State when the Appellate Court may take further evidence or direct to be taken?

Question: State when the Appellate Court may take further evidence or direct to be taken?

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Answer

Section 391 of CrPC contemplates a further inquiry by taking additional evidence when the conviction by the lower Court has been based upon some evidence that might legally support it but which in the opinion of the appellate Court is not quite satisfactory.

The sub-section (1) clearly states that in dealing with an appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

Further, sub-section (2) provides that when the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

The accused or his pleader shall have the right to be present when the additional evidence is taken, and the taking of evidence under this section shall be subject to the provisions of Chapter XXIII as if it were an inquiry.

The object of this section was discussed in the case of Dulla v. Emperor(1926) 7 Lah 148 that the intention of the Legislature in enacting this section is to empower the appellate Court to see that justice is done between the prosecutor and the person prosecuted, and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct finding, it would be justified in taking action under this section.

In a case before the Supreme Court in Rambhau v. State of Maharashtra, AIR 2001 SC 2120, it was observed that there is a very wide discretion in obtaining additional evidence in terms of section 391 of CrPC. But this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused.

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