Section 408 BNSS 2023: Power to Direct Further Inquiry or Additional Evidence

Section 408 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the High Court, while dealing with proceedings submitted for confirmation of a death sentence, to order a further inquiry or to take additional evidence on any point that bears upon the guilt or innocence of the convicted person.

At a glance:

Section 408 is part of Chapter XXX of the BNSS dealing with submission of death sentences for confirmation.
The power belongs to the High Court when proceedings are submitted under Section 407 BNSS.
The High Court may conduct the inquiry or take evidence itself, or direct the Court of Session to do so.
The convicted person's presence may ordinarily be dispensed with unless the High Court directs otherwise.
If the inquiry or evidence is taken by the Court of Session, its result must be certified to the High Court.

Text of Section 408 BNSS

408. Power to direct further inquiry to be made or additional evidence to be taken.

(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.

(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.

(3) When the inquiry or evidence, if any, is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court.

Meaning and Scope of Section 408

Section 408 is a safeguard in the special statutory procedure governing confirmation of a sentence of death. A death sentence passed by a Court of Session does not become executable merely because it has been pronounced. Under Section 407 BNSS, the proceedings must be submitted to the High Court for confirmation.

During that confirmation process, the High Court may find that the existing record is insufficient on a factual point that could materially affect the determination of guilt or innocence. Section 408 enables the High Court to fill that evidentiary or inquiry gap before it passes an order under Section 409 BNSS.

Key Expressions Explained

Further inquiry

Under Section 2 of the BNSS, an "inquiry" means every inquiry, other than a trial, conducted under the Sanhita by a Magistrate or Court. In the context of Section 408, a further inquiry may be directed when the High Court considers that an issue relevant to guilt or innocence requires additional judicial examination.

Additional evidence

Additional evidence means evidence beyond the material already forming part of the record submitted to the High Court. The statutory test is important: the point on which additional evidence is considered must bear upon the guilt or innocence of the convicted person.

High Court

The BNSS definition of "High Court" covers the High Court for a State and, for Union territories, the court identified by the statutory definition. Section 408 therefore places the power at the High Court level in the death sentence confirmation process.

How Section 408 Operates

The Court of Session passes a sentence of death.
The proceedings are submitted to the High Court under Section 407 BNSS.
The High Court examines the record and may identify a point requiring further inquiry or additional evidence.
The High Court may itself conduct the inquiry or receive the evidence, or direct the Court of Session to do so.
Unless the High Court directs otherwise, the convicted person's presence may be dispensed with during that inquiry or evidence-taking process.
If the Court of Session conducts the inquiry or records the evidence, the result is certified back to the High Court.
The High Court then proceeds under Section 409 and the connected provisions governing confirmation, alteration, retrial or acquittal.

Relationship with Sections 407 to 412 BNSS

Section	Subject	Role in death sentence confirmation
407	Submission of death sentence	Requires the Court of Session to submit the proceedings to the High Court and bars execution without confirmation.
408	Further inquiry or additional evidence	Allows the High Court to supplement the record on a point bearing on guilt or innocence.
409	Powers of High Court	Permits confirmation, another lawful sentence, annulment of conviction, conviction for another offence, retrial or acquittal, subject to the statutory conditions.
410	Signature by two Judges	Requires confirmation, new sentence or order to be made and signed by at least two Judges where the High Court consists of two or more Judges.

Corresponding Provision under the Code of Criminal Procedure, 1973

Section 408 BNSS substantially corresponds to Section 367 of the Code of Criminal Procedure, 1973, which contained the same power in death sentence confirmation proceedings. The BNSS reorganises and renumbers the provision as Section 408 within Chapter XXX.

Commencement and Current Legal Position

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. Its relevant provisions came into force on 1 July 2024. Section 408 should therefore be read with the connected BNSS provisions on confirmation of death sentences and with the Bharatiya Sakshya Adhiniyam, 2023 where questions concerning admissibility and proof of evidence arise.

Practical note: Section 408 does not create a general power to reopen evidence in every criminal proceeding. It operates specifically in the statutory context of proceedings submitted to the High Court for confirmation of a death sentence.

Official Sources

For the authoritative statutory text, refer to the Bharatiya Nagarik Suraksha Sanhita, 2023 on India Code. For Central Government information concerning the new criminal laws, refer to the Ministry of Home Affairs.