Sections 390 and 391 CrPC: Arrest in Appeal from Acquittal and Additional Evidence by Appellate Court
Sections 390 and 391 of the Code of Criminal Procedure, 1973 formed part of Chapter XXIX dealing with criminal appeals. Section 390 empowered the High Court, after presentation of an appeal from acquittal under Section 378, to secure the presence of the accused. Section 391 empowered an appellate court to take additional evidence, or direct that such evidence be taken, when the court considered it necessary for deciding the appeal.
Section 390 CrPC - Arrest of Accused in Appeal from Acquittal
Meaning and scope: Section 390 dealt with the procedure that could be adopted by the High Court after an appeal against acquittal was presented under Section 378 CrPC. It did not itself create the right of appeal. Section 378 was the provision governing appeals against acquittal, while Section 390 provided a mechanism for securing the presence of the accused during such an appeal.
Statutory rule under Section 390: When an appeal is presented under Section 378, the High Court may issue a warrant directing that the accused be arrested and brought before the High Court or any subordinate court. The court before which the accused is produced may commit the accused to prison pending disposal of the appeal or admit the accused to bail.
Important features of Section 390
- The provision operated when an appeal from acquittal had been presented under Section 378 CrPC.
- The power to issue the warrant was vested in the High Court.
- The warrant could require the accused to be brought before the High Court or a subordinate court.
- After production, the competent court could either commit the accused to prison pending the appeal or admit the accused to bail.
- The provision concerned custody or bail during the pendency of the acquittal appeal; it did not by itself determine the merits of that appeal.
Section 391 CrPC - Appellate Court May Take Further Evidence or Direct It to Be Taken
Meaning and scope: Section 391 conferred a specific power on an appellate court to obtain additional evidence where the court considered that evidence necessary while dealing with an appeal. The provision required the appellate court to record its reasons before exercising the power.
Sub-section (1): In dealing with an appeal under the appellate chapter, if the appellate court considered additional evidence necessary, it was required to record its reasons. It could then take the evidence itself or direct a Magistrate to take it. Where the appellate court was a High Court, it could direct a Court of Session or a Magistrate to take the evidence.
Sub-section (2): If the additional evidence was taken by a Court of Session or Magistrate, that court or Magistrate was required to certify the evidence to the appellate court, which would thereafter proceed to dispose of the appeal.
Sub-section (3): The accused or the accused's pleader had the right to be present when the additional evidence was taken.
Sub-section (4): The taking of evidence under Section 391 was subject to Chapter XXIII of the CrPC as if the proceeding were an inquiry.
Purpose of additional evidence in appeal
The text of Section 391 made necessity the statutory condition for receiving additional evidence. The appellate court was therefore required to form the view that further evidence was necessary and to record reasons for exercising the power. The provision supplied a procedural mechanism for obtaining that evidence without requiring the appellate court in every case to record it personally.
Sections 390 and 391 at a Glance
| Provision | Subject | Core function under CrPC |
|---|---|---|
| Section 390 | Arrest of accused in appeal from acquittal | Allowed the High Court, after an appeal under Section 378, to issue a warrant for the accused and enabled the court of production to commit the accused to prison or grant bail pending the appeal. |
| Section 391 | Additional evidence in appeal | Allowed the appellate court, after recording reasons and finding additional evidence necessary, to take that evidence itself or direct the specified subordinate court or Magistrate to take it. |
Position After Commencement of BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024. Section 431 BNSS corresponds to Section 390 CrPC and refers to an appeal under Section 419 BNSS. Section 432 BNSS corresponds to Section 391 CrPC. In Section 432, the expression referring to the accused's representative is "advocate", and the evidence-taking provision refers to Chapter XXV of the BNSS.
For proceedings governed by the earlier Code, the repeal and savings provision in Section 531 BNSS should be considered before deciding whether the CrPC or BNSS governs the particular proceeding. This page is retained as a reference to the law under the Code of Criminal Procedure, 1973 before implementation of the BNSS.
Related CrPC Appeal Provisions
Readers may also refer to the linked appeal provisions in the sidebar, including Sections 377 and 378 on appeals against sentence and acquittal, Sections 386 and 387 on appellate powers and judgments, and Sections 388 and 389 on certification of High Court orders and suspension of sentence or bail pending appeal.
Legal information only. Statutory provisions and their applicability should be checked against the law governing the relevant proceeding and the latest authoritative text.