Section 348 – Power to Summon Material Witness, or Examine Person Present

Introduction

Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of the Court to summon a person as a witness or to examine a person who is already present before the Court.

The provision gives the Court a wide power to ensure that all necessary evidence is brought before it for arriving at a just decision. It is not limited to witnesses originally cited by the prosecution or defence.

Section 348 substantially corresponds to Section 311 of the Code of Criminal Procedure, 1973.

Meaning of Section 348

Section 348 empowers the Court, at any stage of an inquiry, trial or other proceeding under the BNSS, to:

• summon any person as a witness;
• examine any person in attendance, even if that person has not been summoned as a witness; or
• recall and re-examine a person who has already been examined.

The Court must exercise this power where the evidence of such person appears to be essential to the just decision of the case.

The central principle is that the Court must have the necessary evidence before it to arrive at a fair and correct decision.

Power of the Court

The Court may exercise the power under Section 348 at any stage of:

• an inquiry;
• a trial; or
• any other proceeding under the BNSS.

This means that the power is not confined to a particular stage of the trial.

The Court may exercise it:

• before the examination of witnesses;
• during the examination of witnesses;
• after the prosecution evidence;
• during defence evidence; or
• at another appropriate stage before the final decision.

Three Powers Under Section 348

Section 348 essentially gives the Court three distinct powers.

1. Summon Any Person as a Witness

The Court may summon any person to give evidence if that person’s evidence appears to be essential for the just decision of the case.

The person need not necessarily have been listed as a witness by either party.

2. Examine a Person Present in Court

If a person is already present before the Court, the Court may examine that person as a witness even though the person has not been formally summoned.

This avoids unnecessary procedural delay where a relevant person is already available before the Court.

3. Recall and Re-examine a Witness

The Court may recall and re-examine a person who has already been examined as a witness.

This power may be exercised where further examination or clarification is necessary for reaching a just decision.

Essential Requirement

The most important requirement under Section 348 is that the evidence of the person must appear to the Court to be essential to the just decision of the case.

The power should therefore be exercised for the purpose of discovering the truth and reaching a fair decision.

It should not be used merely to fill an unnecessary gap in a party’s case or to give one side an unfair advantage.

Court’s Duty

The wording of the provision gives the Court a significant role in ensuring that relevant evidence is available.

Where the Court considers that a person’s evidence is essential to the just decision of the case, the Court has the power to summon, examine, recall or re-examine that person.

The provision therefore reflects the principle that the Court’s primary concern is the just determination of the case rather than merely relying on the evidence voluntarily produced by the parties.

Example

Suppose A is facing trial for an offence. During the proceedings, the Court discovers that B was present at the place of occurrence and may have important information about the incident.

B was not originally listed as a witness by either the prosecution or the defence.

If the Court considers B’s evidence essential for deciding the case fairly, it may summon B and examine B as a witness.

Similarly, if C has already been examined but an important issue requires clarification, the Court may recall C for further examination.

Recall and Re-examination

The power to recall a witness is particularly important where:

• an important fact was left unexplained;
• a material question was not asked;
• clarification is required;
• new circumstances make further examination necessary; or
• the existing evidence requires clarification for a just decision.

The purpose is not to permit endless examination of witnesses but to ensure that the Court has the evidence necessary for a proper decision.

Object and Purpose

The main objectives of Section 348 are:

• to enable the Court to discover the truth;
• to ensure that relevant evidence is brought before the Court;
• to prevent a material witness from being left unexamined;
• to allow clarification of evidence already given;
• to permit recall and re-examination where necessary; and
• to assist the Court in arriving at a just decision.

Important Features

Wide Discretion

The Court has broad powers under Section 348 to summon or examine witnesses.

Any Stage

The power may be exercised at any stage of an inquiry, trial or other proceeding under the BNSS.

Unlisted Witness

A person need not necessarily have been named as a witness by the prosecution or defence.

Person Already Present

A person who is already present before the Court may be examined without requiring a separate summons.

Recall of Witness

A witness who has already been examined may be recalled and re-examined.

Essential for Just Decision

The controlling consideration is whether the evidence appears essential to the just decision of the case.

Difference Between Summoning and Recalling

Summoning

The Court calls a person who has not previously been examined as a witness.

Recalling

The Court calls back a person who has already been examined so that further examination or re-examination can take place.

Both powers are available under Section 348 when necessary for a just decision.

Section 348 and Fair Trial

Section 348 supports the principle of a fair trial by ensuring that the Court is not helpless when important evidence is missing.

A criminal trial is not merely a contest between the prosecution and the defence. The ultimate responsibility of the Court is to determine the truth on the basis of legally permissible evidence.

The power under Section 348 enables the Court to obtain necessary evidence where doing so is essential for a just decision.

Safeguard Against Misuse

Although the power is broad, it must be exercised judicially.

The provision should not be used:

• merely to fill lacunae in a case;
• to cause unnecessary delay;
• to harass a witness; or
• to give an unfair advantage to either party.

The purpose must remain the proper and just determination of the case.

BNSS and CrPC

Section 348 BNSS substantially corresponds to Section 311 of the Code of Criminal Procedure, 1973.

The basic power has been retained under the BNSS, allowing the Court to summon a material witness, examine a person already present, or recall and re-examine a witness where the evidence appears essential to the just decision of the case.

Relationship with Other Provisions

Section 348 should be read along with the provisions of the BNSS relating to:

• examination of witnesses;
• cross-examination;
• recall and re-examination;
• recording of evidence; and
• conduct of inquiries and trials.

It provides the Court with an additional mechanism to ensure that the evidence necessary for a fair decision is available before it.

Topic at a Glance

• Section: 348, BNSS, 2023
• Subject: Power to summon material witness or examine person present
• Authority: Court
• Stage: Any stage of an inquiry, trial or other proceeding
• Power 1: Summon any person as a witness
• Power 2: Examine a person already present before the Court
• Power 3: Recall and re-examine a witness
• Main requirement: Evidence must appear essential to the just decision of the case
• Purpose: Discover truth and ensure a just decision
• Corresponding CrPC provision: Section 311, CrPC

Quick Revision

• Section 348 BNSS gives the Court power to summon a material witness.
• The Court may exercise the power at any stage of an inquiry, trial or other proceeding.
• A person already present before the Court may also be examined.
• A witness who has already been examined may be recalled and re-examined.
• The decisive consideration is whether the evidence appears essential to the just decision of the case.
• The power can be exercised even in respect of a person who was not originally cited as a witness.
• The provision is intended to assist the Court in discovering the truth and reaching a fair decision.
• Section 348 substantially corresponds to Section 311 of the CrPC.

ALSO READ: Section 347 – Local inspection

Conclusion

Section 348 BNSS gives the Court an important power to ensure that necessary evidence is available for the proper determination of a criminal case. It allows the Court to summon a material witness, examine a person already present, or recall a previously examined witness whenever the evidence appears essential to the just decision of the case. The provision therefore strengthens the Court’s ability to discover the truth while ensuring that the proceedings are decided on a complete and reliable evidentiary record.