The Punjab & Haryana High Court has clarified that the right to recall a witness for further cross-examination under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is not absolute and cannot be invoked on vague or unsubstantiated grounds. This ruling reinforces the procedural balance between an accused’s right to a fair defence and the need to prevent harassment of complainants through repetitive examination.
Background & Facts
The Dispute
The petitioners, Jagwinder Singh @ Bunty and another, were accused in a criminal complaint filed by the respondent, Harkirat Singh, under Section 138 of the Negotiable Instruments Act. The complaint alleged dishonour of a cheque and was pending before the Judicial Magistrate First Class, Amritsar. During the trial, the petitioners were represented by an initial counsel who cross-examined the complainant. Subsequently, the petitioners engaged new counsel, who alleged that the previous counsel had failed to cross-examine the complainant on crucial aspects of the defence. Based on this assertion, the petitioners filed an application under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking recall of the complainant for further cross-examination.
Key Facts
- The complaint under Section 138 NI Act was filed by the respondent on an unspecified date prior to 2025
- The petitioners were represented by an initial counsel during the examination-in-chief and initial cross-examination of the complainant
- The petitioners changed counsel during the pendency of the trial
- The new counsel alleged that critical defence points were omitted during the earlier cross-examination
- The petitioners filed an application under Section 348 BNSS on an unspecified date in 2025 seeking recall of the complainant
- The application did not specify the exact questions or areas of cross-examination intended
- The trial court dismissed the application on 26.09.2025 on the ground of vagueness
- The petitioners filed a revision petition before the Additional Sessions Judge, Amritsar, which was dismissed on 03.02.2026
- The present petition under Section 528 BNSS was filed on an unspecified date in 2026 before the High Court
Procedural History
- Date of complaint filing: Prior to 2025 (exact date not specified)
- Date of initial cross-examination: During trial proceedings prior to change of counsel
- Date of change of counsel: Unspecified, but prior to 26.09.2025
- 26.09.2025: Application under Section 348 BNSS dismissed by Judicial Magistrate First Class, Amritsar
- 03.02.2026: Revision petition dismissed by Additional Sessions Judge, Amritsar
- 06.04.2026: Present petition dismissed by the Punjab & Haryana High Court
The Parties' Positions
Petitioners: Argued that the denial of further cross-examination violated their constitutional right to a fair trial under Article 21 and that they should not be penalized for the lapse of their former counsel. They contended that disclosing the precise questions would prejudice their defence.
Respondent: Opposed the application on grounds of harassment, delay, and lack of specificity. Argued that recall of a complainant-witness on vague assertions undermines the integrity of trial proceedings.
Relief Sought
The petitioners sought quashing of the orders dated 26.09.2025 and 03.02.2026, and a direction to the trial court to allow recall of the complainant for further cross-examination.
The Legal Issue
Can an accused invoke Section 348 of the BNSS to recall a complainant-witness for further cross-examination based solely on vague allegations of omission by prior counsel, without specifying the precise areas or questions intended?
Arguments Presented
For the Petitioner
The petitioners’ counsel argued that the denial of further cross-examination amounted to a denial of the right to a fair defence under Article 21 of the Constitution. They contended that the lapse of the previous counsel should not prejudice the accused, and that the trial court’s refusal to permit recall was arbitrary. They further argued that requiring disclosure of specific questions would expose the defence strategy, violating the principle of audi alteram partem. They cited the need for procedural fairness and urged the court to permit recall with appropriate cost sanctions to prevent abuse.
For the Respondent
The respondent contended that Section 348 BNSS is not a tool for re-litigating evidence or correcting counsel’s errors. He argued that repeated cross-examination of a complainant, who is already a victim, amounts to harassment and procedural abuse. He emphasized that the law does not permit fishing expeditions under the guise of defence, and that vague applications without specificity cannot be entertained.
The Court's Analysis
The Court undertook a detailed examination of Section 348 BNSS, which empowers the court to recall any witness for further examination or cross-examination. The Court observed that while the provision is designed to ensure justice, it is not an unfettered right. The Court held that the application must contain specific, concrete grounds justifying the need for recall.
"Unless the specific plea is taken by the petitioners, detailing therein the fields/aspects for which the further cross-examination is necessary, it is not possible for the learned trial Court to analyze as to whether the request of petitioners/accused for further cross-examination of respondent/complainant is genuine or not."
The Court rejected the petitioners’ argument that disclosing the questions would prejudice their defence, noting that the trial court is entitled to assess the relevance and necessity of the proposed questions without requiring full disclosure of the defence. The Court emphasized that the burden lies on the applicant to demonstrate a prima facie case for recall.
The Court further held that the right to recall a witness is not absolute and must be balanced against the principle of finality in trial proceedings and the protection of complainants from harassment. The Court noted that the petitioners had failed to identify even a single area of omission or a single issue that was inadequately covered in the earlier cross-examination.
The Court also affirmed that the revisional court was correct in dismissing the revision petition, as orders under Section 348 BNSS are interlocutory and not appealable or revisable unless they amount to a grave miscarriage of justice - which was not the case here.
The Verdict
The petition was dismissed. The High Court affirmed the orders dated 26.09.2025 and 03.02.2026, holding that the trial court was justified in rejecting the application under Section 348 BNSS due to the absence of specific grounds. No further cross-examination was permitted. The petitioners’ request for recall of the complainant was denied. All pending applications were disposed of.
What This Means For Similar Cases
Specificity Is Mandatory for Witness Recall
- Practitioners must draft applications under Section 348 BNSS with precise details: identify the witness, specify the exact topics or facts omitted in prior cross-examination, and explain why those omissions materially affect the defence
- Vague assertions such as "important questions were not asked" or "counsel missed crucial points" will be summarily rejected
- Applications must demonstrate a direct link between the proposed questions and the defence strategy
Prior Counsel’s Errors Do Not Automatically Justify Recall
- The lapse of former counsel does not create a right to re-open evidence
- Courts will not permit accused persons to use change of counsel as a tactical tool to delay or re-litigate testimony
- Remedies for ineffective assistance of counsel must be pursued through other avenues, such as appeal or writ, not through recall applications
Recalling Complainants Requires Extra Scrutiny
- Complainants in cheque bounce cases are not ordinary witnesses; they are the aggrieved party
- Courts will be especially cautious against allowing repeated examination of complainants absent compelling, documented reasons
- Any request to recall a complainant must be accompanied by a clear justification that the omission was substantial and prejudicial to the accused’s case
