Witness recall cannot cure defence lacunae, but court-caused denial of cross-examination requires one opportunity.

The petitioners, accused in Special Criminal Case No. 03/2021 pending before the Special Judge under the Chhattisgarh Protection of Depositors’ Interests Act, Raigarh, invoked Section 528 of the BNSS challenging the trial court’s order dated 2 May 2026.

The trial court had rejected their application under Section 348 of the BNSS, corresponding to Section 311 of the CrPC, seeking permission to further examine or cross-examine prosecution witnesses. The petitioners sought re-examination of Vijay Kumar Nayak (PW-03), Mahendra Kumar Dilawar (PW-04), Chaindas Mahant (PW-09), Kumari Jyoti Singh Sidar (PW-10), and Baniya Ram Ratre (PW-11), and cross-examination of Madan Singh Patel (PW-02), whose evidence had not been completed. They contended that material questions had not been put to the witnesses and that their defence would be prejudiced. The trial court rejected the application on the ground that the witnesses had already been examined and cross-examined and that the application sought to fill lacunae in the defence.

1. Whether the petitioners were entitled to recall and re-examine prosecution witnesses whose examination and cross-examination had already been completed, merely because certain questions had not been put to them earlier?

2. Whether the petitioners were entitled to an opportunity to cross-examine PW-02, Madan Singh Patel, whose cross-examination had not been conducted due to the trial court’s failure to secure his further appearance after court hours?

3. Whether the proceedings for recording the accused persons’ statements under Section 313 of the CrPC/Section 351 of the BNSS should be deferred pending a decision on PW-02’s cross-examination?

The Court applied Section 348 of the BNSS, corresponding to Section 311 of the CrPC, which permits a court to summon, examine, recall, or re-examine a witness when such evidence is essential for a just decision, but does not permit recall merely to fill lacunae or repair deficiencies in a party’s case. It also exercised jurisdiction under Section 528 of the BNSS.

Relying on Madhab Chandra Pradhan v. State of Odisha, SLP (Crl.) No. 10082 of 2024, and The State of Tripura v. Panna Ahmed, 2026 INSC 584, the Court reiterated that Section 311 CrPC cannot be invoked to introduce material that was available to the defence during the original cross-examination or to subject witnesses to repeated examination without sufficient justification. However, where a witness has not been cross-examined because of an omission or failure attributable to the court, denial of a reasonable opportunity to cross-examine may prejudice the accused’s right to a fair defence.

The Court upheld the rejection of the request concerning PW-03, PW-04, PW-09, PW-10, and PW-11 because those witnesses had already been extensively examined and cross-examined. The petitioners’ stated objective was to ask questions that had not been put earlier, which amounted to an attempt to fill perceived lacunae rather than to obtain evidence essential for a just decision. The principles in Panna Ahmed therefore applied against recalling those witnesses.

In contrast, PW-02 had not been subjected to cross-examination. The trial court’s order-sheet showed that the available court hours had ended, but the witness was not bound over for a subsequent date. Since the failure to complete cross-examination resulted from the court’s omission, the accused could not be made to suffer for it. The High Court therefore granted one limited opportunity to cross-examine PW-02.

The trial court was directed to list the matter on 10 September 2026 for issuing summons to PW-02 and to complete his evidence by 7 October 2026. The recording of the accused persons’ statements under Section 313 of the CrPC/Section 351 of the BNSS was accordingly deferred. If the prosecution did not intend to rely on PW-02’s evidence, or if his cross-examination was not required, the trial court was directed to proceed with the scheduled recording of the accused persons’ statements.