Section 432 – Appellate Court May Take Further Evidence or Direct It to Be Taken

Introduction

Section 432 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) empowers an Appellate Court to take additional evidence while deciding an appeal or to direct another court to take such evidence.

The provision is intended to assist the Appellate Court in reaching a just decision where the existing evidence on record is insufficient and additional evidence is considered necessary. The court must record reasons for considering the additional evidence necessary before exercising this power.

Section 432 substantially continues the position under Section 391 of the Code of Criminal Procedure, 1973.

Meaning of Section 432

Section 432 enables an Appellate Court, while dealing with an appeal, to obtain additional evidence when it considers such evidence necessary for deciding the appeal.

The Appellate Court may:

• take the additional evidence itself; or
• direct a Magistrate to take the evidence; or
• where the Appellate Court is a High Court, direct a Court of Session or a Magistrate to take the evidence.

The provision also protects the accused’s right to be present when such additional evidence is taken.

Statutory Basis

Section 432 of BNSS provides that, while dealing with an appeal, the Appellate Court may take additional evidence itself or direct it to be taken by the appropriate subordinate court if it considers the evidence necessary.

The Appellate Court must record its reasons for considering the additional evidence necessary.

The provision contains four principal components:

1. Power to take additional evidence.
2. Duty to record reasons.
3. Procedure for evidence taken by another court.
4. Right of the accused or advocate to be present.

Object and Purpose

The purpose of Section 432 is to enable the Appellate Court to obtain evidence that is necessary for the proper adjudication of an appeal.

An appeal is ordinarily decided on the basis of the existing record. However, circumstances may arise where additional evidence is necessary for reaching a just and effective decision.

Section 432 provides a controlled mechanism for dealing with such situations without requiring the appellate court to decide the matter on an incomplete evidentiary record.

Nature of the Power

The power under Section 432 is discretionary.

The Appellate Court may take additional evidence when it thinks such evidence to be necessary. The provision does not create an unrestricted right for an appellant or accused to introduce additional evidence whenever desired.

The requirement that the court record reasons acts as an important safeguard against arbitrary exercise of the power.

The provision is therefore intended to advance the cause of justice rather than provide a routine opportunity to fill gaps in a party’s case.

Essential Elements

1. There Must Be an Appeal

Section 432 applies when the Appellate Court is dealing with an appeal under the relevant chapter of the BNSS.

The power is therefore connected with appellate proceedings.

2. Additional Evidence Must Be Considered Necessary

The Appellate Court must form the opinion that additional evidence is necessary.

Mere convenience or a party’s desire to introduce further material is not sufficient by itself.

The necessity of the evidence must be considered in the context of deciding the appeal.

3. Reasons Must Be Recorded

The Appellate Court shall record its reasons for considering additional evidence necessary.

This requirement ensures that the exercise of the power is judicially reasoned and transparent.

4. Evidence May Be Taken by the Appellate Court

The Appellate Court may itself take the additional evidence.

5. Evidence May Be Taken by Another Court

The Appellate Court may instead direct the evidence to be taken by another court.

Where the direction is given to a Magistrate, the Magistrate may take the evidence.

Where the Appellate Court is a High Court, the evidence may be directed to be taken by a Court of Session or a Magistrate.

6. Evidence Taken by Another Court Must Be Certified

When additional evidence is taken by a Court of Session or Magistrate, that court must certify the evidence to the Appellate Court.

The Appellate Court then proceeds to dispose of the appeal.

7. Right of the Accused to Be Present

The accused or the accused’s advocate has the right to be present when the additional evidence is taken.

This provides an important procedural safeguard and enables the accused to participate in the taking of the additional evidence.

Procedure Under Section 432

The procedure can be understood in the following stages:

1. An appeal is pending before the Appellate Court.
2. The court considers whether additional evidence is necessary.
3. The court records reasons for considering the evidence necessary.
4. The court may take the evidence itself.
5. Alternatively, it may direct a Magistrate to take the evidence.
6. Where the Appellate Court is a High Court, it may direct a Court of Session or Magistrate to take the evidence.
7. The accused or advocate has the right to be present when the evidence is taken.
8. If the evidence is taken by a Court of Session or Magistrate, the evidence is certified to the Appellate Court.
9. The Appellate Court then proceeds to dispose of the appeal.

Powers of the Appellate Court

Section 432 gives the Appellate Court the power to:

• take additional evidence itself;
• direct a Magistrate to take additional evidence;
• where it is a High Court, direct a Court of Session or Magistrate to take additional evidence;
• consider the additional evidence while disposing of the appeal.

The power must be exercised on the basis of necessity and with reasons recorded by the court.

Right of the Accused

Section 432 expressly provides that the accused or the accused’s advocate has the right to be present when the additional evidence is taken.

This is an important procedural safeguard because the accused should have an opportunity to participate in the evidentiary process.

The provision therefore prevents additional evidence from being taken behind the accused without the statutory opportunity to be present.

Additional Evidence and Filling Lacunae

The power to take additional evidence is not intended to provide a routine opportunity to repair weaknesses or fill gaps in a party’s case.

The Supreme Court, while interpreting the corresponding Section 391 of the CrPC, has treated the power as one to be exercised in the interests of justice and not as a mechanism for allowing a party to rectify every deficiency in its evidence.

Since Section 432 substantially corresponds to Section 391 CrPC, these principles remain relevant, subject to the development of judicial interpretation under the BNSS.

Important Distinctions

Additional Evidence and Fresh Trial

Taking additional evidence under Section 432 does not mean that the entire criminal trial begins afresh.

The provision operates within an existing appeal. The additional evidence is taken for the purpose of assisting the Appellate Court in deciding the appeal.

Additional Evidence and New Case

Section 432 does not permit a party to create an entirely new case unrelated to the issues arising in the appeal.

The evidence must be connected with the appellate proceedings and considered necessary by the Appellate Court.

Appellate Court Taking Evidence and Appellate Court Directing Evidence to Be Taken

The Appellate Court may itself take the additional evidence. Alternatively, it may direct a Magistrate, or in the case of a High Court, a Court of Session or Magistrate, to take the evidence.

Where another court takes the evidence, it must certify that evidence to the Appellate Court.

Exceptions and Limitations

Section 432 does not make the admission of additional evidence automatic.

The principal limitations are:

• the matter must be an appeal covered by the provision;
• the Appellate Court must consider the additional evidence necessary;
• the court must record reasons for doing so;
• the procedure must comply with the statutory requirements;
• the accused or advocate must have the right to be present when the additional evidence is taken.

The power should be exercised judicially and in furtherance of a proper determination of the appeal.

BNSS and CrPC

Section 432 of BNSS corresponds to Section 391 of the Code of Criminal Procedure, 1973.

The provision substantially continues the earlier CrPC framework.

Under the BNSS, Section 432 retains the power of the Appellate Court to take further evidence or direct another competent court to take it.

There is no fundamental change in the nature of this power. The principal statutory change is the renumbering from Section 391 of the CrPC to Section 432 of the BNSS and the corresponding restructuring of the BNSS appellate chapter.

The BNSS provision also uses the expression “accused or his advocate” in place of the expression “accused or his pleader” used in the corresponding CrPC provision.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) contains substantive criminal offences and punishments.

The BNSS governs criminal procedure, including appellate proceedings and the taking of additional evidence by an Appellate Court.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 432 therefore operates within the procedural framework of the BNSS, while the admissibility and evidentiary value of material may also involve principles contained in the BSA.

Case Law

Rambhau and Another v. State of Maharashtra

The Supreme Court, while interpreting Section 391 of the CrPC, explained the nature of the appellate power to take additional evidence.

The Court emphasised that the power is discretionary and should be exercised to advance the interests of justice. It should not be used merely to allow a party to fill gaps in its case.

Since Section 432 BNSS substantially corresponds to Section 391 CrPC, the principles laid down under the earlier provision remain relevant to the interpretation of the BNSS provision, subject to future judicial development.

Asim @ Munmun @ Asif Abdulkarim Solanki v. State of Gujarat

The Supreme Court considered an application for additional evidence under Section 391 CrPC and observed that there is no statutory requirement that an application seeking additional evidence must necessarily wait until the final hearing of the appeal.

The decision is relevant to the procedural exercise of the corresponding power under Section 432 BNSS.

Important BNSS Provisions

• Section 426: Procedure for hearing appeals not dismissed summarily.
• Section 427: Powers of Appellate Court.
• Section 430: Suspension of sentence pending appeal and release of appellant on bail.
• Section 431: Arrest of accused in appeal from acquittal.
• Section 432: Appellate Court may take further evidence or direct it to be taken.
• Section 433: Procedure where Judges of Court of Appeal are equally divided.
• Section 434: Finality of judgments and orders on appeal.

Common Confusions

Can a party demand additional evidence as a matter of right?

No.

Section 432 gives the Appellate Court the power to take additional evidence when it considers it necessary. The provision does not create an unrestricted right to introduce additional evidence.

Must the Appellate Court give reasons?

Yes.

The Appellate Court shall record its reasons when it considers additional evidence necessary.

Can the High Court direct a Magistrate to take additional evidence?

Yes.

When the Appellate Court is a High Court, it may direct a Court of Session or a Magistrate to take the additional evidence.

Can the accused be absent when additional evidence is taken?

Section 432 expressly provides that the accused or the accused’s advocate has the right to be present when the additional evidence is taken.

Does taking additional evidence mean that the entire trial starts again?

No.

The provision operates within the appeal and permits additional evidence to assist the Appellate Court in deciding the appeal.

Example

Suppose a person is convicted by a trial court and files an appeal. During the appellate proceedings, the Appellate Court finds that a particular piece of evidence is necessary for properly determining an issue arising in the appeal.

The court records its reasons and decides to obtain the additional evidence. It may take the evidence itself or direct a competent Magistrate to take it.

If the evidence is taken by the Magistrate, the Magistrate certifies the evidence to the Appellate Court. The Appellate Court then considers the additional evidence while disposing of the appeal.

The accused or the accused’s advocate has the right to be present when the evidence is taken.

Topic at a Glance

• Topic: Appellate Court may take further evidence or direct it to be taken
• BNSS Section: Section 432
• Nature: Discretionary appellate power
• Purpose: To obtain additional evidence considered necessary for deciding an appeal
• Requirement: Reasons must be recorded
• Evidence may be taken by: Appellate Court, Magistrate, or, where the Appellate Court is a High Court, Court of Session or Magistrate
• Right of accused: Accused or advocate has the right to be present
• Certification: Evidence taken by a Court of Session or Magistrate must be certified to the Appellate Court
• CrPC equivalent: Section 391 CrPC

Quick Revision

• Section 432 BNSS deals with additional evidence during appellate proceedings.
• The Appellate Court may take additional evidence itself or direct another competent court to take it.
• Additional evidence must be considered necessary by the Appellate Court.
• The court must record reasons for considering the evidence necessary.
• A High Court may direct a Court of Session or Magistrate to take the evidence.
• Evidence taken by a Court of Session or Magistrate must be certified to the Appellate Court.
• The accused or advocate has the right to be present when additional evidence is taken.
• The provision is substantially the same as Section 391 CrPC.
• The power is intended to assist the court in reaching a proper decision and should not ordinarily be used merely to fill gaps in a party’s case.

ALSO READ: Section 431 – Arrest of accused in appeal from acquittal

Conclusion

Section 432 of the BNSS gives the Appellate Court a carefully controlled power to obtain additional evidence when such evidence is necessary for deciding an appeal. The requirement to record reasons, the prescribed mechanism for taking evidence through subordinate courts, and the accused’s right to be present provide procedural safeguards. The provision substantially retains the appellate evidentiary mechanism previously contained in Section 391 of the CrPC.