Section 348 BNSS Not Meant to Repair Prosecution’s Case: Punjab & Haryana High Court Rejects Plea to Summon Additional Evidence 7 Years into Trial

Object of Section 348 is not to enable either party to fill gaps in their case — judicial discretion must be exercised with caution, not sympathy - In a strongly worded ruling Punjab and Haryana High Court dismissed a plea seeking summoning of fresh witnesses and documents at a belated stage, holding that the power under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, formerly Section 311 CrPC, cannot be invoked to plug evidentiary gaps.

Justice Harpreet Singh Brar observed: “Section 348 BNSS empowers the Court to summon additional evidence, but this discretion cannot be used as a tool for course correction by a party who has failed to exercise due diligence.”

The Court firmly concluded that the petitioner was attempting to fill the lacunae in the prosecution case after over seven years of pending trial, and such misuse of procedural remedies cannot be permitted.

“Anxiety for Justice Must Not Come at the Cost of Fair Trial”

The case involved a property dispute between two brothers — the petitioner Bachan Singh and respondent no.2. The FIR dated 09.08.2017, registered under Sections 427 and 448 of the IPC, accused respondent no.2 of trespassing, theft of a licensed firearm, and physical assault on the petitioner.

During the trial, the petitioner moved an application under Section 348 BNSS and Section 91 CrPC seeking to summon:

FIR No. 302/2010 (in which respondent no.2 was convicted), and

FIR No. 25/2013, both allegedly evidencing habitual criminal behaviour of the accused.

The trial court, however, dismissed the application on 11.10.2024, noting the excessive delay and lack of necessity at that stage.

Before the High Court, the petitioner argued: “These FIRs are vital to demonstrate the violent conduct and prior convictions of the respondent, which the police conveniently omitted from the final report. Their production is essential for a just decision.”

But the State opposed, contending: “The petitioner is merely trying to prolong the trial and fill up the prosecution’s holes. This is not about justice — it is about litigation strategy.”

“Section 348 Is Not for Surprise Evidence — Judicial Process Cannot Be Reduced to Trial by Ambush”

Justice Harpreet Singh Brar analysed the scope of Section 348 BNSS (analogous to Section 311 CrPC), and reiterated the established position:

“The discretionary power under Section 348 BNSS must be exercised cautiously. It is not a mechanical power, and courts must be vigilant that it is not misused to alter the direction of a trial midstream.”

He relied on the Supreme Court’s ruling in V.N. Patil vs. K. Niranjan (2021) 3 SCC 611, where it was held: “The object underlying Section 311 CrPC is to prevent failure of justice due to omission of important evidence — but this power must be wielded with care and only when it is essential to the just decision of the case.”

The High Court added that the facts of the case clearly show delay: “The charges were framed as far back as 05.03.2018, and the application for additional evidence was filed only in September 2024. Even earlier, a similar application had been dismissed. This is not diligence — it is afterthought.”

“Prosecution Cannot Be Permitted to Ambush the Accused with Late Evidence”

Referring to its earlier decision in Vijay Kumar vs. State of Haryana (CRM-M-17935-2024), the Court remarked: “Permitting late-stage documents without adherence to procedural safeguards violates the accused’s right to cross-examination and fair trial. The judicial process cannot be turned into a game of surprises.”

Justice Brar emphasized: “A party cannot be allowed to introduce new twists late in trial without allowing the other party an equal chance to rebut — the balance of fairness would collapse.”

The Court also noted: “The police chose not to produce the said FIRs in their final report. The complainant was aware of this fact from inception. Why did he not act earlier? There is no explanation.”

The High Court dismissed the petition with clarity and precision, ruling: “The petitioner is attempting to fill the lacunae in the prosecution case by invoking Section 348 BNSS at the eleventh hour. Such procedural exploitation is impermissible. Justice cannot be served by undermining the integrity of the trial.”

Justice Brar concluded by reiterating the settled law: “The object of the section is not to enable any one or the other party to fill up the gaps of its case. The sole criterion should be whether the exercise of power is necessary in the interest of justice — not in aid of litigation tactics.”

Date of Decision: 4 April 2025