Court Can Summon Uncited Witness At Any Stage For Just Decision Under S.348 BNSS (S.311 CrPC): Chhattisgarh High Court - 2025-05-12

Chhattisgarh High Court Upholds Trial Court's Power to Summon Uncited Witness Post Evidence Closure for "Just Decision"

Bilaspur, Chhattisgarh: The High Court of Chhattisgarh, in a significant order, has reaffirmed the extensive powers of trial courts to summon witnesses at any stage of proceedings, even after evidence is closed and a case is reserved for judgment, if deemed essential for a "just decision." Justice Ravindra KumarAgrawal , presiding over the bench, dismissed a criminal miscellaneous petition filed by Anand Kumar Kashyap , an accused in an NDPS Act case, who challenged the trial court's decision to allow the prosecution to examine an additional witness.

The court emphasized that such powers, enshrined in Section 348 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) (analogous to Section 311 of the old Criminal Procedure Code, 1973), are crucial for unearthing truth and ensuring that justice is served.

Case Background

The petitioner, Anand Kumar Kashyap , is facing trial under various sections of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) before the Special Judge (NDPS Act), Janjgir-Champa. The trial had concluded, statements were recorded, arguments heard, and the case was posted for judgment on April 2, 2025.

However, on April 1, 2025, the prosecution filed an application under Section 348 of the BNSS, 2023, seeking to examine Mr. S. Bhagat , a bank officer. The prosecution contended that Mr. Bhagat had opened the petitioner's bank account, which was allegedly used for drug trafficking transactions, and was an important witness. His name was inadvertently omitted from the initial list of witnesses, though the branch manager of the bank had been examined. The trial court allowed this application on April 21, 2025, prompting Kashyap to approach the High Court.

Arguments Presented

Petitioner's Contentions (argued by Mr. Shailendra Dubey ): * The trial court's order was illegal and irregular as an application under Section 348 BNSS cannot be entertained once the case is closed for judgment. * Summoning Mr. Bhagat , an uncited witness, at this late stage amounted to filling lacunae in the prosecution's case. * The prosecution should have resorted to filing a supplementary charge sheet under Section 193(9) of BNSS (formerly Section 173(8) CrPC). * The decision prejudiced the petitioner's defence and affected his valuable legal rights.

Respondent's Contentions (argued by Mr. Ramakant Mishra , DSGI): * Section 348 BNSS permits summoning a witness at any time before judgment if their evidence is necessary for a just decision. * Mr. S. Bhagat was a necessary witness, and his omission was a mistake. The charge sheet mentioned the bank account. * No prejudice would be caused as the petitioner would have the right to cross-examine the witness. * The trial court rightly exercised its jurisdiction, and it was not an attempt to fill lacunae.

Legal Principles and Court's Rationale

Justice Agrawal embarked on a detailed examination of Section 348 of BNSS, 2023, and Section 168 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) (formerly Section 165 of the Indian Evidence Act, 1872), alongside several Supreme Court precedents.

The Court highlighted the key phrases in Section 348 BNSS: "at any stage," "summon any person as a witness," and "essential for just decision of the case." It noted that a trial concludes only upon pronouncement of judgment, allowing the court to act under this section until then.

Pivotal excerpts and relied-upon judgments included:

Jamatraj Kewalji Govani v. State of Maharashtra (AIR 1968 SC 178) : "The section is in two parts. The first part gives a discretionary power but the latter part is mandatory... the second part is obligatory and compels the Court to act... if the just decision of the case demands it." The Court reiterated, "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."

Mohanlal Shamji Soni v. Union of India (1991 Supp. (1) SCC 271) : "It is a well accepted and settled principle that a Court must discharge its statutory functions... to take an active role in the proceedings in finding the truth and administering justice... if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."

Manju Devi v. State of Rajasthan (2019 (6) SCC 203) : "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."

Varsha Garg v. State of Madhya Pradesh (2022 SCC Online SC 986) , quoting Rajendra Prasad v. Narcotic Cell : "Lacuna in the prosecution must be understood as the inherent weakness... 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."

The High Court observed that the complaint detailed the petitioner's alleged use of a bank account at Union Bank of India, Champa branch, opened by Mr. S. Bhagat , for trafficking Ganja. The court reasoned: > "It cannot be said that any prejudice is being caused to the petitioner/accused... The court has ample power under Section 348 of BNSS, 2023... read with Section 168 of the Bhartiya Sakshya Adhiniyam, 2023... to call any person at any stage... 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 lacunae, but the determinative factor is 'just decision of the case'."

The Court further noted that the provisions for further investigation (Section 173(8) CrPC / Section 193(9) BNSS) have an entirely different scope and were not applicable here.

Decision and Implications

Finding no infirmity or illegality in the trial court's order, the High Court dismissed the petition (CRMP No. 1498 of 2025). The Court concluded: > "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..."

This judgment reinforces that the pursuit of a "just decision" can, in appropriate circumstances, override procedural timelines, allowing courts to summon crucial evidence even at advanced stages of a trial. It underscores the judiciary's role not merely as an umpire but as an active participant in the quest for truth, provided the accused's right to a fair trial, including the right to cross-examine and rebut evidence, is safeguarded.