The Madras High Court has reaffirmed that the right to cross-examine witnesses is not a mere formality but a cornerstone of fair trial rights, particularly when the case hinges on intimate personal relationships and contested identity. In a judgment that underscores procedural fairness over procedural rigidity, the Court directed the recall of prosecution witnesses to allow the accused full opportunity to challenge their testimony.
Background & Facts
The Dispute
The petitioner, Kavikumar, is accused in a criminal case arising from his consensual romantic relationship with PW2, a minor aged 17 years and a few months. PW1 and PW3, the parents of PW2, opposed the relationship and allegedly assaulted the petitioner on prior occasions. The prosecution alleges that the petitioner abducted PW2 on 5 April 2024, leading to a habeas corpus petition filed by the parents and her subsequent recovery by police in Bangalore. The petitioner claims the relationship was consensual and that he was in Bangalore on 6 January 2026 attending a relative’s funeral, which he had communicated to the trial court.
Procedural History
The trial in Special Criminal Case No.89 of 2024 commenced with examination-in-chief of PW1 to PW3 on 6 January 2026. The petitioner was absent on that date due to the funeral, and the trial court had condoned his absence. On 12 January 2026, the petitioner filed a petition under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking recall of the three witnesses for cross-examination. This petition was dismissed by the trial court on 2 February 2026. The petitioner then filed a criminal original petition under Section 528 of BNSS before the Madras High Court to set aside that order.
Relief Sought
The petitioner sought permission to cross-examine PW1, PW2, and PW3, arguing that their testimony was critical to establishing consent, identity, and motive. He contended that the trial court’s refusal to permit cross-examination, especially after photographic identification was used in lieu of physical identification, rendered the trial fundamentally unfair.
The Legal Issue
The central question was whether Section 348 of BNSS permits recall of prosecution witnesses for cross-examination when the accused’s absence during examination-in-chief was condoned and the case involves sensitive personal circumstances that necessitate full adversarial testing of evidence.
Arguments Presented
For the Petitioner
Counsel for the petitioner relied on State of Tamil Nadu v. S. Rajendran and K. S. Puttaswamy v. Union of India to argue that the right to cross-examine is an essential component of natural justice and fair trial under Article 21 of the Constitution. He emphasized that the trial court’s reliance on photographic identification without physical verification created a material risk of misidentification. The petitioner’s absence was not willful but duly explained and condoned, making denial of cross-examination arbitrary.
For the Respondent
The Additional Public Prosecutor contended that the trial court had discretion under Section 348 of BNSS to deny recall of witnesses to prevent delay and abuse of process. He argued that the petitioner had ample opportunity to cross-examine during the trial and that the petition was an attempt to prolong proceedings. The prosecution maintained that the witnesses’ testimony was consistent and that photographic identification was a valid substitute under prevailing practice.
The Court's Analysis
The Court examined the nature of the allegations and the procedural posture of the case. It noted that the relationship between the petitioner and PW2 was central to the prosecution’s narrative and the defence’s rebuttal. The Court observed that the trial court had not recorded any reasoning for denying the recall petition, nor had it considered the implications of using photographs instead of physical identification.
"The identity of the accused, the nature of the relationship, and the circumstances of the alleged abduction are so intertwined that the denial of cross-examination strikes at the very root of a fair trial."
The Court distinguished this case from routine delays, noting that the petitioner’s absence was excused and that the witnesses’ testimony contained material inconsistencies that could only be tested through cross-examination. It held that Section 348 of BNSS must be interpreted liberally to ensure substantive justice, particularly in cases involving minors and consensual relationships where motive and consent are in dispute. The Court further emphasized that the use of photographs as a substitute for physical identification, without explanation or corroboration, creates a legitimate ground for challenge in appeal.
The Verdict
The petitioner succeeded. The Madras High Court set aside the trial court’s order denying recall of PW1 to PW3 and directed the trial court to summon them for cross-examination on 20 April 2026. The petitioner was directed to deposit ₹3,000 as cost, but no costs were awarded to either party.
What This Means For Similar Cases
Cross-Examination Cannot Be Denied on Technical Grounds
- Practitioners must argue that Section 348 of BNSS permits recall when absence was condoned and testimony is pivotal
- Denial of cross-examination in cases involving consent, identity, or emotional context violates Article 21
- Courts must record reasons for denying recall petitions - mere procedural convenience is insufficient
Photographic Identification Requires Judicial Scrutiny
- Use of photographs in lieu of physical identification must be justified on record
- Defence must be allowed to challenge the reliability of photographic identification through cross-examination
- Failure to do so invites appellate reversal on grounds of procedural unfairness
Fair Trial Trumps Expediency in Sensitive Cases
- Cases involving minors and consensual relationships demand heightened procedural safeguards
- Trial courts must avoid mechanical application of procedural rules when substantive justice is at stake
- The burden shifts to the prosecution to demonstrate why recall would prejudice the trial
