Section 348 BNSS Power to Summon and Recall 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.

📖 Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271

Facts: The prosecution applied at a late stage to examine a witness who had not been examined earlier, and the application was resisted as an attempt to fill a gap. The Supreme Court examined the structure and object of the provision.

Held: The Court analysed the section as containing two parts. The first part is discretionary: it permits the Court to summon any person as a witness, to examine any person in attendance though not summoned, or to recall and re-examine any person already examined. The second part is obligatory: it requires the Court to take that step where the evidence appears to it to be essential to the just decision of the case. The Court held that the very wide discretion conferred by the first part is circumscribed by the object for which it is conferred — the just decision of the case — and is not to be exercised capriciously or arbitrarily. It held that the section is founded on the principle that a criminal court must be in a position to discover the truth, and that the power may be exercised at any stage and either on an application or of the Court’s own motion. But the Court cautioned that it is not a power to fill a lacuna left by the prosecution’s own default in a way that causes prejudice to the accused, and that the exercise must be fair to both sides.

Ratio: Section 348 has two parts: a wide discretion, and an obligation where the evidence is essential to the just decision of the case. The discretion is circumscribed by that object and must not be exercised capriciously or to the prejudice of the accused.

📖 Natasha Singh v. Central Bureau of Investigation, (2013) 5 SCC 741

Facts: An accused applied to summon witnesses in his defence at a stage at which the trial was well advanced, and the application was rejected on the footing that it would delay the proceedings. The question was the correct approach to an application under the provision.

Held: The Supreme Court held that the scope of the power is very wide and that its object is to achieve a just decision of the case. The paramount consideration is not the stage of the proceedings, nor the delay that may result, but whether the evidence sought is necessary to arrive at a just decision; and the provision is to be applied in aid of the fair trial that Article 21 requires, which extends to the accused’s right to lead evidence in his defence as much as to his right to test the prosecution case. The Court held that an application is not to be rejected merely because it has been filed at a belated stage, nor merely because allowing it will cause some delay, and that the true question is whether the evidence will assist the Court in reaching a just decision. It held that a court which refuses such an application on grounds of expedition alone has preferred convenience to justice, and set aside the refusal.

Ratio: The scope of the power is very wide and its object is a just decision of the case. Neither a belated application nor the prospect of some delay is by itself a ground for refusal; fair trial extends to the accused’s right to lead evidence.

⚠ Where section 348 sits among the recall provisions

Four other provisions confer a specific right of recall: section 240 where the charge is altered after the trial has begun; section 269(4) on the framing of a charge in a complaint warrant case; section 254(2) in a Sessions trial; and the proviso to section 285 where a summary trial must be reheard.

Where one of those applies, the party has a right and the Court has no discretion to refuse — except, under section 240, for recorded reasons of vexation, delay or defeating the ends of justice.

Section 348 is what remains for every other situation. It is the residual and general power, available in every proceeding and at every stage.

And it is the only one of the five that imposes a duty on the Court of its own motion. The others are rights of a party; section 348 obliges the Court to act whether or not anybody asks, where the evidence is essential to a just decision.

The position stated shortly

1. Section 348 has two parts: a discretion to summon, examine or recall, and an obligation where the evidence is essential to the just decision of the case: Mohanlal Shamji Soni.

2. The discretion, though very wide, is circumscribed by the object for which it is conferred, and is not to be exercised capriciously or arbitrarily.

3. It may be invoked by either party or by the Court of its own motion, and at any stage of any inquiry, trial or other proceeding.

4. The test is whether the evidence appears to the Court to be essential to the just decision of the case — not whether it is useful, admissible or arguably relevant.

5. The scope is very wide and the object is a just decision; a belated application and the prospect of some delay are not by themselves grounds for refusal: Natasha Singh.

6. The provision applies in aid of the fair trial Article 21 requires, which extends to the accused’s right to lead evidence in his defence.

7. It is not a power to fill a lacuna left by a party’s own default in a way that prejudices the accused, and the exercise must be fair to both sides.

8. The judge is not a spectator, but he must not descend into the arena or make out a case for a party.

9. Reasons must be recorded whether the application is allowed or refused; both orders determine the material on which the case is decided, and both are open to challenge.

10. Section 348 is the residual and general power. Where section 240, 269(4), 254(2) or the proviso to section 285 applies, the party has a right and the Court has no discretion; and section 348 alone imposes a duty on the Court of its own motion.