Legal Provisions of Section 391 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Appellate Court may take further evidence or direct it to be taken:
This section embodies an exception to the general rule that an appeal must be decided on the evidence on record and allows the Appellate Court to take additional evidence, if necessary. The Appellate Court can take additional evidence under this section in any appeal whether it is against conviction or against acquittal. However, the power under this section should be exercised by the Appellate Court sparingly and only in suitable cases.
ADVERTISEMENTS:
The Appellate Court may itself take additional evidence under this section directly or order it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate who shall promptly comply with the order of the Appellate Court. The accused and/or his pleader shall have a right to be present when such additional evidence is being recorded by the Appellate Court.
The section is not intended for filling the laches left in the prosecution case or for allowing the prosecution to indulge in fishing evidence. It is also not meant to make out a case altogether different from the one already on record.
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The provisions of this section do not permit the prosecution to tender additional evidence as of right and the discretion in this regard solely vests in the Appellate Court which has to be exercised judicially in the interest of justice.
ADVERTISEMENTS:
The High Court of Patna has held a view that the power to take additional evidence should be exercised by the Appellate Court when it is otherwise not possible to pronounce the judgment without such evidence.
In the case of A. Hasan Bava v. P. V. Upadhya, the accused had failed to lead evidence on account of his travel to foreign country. He could not plead his inability to lead evidence and also cannot ask for adjournment of proceedings on that ground because he failed to turn up even on subsequent dates when he was available. Therefore, permission to him to lead evidence was rightly rejected.
In an appeal involving gold-smuggling the prosecution prayed for additional evidence of Mint Master to specify the purity of gold. The High Court rejected the prayer as the report of the Mint Master has already been placed on record as evidence. In appeal, the Supreme Court declined to interfere holding that the said report of Mint Master had completely supported the case of the prosecution that the gold was of specified purity.