The court emphasized that witness recall must be essential for justice, and cannot simply fill gaps in the defense case.

ORDER The petitioner is the accused in CC.No.14 of 2021 on the files of the Judicial Magistrate of First Class-II, Harippad. The case originated from a complaint filed by the 1st respondent, alleging commission of the offence under Section 138 of the Negotiable Instruments Act . In the trial of the case, the complainant was examined on 16.08.2023 and Exts. P1 to P7, as well as D1 and D2 marked in evidence. Thereafter, the petitioner was examined under Section 313 of Cr.P.C and the case was posted for defence evidence. At that stage, the petitioner preferred an application under Section 348 of BNSS seeking to recall PW1. The application having been dismissed by Annexure-A5 order, this Crl.M.C. is filed.

2. Learned counsel for the petitioner submits that the petitioner had engaged the present counsel only recently. After going through the records and the depositions, the counsel found that a crucial question was omitted to be asked during the cross-examination of PW1. Therefore, the application for recalling PW1 was filed on the premise that a pertinent question was omitted to be asked. It is the contention of the learned counsel that apart from stating that a pertinent question was omitted to be asked, the court cannot expect the accused to reveal the omitted question as that would take away the element of surprise required for the cross-

examination.

3. Learned counsel for the 1^st respondent submitted that the petitioner had changed his counsel twice, and the instant application is filed by the third counsel. It is contended that change of counsel cannot be the basis for an application under Section 348 of BNSS and the attempt is to fill up the lacuna in the defence case. Reliance is placed on the decision of this Court in Hena Khatoon v. State of Kerala [2024 KHC 512] with particular emphasis on paragraph 11 therein to contend that the power under Section 311 Cr.P.C (348 of BNSS) shall not be used to permit the complainant to fill up the lacuna in his case.

4. The following facts are not in dispute;

PW1, the complainant, was examined on 16.08.2023, and Exts. P1 to P7 and D1 and D2 marked in evidence. The accused was examined under Section 313 Cr.P.C. thereafter. The instant application seeking to recall PW1 was filed only on

24.05.2025.

5. While Section 348 of BNSS confers the court the power to summon any person as witness or recall and re- examine any person already examined, at any stage of the trial, in order to excercise such power, the court must be satisfied that the evidence of such person is essential to the just decision of the case. The above being the mandate of Section 348 of BNSS, the prayer for recalling PW1, merely based on a statement that the present counsel found certain infirmities in the earlier cross-examination cannot be allowed. As contended by the counsel for the 1^st respondent, such permission will amount to grant of opportunity to the accused to fill up the lacuna in his case. The following exposition by this Court at Paragraph 11 of Hena Khatoon (supra) lays down the legal position clearly;

“11. In fact, the ratio of the decisions placed by the learned counsel for the petitioners as extracted herein above is that an application under S.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 party asking the relief. Further, the additional evidence must not be received as a disguise for a retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involv