Summoning of Material Witnesses

Source: Allahabad High Court 

Why in News? 

A Bench of Justice Shree Prakash Singh, in Gulzar Ali v. State of Uttar Pradesh & Others (2026), allowed a criminal revision and held that a material witness can be summoned under Section 311 CrPC (Section 348 of BNSS) at any stage of trial, prior to pronouncement of judgment, even where that witness's examination-in-chief has not yet taken place. The Court set aside the trial court's order rejecting such an application and remitted the matter for fresh consideration. 

What was the Background of Gulzar Ali v. State of Uttar Pradesh & Others (2026) Case? 

• The case arose from a criminal trial in which the victim, a mentally challenged woman, had earlier given statements under Sections 161 and 164 CrPC with the assistance of two experts. 
• In her Section 164 CrPC statement, recorded with the experts' assistance, the victim for the first time alleged that rape had been committed upon her, though the FIR contained only an allegation of outraging her modesty. 
• The petitioner sought summoning of PW-1 (the victim's mother) and the two experts who had assisted in recording the victim's statements, by way of an application under Section 311 CrPC. 
• The Additional Sessions Judge, Unnao, rejected the application, reasoning that since the examination-in-chief of the proposed witnesses had not yet been conducted, they could not be permitted to be cross-examined at that stage. 
• The State also opposed the application on the ground that it had been filed nearly three years after PW-1's statement was recorded, calling it belated. 
• Aggrieved, the petitioner approached the Allahabad High Court challenging the trial court's order. 

What were the Court's Observations? 

• On the trial court's reasoning: The Court held that the trial court's finding was erroneous and groundless, since a witness can be summoned at any stage prior to pronouncement of judgment if the trial court concludes that such examination is necessary for just adjudication. 
• On the scope of Section 311 CrPC: The Court clarified that the provision empowers the trial court, at any stage of an inquiry, trial, or other proceeding, to summon any person as a witness if their evidence appears essential to a just decision, and that there is no bar to summoning a witness merely because examination-in-chief has not yet occurred. 
• On delay: The Court rejected the argument that the application was barred by delay, holding that the interest of the accused cannot be jeopardised on an unfounded presumption of delay, and that the age or pendency of a case cannot by itself be decisive when a request is made to examine a material witness. 
• On relevance of the evidence: The Court found that the statements of the two experts constituted relevant evidence, particularly since the allegation of rape had surfaced for the first time in the victim's Section 164 CrPC statement, recorded with their assistance. 
• On the prosecution's conduct: The Court noted that the prosecution itself had failed to produce the two experts as witnesses, despite their direct involvement in recording the victim's statement. 
• Precedents relied upon: The Court relied on Manju Devi v. State of Rajasthan and Another (2019) and Natasha Singh v. CBI (State) (2013) to reiterate that the power under Section 311 CrPC exists to enable courts to discover the truth and render a just decision, and that delay alone cannot defeat an application for summoning a material witness. 
• Relief granted: The Court set aside the trial court's order and remitted the Section 311 application for fresh consideration within eight weeks.

What is Section 348 of BNSS? 

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

• Section 348 of the BNSS empowers a court, at any stage of an inquiry, trial, or other proceeding, to summon any person as a witness, examine any person present though not summoned, or recall and re-examine a witness already examined. 
• The provision has two limbs: a discretionary limb, under which the court may summon, examine, or recall a witness at any stage, and a mandatory limb, under which the court shall do so where the evidence is essential to the just decision of the case. 
• Its applicability is broad — it extends to any inquiry, trial, or other proceeding under the BNSS, not just trials. 
• The power can be exercised at any stage, though courts require sufficient judicial reason for invoking it, rather than treating "any stage" as an unrestricted licence. 
• It covers any person — a witness not yet examined, one already examined, or someone merely present before the court without having been formally summoned. 
• Its underlying purpose is to prevent failure of justice by ensuring material evidence isn't lost to procedural gaps.