JUDGMENT :

MANISHA BATRA, J. 

1. This petition has been filed by the petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) for setting aside the order dated 06.01.2026 (Annexure P-6), passed by the Court of learned Additional Sessions Judge, Jalandhar in case arising out of FIR No. 35 dated 10.04.2017, registered under Section 22 of the NDPS Act, 1985 and Sections 420, 465, 471, 474 and 120-B of IPC at Police Station Lohian, Jalandhar, whereby an application filed by him under Section 348 of BNSS (which is pari materia with Section 311 of Cr.P.C.) has been dismissed.

2. Briefly stated, the petitioner is facing trial in the aforementioned case for commission of aforementioned offences. During the course of trial, examination-in-chief of PW-4/SI Pargat Singh was recorded on 30.01.2020 and on the same day, he was cross-examined by the defence counsel. Thereafter, on 12.11.2025, the petitioner had moved aforementioned application seeking recall of PW-4 on the ground that certain material questions could not be put to him during his cross-examination. The prosecution filed reply to the said application opposing the prayer of the petitioner. After hearing both the parties, the said application has been dismissed by the learned trial Court by passing the impugned order, operative part of which, reads as under :

“The factual position on record is the same as is summarized in preceding para above. PW.4 Investigating Officer SI Pargat Singh was examined on 12.12.2019 and 30.01.2020. Both the accused had cross-examined him at length and they had availed their opportunity to the fullest. On feeling satisfied they had closed such cross- examination. It, therefore, is not a case where accused Rinku Singh had not been given or he had not availed the opportunity to cross-examine this PW.4. Thereafter prosecution had examined PW.5 ASI Jeewan Kumar who also was cross-examined by accused party to the best of its ability. Whatever answers are given by PW.5 in his cross- examination are to be appreciated at final stage. He was an independent witness and hence his answers could not give a fresh reason to accused to recall another witness who the accused party already had cross-examined to the best of its ability. In above cited judgment (Saravjeet Singh alias Sarabjeet Singh Vs. State of Haryana) the situation was different. Therein the Lawyers were on strike and cross- examination on a witness was conducted by proxy counsel without authority or familiarity with the case. In the present case, the situation rather is that PW.4 was duly cross-examined by accused Rinku Singh. It is not his version that Lawyers were on strike or his authorized counsel had not conducted the cross-examination. His application under Section 348 of BNSS consequently is found without substance and is dismissed.”

3. It is argued by learned counsel for the petitioner that the impugned order is not sustainable in the eyes of law as while passing the same, the learned trial Court ignored the well settled proposition of law to the effect that it had power to recall and re-examine the witness at any stage of the case. The recall of PW-4 was very much essential for just decision of the case as while cross-examining him previously, certain material questions could not be put to him. Due to non-examination of PW-4 on those very points, a serious prejudice is being caused to the petitioner. It is further argued that non-examination of PW-4 on those points cannot be taken into consideration as a lacuna which is sought to be filled up by the petitioner. With these broad submissions, it is urged that the petition deserves to be allowed.

4. This Court has heard the submissions made by learned counsel for the petitioner.

5. It is well settled proposition of law that an application under section 348 of BNSS (which is pari materia with Section 482 of Cr.P.C.) must not be allowed only to fill up lacunas in the case of the prosecution, or of the defence or to gi