Supreme Court of India· 20 May 2026

Under Section 386(b)(iii) of the Code of Criminal Procedure, 1973, which bars an appellate court from enhancing a sentence in an appeal filed by the accused, can the appellate court still raise a sentence that was fixed below the statutory minimum prescribed by law?

KARAN CHETTRI & ANOTHER v. STATE OF SIKKIM

2026 INSC 659
Coram: B.V. Nagarathna; Ujjal Bhuyan

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Answer

Yes. Where the trial court's sentence is below the statutory minimum, substituting it with the minimum sentence prescribed by law is not an "enhancement" within the bar under Section 386(b)(iii); it is a suo motu correction of an error apparent on the face of the record, because a sentence contrary to the statutory mandate suffers from a jurisdictional infirmity and the accused acquires no vested right in its continuance.

Headnote

Code of Criminal Procedure, 1973 — s.386(b)(iii), s.401 — Indian Penal Code, 1860 — s.376D — Suo motu correction of an illegal sentence is not "enhancement" — Code of Criminal Procedure, 1973 — s.386(b)(iii) — Correction of an illegal sentence is not "enhancement" — Held: Where a sentence imposed by the trial court is below the statutory minimum, an appellate court's act of substituting it with the minimum sentence prescribed by law is not an "enhancement" within the bar under Section 386(b)(iii). Such a substitution is a suo motu correction of an error apparent on the face of the record, and a sentence contrary to the statutory mandate suffers from a jurisdictional infirmity in which the accused acquires no vested right. (¶22, 23) Code of Criminal Procedure, 1973 — s.401 — Indian Penal Code, 1860 — s.376D — Suo motu revisional correction of a below-minimum sentence — Appeal dismissed — Held further: The High Court's exercise of suo motu revisional jurisdiction under Section 401, bringing a sentence below Section 376D's minimum into line with the statute, was not an enhancement in appellate discretion but a correction of a patent illegality, ex debito justitiae. Accepting the contrary view would elevate a procedural limitation over substantive legality and let a manifestly illegal sentence be perpetuated merely because only the convict, and not the State or the victim, had appealed; the appeals were accordingly dismissed. (¶24, 25, 26)

In the Court's own words

Paragraph 22We also observe that although Section 386(b) CrPC does not empower an appellate court, in an appeal preferred by the accused, to enhance the sentence, where the sentence awarded by the trial court is contrary to the statutory mandate and is below the prescribed minimum punishment, the appellate court’s act of substituting the illegal sentence with the minimum sentence prescribed by law is not an “enhancement” in exercise of powers under Section 386(b). Rather, it amounts to a suo motu correction of an illegality/error apparent on the face of the record to bring the sentence in conformity with the mandatory statutory requirement. Consequently, increasing the sentence from twelve years to twenty years, as in the instance case, where twenty years is the minimum punishment prescribed by the statute, was legally permissible notwithstanding the bar contained in Section 386(b), since the High Court was merely replacing an illegal sentence with a lawful one and not exercising appellate powers of enhancement. The accused has a right to challenge his conviction, but he has no right to insist upon the continuance of an illegal sentence. Thus, the appellate court, by raising the sentence to the statutory minimum, is not making the sentence harsher by choice but is merely giving effect to what the law compulsorily required from the outset.

Paragraph 23The embargo contained in Section 386(b) CrPC against enhancement of sentence in an appeal preferred by the accused assumes that the sentence sought to be interfered with is one lawfully imposed and therefore capable of being protected by the procedural safeguard against aggravation. However, a sentence imposed below the statutory minimum is a departure from that assumption. Such a sentence is not merely inadequate, but it is one rendered in derogation of the legal mandate and to that extent, suffers from a jurisdictional infirmity. The accused can acquire no vested right in the continuance of an order which the law itself does not sanction.

Acts & Sections

s.386(b)(iii), s.401 Code of Criminal Procedure, 1973s.376D Indian Penal Code, 1860s.450 Indian Penal Code, 1860

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Also decided in this judgment

Under Section 401 of the Code of Criminal Procedure, 1973, can the High Court exercise suo motu revisional jurisdiction to correct an illegally low sentence while hearing an appeal filed only by the convict, with no appeal by the State or the victim for enhancement?How did the Court distinguish its earlier ruling in Sachin v. State of Maharashtra, which restrained a High Court from enhancing a sentence suo motu in an appeal filed by the accused, from the facts of this case?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections