1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2919 of 2025 1 - Jagjivan Yadav S/o Janakram Yadav Aged About 34 Years R/o Samlai Pipariya P.S. Pasaan District - Korba (C.G.) (Accused) ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Passan Korba District- Korba (C.G.) ... Respondent(s) For Petitioner(s) : Ms. Versha Sarathi, Advocate For Respondent(s) : Mr. Akhilesh Kumar, Govt. Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 18.09.2025 1. The petitioner has filed the present Cr. M.P. challenging the order dated 20.08.2025 passed in Special Case (SC/ST) No. 17/2024 by the learned Special Judge, Schedule Caste/ Schedule Tribes (Prevention of Atrocities)Act, Dist- Korba, whereby the application filed by the petitioner under Section 348 of Bhartiya Nagrik Suraksha Sanhita, 2023 for recalling of the victim (PW/1) and Doctor (PW/2) for their recross-examination has been rejected. SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.09.22 09:28:19 +0530 2 2. The brief facts of the case are that the petitioner is an accused in Special Case (SC/ST) No. 17/2024 and facing trial of the case for the offence under Section 69, 296 and 351 (2) of Bhartiya Nyay Sanhita, 2023 and under Section 3 to 5 of Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989. The trial of the case is in progress in which the victim has been examined as PW-1 on 07.02.2025 and Dr. Jay Laxmi examined on 26.04.2025 as PW/2. After completion of their examination and cross-examination, the other witnesses are also been examined before the learned trial Court. On 20.08.2025, the petitioner had filed an application under Section 348 of B.N.S.S for recalling of the victim (PW/1) and Doctor (PW/2) for their recross-examination, on the ground that certain important questions are left to be asked to the victim and doctor and they were not being properly cross- examined by the defence and therefore, they are required to be recross-examine. 3. The application filed by the petitioner / accused was decided by the learned trial Court on 20.08.2025 and rejected the application by holding that the questionnaire as shown in the application which is sought to be asked from the victim and doctor during their recross- examination, appears to be relates with the normal conduct of the victim and Court can presume the normal conduct of the party. It is also observed that some of the question are scandalous and unnecessary and thus, the application filed by the petitioner is rejected. 4. Learned counsel for the petitioner would submit that on the date when the victim and doctor were being examined and cross-examined by the earlier counsel, the accused was in jail and when he came out from the jail he contacted with his counsel and came to know about the 3 evidence of the victim and then he engaged another counsel and filed the application for recross-examine the victim (PW/1) and the doctor (PW/2). The questionnaire as suggested in the application is very important in the facts and circumstances of the case which is required to be asked from the victim in duly her cross-examination and to confront from the facts of the case. The said important questions were left of its confrontation by his earlier counsel which materially affect the defence of the accused for which the recross-examination of the victim and the doctor is necessary. She would further submit that the mistake of the counsel to put proper questions in cross-examination of the victim and the doctor, the accused cannot be punished, therefore, the victim (PW/1) and the doctor (PW/2) may be recalled for their recross- examination by the defence. 5. On the other hand, learned counsel for the State opposes and have submitted that the victim and the doctor were detailed cross-examined on 07.02.2025 and 26.04.2025 in presence of the petitioner/ accused before the learned trial Court. After completion of the cross- examination, the application has been filed on 20.08.2025 which is after about six months of the cross-examination of the victim. He would further submit that from the application filed by the petitioner, it transpires that, earlier also the petitioner has file an application under Section 348 of B.N.S.S. for the same cause and the said application was also rejected by the learned trial Court and this is the repeated application filed by the petitioner which has been rejected vide order dated 20.08.2025. The victim and the doctor cannot be recalled for her recross-examination in the garb of application under Section 348 of 4 B.N.S.S. to fulfill the lacuna, therefore, the learned Trial Court has rightly rejected the application filed by the petitioner and the present petition is also liable to be dismissed. 6. I have heard learned counsel for the parties and perused the material annexed with the petition. 7. From the document Annexure-P/4, it transpires that the victim (PW/1) and doctor (PW/2) have been detailed cross-examined in every aspect of the matter. Her examination and cross-examination have been completed on 07.02.2025 and from the order sheet dated 07.02.2025, it transpires that during the cross-examination of the victim, the petitioner / accused was present through virtual mode before the learned trial Court and there was well aware about the cross- examination of the victim. At that time neither the petitioner/ accused nor his counsel have raised any objection with respect to the any questions and its answers. From perusal of the application filed under Section 348 of B.N.S.S. it transpires that earlier also the petitioner has made another application before the learned trial Court which was also rejected but there is no document with respect to the orders passed by learned trial Court in the earlier application filed by the petitioner. In the application filed under Section 348 B.N.S.S. (Annexure-P/2), the petitioner has proposed about 30 questions from the victim and 03 questions from the doctor (PW/2), which in the opinion of this Court is reopen the cross-examination of the victim as well as the doctor, it cannot be permitted to the petitioner at such belated stage. The learned trial Court has already observed that these questions are with respect to the general behavior of the parties and some of the 5 questions are scandalous. It is also been observed that the questions proposed to be asked from the doctor is also unnecessary. 8. In the matter of Ratan Lal Vs. Prahlad Jat reported in (2017) 9 SCC 340, the Hon’ble Supreme Court has held that:- "16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is as under: "311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case". 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. in Vijay Kumar v. State of Uttar Pradesh and Αnr.. (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under: 17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power 6 should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously". 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others. (2006) 3 SCC 374, this Court has considered the concept underlining under Section 311 as under:- "27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind". 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Ant.. (2016) 2 SCC 402, it was held thus: “……………..Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the 7 trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined". 21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- "38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7- 1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5- 1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an Application was got fled by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would fife an application on his own will and volition. The said application was, therefore, rightly dismissed. 22. Coming to the facts of the present case, PWS 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross- examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order." 9. A perusal of the impugned order makes it clear that the victim was examined and cross-examined fully long back. A lengthy cross- examination was put to victim and she gave reply all the questions put to her, but later on, an application was filed by the petitioner. After a 8 passage of time, the victim cannot be recalled for her recross- examination. It is the settled of law that the benefit of Section 348 of B.N.S.S. (Section 311 of CrPC) cannot be extended to the accused to fill up the lacuna. Mere submissions that some questions could not be put to the victim in her lengthy cross-examination, cannot be a ground to recall her, who has already been examined and cross-examined at length. The provisions of Section 348 of BNSS can be invoked only in order to meet the ends of justice for strong and valid reasons, with great caution and circumspection and not to permit the accused to call the victim again and again for re-cross-examination. Unfair advantage cannot be given to any of the parties and no one can be permitted to recall the witness for further re-cross-examination. 10. In view of the above discussions, this Court does not find any error in the impugned order and is not inclined to interfere with it. Accordingly, the petition, being sans merits, is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge sagrika