Section 240 of BNSS, 2023 — Recall of Witnesses When Charge Altered

Introduction

Section 240 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the recall and re-examination of witnesses when a charge is altered or added during the trial.

The provision protects the right of both the prosecution and the accused to properly address the altered or additional charge.

When a charge is changed, the evidence already recorded may no longer be sufficient to deal with the new accusation. Section 240 therefore provides a mechanism for recalling witnesses and allowing further examination where necessary.

Meaning of Section 240

Where a charge is altered or an additional charge is added after the trial has commenced, the Court may permit witnesses who have already been examined to be recalled and examined in relation to the altered or additional charge.

The provision ensures that the alteration of the charge does not deprive either side of a fair opportunity to present its case.

Object and Purpose

The main objectives of Section 240 are:

• To protect the right to a fair trial.
• To allow witnesses to be examined in light of an altered or additional charge.
• To give the accused an opportunity to properly defend against the new accusation.
• To prevent prejudice resulting from a change in the charge.
• To enable the prosecution and defence to address matters arising from the altered charge.

When Does Section 240 Apply?

Section 240 becomes relevant when:

1. A trial is already in progress.
2. The Court alters an existing charge or adds a new charge under Section 239.
3. Witnesses have already been examined.
4. Their evidence needs to be reconsidered in light of the altered or additional charge.

Recall of Witnesses

When the charge is altered or an additional charge is added, the Court may allow witnesses who have already been examined to be recalled.

The purpose is to allow their evidence to be properly considered in relation to the new or modified accusation.

Opportunity to Cross-Examine

The accused must be given an opportunity to further cross-examine a witness whose evidence is affected by the altered or additional charge.

This is an important safeguard because the accused may need to question the witness on matters that become relevant only because of the new charge.

Opportunity for Further Examination

Where necessary, the witness may also be further examined by the prosecution.

The Court must ensure that the parties receive a fair opportunity to address the altered or additional charge.

Court’s Power to Proceed Without Recall

Section 240 also recognises that the Court need not mechanically recall every witness.

If the Court considers that the recall of a witness is not necessary in the interests of justice, it may proceed without recalling that witness.

The focus is therefore on whether recall is actually necessary for a fair determination of the case.

Importance of Section 240

Section 240 is closely connected with the principle of natural justice.

An accused should not be convicted on the basis of an altered or additional charge without having a fair opportunity to challenge the evidence relevant to that charge.

Similarly, the prosecution should have an opportunity to present evidence relevant to the modified accusation.

The provision therefore balances:

• the right of the accused to defend;
• the prosecution’s right to present its case; and
• the Court’s duty to conduct a fair trial.

Example

Suppose A is initially charged with one offence.

During the trial, the Court alters the charge and adds another offence based on the material before it.

Several prosecution witnesses have already been examined.

If their evidence is relevant to the newly added charge, the Court may recall those witnesses so that they can be examined further and the accused can cross-examine them with reference to the additional charge.

Relationship with Section 239

Section 239 gives the Court the power to alter or add to a charge.

Section 240 provides the procedural safeguard that follows such alteration or addition by dealing with the recall of witnesses.

Therefore:

Section 239 → Alteration or addition of charge

Section 240 → Recall of witnesses after alteration or addition

Relationship with Section 238

Section 238 deals with the effect of errors in a charge.

Section 239 provides the power to correct or modify a charge.

Section 240 ensures that, after such modification, the parties receive an appropriate opportunity regarding witnesses and evidence.

BNSS and CrPC

Section 240 of the BNSS corresponds to Section 217 of the Code of Criminal Procedure, 1973.

The basic principle remains the same: when a charge is altered or an additional charge is added, the prosecution and the accused must be given an opportunity to recall or further examine witnesses where necessary.

Common Confusions

Is every witness automatically recalled when a charge is altered?

No.

Recall is not necessarily required in every case. The Court considers whether recall is necessary in the interests of justice.

Why is recall of witnesses important?

Because the altered or additional charge may introduce new issues that require further examination or cross-examination.

Can the accused cross-examine a recalled witness?

Yes.

The accused must have an appropriate opportunity to further cross-examine the witness in relation to the altered or additional charge.

Does alteration of charge automatically mean a new trial?

No.

Section 240 provides a mechanism for continuing the existing trial while ensuring that the parties receive a fair opportunity to deal with the altered charge.

Topic at a Glance

• BNSS Section: 240
• Subject: Recall of witnesses when charge is altered
• Trigger: Charge altered or additional charge added
• Purpose: Ensure fair opportunity to address the altered charge
• Witnesses: May be recalled where necessary
• Accused: Entitled to appropriate further cross-examination
• Related provision: Section 239
• Corresponding CrPC provision: Section 217
• Nature: Procedural safeguard

Quick Revision

• Section 240 deals with recall of witnesses when a charge is altered.
• It operates in connection with Section 239.
• Witnesses already examined may be recalled where necessary.
• The prosecution may further examine the witness.
• The accused must have an opportunity to further cross-examine the witness.
• The Court need not recall a witness where recall is unnecessary in the interests of justice.
• The provision prevents prejudice caused by an altered or additional charge.
• Section 240 BNSS corresponds to Section 217 CrPC.

ALSO READ: Section 239 – Court may alter charge

Conclusion

Section 240 of the BNSS ensures that alteration or addition of a charge does not unfairly prejudice either side. By permitting the recall and further examination of witnesses, and by protecting the accused’s opportunity for further cross-examination, the provision helps ensure that the case is decided after both sides have had a fair opportunity to address the modified accusation.