2025:HHC:20982 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 539 of 2025 Reserved on: 23.06.2025 Date of Decision: 02.07.2025. Kuldeep ...Petitioner Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Petitioner : Mr. G.R.Palsra, Advocate. For the Respondent/State: Mr. Parshant Sen, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition against the order dated 31.05.2025 passed by learned Special Judge, Mandi, District Mandi, H.P. (learned Trial Court), vide which an application filed under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for further cross-examination of HASI Santosh Kumar was rejected. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:20982 2. Briefly stated, the facts giving rise to the present petition are that the police filed a charge-sheet against the accused for the commission of an Offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’). The accused filed an application under Section 348 of BNSS, 2023 for the re-examination of HASI Santosh Kumar. It was asserted that the witness could not be cross-examined regarding the important facts and re-examination of the Investigating Officer is essential. Hence, the application for recalling the witness for re-examination of witness on some important facts. 3. The application was opposed by filing a reply asserting that the Court had granted ample opportunity for the cross-examination of the witness. The witness was duly cross- examined by the defence. The application has been filed to fill up the lacuna, and allowing the same would cause prejudice to the prosecution’s case; therefore, it was prayed that the application be dismissed. 4. Learned Trial Court held that the Investigating Officer had stepped into the witness box on 11.07.2024, and he 3 2025:HHC:20982 was cross-examined by the learned defence counsel on that very date. The application was filed on 08.04.2025 after the lapse of nine months. It was not explained why the application was not filed earlier. Statement of accused under Section 313 of Cr.P.C. had been recorded and the accused had a chance to put his defence before the Court; therefore, the application was dismissed. 5. Being aggrieved by the order passed by the learned Trial Court, the petitioner/accused has filed the present petition, asserting that the learned defence counsel could not put material questions to the Investigating Officer. The petitioner should be given a chance to put material questions to the witness. Learned Trial Court erred in declining the opportunity on the ground that the application was filed to fill up the lacuna left by the petitioner. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. I have heard Mr. G.R. Palsra, learned counsel for the petitioner and Mr. Parshant Sen, learned Deputy Advocate General for the respondent/State. 4 2025:HHC:20982 7. Mr. G.R. Palsra, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. The accused has a right to prove his defence, and this opportunity should not have been denied to him. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 8. Mr. Parshant Sen, learned Deputy Advocate General, submitted that there is no infirmity in the order passed by the learned Trial Court. The petitioner/accused failed to assign any reasonable cause for the delay in filing the application. He has not provided any reason for recalling the witness for further cross-examination. Hence, he prayed that the petition be dismissed. 9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 10. The application was filed on the ground that the learned counsel representing the accused before the learned Trial Court could not ask essential questions due to inadvertence. It was laid down by this Court in Pohu Lal vs Kamla Devi 2001(2) ShimLC 384 that inadvertence is a form of 5 2025:HHC:20982 negligence; therefore, the application did not disclose any sufficient cause for not putting the questions to the witness when he had appeared before the Court. 11. The application was happily vague; it was not mentioned as to what material question could not be put to the witness. It was also not specified in the present petition as to what material facts are required to be put to the witness during his cross-examination. Thus, there is nothing to show that the accused could not put the material questions to the witness. 12. Mr. G.R. Palsra, learned counsel for the petitioner/accused, submitted that disclosure of the questions would lead to the disclosure of the defence of the accused and the questions were not rightly mentioned in the application. This submission cannot be accepted. The petitioner/accused has to satisfy the Court as to what material aspect was missed by his counsel and why further cross-examination of the witness is necessary. The witness can be recalled for justifiable reasons for putting the relevant question to him, and it is impermissible for the party to recall the witness without specifying that the relevant questions are required to be put to the witness. 6 2025:HHC:20982 13. The present petition has been filed under Section 528 of BNSS, which deals with the inherent jurisdiction of the Court. It is trite to say that inherent jurisdiction is to be exercised sparingly and to prevent the abuse of the process of the Court. In the present case, there is no abuse of the process of the Court. Thus, there is no justifiable reason to exercise the jurisdiction vested with the Court under Section 528 of BNSS. Consequently, the present petition fails, and the same is dismissed. 14. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case (Rakesh Kainthla) Judge 02nd July, 2025 (ravinder)