Custody preventing an accused from instructing counsel can justify recalling witnesses for cross-examination.

The petitioner, the sole accused in C.C. No. 154 of 2025, faced charges under Sections 331(3) and 305 of the Bharatiya Nyaya Sanhita.

P.W.12 was examined in chief on 25 June 2026 and P.W.14 on 14 July 2026, but neither was cross-examined on those dates.

The petitioner sought recall of the witnesses, stating that he was in custody in another case and could not instruct his counsel; he had been released on bail on 7 August 2026, and the applications followed his release.

The Magistrate dismissed the applications for want of sufficient reasons. The petitioner challenged those orders under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). He clarified that P.W.13 had been included in one application by mistake and that he did not seek that witness’s recall.

Whether the petitioner should be permitted to recall P.Ws.12 and 14 for cross-examination because his custody in another case prevented him from instructing counsel when they were examined in chief.

Whether the Magistrate’s orders dismissing the recall applications should be set aside.

The petitions invoked Section 528 of the BNSS, under which the High Court may exercise its inherent jurisdiction to make orders necessary to secure the ends of justice.

The Court applied the principle that, in the circumstances of this case, an accused should receive an opportunity to cross-examine prosecution witnesses where custody in another case prevented the accused from giving counsel instructions at the relevant time.

The judgment cites no precedent or separate statutory provision governing witness recall.

The Court accepted that the petitioner could not instruct counsel while in judicial custody in another case when P.Ws.12 and 14 were examined in chief.

It considered that circumstance sufficient to warrant one further opportunity for cross-examination and concluded that the Magistrate’s refusals should not stand.

Because the petitioner did not press for P.W.13’s recall, the relief was limited to P.Ws.12 and 14.

The petitioner was permitted to recall P.Ws.12 and 14 for cross-examination, but not P.W.13.

He was directed to pay the necessary batta within three days of receiving the order and to cross-examine the witnesses on their dates of appearance, without seeking any further adjournment for that purpose.