Recall of a witness after completed cross-examination requires compelling necessity for a just decision.

Crime No. 202/2019 was registered against the applicant under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the matter proceeded as S.C. NDPS No. 69/2019 before the Special Judge, NDPS Act, Jabalpur.

PW-3 Alpnarayan Mishra, the alleged Seizure Officer and a material prosecution witness, was examined-in-chief and cross-examined on 25.09.2025 and 26.09.2025; the cross-examination was thereafter concluded.

At the stage of recording the accused’s statement, the applicant sought recall of PW-3 under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for further cross-examination concerning compliance with Sections 42, 50, 52A, 55 and 57 of the NDPS Act, alleged discrepancies in seizure documents, secret-information procedures, Malkhana entries and related matters.

The Trial Court rejected the application on 16.07.2026, leading to the present petition under Section 528 BNSS.

The applicant alleged inadequate legal assistance during the earlier cross-examination and relied upon his medical condition and the constitutional guarantee of a fair trial.

1. Whether the Trial Court erred in rejecting the applicant’s application under Section 348 BNSS for recalling PW-3 for further cross-examination.

2. Whether the applicant’s asserted need to question PW-3 further regarding NDPS Act compliance, coupled with alleged inadequate legal assistance and his medical condition, constituted an exceptional circumstance warranting interference under Section 528 BNSS.

The Court applied Section 348 BNSS, which empowers the Court to summon, recall or re-examine a witness where such further examination is necessary for a just decision; however, the power is discretionary and cannot be used routinely to fill omissions, improve a party’s case or delay proceedings.

Section 528 BNSS permits exercise of the High Court’s inherent jurisdiction, but interference with a discretionary trial-court order is warranted only where illegality, perversity, arbitrariness, jurisdictional error or miscarriage of justice is demonstrated.

The Court also recognised the accused’s right to a fair trial and effective cross-examination under Article 21 of the Constitution, while holding that fairness applies to the prosecution and the administration of justice as well and does not confer an unrestricted right to reopen concluded cross-examination.

The proposed questions concerning Sections 42, 50, 52A, 55 and 57 of the NDPS Act were treated as matters within the defence’s knowledge during the original cross-examination.

The Court found that PW-3 had already been cross-examined on two dates and that the defence had neither sought deferment nor requested an additional opportunity when the cross-examination concluded.

The recall application identified no new fact discovered subsequently and did not show that the proposed questions could not, despite due diligence, have been put earlier.

The intended questions concerning statutory compliance and seizure-related discrepancies were part of the prosecution case and were within the defence’s knowledge from the outset; the asserted failure of earlier counsel to ask additional questions therefore did not justify recall.

The Trial Court had considered the stage of the proceedings, the opportunity already granted and the necessity of the proposed recall, and its decision was neither arbitrary nor unreasonable.

Although the Court acknowledged that fair trial is constitutionally mandated, it held that the right to cross-examine had already been effectively exercised and that a mere desire to ask further questions could not be elevated into a constitutional entitlement.

The applicant’s medical condition was considered sympathetic but irrelevant to the legal necessity for recalling the witness.

The Trial Court’s order dated 16.07.2026 rejecting recall of PW-3 under Section 348 BNSS was upheld, and the petition was dismissed.