Witness Recall Under Section 348 BNSS Denied by Delhi High Court

The Delhi High Court has delivered a significant ruling regarding the parameters of recalling witnesses during a criminal trial. In an order dated October 13, 2025, Hon’ble Ms. Justice Neena Bansal Krishna dismissed a petition brought by the State of NCT of Delhi, which sought to recall a prosecution witness (PW-23) under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

Case Background

The petition stemmed from an ongoing trial concerning the North-East Delhi riots of 2020. During the proceedings, the prosecution sought to recall Inspector Shiv Charan Meena (PW-23) to clarify a discrepancy in his testimony regarding the date a specific shop, "Harsh Trading," was vandalized.

While PW-23 testified that he observed the shop in a burnt condition on the night of February 24, 2020, subsequent evidence provided by another witness, HC Ankit Malik (PW-26), stated the location was in normal condition on that date. The prosecution argued that recalling PW-23 was essential to establish the "truth" regarding this factual timeline. The Trial Court previously rejected this application, leading the State to appeal to the High Court.

Arguments Presented

Petitioner’s Stand: The State of NCT of Delhi contended that "to err is human" and that the discrepancy between the testimonies of PW-23 and PW-26 created a confusion that needed resolution. The petitioner asserted that the recall was not intended to "fill lacunae" but to clarify a date, arguing that it would not cause prejudice to the accused.

Respondent’s Stand: Counsel for the respondents argued that the petition was an attempt to fill holes in the prosecution's case after the conclusion of cross-examination and the recording of the accused's statements under Section 313 of the Cr.P.C. They emphasized that the prosecution had ample time to confront the witness when he was originally examined and that the trial had already proceeded to the stage of final arguments.

Legal Analysis

In its analysis, the Court drew a firm line regarding the purpose of witness recall. Justice Neena Bansal Krishna noted that contradictions between witnesses are not, in themselves, grounds for recalling a witness. The Court held that the evidentiary weight of such contradictions is to be determined during the final assessment of evidence rather than by reopening the examination of a witness.

Citing the precedent in Rajendra Prasad vs. Narcotics Cell (1996) , the Court reiterated that while power under Section 311 (and now 348 BNSS) exists to ensure a "just and correct decision," it cannot be used to invite a witness to improve their testimony simply because another witness presented an conflicting account. The court underscored that the testimony of PW-23 was well within the knowledge of the prosecution at the time of his initial examination.

Key Observations

The High Court’s ruling included several pivotal observations regarding trial procedure:

> "The law does not recognize confrontation of the testimony of one witness with the testimony of another witness. Whatever are the contradictions, are a matter of interpretation at the time of the final judgment and cannot be a basis for recalling PW-23."

> "It is not a case where the prosecution can be permitted to recall a witness only for the purpose of confrontation on a point which was well within the knowledge of the Prosecution on the day... [the witness] was examined."

> "The principle governing the exercise of power under Section 311 Cr.P.C. [is] that it should be resorted to only for the object of finding out the truth... [but this cannot] be dubbed as filling lacuna in Prosecution’s case."

Final Decision

The Delhi High Court ultimately dismissed the petition, stating that there was no "infirmity" in the Trial Court’s decision to decline the recall. The ruling emphasizes that criminal trials must follow a structured evidentiary path, and judicial recall powers are not a remedy for oversight in the execution of the prosecution’s case. The matter remains listed for final arguments at the district court level, reinforcing the finality of witness testimony once formal examination procedures have concluded.