THE HONOURABLE SRI JUSTICE N. TUKARAMJI CRIMINAL PETITION No.9926 of 2025

ORDER:

This petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’), seeking to recall PW4 for cross-examination in C.C.No.382 of 2017 on the file of XIV Additional Chief Judicial Magistrate, Nampally, Hyderabad.

2. I have heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the respondent No.1-State.

3. The brief facts of the case are that the petitioner, who is arrayed as the sole accused, is facing trial for an offence under Section 153(A) of the Indian Penal Code (IPC). During the course of the trial, on 17.07.2025, the Investigating Officer (PW4) was examined-in-chief. Although the petitioner was personally present on that date, his counsel could not attend due to a sudden illness. Consequently, cross-examination could not be conducted. In that situation, the trial Court recorded ‘cross- examination: Nil’ and adjourned the matter for further proceedings to

24.07.2025.

4. Subsequently, on 22.07.2025, the petitioner filed an application under Section 311 of the Code of Criminal Procedure, 1973(CrPC), seeking recall of PW4 for the purpose of cross-examination. The trial Court, however, dismissed the application, observing that PW4 is an official witness and that securing his presence without delay would not be feasible, particularly since the case was listed as an identified matter.

Aggrieved by this dismissal, the petitioner has approached this Court.

5. Learned counsel for the petitioner contends that the absence of the petitioner’s counsel was neither deliberate nor negligent, but was solely due to his counsel’s sudden and serious illness. It is further submitted that the recall petition was filed promptly within four days, thereby evidencing bona fides. The counsel emphasizes that cross-examination of the Investigating Officer is essential for bringing out omissions, contradictions, and discrepancies in the prosecution case. Therefore, the refusal of the trial Court to afford such an opportunity is unjustified, and an indulgence of this Court is sought to permit one effective opportunity for cross-examination of PW4.

6. On the other hand, the learned Assistant Public Prosecutor submits that, since the case has been treated as an identified matter, the trial Court rightly proceeded to dispose of the recall petition. Nevertheless, prayed for passing the suitable orders in the interest of justice.

7. Having perused the material on record, it is evident that the petitioner is the sole accused and is facing a serious charge. It is not in dispute that, on the relevant date, the petitioner/accused was personally present before the trial Court. However, his counsel was absent owing to sudden illness. The explanation offered for such absence appears to be bona fide and satisfactory, and, in the absence of any indication of mala fides or deliberate intent to delay proceedings, the same deserves acceptance. In such circumstances, the petitioner ought to have been afforded an opportunity to cross-examine PW4 in the interest of justice.

8. The trial Court, however, dismissed the petitioner’s application on the ground that the case was an identified matter and that securing the presence of the official witness would cause delay. This reasoning, in the considered opinion of this Court, is not sustainable, as denial of the right to cross-examination would cause greater prejudice to the accused than any inconvenience occasioned in producing the witness again. The right of cross-examination, being a valuable safeguard under criminal jurisprudence, cannot ordinarily be denied, particularly in respect of the Investigating Officer, whose testimony is crucial for establishing contradictions and omissions.

9. In view of the foregoing discussion, this Court is of the considered opinion that the petitioner/accused ought to be afforded an opportunity to cross-examine PW4. Accordingly, the impug