-1- CGHC010380742026 2026:CGHC:42721 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2560 of 2026 Kanhaiya Yadav Alias Krishna Kumar Yadav, S/o. Dhurau Ram Yadav, Aged About 45 Years R/o. Ward No.11, Sahu Para, Parsada, Police Station, Tehsil And District -Balod (C.G.) (Accused) ... Petitioner(s) versus State Of Chhattisgarh Through Police Station -Balod, Tehsil And District - Balod (C.G.) ... Respondent(s) For Petitioner : Mr. Avinash Chand Sahu, Advocate For State : Mr. Sumit Singh, Dy. Advocate General S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 30/09/2026 1. This Criminal Miscellaneous Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”) has been filed by the petitioner challenging the order dated 28.07.2026 passed by learned Additional Sessions Judge (FTC), Balod, District- Balod in Sessions Case No. 72 of 2025, whereby the application preferred by the petitioner/applicant under Section 348 of the BNSS seeking recall of the prosecutrix for further cross-examination has been dismissed. Digitally signed by PRAVEEN KUMAR SINHA Date: 2026.10.03 17:33:45 +0530 -2- 2. Learned counsel for the petitioner would submit that the petitioner had preferred application under Section 348 of the BNSS before the learned trial Court, specifically stating that, inadvertently, certain material questions relating to the consent of the parties and the health condition of the prosecutrix could not be put to her during her earlier cross- examination. It is submitted that the petitioner was neither seeking to introduce any new defence nor attempting to fill up any deliberate lacuna in the case. Considering that the offence alleged against the petitioner carries severe punishment, petitioner ought to have been afforded a fair and reasonable opportunity to effectively defend himself. However, the learned trial Court dismissed the application without assigning any cogent or sufficient reason. Therefore, this present petition may be allowed and the impugned order be set aside. 3. Per contra, learned counsel for the State would support the impugned order and submit that the petitioner had been afforded ample opportunity to put forth his defence and that all relevant questions had already been put to the prosecutrix during her cross-examination. It is further submitted that the power to recall a witness is required to be exercised sparingly and only when the circumstances so warrant. There is no merit in the present petition and the same deserves to be dismissed. 4. I have heard learned counsel for the parties and also perused the documents annexed along with this petition. 5. Before considering the rival submissions, it would be apposite to refer to the provisions contained in Section 348 of the BNSS, (similar to Section 311 of old Cr.P.C) which deals with the power of the Court to -3- summon a material witness or recall and re-examine a witness already examined. The said provision empowers the Court, at any stage of an inquiry, trial or other proceeding, to summon any person as a witness, examine any person in attendance, though not summoned as a witness, or recall and re-examine a person already examined. The provision further mandates exercise of such power where the evidence of such person appears to the Court to be essential to the just decision of the case. 6. Thus, though the power conferred under Section 348 of the BNSS (Section 311 of old Cr.P.C) is wide, the same is required to be exercised judiciously and upon consideration of the facts and circumstances of each case. The object of the provision is to enable the Court to arrive at a just decision and not to provide a party with an opportunity to fill up omissions or lacunae in its case after having availed the opportunity of examining or cross-examining a witness. 7. Hon’ble Supreme Court in case of Natasha Singh v. Central Bureau of Investigation reported in (2013) 5 SCC 741, observed as under: “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 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage -4- 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 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. ….” 8. Hon’ble Supreme Court in case of Swapan Kumar Chatterjee v. Central Bureau of Investigation reported in (2019) 14 SCC 328, reiterated that the power under Section 311 Code of Criminal Procedure (similar to Section 348 of BNSS) is to be exercised with great caution and only for strong and valid reasons. It was observed as under: “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 wide 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.” 9. Similarly, Hon’ble Supreme Court in the case of Vijay Kumar v. State of Uttar Pradesh and Anr., reported in 2011 (8) SCC 136, observed thus: “14. There is no manner of doubt that the power Under Section 311 of Code of Criminal Procedure is a vast one. -5- This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasized that power Under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each case. As is provided in the Section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for the just decision of the case.” 10. In case of State (NCT of Delhi) v. Shiv Kumar Yadav and Anr., reported in (2016) 2 SCC 402, Hon’ble Supreme Court further emphasised that recall of witnesses cannot be permitted as a matter of course and that the Court must balance the requirement of a fair trial with other relevant considerations. It was observed: “27.....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 -6- for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” 11. In the present case, it is not in dispute that the prosecutrix has already been examined and cross-examined by the defence. The petitioner seeks her recall on the ground that certain questions relating to the consent between the parties and the health condition of the prosecutrix could not be put to her during the earlier cross-examination due to inadvertence. 12. Victim is suffering with mental illness as recorded by learned trial Court in the deposition sheet at the time of starting of examination of victim and, therefore, she falls within the category of “vulnerable witness”. Other witness (PW1) is also relative of victim and, therefore, in the facts of case, she is also vulnerable witness. 13. Hon’ble Supreme Court in case of Smruti Tukaram Badade Vs. State of Maharashtra & Anr. reported in (2022) 18 SCC 24 has considered “vulnerable witnesses”, and observed thus : “7.1. The definition of “vulnerable witness” contained in Clause 3(a) of the “Guidelines for recording evidence of vulnerable witnesses in criminal matters” of the High Court of Delhi shall not be limited only to child witnesses who have attained the age of 18 years and should be expanded to include, inter alia, the following categories of vulnerable witnesses: (a) Age neutral victims of sexual assault read with -7- Sections 273 and 327 of the Code of Criminal Procedure, 1973 and Section 354 of the Penal Code, 1860 (IPC); (b) Gender neutral victims of sexual assault read with Section 2(d) of the Protection of Children from Sexual Offences Act, 2012; (c) Age and gender neutral victims of sexual assault under Section 377 of the Penal Code, 1860 read with para 34(1) of the decision in Sakshi [Sakshi v. Union of India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] ; (d) Witnesses suffering from “mental illness” as defined under Section 2(s) of the Mental Healthcare Act, 2017 read with Section 118 of the Evidence Act, 1872; (e) Any witness deemed to have a threat perception under the Witness Protection Scheme, 2018 of the Union Government as approved by this Court in Mahender Chawla v. Union of India [Mahender Chawla v. Union of India, (2019) 14 SCC 615 : (2020) 2 SCC (Cri) 101] ; (f) Any speech or hearing impaired individual or a person suffering from any other disability who is considered to be a vulnerable witness by the competent court; and (g) Any other witness deemed to be vulnerable by the court concerned.” 14. The fairness in trial for the accused cannot be permitted to result in unfairness to the victim and his/her witnesses. The principle of fair trial applies equally to complainant, the victim and the witnesses. 15. Hon’ble Supreme Court in case of The State of Tripura Vs. Panna Ahmed (Criminal Appeal No.2848 of 2026, decided on 26th May 2026) -8- has observed that the witnesses cannot be expected to face hardship of appearing in the Court repeatedly, particularly in sensitive cases. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in Court to face cross- examination. 16. Deposition of the victim is enclosed as Annexure P-2. In the starting of evidence, trial Court has mentioned about her mental health condition and her examination was done through Interpreter. 17. Admittedly, the petitioner was duly represented by counsel before the learned trial Court and was afforded an opportunity to cross-examine the prosecutrix. The petitioner has not been able to demonstrate any subsequent circumstance or emergence of any new material which would render the further cross-examination of the prosecutrix essential for the just decision of the case. The plea that certain questions relating to the consent between the parties and the health condition of the prosecutrix were inadvertently omitted during her earlier cross- examination, by itself, cannot constitute a sufficient ground for recalling her when she was extensively cross-examined by the counsel for accused. The reason assigned that question of the victim to be a consenting party is not put to her, in the facts of the case and trial Court mentioned in the deposition about her mental medical condition, in the opinion of this Court, is not germane. 18. It is no doubt true that an accused is entitled to a fair and reasonable opportunity to defend himself and that the right of cross-examination is an important component of a fair trial. However, such right has to be exercised within the framework of the procedure prescribed by law. The -9- right to a fair trial does not confer an unrestricted right upon the accused to seek recall of a witness merely to improve upon the defence or to bring on record matters which could have been elicited during the earlier cross- examination. 19. For the foregoing discussions and the law laid down by Hon’ble Supreme Court as referred to above, this Court is of the considered opinion that the petitioner has failed to make out any ground for interfering with the impugned order. 20. Consequently, this Criminal Miscellaneous Petition being devoid of merit is liable to be and is accordingly dismissed. Sd/-/-/- (Parth Prateem Sahu) Judge Praveen