Chattisgarh High Court
Anand Kumar Kashyap vs Union Of India on 6 May, 2025
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-
VEDPRAKASH
DEWANGAN Champa (C.G.) in SCC NDPS Act No. 01/2024, whereby the learned
Digitally signed
by VEDPRAKASH
DEWANGAN trial court has allowed the application of the prosecution filed under
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.
18Section 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
19as 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
23suave? 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
24pleases, 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
26out 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