Section 391 CrPC and Section 432 BNSS: Additional Evidence in Criminal Appeals
Section 391 of the Code of Criminal Procedure, 1973 allowed an appellate court to take further evidence or direct another court to record it. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 432 BNSS, effective from 1 July 2024.
Section 391 CrPC: Appellate Court May Take Further Evidence or Direct It to Be Taken
The following reproduces the four subsections of Section 391 of the Code of Criminal Procedure, 1973:
(1) In dealing with any 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.
(2) 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.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.
Section 391 was part of Chapter XXIX of the CrPC, dealing with appeals. Although the CrPC was repealed by the BNSS, the savings provision in Section 531 BNSS must be considered for proceedings pending immediately before commencement.
Section 432 BNSS, 2023: Current Corresponding Provision
Section 432 of the Bharatiya Nagarik Suraksha Sanhita, 2023 retains the power to take additional evidence during a criminal appeal. Its four subsections provide:
- Section 432(1): Where additional evidence is considered necessary, the appellate court must record reasons. It may take the evidence itself or direct a Magistrate to take it; a High Court may also direct a Court of Session.
- Section 432(2): The Court of Session or Magistrate taking the evidence must certify it to the appellate court, which then proceeds to decide the appeal.
- Section 432(3): The accused or their advocate has the right to be present when the additional evidence is taken.
- Section 432(4): Evidence is taken subject to the provisions of Chapter XXV BNSS, as if it were an inquiry.
The statutory power is discretionary, but recording reasons is mandatory when it is exercised. The provision does not create an unrestricted entitlement for either party to reopen the evidence.
When Can an Appellate Court Take Additional Evidence?
The appellate court may consider further evidence where it is necessary for a just decision of the appeal. Examples may include clarification of a material fact or recording relevant evidence whose absence prevents proper adjudication. Necessity is assessed in the circumstances of the case, rather than merely because a party would prefer to strengthen its case.
How the procedure works
- The appellate court identifies why further evidence is necessary and records reasons in writing.
- It takes the evidence itself or directs the appropriate subordinate court to record it.
- The accused or their advocate is entitled to be present when the evidence is recorded.
- If recorded by the designated subordinate court, the evidence is certified and sent to the appellate court.
- The appellate court considers the further evidence and disposes of the appeal in accordance with law.
Is additional evidence automatic?
No. Section 391 CrPC and Section 432 BNSS use the test of necessity. A request for additional evidence may be rejected where the court does not consider it necessary for deciding the appeal. Procedural fairness and the rights of the accused remain important.
Section 391 CrPC and Section 432 BNSS: Important Differences
| Issue | CrPC Section 391 | BNSS Section 432 |
|---|---|---|
| Subject | Further evidence in appeals | Further evidence in appeals |
| Reasons | Must be recorded | Must be recorded |
| Presence at recording | Accused or pleader | Accused or advocate |
| Procedural chapter | Chapter XXIII CrPC | Chapter XXV BNSS |
| Statutory framework | CrPC, 1973; subject to savings | BNSS, 2023, effective 1 July 2024 |
The essential power is substantially retained, with updated terminology and chapter references.
Frequently Asked Questions
What is the equivalent of Section 391 CrPC in BNSS?
Section 432 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Can the appellate court itself record additional evidence?
Yes. It may record the evidence itself or direct the court specified in the provision to do so.
Does the appellate court have to give reasons?
Yes. Written reasons are required when the court considers further evidence necessary and exercises this power.
Can the accused or advocate attend?
Yes. The statute expressly provides the right of the accused or their pleader under the CrPC, or advocate under the BNSS, to be present.
Does Section 391 CrPC still apply to pending cases?
Section 531 BNSS contains repeal and savings rules for specified proceedings pending immediately before 1 July 2024. The applicable procedural law must be assessed with reference to those rules and the case history.
Official Legislation and Further Reading
- India Code - official central legislation portal (search for the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023).
- Bureau of Police Research and Development - BNSS text and CrPC correspondence table (PDF).
- Ministry of Home Affairs - criminal law notifications and resources.
This article is general legal information. The precise procedural position depends on the applicable statute, transitional provisions and judicial orders.