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2025 Supreme(Online)(Chh) 5550
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Ravindra Kumar Agrawal, J
ANAND KUMAR KASHYAP – Appellant
Versus
UNION OF INDIA – Respondent
CRMP/1498/2025
For the Appellants/Petitioners: Shailendra Dubey, Shivali Dubey
For the Respondents: Ramakant Mishra
The court has wide discretionary powers to summon any person as a witness at any stage of a trial, even after evidence has closed, if their testimony is essential for a just decision, ensuring truth prevails without causing unfair prejudice to the accused.
Headnote:(A) Bhartiya Nagarik Suraksha Sanhita, 2023 - Section 348 - Bhartiya Sakshya Adhiniyam, 2023 - Section 168 - Power to summon witness - Exercise of power at fag end of trial - Petitioner challenged trial court order allowing prosecution to summon an un-cited witness after evidence was closed and case was fixed for judgment - Court held that powers under Section 348 are wide and discretionary, exercisable at any stage of inquiry or trial if necessary for a just decision - Such powers are complementary to the duty of the court to discover truth and not merely to act as an umpire - Providing an opportunity to examine a witness who was missed due to inadvertence does not constitute filling a lacuna but is rather essential for a just decision, provided the accused is afforded a right to cross-examine to prevent prejudice. (Paras 9, 10, 11, 16, 18)
(B) Trial Procedures - Role of Court - Court is not a passive spectator but must actively participate to explore every avenue to reach the truth - Discretionary powers to summon material witnesses must be exercised judicially and with caution, ensuring that no unfair disadvantage is caused to the defense while serving the ends of justice. (Paras 12, 13, 14, 15)
Facts of the case:
The petitioner is facing trial for offenses under narcotics legislation. After the completion of evidence and fixing of the case for final judgment, the prosecution moved an application to summon a bank official as an additional witness who was not originally cited but was responsible for opening the accused's bank account. The trial court allowed the application, which the petitioner challenged, arguing that it was an attempt to fill a lacuna at the last stage of the trial and would cause prejudice to the defense.
Findings of Court:
The Court held that the powers to summon a witness at any stage are absolute and the trial court is entitled to call any person whose evidence appears essential for a just decision, even after the closing of prosecution evidence. The mere oversight in citing a witness does not prevent the court from correcting the error to ensure the truth is discovered, and given the adversarial system, the right of the accused to cross-examine mitigates any potential prejudice.
Issues: The main issues were whether a trial court possesses the authority to summon an un-cited witness after the conclusion of evidence, and whether such action would violate the rights of the accused by filling a lacuna in the prosecution's case.
Ratio Decidendi: The power to summon a material witness is granted to ensure that the court does not render a decision on inchoate or inconclusive evidence. The focus is on the discovery of truth, and provided the exercise of power is not capricious and the defense is given sufficient opportunity to cross-examine and rebut the evidence, it serves the paramount objective of the administration of justice.
Result: Petition dismissed.
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 Champa (C.G.) in SCC NDPS Act No. 01/2024, whereby the learned trial court has allowed the application of the prosecution filed under 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 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 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
