Rejection Of Section 348 BNSS Witness Recall Plea Is Interlocutory; Inherent Powers Cannot Provide Backdoor Entry Where Section 438(2) Revisional Bar Applies Absent Gross Injustice: Delhi High Court

"Passovers and adjournments are matter of courtesy extended by the Court to the counsel and the same are not right of the counsel." Clarifying the statutory limits governing interlocutory challenges, the Delhi High Court on November 3, 2026, ruled that an order rejecting an application under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to recall a witness is interlocutory in nature and cannot be circumvented through the court's inherent powers to bypass the express revisional bar under Section 438(2) BNSS, except in cases of demonstrable gross injustice.

The petitioner faced proceedings under Section 138 of the Negotiable Instruments Act, where notice was framed in April 2022. The complainant entered the witness box in June 2023 and was partly cross-examined over multiple dates across nearly three years with repeated accommodations granted to the defence. On January 12, 2026, when neither the petitioner nor her counsel appeared, the trial magistrate closed further cross-examination, subsequently dismissing an application under Section 348 BNSS to recall the complainant. The petitioner then approached the High Court under inherent jurisdiction to challenge the refusal.

Whether the dismissal of an application under Section 348 BNSS constitutes an interlocutory order subject to the statutory bar under Section 438(2) BNSS.

Whether the High Court's inherent jurisdiction can be invoked to overturn such an interlocutory rejection in the absence of gross injustice.

Whether counsel possesses an enforceable legal right to claim a passover or adjournment in criminal proceedings.

Justice Girish Kathpalia observed that Section 348 BNSS corresponds to Section 311 of the erstwhile Code of Criminal Procedure, under which the dismissal of an application to summon or recall a witness has firmly been categorized as an interlocutory order. As a statutory consequence, such an order remains completely immune from revisional scrutiny by the Court of Sessions or the High Court by virtue of the bar created under Section 438(2) BNSS.

Interlocutory orders barred from revision cannot enter through inherent powers

The Court underscored that settled jurisprudence forbids litigating parties from circumventing explicit legislative prohibitions through the invocation of inherent powers. The bench noted that what is explicitly prohibited by law cannot be granted a backdoor entry by invoking inherent powers, unless it is a case of gross injustice, citing precedents in Ram Swaroop Gupta v. State NCT of Delhi and Exclusive Capital Limited v. State Govt of NCT Delhi.

Upon examining the factual record, the Court found no trace of procedural unfairness or prejudice against the accused. The bench recorded that the petitioner was neither denied legal assistance nor forced to conclude the cross-examination in undue haste, noting that the complainant had remained in the witness box continuously from June 2023 until January 2026 while repeated adjournments were extended to the defence counsel.

Passovers and adjournments are courtesies rather than enforceable legal rights

Addressing the petitioner’s solitary contention that the trial court ought not to have closed the right to cross-examine on the first call because counsel intended to seek a passover, the Court firmly rejected the proposition. The bench held that passovers and adjournments are a matter of courtesy extended by the Court to the counsel and the same are not a right of the counsel.

The High Court emphasized that where neither the accused nor any proxy counsel appeared before the trial magistrate to even request a passover, the trial court had no obligation to anticipate counsel's intentions or keep proceedings halted indefinitely. The bench remarked that the petitioner was actively attempting to protract the summary trial under Section 138 of the Negotiable Instruments Act so that the complainant would be frustrated into giving up.

Finding the petition to be an abuse of legal process rather than an instance of gross injustice, the High Court held the petition to be not only devoid of merits but completely frivolous.

The Delhi High Court dismissed the petition along with pending applications and imposed costs of Rs. 10,000 on the petitioner, directing deposit with the Bharat Ke Veer portal within one week.

Date of Decision: November 3, 2026