India — Summoning and Recalling Witnesses: CrPC Section 311 and BNSS Section 348

Jurisdiction and scope: India-wide criminal procedure. This note addresses an application asking a criminal court to summon, examine, recall or re-examine a witness under CrPC section 311 or BNSS section 348. It does not override a special statute governing a witness, state amendments, High Court rules or trial-specific protective directions.

Law checked: 25 October 2026. Next review: 25 January 2027, or earlier if section 348, section 531 or the cited Supreme Court authorities are affected by legislation or a larger-Bench decision.

Short answer

The provision contains a discretionary limb and a mandatory limb. A court may, at any stage of an inquiry, trial or other proceeding under the applicable Code, summon a person as a witness, examine a person in attendance although not summoned, or recall and re-examine a person already examined. The court shall do so if that person’s evidence appears essential to the just decision. The power is wide but must be exercised judicially: the application must identify the exact evidence, explain why it is essential, be bona fide, and address delay, prior opportunities, prejudice and any special-law protection.

Choose the correct provision

1. CrPC section 311: use it where BNSS section 531(2)(a) saves an appeal, application, trial, inquiry or investigation that was pending immediately before the BNSS commenced.
2. BNSS section 348: use it for a proceeding governed by the BNSS. The operative wording preserves the same discretionary and mandatory structure.
3. Record the transition analysis: note when the underlying investigation, inquiry, trial, appeal or application began and whether it was pending on 1 July 2024. Do not select the section merely from the date on which the witness application is filed.

Step-by-step application workflow

1. Classify the request precisely. State whether the court is asked to summon a new witness, examine a person already present, recall an examined witness, or permit re-examination. Name the witness, or explain how the person can be identified and secured.
2. Set out the proposed evidence. Identify the specific fact, document, expert issue or ambiguity the witness will address. Attach a focused question outline where appropriate. A statement that the witness will “assist the court” or “ensure a fair trial” is not enough.
3. Connect it to the just decision. Explain why the proposed evidence is essential rather than merely cumulative or useful. In Manju Devi, the Supreme Court directed that the doctor who conducted the first post-mortem be examined because the medical evidence was material to the cause of death; the age of the case did not displace the essential-evidence inquiry.
4. Explain timing and diligence. Give the date on which the need became apparent, prior opportunities to call or question the witness, and the reason for any delay. The court may correct a bona fide omission, but a late request requires a credible explanation.
5. Address bona fides and possible manipulation. In Ratanlal, two witnesses sought re-examination about 14 months after their completed evidence in order to retract the prosecution-supporting account. The Court restored the refusal because the delay was unexplained and the circumstances showed the witnesses had been won over. A recall application cannot be used to manufacture a changed version.
6. Deal with prejudice and procedural fairness. State what opportunity the other side will have to cross-examine, answer new material or seek consequential evidence. Propose proportionate limits on questioning, documents and time. The object is a just decision, not tactical surprise or a disguised retrial.
7. Check special statutes before relying on the general power. In Madhab Chandra Pradhan, the Supreme Court held that POCSO Act section 33(5) is not an absolute bar to recalling a child, but each case must be assessed individually. The recall was refused where the child had already been cross-examined at length twice and repeated testimony would defeat the protective purpose. Identify comparable witness-protection, confidentiality or vulnerability provisions in the actual case.
8. Ask for a reasoned, workable order. Specify the summons or recall sought, service details, mode of appearance, records to be produced, proposed safeguards and responsibility for costs or logistics. Request that the order record whether the court is using the discretionary limb or finds the evidence essential under the mandatory limb.

Evidence and decisions checklist

• Applicable Code and BNSS section 531 transition note;
• Witness identity, address and availability;
• Exact issue and proposed evidence;
• Prior testimony, cross-examination and adjournment history;
• Explanation for omission or delay, with supporting record;
• Documents or expert material to be proved;
• Special-law restrictions or protective measures;
• Prejudice and response opportunity for every party;
• Proposed question, time and document limits;
• Appearance mode, process fee and service details under current local rules; and
• Draft of the precise operative order requested.

Common errors

• Citing section 311 without checking whether the BNSS governs;
• Treating the entire power as discretionary despite the “shall” limb;
• Using conclusions such as “necessary for fair trial” without identifying evidence;
• Failing to explain why the witness was not called or fully questioned earlier;
• Using recall to retract completed testimony or repair a tactical choice;
• Assuming that delay alone defeats evidence that is genuinely essential;
• Ignoring the other side’s opportunity to meet new material; and
• Ignoring a special statute’s witness-protection rules.

Official sources

Automated-research disclosure: This maintained Practice Note was rebuilt through automated comparison of the official statutory texts and Supreme Court decisions, followed by a separate claim-to-source check. It does not claim human-lawyer authorship or review. Counsel must verify the case record, applicable special statute and current local court rules before filing.