Section 391 of the Criminal Procedure Code permits the Appellate Court to take additional evidence, if it thinks it to be necessary, by recording its reasons. This court has the power to take such evidence itself or direct it to be taken by the lower court, such as by a Magistrate or by a Court of Session. Thus, during the appeal stage, the appellate court has the power to take additional evidence itself or it can remit back the case to the lower court to record such additional evidence. You should file an application before the appellate Court making a prayer for recording of additional evidence, explaining why such additional evidence is necessary for the case and also why such evidence could not be recorded during the trial stage. Section 391 of The Criminal Procedure Code is reproduced below:
“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.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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