1 2025:CGHC:20833 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1498 of 2025 Anand Kumar Kashyap S/o Shyam Lal Kashyap Aged About 30 Years R/o Village Kanahai Chowki Naila Police Station Janjgir District Janjgir Champa Chhattisgarh. ... Petitioner versus Union Of India Through Junior Asuchna Officer NCB Indore. ... Respondent (Cause title taken from Case Information System) For Petitioner : Mr. Shailendra Dubey, Advocate along with Ms. Shivali Dubey, Advocate For Respondent : Mr. Ramakant Mishra, DSGI Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 06/05/2025 1. The petitioner has filed the instant Criminal Miscellaneous Petition under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (in short “BNSS 2023”), against the order dated 21-04-2025 passed by learned Special Judge (NDPS Act), Janjgir, District Janjgir- Champa (C.G.) in SCC NDPS Act No. 01/2024, whereby the learned trial court has allowed the application of the prosecution filed under VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.07 18:53:02 +0530 2 Section 348 of the BNSS, 2023, and called Mr. S. Bhagat as the prosecution witness for his examination. 2. The brief facts of the case are that the petitioner is an accused in the above-said Criminal Case SCC NDPS Act No. 01/2024 and facing trial of the case for the offence under Sections 8, 20, 25, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”) before the learned Special Judge (NDPS Act), Janjgir, District Janjgir-Champa. During the trial of the case, the prosecution witnesses have been examined, the accused's statement was recorded, and after hearing the parties, the case was fixed for pronouncement of judgment on 02-04-2025. 3. On 01-04-2025, the prosecution has filed an application before the learned trial court under Section 348 of the BNSS, 2023, for calling the Bank Officer, Mr. S. Bhagat, as the prosecution witness for his evidence. It is submitted in the application that the accused had opened his bank account at Union Bank of India, Champa Branch, but by mistake, he could not be put in the list of witnesses and therefore he could not be examined as the prosecution witness whereas the branch manager of the bank has been examined in whose branch he opened the bank account. The officer, who opened the bank account of the accused in the bank, is an important witness, and he may be called as a prosecution witness along with the relevant documents of the bank. 4. The petitioner/accused had replied the application filed by the respondent/prosecution and submitted that in the entire charge 3 sheet, there is no mention about the fact that Mr. S. Bhagat had opened the bank account of the petitioner/accused in the Champa branch of the bank. He is not the cited witness and he cannot be called as the prosecution witness to fulfill the lacunae that too at the fag end of the trial particularly when the case was fixed for passing of the judgment. It is also submitted that by calling the additional witness, the rights of the petitioner/accused affected and his defence would be seriously prejudiced. Therefore, the application filed by the prosecution be dismissed. 5. After hearing the parties, the learned trial court has passed the order on 21-04-2025, allowing the application of the prosecution calling Mr. S. Bhagat as the prosecution witness. The said order dated 21-04-2025 is under challenge in the present petition. 6. Learned counsel for the petitioner/accused would submit that the impugned order suffers from material irregularity and illegality. Once the case is closed for the passing of the judgment, the application under Section 348 of the BNSS, 2023, cannot be entertained. It would amount to fulfilling the lacunae in the prosecution’s case. The said witness, Mr. S. Bhagat, is not the cited witness. It would also be against the mandate of the provisions of Section 348 of the BNSS, 2023, and the prosecution cannot call witnesses who are not the cited witness. If the prosecution wants to examine the witness, it should exercise the discretion of Section 173 (8) of the Cr.P.C. (Section 193 (9) of BNSS, 2023) by filing the supplementary charge sheet and to supply the copy of his statement so that the petitioner/accused may have the opportunity to contradict from his 4 previous statement. He would also submit that the powers of Section 348 of the BNSS. 2023 should have been exercised judicially and not arbitrarily because it does affect the valuable legal rights of the petitioner/ accused. Therefore, the impugned order is liable to be set aside, and the application filed by the respondent/prosecution may be dismissed. 7. Per contra, learned counsel appearing for the respondent would oppose the submissions made by the learned counsel for the petitioner/accused and have submitted that, as per the provisions of Section 348 of the BNSS, 2023, the witness may be called at any time before the judgment whose evidence are necessary for just decision of the case. in the present case, Mr. S. Bhagat has opened the bank account of the petitioner/accused and he is the necessary witness. By mistake, his name is left in the list of prosecution witnesses, but the contents of the charge sheet bear the fact that the bank account was opened in the bank at Champa branch of the Union Bank of India. He would also submit that no prejudice is being caused because the petitioner/accused has the right to cross- examine the witness. Availing the right conferred under Section 348 of the BNSS, 2023, does not amount to fulfilling the lacunae in the case. he would refer to para 91 of the complaint and submit that there is sufficient averment that the petitioner/accused had opened a bank account at Champa branch of Union Bank of India after submitting the documents and his photograph. The learned trial court has rightly exercised its jurisdiction and allowed the application in 5 which there is no illegality, and the present petition is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the documents annexed with the petition. 9. The core issue involved in the present petition as to whether the learned trial court can call a witness who is not cited that too at the fag end of the trial or not. It is apposite here to quote the provisions of Section 348 of the BNSS, 2023 for the sake of convenience, which reads as under:- “348. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, 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.” 10. The trial court’s power to put questions to any witness to discover or to obtain proper proof of relevant facts at any time is provided in Section 168 of the Bhartiya Sakshya Adhiniyam, 2023 (Section 165 of the Indian Evidence Act, 1872). Section 168 of Bhartiya Sakshya Adhiniyam, 2023, is also quoted herein below, which reads as under:- “Judge's power to put questions or order production. 168. The Judge may, in order to discover or obtain proof of relevant facts, ask any question he 6 considers necessary, in any form, at any time, of any witness, or of the parties about any fact; and may order the production of any document or thing; and neither the parties nor their representatives shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Adhiniyam to be relevant, and duly proved: Provided further that this section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 127 to 136, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 151 or 152; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 11. The key words relevant for consideration in the present case are “at any stage”, “summon any person as a witness” and “essential for just decision of the case”. Phraseology used in Section 348 of BNSS, 2023 provides that a trial comes to an end when the judgment is pronounced, and until then, the court has the power to act under this section. Therefore, a witness can be summoned and examined 7 even where the evidence of both sides is closed and the case is posted for judgment. In the matter of “Jamatraj Kewalji Govani v. State of Maharashtra” AIR 1968 SC 178, the Hon’ble Apex Court has held in para 10 and 14 that:- “10. Section 540 is intended to be wide as the repeated use of the word ‘any’ throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word ‘may’ in the first part and of the word ‘shall’ in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart, The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something 8 suddenly and unexpectedly. This was laid down by Tindal, C.J. in words which are oft-quoted: “There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.” [Reg v. Frost1] There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory J. in Rex v. Dora Harris: “The cases of Reg v. Chapman, (8 C & P. 558) and Reg v. Holden, (8 C & P. 606) establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests 9 of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right.” However the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in Reg v. Frost even in those cases where a witness is called by the Judge after the case for the defence is closed, and states, “that the practice should be limited to a case where the matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue” and cites the case of Reg v. Haynes where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris case, five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross-examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the 10 power of the Court. It was an extreme example of the exercise of the power. 14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and, obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” 12. In the matter of “Mohanlal Shamji Soni v. Union of India and Another” 1991 Supp. (1) SCC 271, the Hon’ble Supreme Court has held in para 10, 15 and 27 that:- “10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the 11 prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light 12 upon the matter in dispute; because if judgments happen to be rendered on inchoate,, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 15. Besides the above specific provisions under the Cr. PC and CPC empowering the criminal and civil courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act. Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani v. State of Maharashtra, "these two sections between them confer jurisdiction on the Judge to act in aid of justice." 27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.” 13 13. In the matter of “Manju Devi v. State of Rajasthan and Another” 2019 (6) SCC 203, the Hon’ble Supreme Court has held in para 10 that:- “10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBP, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. 14 The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. * * * 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a 15 power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (emphasis in original) 14. In the matter of “V. N. Patil v. K. Niranjan Kumar and Others” 2021 (3) SCC 661, the Hon’ble Supreme Court has held that:- “15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P2. (SCC p. 141, para 17) 16 "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 should be exercised consistently with the provisions of the Code 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. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason." 16. This principle has been further reiterated in Mannan Shaikh v. State of W.B.3 and thereafter in Ratanlal v. Prahlad Jar and Swapan Kumar Chatterjee v. CBS. The relevant paragraphs of Swapan Kumar Chatterjees are as under: (Swapan Kumar Chatterjee cases, SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to 17 examine any person in attendance, though not summoned as a witness; or (iii) to recall and re- examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law." 15. Recently, their lordship of Hon’ble Supreme Court has held in the matter of “K. P. Tamilmaran v. State by Deputy Superintendent of Police”, 2025 SCC Online SC 958, that:- “47. Before moving further, we consider it necessary to deal with the law relating to section 311 CrPC under which PW-49 was summoned as a witness. 18 Section 311 CrPC reads as follows: “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.” This Section 311 of CrPC provides wide powers to a Criminal Court, to do the following: i. Summon any person as a witness, or ii. Examine any person present in court, though not summoned as witness, or iii. Recall and re-examine any person already examined. The above powers can be exercised ‘at any stage of any inquiry, trial or other proceeding’ under the CrPC. The provision can be divided into two parts. The word ‘may’ is used in the first part of the section which grants the Court the discretion to summon a witness. In contrast, the second part of the Section uses the word ‘shall’ which casts a duty on the Court to summon and examine or recall or re-examine any such person 19 as a witness when it appears to the Court that it is essential to do so for a just decision in the case. In other words, the second part is mandatory, and Courts are obligated to exercise their powers under Section 311 CrPC when the evidence of any person is essential for a just decision of the case. (See : Jamatraj Kewalji Govani v. State of Maharashtra, 1967 SCC OnLine SC 19) 48. As is clear from the language of the provision itself, there is a wide discretion with the Courts under Section 311 CrPC. These powers can be exercised suo moto or on an application moved by either side. After all, the object is that the Court must not be deprived of the benefit of any valuable evidence. It is absolutely necessary that the Court must be apprised of the best evidence available. Thus, Courts have been given wide powers to decide on their own if a witness is required to be called or recalled for examination or re- examination. This power under Section 311 CrPC can be invoked at any stage of the trial, even after the closing of the evidence. Section 311 CrPC can also be read along with Section 165 of the Evidence Act, as the powers of the Court under Section 165 of the Evidence Act are complementary to Section 311 of CrPC. As discussed above, powers under Section 311 CrPC can either be exercised on an application moved by either side to the case or suo moto by the Court. In case a person is not listed as a witness in the charge- sheet but later, the prosecution desires to bring that person as an additional prosecution witness, then the 20 prosecution can move an application to bring this person as a prosecution witness. It is then for the Court to decide whether such a person is required as a witness or not. If the Court finds that such a person should have been examined as a prosecution witness and he/she was omitted from the list of witnesses due to some oversight, mistake or for any other reason, the Court may allow the application and such a person can be examined as a prosecution witness. Thereafter, the normal course of examination-in-chief, cross- examination, etc. would follow as per the procedure. On the other hand, when the Court calls a person as a Court witness, there are some restrictions regarding the cross-examination of such witness. 49. In a case where neither party is interested in examining a person as a witness yet the Court feels that the evidence of such a person is necessary for a just decision, the Court though cannot compel either the prosecution or the defence to call a witness, but it can invoke its power under Section 311 CrPC, read with Section 165 of the Evidence Act and call such a person as a Court witness. Whether a person is required to be examined as a witness for a just decision is again a question which has to be decided by the Court on the basis of the facts of that particular case. (See : Rama Paswan v. State of Jharkhand, (2007) 11 SCC 191) 50. As far as cross-examination of a Court witness is concerned, no party can claim cross-examination of a Court witness as a matter of right. A Court witness 21 can only be examined with the leave of the Court [See : Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 and Jamatraj (Supra)]. Where a Court witness says something prejudicial to any party, then such a party must be allowed to cross-examine that witness. 51. Also, as discussed earlier, Court witnesses can be cross-examined by either side but only with the leave of the Court. Further, the cross-examination is to be restricted only to what was stated by this witness in his/her reply to the questions of the Court, and a Court witness cannot be contradicted to his/her previous statements made before the police i.e. statements under section 161 of CrPC. The proviso to section 162(1)5 of CrPC makes it very clear that only prosecution witnesses can be contradicted against their previous Section 161 CrPC statements. Under the proviso to Section 162(1) of CrPC, Section 161 CrPC statements of any prosecution witness can be used by the defence to contradict such a witness during the cross-examination. The prosecution may also contradict its own witness during cross- examination regarding the previous statements made before the police, but again it can only be done with the leave of the Court. [See : Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748, Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547] All the same, none of these restrictions apply to the Court, which has wide power under Section 165 of the Evidence Act to ask any questions. 22 The Courts are not barred from putting questions which may contradict the witness with the previous statements made before the police. The special powers of the Court under Section 165 of the Evidence Act are not impaired or controlled by the provisions of Section 162 of the CrPC. (See : Raghunandan v. State of U.P., (1974) 4 SCC 186) 52. The powers of a Court under Section 165 of the Evidence Act and the importance of Section 165 in the meaningful conduct of a trial is brilliantly explained by Justice O. Chinnappa Reddy with distinctive clarity of his letters in Ram Chander v. State of Haryana, (1981) 3 SCC 191: “What is the true role of a Judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland [Pollock and Maitland]: The History of English Law] point out, the question “How is that”, or, is he to, in the words of Lord Denning “drop the mantle of a Judge and assume the robe of an advocate?” [Jones v. National Coal Board, [1957] 2 All ER 155 : [1957] 2 WLR 760] Is he to be a spectator or a participant at the trial? Is passivity or activity to mark his attitude? If he desires to question any of the witnesses, how far can he go? Can he put on the gloves and ‘have a go’ at the witness who he suspects is lying or is he to be soft and 23 suave? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the Judge who tried the case put questions to some of the witnesses. 2. The adversary system of trial being what it is, there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past: “Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he 24 pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.” 3. With such wide powers, the court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the Counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses…” 53. Justice O. Chinnappa Reddy then goes on to say that a judge can “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant”. But then while doing this the Judge must take both the prosecution and the defence with him.” 16. The court is vested with vast powers in terms of Section 348 of the BNSS, 2023 (Section 311 of the Cr.P.C.) to summon and examine a witness at any stage of the trial and closing of the witnesses is not an 25 absolute bar. In the judgement of “Varsha Garg v. State of Madhya Pradesh and Others” 2022 SCC Online SC 986, it has been held that if proper evidence was not adduced or a relevant material was not brought on record due to inadvertence, the court should be magnanimous in permitting such a mistake to be rectified. In para 45, it is held that:- “45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that: “8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find 26 out and declare who among the parties performed better.” (emphasis supplied) 17. Reverting to the facts of the present case, from perusal of the complaint filed by the respondent/prosecution, it reveals that the charge against the petitioner/accused is that he actively engaged in the trafficking of contraband Ganja and for which, he made the transaction through the bank account. The said bank account is opened at Union Bank of India, Champa branch, which was opened by Mr. S. Bhagat, the then branch manager. The opening of the bank account is averred in the complaint, but the name of Mr. S. Bhagat is left in the list of prosecution witnesses for whom the application is filed by the prosecution. 18. In view of the aforesaid authoritative pronouncements of the Hon’ble Supreme Court, it cannot be said that any prejudice is being caused to the petitioner/accused for the reason that a witness cannot be examined as a surprise, particularly when his previous statement is not available in the charge sheet. As has already been held by the Hon’ble Supreme Court that the court has ample power under Section 348 of BNSS, 2023 (Section 311 of Cr.P.C.) read with Section 168 of the Bhartiya Sakshya Adhiniyam, 2023 (Section 165 of the Indian Evidence Act, 1872) to call any person at any stage and such powers strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. It does not affect any right of the accused, and he has the right to cross-examine the witness and to produce his evidence in rebuttal. It cannot be the fulfillment of the 27 lacunae, but the determinative factor is “just decision of the case”. The whole scheme of the Code of Criminal Procedure, 1973 and/or Bhartiya Nagarik Suraksha Sanhita, 2023 envisages a foolproof system in dealing with a crime against the accused and thereby ensures that the guilty does not escape and the innocent is not punished. It is also to be observed that the provisions of Section 173(8) of Cr.P.C. have an entirely different scope and is not applicable in the present case. 19. Taking note of the factual background of the case, the learned trial court, after assigning cogent reason, allowed the application filed by the prosecution under Section 348 of the BNSS, 2023 to meet the ends of justice observing that no prejudice is being caused to the accused, since the said witness intended to be summoned, will certainly be subjected to cross-examination and their testification under the provisions of BNSS, 2023. There appears to be no infirmity or illegality in the impugned order passed by the learned trial court. 20. For the foregoing reasons, this court does not find any substance in the arguments advanced by learned counsel for the petitioner/ accused and therefore, the petition is liable to be and hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge ved