The Madhya Pradesh High Court has delivered a significant ruling on the scope of Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, holding that a prosecutrix can be recalled for further examination even after cross-examination if crucial defence evidence emerges. This judgment underscores the importance of ensuring a fair trial by allowing accused persons to confront witnesses with material that could impact their defence, while cautioning against dilatory tactics.
Background & Facts
The Dispute
The case involves allegations of abduction and rape under Sections 363, 376, 376(2), 366-A, 368/34 of the Indian Penal Code (IPC) and Sections 3, 4, 5(l), and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The prosecutrix, a minor, was allegedly abducted by Lakhan (son of respondent no. 1) and his friend Rahul, with respondents no. 1 (Radheshyam) and no. 2 (Sitaram) accused of aiding the crime. The defence contended that the respondents were not present at the crime scene, as they were attending a marriage 25 km away in Sijawata village.
Procedural History
The case progressed through the following stages:
- The prosecutrix was examined and cross-examined on 14 May 2025.
- The accused filed an application under Section 348 BNSS seeking recall of the prosecutrix to confront her with evidence that they were not present at the crime scene.
- The trial court allowed the application on 26 August 2025, observing that the defence evidence was material to the case.
- The victim filed the present petition under Section 482 Cr.P.C./Section 528 BNSS challenging the trial court’s order.
Relief Sought
The petitioner sought quashing of the trial court’s order, arguing that the recall application was a dilatory tactic, as the prosecutrix had already been cross-examined in detail without any suggestion regarding the respondents’ absence.
The Legal Issue
The central question before the High Court was whether Section 348 BNSS permits recalling a witness for further examination after cross-examination, particularly when the defence seeks to confront the witness with material evidence that could impact the trial’s outcome.
Arguments Presented
For the Petitioner
The petitioner’s counsel contended:
- The prosecutrix had already been cross-examined thoroughly, and no suggestion regarding the respondents’ absence was put to her.
- The recall application was filed solely to delay the trial, as the accused failed to produce the relevant documents (photographs and affidavit) at the appropriate stage.
For the Respondents
The respondents’ counsel argued:
- The defence evidence, including photographs of respondent no. 1 at a marriage and an affidavit executed by the prosecutrix, was material to their case.
- The trial court rightly exercised its discretion under Section 348 BNSS to allow the recall, as the evidence could not have been produced earlier due to an error on the part of their advocate.
The Court's Analysis
The High Court examined the scope of Section 348 BNSS, which empowers a court to recall a witness for further examination if it appears necessary for the just decision of the case. The Court observed:
"The learned judge of the trial Court has rightly allowed the application, and has also observed that the photographs and invitation card of marriage is also with the accused persons, which in the considered opinion of this Court can still be produced at the time of further cross-examination of the prosecutrix, and since the defence appears necessary to be confronted to the prosecutrix, the learned judge of the trial Court has not committed any error, whether in law or jurisdiction."
The Court emphasized the following principles:
- Fair Trial Requirement: The right of the accused to a fair trial includes the opportunity to confront witnesses with material evidence, even if such evidence emerges after the initial cross-examination.
- Discretion of Trial Court: The trial court’s discretion under Section 348 BNSS must be exercised judiciously, balancing the interests of justice with the need to prevent abuse of process.
- No Prejudice to Prosecution: The recall of the prosecutrix did not prejudice the prosecution, as the evidence could still be produced during further cross-examination.
- Dilatory Tactics: While the Court cautioned against dilatory tactics, it held that the present case did not fall under such a category, as the defence evidence was material and could impact the trial’s outcome.
The Verdict
The High Court dismissed the petition, upholding the trial court’s order allowing the recall of the prosecutrix under Section 348 BNSS. The Court directed the trial court to expedite the proceedings and ensure that the defence evidence is confronted with the prosecutrix during her further examination.
What This Means For Similar Cases
Defence Evidence Must Be Confronted
The judgment reinforces the principle that accused persons must be afforded a fair opportunity to confront witnesses with material evidence, even if such evidence emerges after the initial cross-examination. Practitioners should:
- Ensure that all material defence evidence is brought on record at the earliest possible stage.
- Argue for recall of witnesses under Section 348 BNSS only when the evidence is genuinely material and could not have been produced earlier.
Judicial Discretion Under Section 348 BNSS
Trial courts must exercise their discretion under Section 348 BNSS judiciously, considering:
- The materiality of the evidence sought to be confronted.
- Whether the recall application is a dilatory tactic.
- The stage at which the application is filed and the reasons for any delay in producing the evidence.
Balancing Fair Trial and Expeditious Disposal
While ensuring a fair trial is paramount, courts must also guard against unnecessary delays. Practitioners should:
- Be prepared to demonstrate the materiality of the evidence sought to be confronted.
- Avoid filing recall applications as a routine measure, particularly when the evidence could have been produced earlier.
- Highlight any prejudice caused to the prosecution or the witness due to the recall.
