Yes, a sentence can be increased on appeal, but never by an appellate court acting on its own impulse and never behind the convicted person's back. A sentence enhancement appeal has to be brought by someone the statute permits to bring it, ordinarily the State, and the convict must be given a real opportunity to argue against the increase before any order raising it is passed. That machinery is in the news because the State of Goa has approached the Supreme Court asking that the ten year sentence imposed on Tarun Tejpal be raised to imprisonment for life.
Part of the criminal defence practice at S Jain & Attorneys, Bangalore.
The two questions people ask about this are quite different. One is whether the courts got the conviction right. The other, which this article is about, is whether and how the punishment itself can be revisited upward once a court has fixed it.
The short answer, and why it is not obvious
Indian criminal procedure treats an appeal as a creature of statute. There is no general right to appeal against anything; you appeal because a section says you may. That principle decides most enhancement questions. A convicted person has a wide right of appeal against conviction and sentence under Section 374 of the Criminal Procedure Code, now Section 415 of the Bharatiya Nagarik Suraksha Sanhita 2023. The mirror image, an appeal complaining that the punishment was too light, is given to the State alone, in a separate provision, and it is used far less often.
The reason for that asymmetry is protective. A convict who appeals should not be gambling with his liberty every time he asks a court to look at his case. So the Code separates the two directions of travel: reduction can be sought by the convict, increase must be sought by the prosecution, and no court may raise a sentence without first putting the convict on notice.
Who can file a sentence enhancement appeal
The right to ask for a heavier punishment is narrow, and the table below sets out who holds it, under which provision, and where they must go.
| Who appeals | Provision | What they can seek | Forum |
|---|---|---|---|
| The State government (or the Central Government in cases investigated by a central agency) | Section 377 CrPC, now Section 418 BNSS | Enhancement of a sentence said to be inadequate | The High Court against a Sessions Court sentence; the Supreme Court by special leave where the High Court itself passed the sentence |
| The State, against an acquittal | Section 378 CrPC, now Section 419 BNSS | Conviction after acquittal, and the sentence that follows | The High Court, with leave of that court |
| The complainant in a complaint case, against an acquittal | Section 378(4) CrPC, now the corresponding provision of Section 419 BNSS | Special leave to appeal against the acquittal | The High Court |
| The victim | Proviso to Section 372 CrPC, now the proviso to Section 413 BNSS | Appeal against acquittal, against conviction for a lesser offence, or against inadequate compensation. Not enhancement of sentence | The court to which an appeal ordinarily lies from that conviction |
| The convict | Section 374 CrPC, now Section 415 BNSS | Acquittal or reduction of sentence | Sessions Court, High Court or Supreme Court depending on the trial court |
| Anyone bringing the sentence to the High Court's notice | Revisional jurisdiction, Sections 397 and 401 CrPC, carried into the revision chapter of the BNSS | To invite the High Court to examine the legality and adequacy of the sentence; the court may also act on its own motion | The High Court, and the Sessions Court in a limited way |
The victim's row is the one that surprises people, and it comes from a specific Supreme Court decision. In Parvinder Kansal v. State of NCT of Delhi, decided on 28 August 2020 by Justices Ashok Bhushan, R. Subhash Reddy and M. R. Shah, a father whose child had been murdered appealed under the proviso to Section 372 seeking the death penalty in place of life imprisonment. The Court held that the proviso allows a victim to appeal in three situations only: acquittal, conviction for a lesser offence, and inadequate compensation. Since the remedy of appeal is a creature of statute, and the Code gives the enhancement remedy to the State under Section 377, an appeal by a victim on the ground of an inadequate sentence is not maintainable.
That is not the end of the road for a victim, but it changes the route. A victim who believes the punishment is too light can press the prosecution to file the State appeal, can seek to assist the court in the State's appeal, and can bring the matter to the High Court's notice on the revisional side, which the court may take up in exercise of its own powers. What a victim cannot do is file an appeal under the Section 372 proviso asking for more punishment.
Enhancement needs a challenge
An appellate court cannot raise a sentence unless the State appeals under Section 377 CrPC, now Section 418 BNSS, or the High Court takes up the sentence in revision.
Victims cannot ask for more
Parvinder Kansal, decided in 2020, holds the Section 372 proviso permits a victim's appeal against acquittal, a lesser offence or low compensation, not an inadequate sentence.
Appeal is a statutory creature
There is no general right of appeal in criminal law. A party appeals only because a section of the Code permits it, which is why the enhancement route is so narrow.
The convict's protections against a surprise increase
Three safeguards run through the law here, and they are strong ones. First, no enhancement without a proceeding. An appellate court hearing the convict's own appeal against conviction cannot simply decide the sentence was too soft and raise it; the increase must come through the State's appeal or through revisional proceedings started for that purpose.
Second, no enhancement without an opportunity to show cause. Section 386 of the Criminal Procedure Code, carried forward in the BNSS as the provision setting out the powers of the appellate court, expressly bars enhancement unless the accused has had an opportunity of showing cause against it. On the revisional side, the corresponding rule is that the High Court shall not make an order to the prejudice of an accused unless he has had an opportunity of being heard.
Third, and this is a genuinely useful protection, when the State appeals for enhancement the accused is not restricted to defending the existing sentence. Section 377(3) CrPC allows the accused, in the State's enhancement appeal, to plead for his acquittal or for a reduction of the sentence. So an enhancement appeal opens the whole question of sentence, and sometimes the conviction, in both directions.
Key takeaway. Appellate courts do not re-sentence because a heavier punishment was legally available. They interfere where the sentence is illegal, where it ignores a statutory minimum, or where it is so inadequate that it shocks the judicial conscience.
How appellate courts weigh sentencing in sexual offence cases
Sentencing in these cases starts with the statute rather than with discretion. Section 376 of the Indian Penal Code, as it stood after the 2013 amendments, prescribed a minimum term for rape, with higher minimum sentences for the aggravated categories in its sub-sections, and the 2018 amendment raised those minimums further. The corresponding provision today is Section 64 of the Bharatiya Nyaya Sanhita 2023, and the sexual harassment and disrobing offences that were Sections 354A and 354B of the Penal Code now appear in the BNS as well. Which version applies is fixed by the date of the offence, because Article 20(1) of the Constitution forbids a penalty greater than the one that could have been inflicted under the law in force when the offence was committed.
Within the statutory range, courts weigh aggravating factors such as breach of a position of trust or authority, the vulnerability of the complainant, premeditation, use of force or intoxicants, conduct after the offence including attempts to discredit or pressure the complainant, and the effect on the survivor. Mitigating factors typically pleaded are age, health, absence of prior convictions, the passage of time, and family circumstances. Appellate courts have repeatedly said that socio-economic status, professional standing and reputation are not mitigating factors in themselves, and that undue leniency in sexual offence cases damages public confidence in the system.
Reasons matter as much as the number. A sentencing order that gives no reasons for going to the statutory floor, or that treats a serious aggravating circumstance as neutral, is much more vulnerable on appeal than one that sets out the balance it struck. That is why the sentencing hearing, often treated as an afterthought, is worth preparing properly on both sides.
Those inputs sort into groups, and each carries a different weight. The table separates what is fixed by statute, what is argued within the range, and what appellate courts have said does not count.
| Group | What it covers | How it bears on the sentence |
|---|---|---|
| Fixed by statute | The minimum term for rape prescribed by Section 376 of the Indian Penal Code as it stood after the 2013 amendments, with higher minimums for the aggravated categories in its sub-sections and a further increase in 2018; the corresponding provision today is Section 64 of the Bharatiya Nyaya Sanhita 2023 | Sets the floor before any discretion is exercised. Which version applies is fixed by the date of the offence, because Article 20(1) of the Constitution forbids a penalty greater than the one available under the law in force then |
| Aggravating factors | Breach of a position of trust or authority, vulnerability of the complainant, premeditation, use of force or intoxicants, conduct after the offence including attempts to discredit or pressure the complainant, and the effect on the survivor | Weighed within the statutory range. An order that treats a serious aggravating circumstance as neutral is more vulnerable on appeal |
| Mitigating factors typically pleaded | Age, health, absence of prior convictions, the passage of time, and family circumstances | Argued by the defence and weighed within the same range |
| Not mitigating in themselves | Socio-economic status, professional standing and reputation | Appellate courts have repeatedly said these do not mitigate, and that undue leniency in sexual offence cases damages public confidence in the system |
| Reasons | The balance the court struck, recorded in the sentencing order | An order that gives no reasons for going to the statutory floor is harder to defend on appeal than one that sets out that balance |
The Tejpal petition as a live illustration
This site has already covered the earlier stage of this matter, which was the reversal of an acquittal by the High Court, and that discussion is in our post on the Tejpal conviction and appeals against acquittal. In short, a Division Bench of the Bombay High Court at Goa, Justices Neela Gokhale and Amit Jamsandekar, set aside the acquittal on 6 August 2026, convicted under provisions of the Indian Penal Code relating to rape, sexual harassment and assault with intent to disrobe, and imposed ten years of rigorous imprisonment. The complainant is not named here, and reporting that identifies a survivor of a sexual offence is itself an offence.
What is new, on the published report, is that the State of Goa has approached the Supreme Court seeking enhancement of that sentence to imprisonment for life. The report records that the State has clarified that it challenges only the quantum of punishment and does not seek to reopen or question the findings of conviction. It does not disclose the date of filing, whether the petition has been listed, whether notice has been issued, or any interim order. The matter is pending, so nothing here should be read as a comment on how it should be decided.
The procedural point worth extracting is this. The Section 377 route, now Section 418 BNSS, lets a State appeal to the High Court against an inadequate sentence passed by a court below it. Where the sentence was imposed by the High Court itself, as here, that route is not available, and a State that wants the punishment increased has to move the Supreme Court, ordinarily by special leave under Article 136 of the Constitution. The convict's own remedy in this situation is different again: where a High Court reverses an acquittal and sentences a person to ten years or more, the Code gives a direct right of appeal to the Supreme Court under Section 379 CrPC, now Section 420 BNSS.
Common mistake. A victim filing an appeal under the proviso to Section 372 CrPC, now Section 413 BNSS, asking for a longer sentence. On the authority of Parvinder Kansal it is dismissed as not maintainable, and the limitation period for the correct remedy may have run out in the meantime.
The procedural realities on both sides
The law on enhancement is short. The practice around it is where cases are actually won and lost.
- Identify who holds the right. Before anything is drafted, fix whether the challenge belongs to the State, to the complainant in a complaint case, to the victim within the three permitted grounds, or to nobody, in which case the only route is inviting the High Court to act in revision.
- Apply for the certified copy on the day of judgment. Limitation runs whether or not you have the copy in hand, and the time taken to obtain it is excluded only if the application was made promptly.
- Compute limitation from the correct date. Criminal appeal periods are short, generally sixty days to a High Court, and a special leave petition to the Supreme Court is ordinarily filed within about ninety days of the judgment. Anything beyond that needs a separate, properly supported application for condonation of delay.
- Obtain leave where the statute requires it. A State appeal against acquittal under Section 378 CrPC, now Section 419 BNSS, needs the leave of the High Court. An enhancement appeal under Section 377 does not carry that requirement, but a special leave petition to the Supreme Court has its own leave stage.
- Frame the grounds as sentencing error. An enhancement appeal is not a second trial. The grounds that work are a sentence below a statutory minimum, a failure to consider a mandatory aggravating circumstance, reliance on an irrelevant mitigating factor, or an absence of reasons.
- Deal with custody and bail expressly. A convict released on bail or on suspension of sentence during his own appeal does not automatically go back into custody because the State has filed for enhancement. Any change to that position needs a separate application and an order.
- Prepare the show cause response on sentence. For the defence, the notice on enhancement is the moment to place the full mitigation record, including conduct in custody and any compensation deposited, and to remember the statutory right to argue for reduction or acquittal in the same appeal.
In practice, in the sessions courts and the High Court here in Bangalore, the most common reason a State enhancement appeal struggles has nothing to do with the merits. It is delay, followed by a thin condonation application that says little more than that the file moved between offices. The second most common reason is that the appeal reads like a fresh argument on guilt rather than a focused attack on the sentencing reasoning, which invites the court to say that the findings are not under challenge and the sentence was within the range available to the trial judge.
Deadline warning. Limitation for a criminal appeal is measured in weeks, not years. If you are a complainant or a survivor hoping the State will appeal, write to the public prosecutor immediately after the judgment rather than waiting to see what happens, because by the time the delay is noticed the appeal itself may need a condonation application to survive.
What this means for complainants and for the defence
For a survivor or a complainant, the practical lesson is that influence over the sentence has to be exercised early: at the sentencing hearing itself, through a victim impact statement where the court permits one, and through the prosecutor. Compensation is a separate track from punishment, and it is often the one that actually delivers something, which is why our guide on claiming under the victim compensation scheme is worth reading alongside this. For an accused person, the lesson runs the other way: the outcome at each stage carries different consequences, and the distinction explained in our post on discharge and acquittal matters for exactly that reason.
Bail through this period is its own subject, since a convict may be on bail during his appeal, in custody after conviction, or seeking suspension of sentence, and the applicable tests differ. Our explainer on the types of bail in India covers those categories. Anyone facing or bringing an appeal of this kind should take advice specific to the record, and our criminal defence and prosecution practice page describes the stages where that advice usually matters most.
The points below restate what most often decides an enhancement challenge.
Quantum only
The State of Goa is reported to have told the Supreme Court that it challenges only the quantum of punishment and does not seek to reopen the findings of conviction.
The convict must be heard
Section 386 CrPC bars enhancement unless the accused has had an opportunity of showing cause against it, and the revisional court cannot act to his prejudice unheard.
Both directions open
Section 377(3) CrPC lets the accused, in the State's enhancement appeal, plead for acquittal or for a reduction, so the appeal opens the sentence both ways.
Delay is the usual killer
State enhancement appeals filed late need condonation, and a thin explanation for the gap is a real and frequent ground for refusal.
Frequently Asked Questions
Can a High Court increase my sentence when I appeal against my conviction?
Not in your own appeal, and not without notice. An increase requires either a State appeal for enhancement under Section 377 CrPC, now Section 418 BNSS, or revisional proceedings, and in both cases you must first be given an opportunity to show cause against enhancement.
Can a victim appeal asking for a longer sentence?
No. The Supreme Court held in Parvinder Kansal v. State of NCT of Delhi in 2020 that the proviso to Section 372 CrPC permits a victim's appeal only against acquittal, conviction for a lesser offence, or inadequate compensation, and not against an inadequate sentence.
Then what can a victim do about a sentence that seems too light?
Press the public prosecutor and the State to file the enhancement appeal, seek to assist the court in that appeal, and bring the sentence to the High Court's notice on the revisional side, which the court may take up in exercise of its own powers.
Does the State need permission to file an enhancement appeal?
An appeal against an inadequate sentence under Section 377 does not carry the leave requirement that applies to a State appeal against acquittal under Section 378, now Section 419 BNSS. A petition to the Supreme Court, however, has its own special leave stage.
Will the convict be arrested as soon as the State files for enhancement?
No. The filing of an appeal does not by itself change the convict's custody status. If he is on bail or his sentence is suspended, any change requires a separate application and a judicial order.
Can the sentence be reduced in the State's own enhancement appeal?
Yes. Section 377(3) CrPC allows the accused in such an appeal to plead for acquittal or for a reduction of sentence, so the court is not confined to choosing between the existing sentence and a higher one.
What standard does an appellate court apply before increasing a sentence?
Courts interfere where the sentence is illegal, falls below a statutory minimum, rests on irrelevant considerations, gives no reasons, or is so inadequate that it shocks the conscience. Mere disagreement with a sentence within the permissible range is not enough.
Do the new criminal laws change the enhancement provisions?
The structure carried over. The victim's appeal proviso in Section 372 CrPC is now in Section 413 BNSS, the State's enhancement appeal in Section 377 is now Section 418, the appeal against acquittal in Section 378 is now Section 419, and the direct appeal to the Supreme Court in Section 379 is now Section 420.
Which law applies to sentencing for an offence committed before the BNS came into force?
The law in force on the date of the offence. Article 20(1) of the Constitution prevents a person from being subjected to a penalty greater than the one that could have been imposed under the law applicable when the offence was committed.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
