Can Accused Recall Witness Under BNSS? Rules Explained

In the high-stakes world of criminal trials, the ability to recall a witness can make or break a case. But can the accused file a petition to recall a witness under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023? This question arises frequently as defense strategies evolve, especially with BNSS replacing the CrPC. While the power exists, it's not a blanket right—courts exercise strict judicial discretion to ensure justice without undue delay or prejudice. This post breaks down the legal framework, key conditions, limitations, and real-world applications, drawing from statutory provisions and recent judicial orders.

Understanding the Core Issue: Witness Recall on Accused's Petition

The question at hand is straightforward: Can the witness be recalled under BNSS upon petition filed by accused? The short answer is yes, but subject to rigorous scrutiny. Section 348 of BNSS mirrors the wide-ranging powers under Section 311 of the CrPC, allowing courts to summon, recall, or re-examine witnesses if their evidence is essential to the just decision of the case. 2025 0 Supreme(Del) 238 2022 0 Supreme(MP) 999

However, this isn't automatic. Courts emphasize that recall must be judicious, not routine, to prevent abuse of process. As one judicial order notes, petitions filed at belated stages, like after witness examinations conclude, are often dismissed unless compelling reasons exist. 2025 Supreme(Online)(Tel) 11923

Legal Provisions Governing Witness Recall

Section 348 BNSS: The Statutory Backbone

BNSS Section 348 empowers courts at any stage of any inquiry, trial or other proceeding to recall and re-examine any person already examined. The exact language echoes CrPC Section 311: Any Court may... recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 2022 0 Supreme(MP) 999 2025 0 Supreme(Del) 238 2024 0 Supreme(Kar) 526

Petitions for recall are typically filed under Section 528 BNSS, which allows applications to superior courts for directions. For instance, in a Karnataka High Court order dated July 9, 2024, the accused filed a petition under Section 528 BNSS to recall PW2, the mahazar witness, in a sessions case. 2024 Supreme(Online)(KER) 8858

Continuity from CrPC to BNSS

BNSS maintains the CrPC's principles, ensuring seamless transition. Recall is permissible for accused petitions, but only if it serves justice—clarifying ambiguities, resolving contradictions, or addressing new facts. 2025 4 Supreme 741 1985 0 Supreme(Raj) 505

Judicial Discretion: When Recall is Allowed

Courts hold the reins tightly. Recall is discretionary and exercised sparingly. Key conditions include:

• Essential for Just Decision: Evidence must be crucial, not supplementary. 2022 0 Supreme(MP) 999
• Substantial Reasons: To clarify ambiguities or remove contradictions, not fill lacunae (gaps) in the case. 2023 0 Supreme(MP) 444 2016 6 Supreme 462
• No Prejudice or Delay: Must not harm the prosecution or prolong trials unnecessarily. 2016 6 Supreme 462 2025 4 Supreme 741

The Supreme Court has ruled that once a witness is fully examined and cross-examined, further recall requires new and compelling reasons. 2008 7 Supreme 231 2025 4 Supreme 741

In a Bombay High Court writ petition under Article 227 and Section 528 BNSS, the court rejected recall, stating: Moreover, the witness cannot be recalled to fill up the lacuna. 2025 Supreme(Online)(Bom) 2465

Limitations and Common Grounds for Rejection

Not every petition succeeds. Courts routinely dismiss requests that:

• Aim to fill procedural gaps or due to change of counsel. 2008 7 Supreme 231 2025 4 Supreme 741
• Are filed belatedly, e.g., after all witnesses are examined and Section 313 CrPC (now BNSS equivalent) statements are pending. 2025 Supreme(Online)(Tel) 11923
• Seek to enable witnesses to resile (withdraw) from prior statements. 2024 Supreme(Online)(KER) 35126 2025 Supreme(Online)(Tel) 19976

A Gujarat High Court revision under Sections 438 and 442 BNSS challenged an order but highlighted that witnesses need recall only for proven contradictions, not routine re-examination. 2024 Supreme(Online)(GUJ) 25268

In Madras High Court proceedings, a second application to recall PW1 for marking documents was rejected: The witness cannot be recalled.... 2024 Supreme(Online)(Mad) 70900

High courts deprecate repeated recalls, especially for vulnerable witnesses like children under POCSO, to uphold trial integrity. 2024 Supreme(Online)(KER) 35126

Real-World Case Insights from Recent Orders

• Karnataka Sessions Case (S.C. No.74/2021): Accused petitioned under Section 528 BNSS to recall PW2 at a late stage. 2024 Supreme(Online)(KER) 8858
• Telangana Case: Limited recall of PW-2 allowed only for specific cross-examination on advanced amounts, despite belated filing. 2025 Supreme(Online)(Tel) 11923
• General Trends: Petitions to challenge earlier statements or fill defense gaps are dismissed as abuse of process. 2025 Supreme(Online)(Tel) 12049 2025 Supreme(Online)(Jhk) 3458

These examples show courts balancing accused rights with expeditious justice.

Exceptions: When Recall is Justified

Permissible scenarios include:

• Clarifying contradictions in deposition. 2024 Supreme(Online)(GUJ) 25268
• Addressing new evidence post-examination. 2025 Supreme(Online)(Tel) 19976
• Limited re-examination without altering prior testimony. 2025 Supreme(Online)(MP) 3593

Practical Recommendations for Accused and Counsel

• Articulate Necessity: Clearly state how recall aids justice, with specific ambiguities or new facts.
• File Timely: Avoid belated petitions post-cross-examination.
• Respect Limits: Don't use for lacunae or counsel changes.

Courts should summon sparingly, ensuring no prejudice. 2016 6 Supreme 462

Conclusion and Key Takeaways

Under BNSS, an accused may petition to recall a witness via Section 528, invoking Section 348's powers, but success hinges on judicial discretion. It's not a right but a tool for justice when evidence is essential, ambiguities need clarification, and no delay or prejudice ensues. Recent orders reinforce: no routine recalls, no filling gaps. 2025 0 Supreme(Del) 238 2023 0 Supreme(MP) 444

Key Takeaways:- Recall possible but discretionary and exceptional.- Justified for clarifications, not lacunae or delays.- Belated petitions often fail.- Aligns with CrPC precedents for fair trials.

This is general information based on statutes and case law, not specific legal advice. Consult a qualified lawyer for your case.

References

1. 2022 0 Supreme(MP) 999: Discretionary power under Section 311 CrPC.
2. 2025 0 Supreme(Del) 238: BNSS provisions mirroring CrPC.
3. 2008 7 Supreme 231: No recall post full examination without new reasons.
4. 2024 Supreme(Online)(KER) 8858: Petition under Section 528 BNSS.
5. 2025 Supreme(Online)(Bom) 2465: Cannot recall to fill lacunae.