Bharatiya Nagarik Suraksha Sanhita, 2023
Section 432
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 advocate 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 XXV, as if it were an inquiry.
Why this exists
Appeals are usually decided on the existing trial record, but sometimes that record is incomplete on a point that matters. This provision lets an appellate court fill genuine gaps in evidence without sending the whole case back for a fresh trial, while safeguarding fairness by requiring written reasons and the accused's presence. It corresponds to section 391 of the former CrPC.
How courts read it
Courts have repeatedly cautioned that this power should be used sparingly and only to remove a lacuna necessary for a just decision, not to fill gaps left by the prosecution's own negligence or to give either side a second chance to strengthen its case.
Common misconceptions
- Myth: An appellate court can gather fresh evidence to help either side build a whole new case.
Fact: This power is meant only to fill a genuine gap needed to decide the existing appeal fairly, not to allow a retrial in disguise or reward a party's earlier failure to produce evidence.