Source: Chhattisgarh High Court 

Why in News? 

Recently, Justice Ravindra Kumar Agrawal held that the power under Section 348 of Bhartiya Nagarik Suraksha Sanhita (BNSS) to summon, recall, or re-examine a witness must be exercised cautiously and only for strong, valid reasons to ensure the ends of justice. 

• The Chhattisgarh High Court held this in the matter of Abc Prescription of Prosecutrix in the Closed Envelope v. Anil Kumar (2025).

What was the Background of Abc Prescription of Prosecutrix in the Closed Envelope v. Anil Kumar (2025) Case? 

• Respondent No. 1, Anil Kumar, is accused in Special Sessions Case No. 67/2021 pending before the Additional Sessions Judge (FTC), Sakti District Janjgir-Champa. 
• The accused has been charged with offences under Sections 454 (lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment), 354 (assault or criminal force to woman with intent to outrage her modesty), 506 (criminal intimidation), and 323 of the Indian Penal Code, 1860 as well as Section 8 (punishment for sexual assault) of the POCSO Act. 
• The prosecutrix was examined in court on 30th March 2022 and was cross-examined extensively by the accused during the proceedings. 
• On 19th February 2025, approximately three years after her initial testimony, the prosecutrix filed an application under Section 348 BNSS seeking re-cross-examination. 
• In her application, the prosecutrix claimed that her earlier testimony was given under pressure from her parents when she conceived pregnancy, after which her parents expelled her from their house. 
• The prosecutrix further claimed that she subsequently went to the house of the accused and delivered a child, and that she was about 18 years of age at the time of the incident, which is why she sought re-cross-examination on this point. 
• The prosecutrix produced a birth certificate as supporting evidence, which was registered with the authorities on 27th September 2024, approximately two and a half years after her original deposition. 

What were the Court’s Observations? 

• The Court observed that the prosecutrix was fully examined and re-cross-examined in 2022, with detailed cross-examination conducted where she responded to all questions without indicating any parental pressure. 
• The Court noted that the application filed by the prosecutrix contradicted her earlier evidence given as PW-2 in the proceedings. 
• The Court observed that the birth certificate produced by the prosecutrix to support her claim of being 18 years old at the time of the incident was registered on 27.09.2024, approximately two and a half years after her original testimony. 
• The Court determined that the prosecutrix had not provided any reasons for the delay in filing the application for re-cross-examination. 
• The Court observed that Section 348 of BNSS (formerly Section 311 of CrPC) can only be invoked to meet the ends of justice for strong and valid reasons and must be exercised with great caution and circumspection. 
• The Court concluded that the entire scenario indicated the prosecutrix had been "won over by the defence" and that the benefit of Section 348 of BNSS cannot be extended to parties to fill up lacunae in their case. 

What is Section 348 of BNSS ? 

About: 

• Section 348 of the Bharatiya Nagarik Suraksha Sanhita confers upon courts a discretionary power to summon any person as a witness at any stage of inquiry, trial or other proceeding under the Sanhita. 
• The provision vests courts with the authority to examine any person in attendance, even if not summoned as a witness, thus expanding the court's evidentiary scope beyond formal witness lists. 
• Courts are empowered under this to recall and re-examine any witness previously examined when deemed necessary for proper adjudication of the matter. 
• While the first part of Section 348 grants discretionary power, the latter part imposes a mandatory obligation ("shall summon") upon courts to recall and re-examine witnesses whose evidence appears essential to the just decision of the case. 
• This provision serves the paramount objective of preventing failure of justice that might otherwise occur due to inadequate evidence or testimonial omissions. 
• The judicial interpretation of this section establishes that such power must be exercised judiciously, with caution and circumspection, only for strong and valid reasons, and not arbitrarily or capriciously. 
• Courts must balance the exercise of this power with considerations of potential hardship to witnesses, undue delay in proceedings, and the need to prevent unfair advantage to either party in the litigation. 

Case Laws: 

• Ratan Lal v. Prahlad Jat (2017) - The Supreme Court held that Section 311 CrPC (now Section 348 BNSS) enables courts to find truth and render just decisions by allowing them to summon, examine, or recall witnesses, but this power must be exercised only for strong and valid reasons with caution and circumspection. 
• Vijay Kumar v. State of Uttar Pradesh and Anr. (2011) - The Supreme Court clarified that the discretionary power under Section 311 can only be invoked for the ends of justice and should be exercised judicially, not arbitrarily. 
• Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others (2006) - The Supreme Court held that Section 311 exists to prevent failure of justice due to mistakes by either party in bringing valuable evidence on record. 
• State (NCT of Delhi) v. Shiv Kumar Yadav & Anr. (2016) - The Supreme Court emphasized that recall of witnesses is not a matter of course and must be justified by tangible reasons, not merely claiming it's "for ensuring fair trial." 
• Umar Mohammad & Ors. v. State of Rajasthan (2007) - The Supreme Court underscored the importance of explaining delay in filing applications for recalling witnesses. 
• Manghi @ Narendra v. State of M.P. (2005) - The Madhya Pradesh High Court held that a witness, once examined as a prosecution witness, cannot be recalled merely because they filed an affidavit contrary to their earlier deposition.