When a case comes before the High Court on a reference, it is in fact the continuation of the trial of the accused on the same evidence and this is why the High Court is entitled to take fresh or additional evidence if it so desires.
The High Court is empowered under Section 367 to examine the case itself and even direct a further inquiry or taking additional evidence, if in its opinion, it is necessary to ascertain the guilt or innocence of the convicted person.
Thus on a reference the High Court must not only see whether the order passed by the Sessions Court is correct, but it must also examine the entire evidence for itself and assess the correctness of the decision of the Sessions Court.
The Bombay High Court, in Sindhi Dalwai v. State of Maharashtra held that in a proceeding submitted to the High Court for confirmation of a sentence of death under Section 366, it is open to the defence to ask for the postponement of the proceedings on the ground that the accused, on account of unsoundness of mind, is incapable of making his defence.
The Supreme Court in Dilip Premnarayan Tiwari v. State of Maharashtra held that proceedings for confirmation of death sentence were in the nature of extended trial. In the instant case the application from the defence side was made to bring on record the dying declaration made by the deceased which was rejected on the ground that the doctor recording the dying declaration was not examined during the trial and it was held to be improper by appellate Court.
The Supreme Court held that opposition by public prosecutor to the said application being inappropriate could not be entertained in the interest of fairness of trial which is the basic requirement of criminal law.