Courtesy: Richa Kushwaha and Shreya Mishra
Any order passed by the trial court summoning any witness under Section 348 of Bhartiya Nagarik Suraksha Sanhita, or summoning any accused to face trial under Section 358 of the Bhartiya Nagarik Suraksha Sanhita (hereinafter called “BNSS”), can be challenged before the High Court by means of a Criminal Revision under Section 438 read with section 442 of BNSS (earlier Section 397 and 401 Cr.P.C. respectively), invoking its revisional powers.
It is stated at the outset only that the corresponding provisions of Criminal Procedure Code 1973 in Bhartiya Nagarik Suraksha Sanhita 2023 for Section 311 and 319 are Sections 348 and 358 respectively, with no substantial additions, alterations or deletions, and as such, there is no change in interpretation of law.
Summoning a witness under Section 348 of the BNSS
Section 348 of BNSS (earlier Section 311 of Cr.P.C.) empowers any court to summon and examine or recall and re-examine any witness/ person to ensure a just decision in any proceeding or trial. Although the court has broad discretion, this power should be exercised when the evidence is necessary for a just result, with focus on truth and to prevent a miscarriage of justice. The primary consideration for the court is the need for evidence to reach a just decision of the case.
Section 348 of BNSS is as follows:
348. Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
When can the court exercise power under section 348 BNSS?
The Trial Court can exercise power under Section 348 of BNSS at any stage of inquiry, trial, or other proceedings to summon a witness, examine any witness, or to recall or re-examine any such person already examined, if it is essential to the just decision of the case. The Court can exercise this power at any stage of the proceedings, not necessarily only during the course of trial. This power is to be exercised to meet the ends of justice not to fill the lacuna of the case or to cause prejudice to the accused.
The power under this section can also be used to examine any person who has not been examined earlier to enable to render a just decision. This section confers wide powers on the Court to examine any person present in the Court though he is not summoned as a witness. Furthermore, such power can be exercised suo motu or on an application moved by either party.
The abovenoted provision of law was dealt by the Hon’ble Allahabad High Court in the case of Harsh Chandra and other v. State of U.P (2023:AHC:77052) and this Hon’ble Court held as follows:
“8. From the above, it is very much clear that there are two part of this Section. According to first part of the Section, the Court can exercise the power :-
(1) to summon any person as a witness, or.(2) to examine any persons in attendance, though not summoned as a witness, or,
(3) to recall and re-examine any person already examined.
The second part, which is mandatory and imposes an obligation on the Court:-
- to summon and examine, or
- to recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case”
While exercising the power under section Section 348 of BNSS, the trial court should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. The discretionary power should be exercised judiciously and not arbitrarily. The aforesaid law has been crystallized by the Hon’ble Apex Court in the case of Rajaram Prasad Yadav vs State of Bihar and Anr. [(2013) 4 SCC 461].
The Hon’ble Allahabad high court in case of Manish v. state of U.P. (ILR (2021) 12 All 619) explained the scope and ambit of Section 311 CrPC. Relevant para of the case is as follows:
“11. The power to summon material witnesses under Section 311 Cr.P.C. which falls under Chapter XXIV containing the general provisions as to inquiries and trials has been held to confer a very wide power on the courts for summoning witnesses and accordingly the discretion conferred is to be exercised judiciously as wider the power the greater is the necessity for application of judicial mind.
12. The power conferred has been held to be discretionary and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinable factor in this regard would be whether the summoning or recalling of the witness is in fact, essential to the just decision of the case keeping in view that fair trial – which entails the interests of the accused, the victim and of the society – is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner.
What are the grounds of challenge that the Hon’ble Allahabad High Court may consider for setting aside an order under Section 348 of BNSS?
To challenge an order under Section 348 of BNSS, the grounds that may be agitated before the Hon’ble Allahabad High Court would have to point to the illegality, impropriety and incorrectness in the order.
If the order is patently illegal, and it is apparent on the face of it, the revisional court may exercise its powers to set aside the summoning order under Section 348 of BNSS.
In case of Rajaram Prasad Yadav vs State of Bihar and Anr(2013) 4 SCC 461, the Hon’ble Supreme Court has laid down guidelines and governing principles for exercising powers under section 348 BNSS to summon, recall or reexamine any person as witness. The relevant extract is reproduced below:-
“17. From a conspectus consideration of the above decisions, whiledealing with an application under Section 311 CrPC read along withSection 138 of the Evidence Act, we feel the following principles will haveto be borne in mind by the courts:
“17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court to be essentialto the just decision of the case, it is the power of the court tosummon and examine or recall and re-examine any such person.
17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts andcircumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice tothe accused, resulting in miscarriage of justice.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.
17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce thejudgment without it, but because there would be a failure of justice without such evidence being considered.
17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.
17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care,caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the societyand, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, aswell as a human right.”
Summoning an Accused under Section 358 BNSS
Section 358 of the BNSS, corresponding to Section 319 of the Code of Criminal Procedure (CrPC), empowers the court to proceed against any person who, though not originally an accused, appears from the evidence to have committed an offence.
Section 358 of BNSS is as follows:
358. Power to proceed against other persons appearing to be guilty of offence.—
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then—
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
The aforesaid provision can be invoked during the course of an inquiry or trial if material or witness testimony indicates such involvement. The court may summon the person to face trial along with the existing accused, and once summoned, they are deemed to be an accused from the stage of cognizance. The power is discretionary and extraordinary, to be exercised sparingly and only upon strong and cogent evidence. Its object is to ensure that the real offender does not escape trial merely because their name was omitted from the FIR or charge sheet.
What are the contours provided by law for trial court to exercise its power under Section 358 BNSS?
The power under Section 358 BNSS is discretionary and extraordinary. The use of the word “may” indicates that the court is not bound to act in every case. It should exercise this power sparingly, judiciously, and only when strong and cogent evidence appears against a person not originally arraigned.
The Hon’ble Supreme Court in Hardeep Singh v. State of Punjab(2014) 1 SCALE 214 held that the power under Section 319 Cr.P.C. must not be exercised casually or mechanically, but only when compelling evidence exists. This decision was again followed by Hon’ble Supreme Court in Labhuji Amratji Thakor and others Vs. State of Gujarat and another [(2019) 12 SCC 644] wherein it was held that the process under Section 319 Cr.P.C. cannot be issued by the trial court in a casual manner, as in view of the decision in Hardeep Singh’s case, the trial court is required to analyze the substance of the evidence recorded during trial. The relevant observations are reproduced below:
“13. The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the F.I.R. or in the Charge Sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C.The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh’s (supra) has to apply the test, i.e. “more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.”
In Mohd. Shafi v. Mohd. Rafiq &Anr. AIR 2007 SC 1899, the Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.
Hence, the power to summon an accused under Section 358 BNSS must be exercised only when there are strong grounds to do so, and there appears a more than prima facie case against the accused person.
On what grounds can a summoning order under Section 358 BNSS be challenged before the Hon’ble Allahabad High Court?
The Hon’ble Allahabad High Court examines the illegality, impropriety, or incorrectness in the order summoning an accused. The Hon’ble High Court must look into the fact that whether the order was based on insufficient or non-existent evidence, or whether the power under Section 358 was exercised without due satisfaction or in a mechanical manner. If such defects exist, the High Court can set aside the order.
Recently, the Allahabad High Court, while deciding a criminal revision set aside the order of the trial court summoning an accused, on the ground that the trial court did not analyze the substance of the prosecution witnesses. The extracted ratio is as under-
“15. Further, a reading of the impugned order dated 14th September, 2007 would show that the trial court has failed to analyze the substance of the prosecution witnesses while exercising the powers under Section 319 Cr.P.C. Thus, this Court has no hesitation in holding that the impugned order dated 14th September, 2007 suffers from grave illegality and impropriety and warrants interference by this Court”.