Every criminal trial depends on one thing above all else: complete and reliable evidence. But witnesses are sometimes missed, testimonies leave gaps, and new facts surface only after the evidence stage has technically closed. This is exactly where Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, steps in. It carries forward the older Section 311 of the Code of Criminal Procedure (CrPC), 1973, almost word for word, and gives courts wide discretionary and mandatory power to summon a material witness, examine a person already present in court, or recall someone already examined.

For law students, judiciary aspirants, litigants, and practicing advocates, understanding this provision is essential. It touches the very heart of a fair trial, the discovery of truth, and the balance between procedural finality and substantive justice. This article breaks down the bare text, the legal reasoning behind it, key judgments, and practical aspects of Section 348 BNSS and Section 311 CrPC in one place.

S.348 BNSS / S.311 Cr.P.C. Power to Summon Material Witness, or Examine Person Present

Bare Text of the Provision

Section 348 of BNSS (identical in substance to Section 311 CrPC) reads as follows:

“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 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.”

At first glance this looks like a single sentence, but it actually packs three distinct powers and two very different legal obligations into one section.

BNSS vs CrPC: What Actually Changed

Many readers searching for this topic want a quick, side by side comparison. Here it is:

Aspect	Section 311, CrPC, 1973	Section 348, BNSS, 2023
Wording	Identical substance	Identical substance
Chapter	Chapter XXIV, General Provisions as to Inquiries and Trials	Chapter XXVI, General Provisions as to Inquiries and Trials
Scope	Inquiry, trial, or other proceeding under CrPC	Inquiry, trial, or other proceeding under BNSS
Judicial precedents	Fully applicable	Continue to apply, since the language is unchanged
Effective date	Was in force till 30 June 2024	In force from 1 July 2024

In short, there is no substantive change. Courts and commentators treat the case law built around Section 311 CrPC as directly applicable to Section 348 BNSS, since the legislature simply renumbered and re-enacted the provision without altering its wording or intent.

The Two Limbs of the Section

Judicial interpretation has consistently split this provision into two limbs.

1. Discretionary limb (the word “may”): The court has full discretion to summon any person as a witness, examine someone already present even if never summoned, or recall and re-examine a witness already deposed. This discretion can be triggered by the prosecution, by the defence, or by the court acting entirely on its own motion (suo motu).
2. Mandatory limb (the word “shall”): Once the court forms the opinion that a person’s evidence is essential to the just decision of the case, summoning or recalling that person is no longer optional. The court is legally bound to do so.

This dual structure is what gives the provision its unusual strength. It is both an enabling power and, in certain situations, a duty.

Who Can Invoke This Power

• The prosecution, to fill a genuine evidentiary gap.
• The defence or the accused, to bring forward evidence relevant to the case.
• The court itself, without any application from either side, purely to arrive at the truth.

At What Stage Can It Be Exercised

One of the most litigated questions around this section is timing. Courts have repeatedly clarified that this power can be exercised:

• At any stage of the inquiry or trial, not just before the closure of evidence.
• Even after the statement of the accused has been recorded.
• Even after both sides have closed their evidence, provided the case has not yet reached judgment, since the underlying purpose is to prevent a miscarriage of justice.

However, this flexibility is not a license for endless delay. Courts have cautioned that recalling a witness merely to fill a lacuna created by negligence or a deliberate litigation strategy is not the object of this provision.

Object and Purpose Behind the Provision

The Supreme Court has explained on several occasions that a criminal trial cannot be left entirely to the parties. A judge is not a mere umpire watching two sides play a game; a judge has an active duty to ensure that no material or essential question remains unanswered simply because a party failed to lead the right evidence. This principle was strongly reiterated in the well known Best Bakery case.

In Zahira Habibulla H. Sheikh v. State of Gujarat, popularly called the Best Bakery case, the Supreme Court held that a fair trial requires the presiding judge to actively participate in the search for truth rather than remain a passive spectator. This judgment remains one of the most cited authorities on the scope of Section 311 CrPC and, by extension, Section 348 BNSS.

Key Judicial Precedents

Several landmark rulings shape how this section is applied in practice:

• Mohanlal Shamji Soni v. Union of India (1991): The Supreme Court held that the discretion given to courts under this provision is extremely wide and cannot be narrowly confined, since the words used, such as “any court,” “any stage,” and “any person,” are deliberately broad.
• Rajaram Prasad Yadav v. State of Bihar (2013): The Court laid down guiding principles for exercising this power, holding that the object is to subserve justice and not to fill in gaps caused by negligence, and that the application should not cause any irreparable prejudice to the accused.
• Zahira Habibulla H. Sheikh v. State of Gujarat (2004/2006): Established that a just trial demands the court’s active involvement in unearthing the truth.
• State of Maharashtra (1967): Clarified that a just decision under this section benefits both the prosecution and the defence equally, not one side alone.
• Varsha Garg v. State of Madhya Pradesh & Ors. (2022): The Supreme Court reiterated the basic parameters courts must apply while deciding an application under this section, emphasizing necessity and relevance over convenience.
• Anbu v. State of Tamil Nadu (Madras High Court): Clarified that the power to recall a witness under Section 348 BNSS cannot be used by the prosecution to patch up weaknesses in its case at the last stage of trial. The power exists to prevent injustice, not to give a negligent party a second opportunity.

Difference Between Section 348 BNSS and Section 391 CrPC / Its BNSS Equivalent

A common point of confusion for students is how this provision differs from the power of an appellate court to take additional evidence.

• Section 348 BNSS (Section 311 CrPC) operates at the trial court stage, during inquiry or trial.
• The appellate additional evidence provision applies only at the appeal stage, after a judgment has already been passed.
• Recalling or summoning a witness under Section 348 is mandatory once the court is convinced the evidence is essential, whereas the appellate provision leaves it purely discretionary.

Suo Motu Power of the Court

An important and often overlooked feature is that the court does not need either party to file an application. If the presiding judge independently feels that a certain person’s testimony is necessary to reach a fair verdict, the court can summon or recall that person on its own motion. This underlines the section’s underlying philosophy: truth-seeking is a judicial responsibility, not just a party driven exercise.

Limitations and Judicial Caution

While the power is wide, it is not unchecked. Courts have consistently held that:

• The power should not be used to allow a party to fill up a lacuna created by its own negligence.
• It should not cause serious or irreversible prejudice to the accused.
• It must be exercised judiciously, with reasons recorded, and not as a routine or mechanical practice.
• Frivolous or repeated applications aimed purely at delaying the trial can be rejected.

Practical Relevance for Judiciary Aspirants

This provision is a favourite among examiners for judicial services and law entrance exams because it tests conceptual clarity on:

• The difference between discretionary and mandatory judicial powers.
• The interplay between procedural law and substantive justice.
• How BNSS provisions correspond to their CrPC predecessors.
• Application of case law to hypothetical fact situations.

Frequently Asked Questions

What is Section 348 BNSS in simple words?

It is the provision that lets any court summon a witness, examine someone already present, or recall a witness already examined, at any stage of an inquiry or trial, whenever their evidence is necessary for a fair decision.

Is Section 348 BNSS the same as Section 311 CrPC?

Yes, the wording and legal effect are virtually identical. BNSS has only renumbered the provision from Section 311 to Section 348 while keeping its substance unchanged.

Can the accused apply under Section 348 BNSS to recall a witness?

Yes, either the prosecution or the defence can move such an application, and the court may also act on its own motion.

Can this power be exercised after both sides have closed their evidence?

Yes, courts have held that this power can be used even after the closure of evidence, as long as the final judgment has not been delivered.

Is exercising this power mandatory or discretionary?

It is both. The first part gives the court discretion, while the second part makes it mandatory when the evidence is essential for a just decision of the case.

Can Section 348 BNSS be misused to delay a trial?

Courts are alert to this risk and reject applications that appear to be filed merely to cause delay or to cover up a party’s own negligence in leading evidence.

What is the leading case on this provision?

Zahira Habibulla H. Sheikh v. State of Gujarat, known as the Best Bakery case, remains the most frequently cited authority on this section.

Conclusion

Section 348 BNSS, carrying forward the legacy of Section 311 CrPC, reflects one of the most important ideas in criminal justice: that a trial exists to discover the truth, not merely to settle a procedural contest between two sides. Its combination of wide discretion and, where necessary, a binding duty allows courts to correct evidentiary gaps at almost any stage without compromising fairness to either party. For students, advocates, and anyone following criminal procedure reforms in India, mastering this provision means understanding not just its text but the judicial philosophy that shaped it through decades of case law.

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