Section 348 BNSS | Court's Power To Recall, Re-Examine Witness Must Be Exercised With Great Caution: Chhattisgarh High Court Reiterates

Section 348 of BNSS bestows upon the Court the power to summon, at any stage of any inquiry, trial or other proceeding, any person as a witness, or examine any person in attendance not summoned as a witness, or re-call and re-examine any person already examined. Additionally, the Court also has the power to summon and examine or re-call and re-examine any such person if his evidence appears to be essential to the just decision of the case.

In the present matter the prosecutrix had moved a plea three years after other witnesses were examined, seeking her 're-cross examination' on the ground that she was aged about 18 years at the time of alleged sexual assault and thus needs to depose again. 

 Justice Ravindra Kumar Agrawal in his order referred to the Supreme Court's judgment in Ratan Lal v. Prahlad Jat (2017) where apex court had held that court's power to summon, recall or re-examine any person already examined under Section 311 CrPC (now Section 348 BNSS) is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. However the Supreme Court had underscored that this power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection, adding that recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. 

The high court thereafter said:

“On perusal of the impugned order makes it clear the prosecutrix was examined and re-cross-examined fully long back in the year 2022. A detailed cross-examination was put to prosecutrix and she gave all the questions put to her but later on after about 03 years she herself has moved an application for her re-cross-examination. The application filed by her is contrary to the evidence of the prosecutrix PW-2. After a passage of time when she filed an application on the ground that she aged about 18 years on the date of incident is based on the birth certificate produced by her as Annexure A/3 in the petition. From perusal of the said birth certificate it itself appears that the said birth of the victim has got registered with the registering authority on 27.09.2024 i.e. after two and half year of her deposition. No reason has been assigned for delay in moving the application by the prosecutrix. The entire scenario shows that she has been won over by the defence. It is settled law that the benefit of Section 348 of BNSS (311 of Cr.P.C.) cannot be extended to the parties to fill up the lacuna.”

It further said, "The provisions of Section 348 of BNSS, 2023 can be invoked only in order to meet the ends of justice for strong and valid reasons with great caution and circumspection and not to permit the parties to call the prosecutrix again and again for re-cross-examination". 

Background

The Court was dealing with a petition  challenging an order passed by Additional Sessions Judge whereby, an application under Section 348 of BNSS filed by the petitioner was dismissed.

The accused was booked under Section 454(Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment), 354(Assault or criminal force to woman with intent to outrage her modesty), 506(criminal intimidation), 323 of IPC and Section 8 (punishment for sexual assault) of POCSO Act.

The prosecutrix had been examined and cross examined by the accused (Respondent 1). After examination of other witnesses, she filed an application under BNSS Section 348 seeking her re-cross-examination. In the application, she asserted that she had earlier deposed due to pressure of her parents when she conceived pregnancy and her parents had thrown her out of their house, post which she went to the accused's house and delivered a child.

She alleged that she was aged about 18 years old at the time of the incident and wanted to be re-cross-examined on that point. The application was dismissed by the sessions court. Aggrieved, she approached the High Court.

Findings

At the outset, the Court noted that— when the prosecutrix had been examined and cross-examined by the accused, she did not disclose any pressure upon her from her parents. When some of the witnesses had been examined, after about 3 years she moved her application showing that she was aged about 18 years at the time of the incident and required to be re-cross-examined. Additionally, it is not the case of respondent that the prosecutrix was more than 18 years of age at the time of incident but it was she who had contended otherwise and came forward for her re-cross-examination.

It referred to  Manghi @ Narendra v. State of M.P., (2005) where the Madhya Pradesh High Court held that a witness, once examined as a prosecution witness, cannot be recalled for examination or cross-examination merely because an affidavit contrary to the deposition made before the Trial Court was filed, and acting otherwise would constitute an unfair advantage which cannot be given to any of the parties.

Holding that the provision of Section 348 cannot be exercised in order to permit the prosecutrix to be called again and again for re-cross-examination, the Court dismissed the petition.

Case Title: Abc Prescription Of Prosecutrix In The Closed Envelope v. Anil Kumar

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