A plain reading of the Section 391 of the the Code of Criminal Procedure, 1973 would indicate that even at the stage of hearing of an appeal before a High Court, it is possible that additional evidence is permitted to be led. Section 391 Cr.P.C. which reads as under:

391. Appellate Court may take further evidence or direct it to be taken. – (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.”

Additional Evidence – Principles

1. The primary object of Section 391 Cr PC is prevention of the consequences of “some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth”.

2. Section 391 Cr PC is to prevent the ordering of a de novo trial. The doctrine of finality of judicial proceedings is not affected by the exercise of the power thereunder.

3. The power has to be exercised with caution and circumspection to meet the ends of justice.

4. Section 391 Cr PC is not to fill up the lacuna in the prosecution evidence but to serve the ends of justice. Only in exceptional and suitable cases, where the Court is satisfied that directing additional evidence would serve the ends of justice, will the power under Section 391 Cr PC be exercised.

5. If the Appellate Court finds that certain evidence is necessary in order to give a correct and proper finding, it would be justified in exercising the power under Section 391 Cr PC. The ends of justice have to address as much the interests of the accused as that of the community through the State and the public prosecutor.

See Also : Shahzad Ahmed Vs. State [Delhi High Court, 09-02-2018]

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