Judicial Discretion and Limitations on Re-Cross-Examination under Section 348 BNSS

Introduction

This commentary examines the Chhattisgarh High Court’s decision in ABC v. Anil Kumar (2025:CGHC:17987), dealing with the scope and exercise of judicial discretion under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The case arose in a Special Sessions trial concerning offences under Sections 454, 354, 506, 323 IPC and Section 8 of the POCSO Act. The prosecutrix, after cross-examination in 2022, sought re-cross-examination in 2025, alleging parental pressure at the time of her first testimony. The trial court dismissed her application; the High Court affirmed that order and clarified the principles governing re-recall of witnesses under Section 348 BNSS.

Summary of the Judgment

The High Court dismissed the criminal miscellaneous petition under Section 528 BNSS challenging the trial court’s refusal to recall the prosecutrix. Key points of the decision:

The prosecutrix had already undergone thorough examination and cross-examination in March 2022.
No valid explanation was furnished for the three-year delay in seeking re-cross-examination.
Her birth certificate, relied upon to establish age, was registered after her deposition, undermining her claim.
The court held that allowing repeated re-cross-examination to fill perceived lacunae would frustrate the ends of justice and unduly prolong trials.
The petition was dismissed as devoid of merits, reaffirming that Section 348 BNSS is to be invoked sparingly and only for “strong and valid reasons.”

Analysis

1. Precedents Cited

The court extensively relied on Supreme Court authorities interpreting Section 311 CrPC—analogous to Section 348 BNSS—and other principles of recalling witnesses:

Ratan Lal v. Prahlad Jat (2017) 9 SCC 340: Emphasized that recall under Section 311 CrPC must be for the “just decision of the case,” exercised with caution, for “strong and valid reasons.”
Vijay Kumar v. State of UP (2011) 8 SCC 136: Held that the discretionary power to recall witnesses must be judicially exercised, not arbitrarily or capriciously.
Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374: Highlighted the objective of Section 311 CrPC to prevent failure of justice and underscored that recall should not be routine.
State (Nct Of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402: Stated that mere invocation of “fair trial” is insufficient; tangible reasons must demonstrate prejudice without recall.
Umar Mohammad & Ors. v. State of Rajasthan (2007) 14 SCC 711: Underlined that unexplained delay in seeking recall reflects possible tampering or collusion.
Manghi v. State Of M.P. (2005) 4 MPLJ 136: Held that once a witness has testified, re-recall cannot be allowed merely because the witness filed an affidavit contrary to earlier testimony.

2. Legal Reasoning

The judgment proceeded on three pillars:

Scope of Section 348 BNSS: Mirroring Section 311 CrPC, this provision permits recall or re-examination “at any stage” if the witness’s evidence is essential to a just decision. But the power is discretionary and must be used sparingly.
Delay and Bona Fides: The prosecutrix waited three years to raise critical facts (parental pressure, age at incident). No satisfactory explanation was offered for this delay. The late registration of her birth certificate further cast doubt on her motives.
Avoiding Abuse of Process: Allowing repeated re-cross-examination to fill perceived gaps would encourage tactical delays, harassment of witnesses, and undue trial extension—antithetical to the legislative aim of BNSS to ensure speedy justice.

3. Impact

This ruling clarifies the boundaries of Section 348 BNSS:

Trial courts must record reasons when exercising or refusing to exercise the recall power.
Applications for re-recall filed after significant delay will face strict scrutiny; unexplained delay undermines credibility.
Defendants cannot rely on successive recall applications to prolong proceedings or harass prosecution witnesses.
The decision reinforces procedural safeguards in POCSO and other sensitive trials, balancing witness protection with the accused’s right to fair trial.

Complex Concepts Simplified

Section 348 BNSS: Analogous to Section 311 CrPC, empowers courts to recall/examine a witness even after their testimony, provided it is essential for justice.
Prosecutrix: The female complainant or victim in criminal proceedings, especially in sexual offence cases.
Ends of Justice: The overriding principle that courts must ensure that no innocent person is convicted and no guilty person escapes, while also safeguarding procedural fairness.
Re-Cross-Examination: A second opportunity for the party that originally cross-examined a witness to question them again after re-examination by the examination-in-chief party.
POCSO Act: Legislation safeguarding children from sexual offences; here invoked because of the victim’s age and nature of allegations.

Conclusion

ABC v. Anil Kumar crystallizes the judiciary’s stance that the recall power under Section 348 BNSS is neither automatic nor to be used as a tool for tactical advantage. The judgment underscores:

The necessity of judicial restraint and clear articulation of reasons when refusing or granting recalls.
The importance of timely applications; unexplained delays undermine the credibility of the party seeking recall.
The broader public interest in preventing procedural abuse and avoiding undue trial prolongation.

By anchoring its reasoning in established Supreme Court jurisprudence, the Chhattisgarh High Court has provided a robust framework that trial courts across India must follow, thereby shaping the contours of fair and efficient criminal justice under the BNSS regime.