Section 348 of BNSS

Source: Madras High Court

Why in News? 

A Single Bench of the Madras High Court comprising of Justice Victoria Gowri in the matter of Anbu v. The State of Tamil Nadu (2026) set aside a trial court order allowing the prosecution to recall its Investigating Officer after closure of prosecution evidence and examination of the accused, holding that Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — corresponding to Section 311 of the Code of Criminal Procedure, 1973 (CrPC) — cannot be invoked as a tool to repair a weak case at the fag end of trial.

What was the Background of Anbu v. The State of Tamil Nadu (2026) Case? 

• The petitioner Anbu was facing trial before the Additional District and Sessions Judge, Kumbakonam, for an offence under Section 302 of the Indian Penal Code (IPC).  
• As per the prosecution, Anbu was closely associated with the deceased, who had entrusted him with agricultural products worth Rs. 14,00,000 for sale. Anbu allegedly sold the products but did not remit the proceeds.  
• When the deceased demanded return of either the products or the money, Anbu took him in his car, attacked him with a billhook, and abandoned the body in water. 
• After defence evidence was about to commence, the prosecution filed an application seeking to recall the Investigating Officer for the purpose of marking documents including call detail records, SIM card details, and bank account statements.  
• The trial court allowed the application, against which the present petition was filed before the High Court.

What Court's Observations? 

• On the nature of criminal trial: The Court emphasised that a criminal trial is not a game of strategy between the prosecution and the defence but a solemn judicial search for truth. It held that this search must proceed within the boundaries of fairness, legality, and procedural discipline. 
• On scope of Section 348 BNSS: The Court held that Section 348 BNSS uses the phrase "at any stage," which cannot be read to mean "at any stage without reason." The Court clarified that a higher degree of judicial satisfaction is required when recall is sought after the prosecution evidence has been closed and the accused has been examined. Not every document that may improve the prosecution's case can be introduced at this stage — only evidence whose absence would render the decision unjust qualifies. 
• On the trial court's failure: The Court found that the trial court had passed a mechanical and cryptic order without examining whether the evidence sought to be recalled was truly indispensable for a just decision. The trial court had not applied its mind to why the evidence — sought to be introduced after closure of prosecution evidence and examination of the accused — could not be rendered without. 
• On prejudice to the accused: The Court held that allowing the recall would amount to permitting the prosecution to fill up lacunae in its own case, which had been exposed during cross-examination by the defence. Such course of action would cause serious prejudice to the accused and would be contrary to the right to a fair trial under Article 21 of the Constitution. 
• The Court accordingly set aside the impugned order.

What is Section 348 BNSS? 

Section 348 BNSS — Power to Summon Material Witness or Examine Person Present 

Text of the Provision: 

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 
• re-call and re-examine any person already examined; 

and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

Key Features: 

• Two limbs in one provision:  
  • Discretionary limb — The court may summon, examine, or recall any witness at any stage. 
  • Mandatory limb — The court shall do so if the evidence is essential to the just decision of the case. 
• Applicability: Extends to any inquiry, trial, or other proceeding under the BNSS — not limited to trials alone. 
• Stage of invocation: Can be exercised at any stage, but courts have read this to mean any stage with sufficient judicial reason, not as a blanket licence. 
• Who may be summoned: Any person — whether previously unexamined, already examined, or merely present in court but not formally summoned. 
• Purpose: To prevent failure of justice by ensuring that material evidence is not lost due to procedural gaps.