The Uttarakhand High Court held that under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023, a trial court erred in rejecting the prosecution’s application to summon the then Malkhana Moharrir and the original Malkhana Register merely because the witness was not cited in the charge-sheet, emphasizing that the power to summon witnesses exists to secure a just decision based on material necessary for proper adjudication.
Background & Facts
The Dispute
The revisionist, Gurmeet Kaur, challenged the order dated 17.08.2026 passed by the learned Ist Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No.03 of 2025, whereby the prosecution’s application under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (B.N.S.S.) to summon Mr. Jagdish Thakriyal, the then Malkhana Moharrir, and to call for the original Malkhana Register was rejected.
Key Facts
- The prosecution sought summoning of Mr. Jagdish Thakriyal, the officer responsible for maintaining the Malkhana record at the relevant time, and production of the original Malkhana Register to establish the custody and movement of articles allegedly recovered during investigation.
- The trial court rejected the application on the sole ground that the proposed witness was not cited as a prosecution witness in the charge-sheet.
- The revisionist contended that the prosecution evidence was still underway and that examination of the Malkhana Moharrir and the Register was necessary for establishing the chain of custody and link evidence relating to the recovered articles.
- The revisionist further argued that the power under Section 348 B.N.S.S. is intended to enable the court to summon any person whose evidence appears essential for a just decision, irrespective of charge-sheet citation.
Procedural History
- 17.08.2026: Order passed by Ist Additional Sessions Judge, Udham Singh Nagar rejecting the prosecution’s application under Section 348 B.N.S.S.
- Thereafter: Criminal Revision filed by Gurmeet Kaur assailing the aforesaid order.
- 16.09.2026: Judgment delivered by Hon’ble Alok Mahra, J., allowing the revision and setting aside the impugned order.
Relief Sought
The revisionist sought quashing of the order dated 17.08.2026, direction to the trial court to summon Mr. Jagdish Thakriyal and to call for the original Malkhana Register, and any further relief deemed fit by the Court.
The Legal Issue
The central question was whether the power conferred upon the court under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to summon or examine a person as a witness can be exercised despite the person not being cited as a prosecution witness in the charge-sheet, when such person’s evidence is essential for a just decision of the case.
Arguments Presented
For the Petitioner
The revisionist, relying on the statutory language and purpose of Section 348 B.N.S.S., argued that the provision is designed to advance the cause of justice by allowing the court to summon any witness whose evidence is material for a fair trial, notwithstanding absence from the charge-sheet. It was submitted that the prosecution’s evidence was still in progress and that the testimony of the Malkhana Moharrir and the original Register were indispensable for establishing the link evidence and chain of custody concerning the recovered articles. The revisionist further contended that rejecting the application merely on the ground of non-mention in the charge-sheet rendered the provision nugatory and defeated the legislative intent.
For the Respondent
The State defended the trial court’s order, asserting that the power under Section 348 B.N.S.S. must be exercised judiciously and that the charge-sheet serves as the foundation for framing the case; consequently, a witness not listed therein cannot be summoned as it would prejudice the accused and expand the prosecution’s case beyond the pleaded allegations. The State emphasized that the trial court’s approach ensured procedural fairness and prevented fishing expeditions.
The Court's Analysis
The Court examined the object and scope of Section 348 B.N.S.S., noting that the provision empowers the court to summon or examine any person as a witness if his evidence appears essential for a just decision, notwithstanding the fact that such person may not have been cited in the charge-sheet. The Court held that the power is intended to advance justice and enable the court to arrive at a decision based on material necessary for proper adjudication. It emphasized that the power must be exercised judiciously, not merely to fill lacunae in the prosecution case, but where the witness’s testimony is otherwise considered necessary. The Court found that the trial court erred in treating the absence of charge-sheet citation as an absolute bar, especially when the prosecution evidence was still underway and the sought witness could directly bear upon the chain of custody and link evidence. Accordingly, the impugned order could not be sustained.
"The power under Section 348 of the B.N.S.S. is intended to advance the cause of justice and to enable the Court to arrive at a just decision on the basis of the material necessary for proper adjudication of the case."
The Verdict
The Criminal Revision was allowed. The order dated 17.08.2026 passed by the learned Ist Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No.03 of 2025 was set aside. The application moved by the prosecution under Section 348 of the B.N.S.S. was allowed. The learned trial Court was directed to summon Mr. Jagdish Thakriyal, the then Malkhana Moharrir posted in the concerned Malkhana at the relevant time, and to call for the original Malkhana Register pertaining to the relevant period, in accordance with law.
What This Means For Similar Cases
Witness Summoning Beyond Charge-Sheet
Practitioners must now argue that a witness’s absence from the charge-sheet does not per se preclude summoning under Section 348 B.N.S.S. if the witness’s testimony is essential for establishing crucial facts such as chain of custody or link evidence.
Chain of Custody Evidence
The judgment underscores the importance of Malkhana officials and registers in narcotics and property cases; trial courts should facilitate their examination to safeguard the integrity of recovered articles, especially when prosecution evidence is still evolving.
Exercise of Power Under Section 348 B.N.S.S.
Courts are reminded that the power under Section 348 B.N.S.S. is not a tool to bolster weak prosecutions but a mechanism to ensure a just decision based on necessary material, to be exercised with judicial discretion and not as a routine matter.
