Recall and Re Examination of a Witness

Section 348, BNSS 2023

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.

📖 Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461

Facts: An application to recall witnesses already examined was made at a late stage of a trial, and was resisted on the ground that it was an attempt to fill gaps and to delay the proceedings. The Supreme Court examined the scope of the power and set out the considerations governing its exercise.

Held: The Court held that the object of the provision is to enable the Court to arrive at the truth, and that it is not confined to any stage: the words are “at any stage”, and the power may be exercised before, during or after the evidence, and even after arguments. But it is not to be exercised as a matter of course. The Court set out the governing considerations: whether the evidence sought is relevant and material to the decision; whether the application is bona fide or is a device for delay, harassment or filling a gap left by a party’s own default; whether the other side will be prejudiced and whether that prejudice can be met by costs or further cross-examination; and, above all, whether the evidence is essential to the just decision of the case, which is the statutory test. The Court held that the power must be exercised judicially and with circumspection, that reasons must be recorded whether the application is allowed or refused, and that the mere fact that the evidence may fill a lacuna is not by itself a ground for refusal where it is genuinely essential — a “lacuna” in the relevant sense means a gap left by the party’s own negligence or design, not any omission whatever.

Ratio: The power exists to enable the Court to arrive at the truth and may be exercised at any stage, but judicially and with recorded reasons. The test is whether the evidence is essential to the just decision of the case.

📖 P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56

Facts: An accused applied to recall witnesses for further cross-examination at a late stage of the trial, on the footing that material had come to light which had not been available when they were first cross-examined. The application was resisted as belated.

Held: The Supreme Court allowed the recall. It held that the paramount consideration in exercising the power is the fair trial of the accused, and that where a recall is necessary to give him a real opportunity to test the prosecution evidence, the mere fact that the application is made at a late stage is not a sufficient reason to refuse it. The Court held that the delay and inconvenience caused by a recall can ordinarily be met by imposing costs and by directing an expeditious completion of the exercise, and that these are a smaller price than the risk of a conviction founded on evidence that was never properly tested. It emphasised that the discretion is not to be exercised so as to defeat the purpose for which it exists, and that where the choice is between some delay and a possible miscarriage of justice, the Court should prefer the delay.

Ratio: Where a recall is necessary to give the accused a real opportunity to test the prosecution evidence, lateness alone is not a ground to refuse it. Delay and inconvenience can be met by costs; an untested conviction cannot be repaired.

⚠ Why the specific rights exist

Each of the first four answers a situation in which a witness was examined on a footing that afterwards changed, through no fault of the party.

Under section 240, the charge the witness was examined against no longer exists. Under section 269(4), the witness was examined before there was any charge at all, so the accused did not know what case he was meeting. Under the proviso to section 285, the procedure itself has changed.

In each, the party is not asking for an indulgence; he is asking to be put in the position he would have been in had the change been known. That is why these are rights and not applications.

Section 348 is what remains for every other situation — and it is the only one of the five that imposes a duty on the Court of its own motion.

The position stated shortly

1. Section 348 permits any Court, at any stage, to summon any person as a witness, examine any person in attendance though not summoned, or recall and re-examine any person already examined.

2. It becomes a duty where the evidence appears to the Court to be essential to the just decision of the case. That is the statutory test, and it is neither “useful” nor “of some relevance”.

3. The object is to enable the Court to arrive at the truth, and the power is not confined to any stage of the proceeding: Rajaram Prasad Yadav.

4. It is not exercised as a matter of course. The Court considers relevance and materiality, whether the application is bona fide, the prejudice to the other side and whether it can be met, and above all whether the evidence is essential.

5. Reasons must be recorded, whether the application is allowed or refused. Both orders determine the material on which the case is decided.

6. A “lacuna” that bars a recall means a gap left by the party’s own negligence or design, not any omission whatever. Evidence that is genuinely essential is not excluded because it also assists one side.

7. Where a recall is needed to give the accused a real opportunity to test the prosecution evidence, lateness alone is not a ground to refuse; delay can be met by costs: P. Sanjeeva Rao.

8. Section 240 gives both parties a right to recall witnesses where the charge is altered after the trial has begun, refusable only for recorded reasons of vexation, delay or defeating justice.

9. Section 269(4) gives the accused a right to have witnesses examined before the charge in a complaint warrant case recalled for cross-examination.

10. Section 254(2) permits a Sessions Judge to defer cross-examination or recall a witness for further cross-examination; the proviso to section 285 requires recall where a summary trial must be reheard.