Section 348 BNSS | Power To Recall Witness Should Not Be Used To Confer Second Innings To Negligent Litigant: Madras High Court

Justice Victoria Gowri observed that the criminal trial was not a game of strategy between the prosecution and defence but a search for truth. The court added that the search for truth should be bound by fairness, legality, and procedural discipline. Thus, the court held that the prosecution could not be allowed to bring in something that it failed to establish during the normal course of evidence, unless such evidence is indispensable.

“A criminal trial is not a game of strategy between the prosecution and the defence. It is a solemn judicial search for truth. But the search for truth must proceed within the boundaries of fairness, legality and procedural discipline. The Court cannot allow the prosecution to repair, at the fag end of trial, what it failed to establish during the normal course of evidence, unless the proposed evidence is shown to be truly indispensable for justice,” the court said.

The court emphasized that the power to recall a witness should be exercised not merely because the evidence may be useful but because the absence of the evidence would render an unjust decision.

“Section 348 BNSS is a powerful judicial instrument. It is meant to prevent failure of justice, not to confer a second innings upon a negligent litigant. The power to recall a witness must be exercised not merely because the evidence may be useful, but because its absence would render the decision unjust. That degree of satisfaction is absent in the impugned order,” the court observed.

The court was hearing a plea by Anbu against the order of the Additional District and Sessions Judge, Kumbakonam, allowing a plea filed by the prosecution to recall a witness after his cross-examination in the trial against Anbu for an offence under Section 302 IPC.

As per the prosecution, Anbu was closely associated with the deceased. The deceased had entrusted Anbu with Rs. 14,00,000 worth agricultural products for sale. However, Anbu was later alleged of selling the products but not remitting the sale proceeds back to the company. When the deceased demanded return of products or money, Anbu took the deceased in his car and attacked him with a billhook and abandoned his body in water.

After the trial commenced and defence evidence was about to begin, the prosecution filed an application seeking to recall the Investigating officer. The prosecution claimed that the recall was necessary for marking certain documents namely call details, sim details, bank accounts etc. This plea was allowed by the trial judge, against which, the present plea was filed.

The petitioner argued that the trial judge's order allowing the recall was mechanical, cryptic and bereft of reason. It was submitted that the Investigation officer was already examined and cross examined. It was submitted that during cross-examination, the defence had pointed out lacunae in the prosecution. It was submitted that the prosecution was attempting to bring in additional documents at the fag end of the trial, which would prejudice the defence.

The petitioner argued that fair trial is a part of Article 21 of the constitution and if the prosecution was allowed to improve its case after the accused had exposed its weakness during cross-examination, it would be subjecting the accused to prolonged and unfair prosecution.

The State, on the other hand, submitted that the trial court had wide powers under Section 348 BNSS and had the power to recall any witness at any stage of the trial if such witness was essential to the just decision of the cases.

The court noted that the trial court had failed to examine the necessity of the evidence that was sought to be examined by the prosecution. The court noted that the trial court had not examined how the evidence, which was sought to be introduced after the closure of prosecution evidence and after examining the accused, was indispensable so that the court could not render a just decision without it.

The court noted that not every document which could improve the prosecution case could be introduced after closing the prosecution case. The court noted that Section 348 of BNSS uses the term “at any stage,” which should not mean “at any stage without reason”. The court added that a higher degree of judicial satisfaction was required when recall was sought after closing prosecution evidence, and examination of the accused.

In the present case, the court noted that allowing the recall of the investigating officer would amount to allowing the prosecution to fill up the lacunae in its case and such a course would cause serious prejudice to the accused.

Thus, noting that the order could not be sustained in law, the court set aside the same.

Counsel for Petitioner: Mr. P. Karthikeyan

Counsel for Respondents: Mr. S. Ravi, Additional Public Prosecutor

Case Title: Anbu v The State of Tamilnadu

Citation: 2026 LiveLaw (Mad) 275

Case No: Crl.O.P.(MD).No.1327 of 2026