The Punjab and Haryana High Court has clarified that the power to recall prosecution witnesses under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) cannot be invoked merely because a new counsel is engaged after the framing of an amended charge-sheet, especially when the defence had already been afforded full opportunity to cross-examine the witnesses.
Background & Facts
The Dispute
The petitioner, Manvir Singh, was charged in FIR No. 92 dated 29.04.2024 under Sections 354, 376 IPC and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The charge-sheet was filed on 06.07.2024. Subsequently, on 04.10.2024, the charges were amended to include Section 6 of the POCSO Act in the alternative, while retaining Sections 354 and 376 IPC.
Key Facts
- The prosecutrix (PW1) and her mother (PW2) were examined and cross-examined on 06.09.2024 and 13.09.2024.
- On 04.10.2024, the prosecution filed an application to amend charges, and the Additional Public Prosecutor stated that she did not intend to recall PW1 or PW2.
- On the same day, the defence counsel also stated that he did not intend to cross-examine any further witnesses.
- A new counsel was later engaged and filed an application under Section 348 BNSS seeking recall of PW1 and PW2 for further cross-examination.
- The trial court dismissed the application on 16.01.2026, holding that the defence had already been given a full opportunity to cross-examine and had chosen not to avail it.
Procedural History
- 29.04.2024: FIR No. 92 registered against the petitioner.
- 06.07.2024: Charge-sheet filed under Sections 354, 376 IPC and Section 10 POCSO Act.
- 06.09.2024: Examination and cross-examination of PW1 and PW2 commenced.
- 13.09.2024: Completion of cross-examination of PW1 and PW2.
- 04.10.2024: Charges amended to include Section 6 POCSO Act in the alternative; both prosecution and defence stated no intention to recall witnesses.
- 16.01.2026: Additional Sessions Judge dismissed application under Section 348 BNSS.
- 10.04.2026: Revision petition dismissed by the High Court.
Relief Sought
The petitioner sought quashing of the order dated 16.01.2026 and direction to recall PW1 and PW2 for further cross-examination, arguing that the amended charge under Section 6 POCSO Act necessitated re-examination of witnesses.
The Legal Issue
The central question was whether Section 348 BNSS permits the recall of prosecution witnesses for further cross-examination after the framing of an amended charge-sheet, when the defence had already been afforded a full opportunity to cross-examine those witnesses but chose not to avail it.
Arguments Presented
For the Petitioner
The petitioner contended that the amendment of charges to include Section 6 POCSO Act fundamentally altered the nature of the allegations, requiring re-examination of the prosecutrix and her mother to test the veracity of evidence under the new charge. He relied on the principle of fair trial under Article 21 and argued that the trial court’s refusal to recall witnesses violated his right to effective cross-examination.
For the Respondent
The State argued that the defence had been given two full opportunities to cross-examine PW1 and PW2 on 06.09.2024 and 13.09.2024, and that the decision not to cross-examine further was a strategic choice made by the original counsel. The State further submitted that the amendment did not introduce new facts but merely added an alternative charge under a more specific provision, and that the prosecution had explicitly declined to recall witnesses.
The Court's Analysis
The Court examined the scope of Section 348 BNSS, which empowers the court to recall any witness at any stage if their evidence appears essential for a just decision. It emphasized that while the power is wide, it must be exercised judiciously and not as a matter of routine.
"The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised."
The Court relied on State (NCT of Delhi) v. Shiv Kumar Yadav and State of Haryana v. Ram Mehar & Others, holding that a change in counsel cannot be a ground for recalling witnesses. It noted that the accused is entitled to a counsel of choice, and once a counsel is engaged, the court presumes competence unless proven otherwise.
The Court observed that the amendment of charges from Section 10 to Section 6 POCSO Act did not introduce new factual allegations but merely substituted a more specific provision under the same factual matrix. The core allegations remained unchanged. The prosecutrix had already been examined and cross-examined twice, and Section 33 of the POCSO Act explicitly prohibits repeated summoning of child victims.
The Court held that the trial court’s refusal to recall witnesses was neither illegal nor perverse. The defence had not been denied any opportunity; it had simply chosen not to exercise it. To permit recall under these circumstances would open the door to abuse and delay, undermining the rights of the victim and the integrity of the trial process.
The Verdict
The revision petition was dismissed. The High Court upheld the order dated 16.01.2026 dismissing the application under Section 348 BNSS. The Court held that no further recall of witnesses was warranted, and the trial may proceed on the existing record. All pending miscellaneous applications were disposed of.
What This Means For Similar Cases
Recall of Witnesses Requires Demonstrable Injustice, Not Strategic Regret
- Practitioners must demonstrate actual prejudice or injustice caused by the absence of further cross-examination, not mere dissatisfaction with prior counsel’s performance.
- Applications under Section 348 BNSS must be supported by specific reasons showing how the existing evidence is inadequate post-amendment.
- Mere substitution of a charge under a more specific provision (e.g., Section 6 POCSO Act replacing Section 10) does not automatically trigger a right to recall.
Fair Trial Is Not a One-Sided Doctrine
- The Court reaffirmed that fair trial under Article 21 includes the rights of the victim and society, not just the accused.
- Repeated summoning of child victims under POCSO Act is prohibited under Section 33; courts must balance defence rights with child protection.
- Delay tactics disguised as fair trial claims will not be countenanced.
Strategic Decisions by Defence Counsel Are Binding
- When defence counsel, whether original or new, declines to cross-examine after being granted opportunity, the court is not obligated to reopen examination.
- The presumption of competence of counsel chosen by the accused remains strong unless there is evidence of gross incompetence or denial of access to case materials.
- Defence teams must plan cross-examination strategically and cannot rely on recall applications as a fallback.
