Introduction

The adversarial legal system thrives on the principle of fair trial and truth-finding, where evidence plays a central role. To safeguard this goal, procedural laws provide courts with certain discretionary powers to ensure justice is not thwarted by technicalities. One such power is enshrined in Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which corresponds to Section 311 of the Code of Criminal Procedure (CrPC), 1973. It allows the court to summon or recall a witness at any stage of inquiry or trial. However, as held in multiple judicial pronouncements, including the recent case of Abc Prescription of Prosecutrix in the Closed Envelope v. Anil Kumar (2025), such power must be exercised with utmost care, caution, and for strong, valid reasons to avoid abuse and protect the sanctity of the legal process.

Statutory Provision: Section 348 BNSS

Section 348 of the BNSS states:

“Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

This provision has two limbs:

1. Discretionary: The Court may summon or recall any witness.
2. Mandatory: The Court shall do so if it considers such evidence essential for a just decision.

The object is to ensure that justice is done and no valuable evidence is left out due to inadvertence or strategic lapse by either party.

Case Study: Abc Prescription of Prosecutrix in the Closed Envelope v. Anil Kumar (2025)

In this case, the Chhattisgarh High Court dealt with the scope and limitations of Section 348 BNSS. Justice Ravindra Kumar Agrawal emphasized that the provision should not be used to fill lacunae in a party’s case or for re-litigating settled facts unless strong justifiable grounds exist.

Facts of the Case:

• The accused, Anil Kumar, was facing trial under various IPC provisions and the POCSO Act.
• The prosecutrix was examined and cross-examined in March 2022.
• In February 2025, nearly three years later, she filed an application for re-cross-examination, claiming that her earlier statements were made under parental pressure and that she had since given birth to a child allegedly fathered by the accused.
• She supported her claim with a birth certificate issued in September 2024.

Court’s Observations:

• The Court rejected the application, holding that the prosecutrix had already been duly cross-examined.
• The delay in making the application and contradiction in testimony raised doubts about credibility.
• The Court held that Section 348 BNSS cannot be invoked to revisit settled facts or rehabilitate a witness’s testimony unless necessary for the ends of justice.
• It was observed that the prosecutrix appeared to have been won over by the defence, and her application lacked merit.

This case reinforces that judicial discretion under Section 348 must be grounded in necessity, not convenience or tactical advantage.

Key Judicial Precedents on Witness Recall

1. Ratan Lal v. Prahlad Jat (2017)

The Supreme Court held that Section 311 CrPC (now 348 BNSS) empowers the court to summon, recall, or re-examine witnesses to discover the truth. However, the Court emphasized that the provision is not to be exercised mechanically or frequently and only when the evidence is vital for a just decision.

2. Vijay Kumar v. State of Uttar Pradesh (2011)

It was held that though courts have wide discretion, it must be exercised judicially and not arbitrarily. The mere desire to strengthen a case or correct earlier omissions is not enough.

3. Zahira Habibullah Sheikh & Anr. v. State of Gujarat (2006)

This landmark case reiterated that Section 311 is a tool for justice, enabling courts to summon witnesses overlooked due to inadvertence or other valid reasons. The court cautioned against misuse, emphasizing that the power is not meant to rebuild cases but to prevent injustice.

4. State (NCT of Delhi) v. Shiv Kumar Yadav (2016)

In the context of the Nirbhaya case, the Court emphasized that recalling witnesses is not a matter of right, and must be allowed only on demonstrating tangible reasons that indicate the necessity of such action for fair trial.

5. Umar Mohammad v. State of Rajasthan (2007)

The Supreme Court held that unexplained delay in seeking recall or re-examination casts doubt on the bona fides of the applicant and may render the application liable to rejection.

6. Manghi @ Narendra v. State of Madhya Pradesh (2005)

It was held that a witness once examined cannot be recalled merely because they filed an affidavit contradicting their earlier testimony. The sanctity of prior statements must be preserved unless new evidence necessitates reconsideration.

Judicial Principles Evolved

From these judgments, the following principles emerge:

• The primary objective is to prevent miscarriage of justice.
• Courts must ensure that recall is not used to delay proceedings or to abuse the process.
• The provision is meant to aid truth-finding, not to give second chances to reluctant or compromised witnesses.
• The burden lies on the applicant to demonstrate that recalling or re-examining a witness is essential to the just decision of the case.
• Courts must consider the stage of the trial, previous opportunities availed, and potential hardship to witnesses.

Impact on Criminal Jurisprudence

The exercise of judicial discretion under Section 348 BNSS serves as a double-edged sword—if used rightly, it ensures justice; if abused, it could result in delay, prejudice, and erosion of witness protection. Courts have increasingly adopted a balanced approach, weighing the right to fair trial with the need for procedural discipline. The law evolves not only through statutory enactment but also through judicial restraint and prudence.

Conclusion

The decision in Abc Prescription of Prosecutrix v. Anil Kumar (2025) reiterates that Section 348 BNSS is a shield, not a sword. It is designed to empower courts to seek the truth but not to allow endless litigation or manipulation of evidence. Courts must vigilantly guard against misuse while ensuring that the ends of justice are served. Judicial discretion under this provision must be guided by principles of necessity, fairness, and judicial discipline, ensuring that the balance of power between the prosecution and defence does not tilt unfairly.