

Calling for the Record

Section 426 recognises that the appellate court may need the record of the original proceedings to properly consider the appeal.

The court may therefore call for the record of the case.

However, where the court considers that the record is unnecessary for deciding the appeal, it is not required to call for it. This provides procedural flexibility while preserving the appellate court’s power to obtain the material necessary for a proper decision.

Object and Purpose

Section 426 ensures that an appeal proceeding beyond the summary dismissal stage is heard through an orderly procedure.

Its principal purposes are:

• to provide notice of the hearing;
• to give relevant parties an opportunity to participate;
• to ensure representation of the prosecution where required;
• to enable the appellate court to obtain the case record where necessary;
• to facilitate a fair and effective appellate hearing.

Rights of the Parties

Right of the Appellant

The appellant has an opportunity to support the appeal and challenge the judgment or order under appeal.

The appellant may appear personally or through an advocate, subject to the applicable procedure.

Role of the Public Prosecutor

The Public Prosecutor represents the interests of the prosecution in appeals where the prosecution is required to be heard.

The prosecutor may present arguments relevant to the appeal and assist the appellate court in determining the issues arising from the case.

Position of the Complainant

In appeals where notice to the complainant is required or where the complainant is otherwise entitled to participate, the complainant may be heard in accordance with the applicable law and procedure.

Important Distinctions

Summary Dismissal and Regular Hearing

Under Section 425, an appeal may be dismissed at the preliminary stage in accordance with the statutory safeguards.

Section 426 applies when the appeal is not dismissed summarily and proceeds for a regular appellate hearing after notice to the relevant parties.

Hearing an Appeal and Deciding an Appeal

Section 426 primarily regulates the procedure for hearing an appeal.

The powers of the appellate court while finally deciding the appeal are governed by the relevant provisions dealing with disposal and final orders in appeals.

BNSS and CrPC

Section 426 of the BNSS, 2023 substantially corresponds to Section 385 of the Code of Criminal Procedure, 1973.

The basic framework has been retained. Where an appeal is not dismissed summarily, the appellate court gives notice of the hearing, hears the relevant parties and may call for the record where necessary before proceeding to dispose of the appeal.

Constitutional Connection

Section 426 supports the broader requirement of procedural fairness in criminal appeals. Notice and an opportunity of hearing enable the parties to participate in proceedings that may affect criminal liability, conviction, sentence or other legal rights.

The procedure is consistent with the broader principles of fair procedure under Article 21 of the Constitution of India.

Common Confusions

Does every appeal receive a full hearing immediately after filing?

No.

An appeal may first be considered at the preliminary stage under Section 425. Section 426 applies when the appeal is not dismissed summarily.

Must the appellate court always call for the record?

No.

The appellate court may call for the record where necessary. It need not do so if it considers the record unnecessary for deciding the appeal.

Is Section 426 the provision that decides the final result of an appeal?

No.

Section 426 primarily lays down the procedure for hearing an appeal that has not been dismissed summarily. The appellate court’s powers while deciding the appeal are governed by the relevant provisions dealing with disposal of appeals.

Topic at a Glance

• Topic: Procedure for hearing appeals not dismissed summarily
• BNSS Section: 426
• Stage: After the appeal proceeds beyond summary dismissal
• Main Requirement: Notice of the time and place of hearing
• Hearing: Relevant parties are given an opportunity to be heard
• Record: May be called for by the appellate court where necessary
• Purpose: Fair and orderly appellate hearing
• Corresponding CrPC Provision: Section 385

Quick Revision

• Section 426 applies to appeals not dismissed summarily under Section 425.
• The appellate court fixes the time and place for hearing the appeal.
• Notice is given to the persons required under the provision.
• The relevant parties are given an opportunity to be heard.
• The appellate court may call for the record where necessary.
• The provision regulates the hearing procedure rather than the final appellate powers.
• Section 426 substantially corresponds to Section 385 of the CrPC, 1973.

ALSO READ: Section 425 – Summary dismissal of appeal

Conclusion

Section 426 of the BNSS, 2023 provides the procedural framework for hearing appeals that survive the preliminary stage of summary dismissal. Through notice, participation of the relevant parties and the power to obtain the case record where necessary, it ensures that such appeals are considered through a fair and structured appellate process.