Material witnesses may be recalled when prior statements were unavailable for effective cross-examination.

The petitioner, who had been in custody since 28 March 2025, faced trial for offences under the Bharatiya Nyaya Sanhita, 2023 and the Protection of Children from Sexual Offences Act, 2012.

The prosecutrix (PW-1) and her mother (PW-3) were examined and cross-examined on 2 July 2025.

The petitioner later sought their recall under Section 384 of the Bharatiya Nagarik Suraksha Sanhita, 2023, stating that their statements recorded under Section 183 BNSS had been kept in a sealed cover and were unavailable to the defence when cross-examination took place.

The Special Judge rejected the application, relying principally on the fact that the witnesses had already been cross-examined by the petitioner’s previous counsel.

1. Whether the Trial Court was justified in rejecting the recall application solely because the witnesses had already been cross-examined by previous counsel, without considering whether their Section 183 BNSS statements were available to the defence at that time

2. Whether the witnesses could be recalled for the limited purpose of confronting them with those previous statements, subject to safeguards against repetitive questioning and delay

Section 384 BNSS, corresponding to Section 311 of the Code of Criminal Procedure, 1973 as identified in the judgment, empowers the court to recall a witness where doing so is necessary for a just decision.

Under Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, that power is broad and directed towards arriving at a just decision.

Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, requires the court to consider whether the evidence is essential to the just decision of the case and to exercise the power in the interests of justice, without permitting unnecessary protraction.

A change of counsel alone does not justify recall; however, a specific circumstance affecting the effective exercise of cross-examination must be independently considered.

Prior statements may be used for legally permissible purposes, including testing a witness’s consistency and veracity.

The Trial Court rejected the application because the previous counsel had conducted a detailed cross-examination and the application followed a change of counsel.

It did not determine whether the Section 183 BNSS statements were available to the defence at the time, or whether access to them was needed for meaningful confrontation.

The High Court held that this omission was material: the stated purpose was specific—confronting the witnesses with their previous statements—and the application could not, at that stage, be treated as a request for a fresh or roving cross-examination.

The Trial Court must nevertheless regulate the questioning, including the admissibility of particular questions, to prevent repetition and delay.

The Trial Court was directed to ensure that the Section 183 BNSS statements, if available on the judicial record, are dealt with and supplied to the defence in accordance with law and applicable procedure.

PW-1 and PW-3 are to be recalled for limited further cross-examination to confront them with their previous statements and on consequential matters, subject to the Trial Court’s control to prevent repetition and unnecessary delay.