The Punjab and Haryana High Court has ruled that the power to recall witnesses under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) cannot be invoked merely to reconstruct or improve the defence case after the closure of evidence. A Single Judge Bench of Justice Sumeet Goel dismissed a petition challenging trial court orders that refused to reopen defence evidence in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Background of the Dispute
The litigation originated from a complaint alleging that the petitioner borrowed Rs 10,30,000 from the respondent on various occasions. To discharge the liability, the petitioner allegedly issued a cheque dated 27 August 2021 for the same amount, which was dishonoured due to insufficiency of funds. The respondent relied on books of account, ledger entries, and bank statements to prove the transactions. The petitioner denied the loan, contending the cheque was obtained as a security instrument and not against a legally enforceable debt. He claimed the amounts received were payments for crops sold between 2018 and 2020 to firms connected with the respondent, seeking to rely on J-Forms, auction registers, and market records.
Procedural History at Trial Court
During the trial, the respondent's representative was examined and extensively cross-examined. The petitioner examined a Market Committee official (DW 1), who produced original auction registers and records of crop sales. On 18 May 2026, when the matter was listed for the examination of another defence witness, the witness appeared but refused to depose. With no other witness available, the trial court closed the defence evidence. Subsequently, the petitioner filed an application under Section 348 BNSS read with Section 94 BNSS, seeking to reopen evidence, recall DW 1, produce additional documents, and examine a handwriting expert. By an order dated 8 September 2026, the trial court dismissed the application. It observed that the accused had already examined the Market Committee Clerk and cross-examined the respondent regarding J-Forms. The court noted the application was filed at an advanced stage and allowing it would cause grave injustice and delay.
Can a Witness Be Recalled Under Section 348 BNSS to Improve the Defence After Closure of Evidence?
The High Court held that Section 348 BNSS does not permit the recall of witnesses merely to fill gaps in the defence after evidence has closed, particularly when the accused has already been afforded sufficient opportunity to lead evidence. The power is not intended for reconstructing the defence case.
High Court's Reasoning on Section 348 BNSS and Section 528 BNSS
The Court upheld the trial court's discretion, finding the orders were reasoned and did not suffer from illegality or perversity. It observed that the petitioner had already examined DW 1 and cross-examined the complainant on the J-Forms and related documents. The Court further ruled that the inherent jurisdiction under Section 528 BNSS cannot be invoked to interfere with reasoned trial court orders in the absence of illegality or perversity. The petition under Section 528 BNSS seeking to quash the orders dated 18 May 2026 and 8 September 2026 was accordingly dismissed.
Comparison of Relevant Provisions: CrPC vs BNSS
Provision under CrPC, 1973 | Corresponding Provision under BNSS, 2023 | Subject Matter |
|---|---|---|
Section 311 | Section 348 | Power to summon material witness or examine person present |
Section 482 | Section 528 | Inherent powers of High Court |
The dismissal reinforces the principle that procedural powers to recall witnesses are not a substitute for due diligence during the evidence stage. The High Court declined to intervene, affirming that the trial court acted within its judicial discretion in refusing to allow the defence to augment its case at a belated stage.