Dismissed¶28

Mohammad Nasir v. State of Chhattisgarh

Chhattisgarh HC28 Jan 2026CRMP/261/2026

Case brief

AI extract

What is this about?

Search terms: Section 528 BNSS inherent powers; Section 348 BNSS; Section 311 CrPC; recall / re-calling / re-examination of witnesses; strong and valid reasons; change of lawyer or advocate no ground for recall; Section 33(5) POCSO Act child not called repeatedly to testify; Swapan Kumar Chatterjee v. CBI (2019) 14 SCC 328; Section 482 CrPC; Special Criminal Case (POCSO) No. 185/2024; Additional Sessions Judge (FTC)/Special Court (POCSO) Kawardha; Kabirdham; PW-1 father of victim; PW-2 victim; dismissal at motion stage; CRMP Chhattisgarh High Court Bilaspur.

What did the court decide?

Though the Court possesses inherent powers under Section 528 BNSS, in the absence of valid reasons shown by the accused/applicant it is not automatically open to invoke Section 311 CrPC (equivalent Section 348 BNSS) for re-examining witnesses. ¶27

Mohammad Nasir Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2026)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the trial court's order dated 17.07.2025 rejecting the petitioner's application under Section 348 BNSS (corresponding to Section 311 Cr.P.C.) for re-calling/re-examination of PW-1 and PW-2 warrants interference under Section 528 BNSS.

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Court's answer

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Ratio / Principle

The inherent power should not be exercised merely on the basis of a change of the accused's lawyer.

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Key takeaways

In view of Section 33(5) of the POCSO Act (the Special Court shall ensure that the child is not called repeatedly to testify), the impugned order contains no infirmity warranting interference by this Court.ratio¶27

Detailed headnote1 paragraphs

High Court of Chhattisgarh at Bilaspur (Sanjay Kumar Jaiswal, J.), order dated 29/01/2026 in CRMP No. 261 of 2026: Petition under Section 528 BNSS dismissed at motion stage, upholding the order dated 17.07.2025 of the Additional Sessions Judge (FTC)/Special Court (POCSO), Kawardha, in Special Criminal Case (POCSO) No. 185/2024, whereby the petitioner-accused's application under Section 348 BNSS (corresponding to Section 311 Cr.P.C.) to recall prosecution witnesses PW-1 (father of the victim) and PW-2 (victim) — earlier cross-examined in detail on 18.10.2024 by his then counsel Mr. S. Mirza — was rejected. Held, relying on Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328: the power under Section 311/Section 348 must be invoked only to meet the ends of justice, for strong and valid reasons, with caution and circumspection; the inherent power under Section 528 BNSS (similar to Section 482 CrPC) cannot be exercised merely on the basis of a change of the accused's lawyer; and, in view of Section 33(5) of the POCSO Act (the Special Court shall ensure that the child is not called repeatedly to testify), no infirmity in the impugned order warranted interference.

2026:CGHC:4917

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 261 of 2026

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1 - Mohammad Nasir S/o Mohammad Nazir, Aged About 19 Years, R/o Village- Manjholi, Police Station- Pandatarai, District - Kabirdham (C.G.).

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... Petitioner

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versus

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1 - State Of Chhattisgarh Through Station House Officer, Police Station- Pandatarai, District - Kabirdham (C.G.).

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... Respondent

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For Petitioner : Mr. Chandrikaditya Pandey, Advocate. For State/Respondent : Mr. K.K. Baharani, P.L.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board

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29/01/2026

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1 . The instant petition has been filed under Section 528 of B.N.S.S., 2023, against the order dated 17.07.2025, passed by the learned Additional Sessions Judge (FTC)/Special Court (POCSO), Kawardha, District-Kabirdham (C.G.) in Special Criminal Case (POCSO) No. 185/2024, whereby the application under Section 348 of BNSS (corresponding to Section 311 of Cr.P.C.) filed by the petitioner seeking re-calling of the prosecution witnesses PW-1 (father of the victim) and PW-2 (victim) has been rejected.

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2 . Learned counsel for the petitioner submits that the earlier appointed counsel, Mr. S. Mirza, did not adequately crossexamine PW-1 (father of the victim) and PW-2 (victim). Consequently, the petitioner decided to engage a new counsel to represent him before the trial court. Upon reviewing the case records, the new counsel discovered that crucial aspects remained unexplored during the examination of PW-1 and PW2. Given the importance of thorough examination of these witnesses for a just decision, an application under Section 348 of BNSS was filed to re-examine them. However, the said application was dismissed by the trial court vide order dated 17.07.2025. He submits that learned trial Court has completely ignored the provisions of section 311 of CrPC and rejected the application for recalling the witnesses though it vested with a wide power to summon and examine or recall and re-examine any material witness at any stage and closing of prosecution evidence is not bar.

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3 . Per contra, learned State Counsel opposes the contention of the petitioner and submits that strong and valid reasons ought to have been assigned by the petitioner for recalling the witnesses and in absence thereof, the power under Section 311 CRPC should not have been invoked to entertain the application, therefore, the trial Court has rightly passed the order rejecting the application u/s 348 of BNSS, which needs no interference.

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4 . I have heard learned Counsel appearing for the parties and perused the documents annexed with the petition including the order impugned.

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5 . Upon reviewing the available material and the order impugned, it is clear that on 18.10.2024, PW-1(Father of the victim) and PW-2 (victim) were cross-examined in detail by the learned Advocate of the accused, Mr. S. Mirza. The trial Court considered the fact that the statements of important witnesses in the case have been recorded, and the case is fixed for the remaining prosecution evidence. In such a situation, the newly appointed advocate of the accused cannot be allowed to make up for the deficiency. Hence, rejected the application.

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6 . It is alleged that the petitioner has committed the offence under the POCSO Act. Section 33(5) of the POCSO Act is as under:-

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The Special Court shall ensure that the child is not called repeatedly to testify in the Court.

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In Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 , the Supreme Court held that the power under Section 348 of BNSS (corresponding to Section 311 of the Cr.P.C.) should be invoked by the Court only to meet the ends of justice. It is to be exercised for strong and valid reasons and with great caution and circumspection. It cannot be exercised at the mere whims and fancies of the accused. Para 11 is relevant and quoted hereinbelow :

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"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of

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each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.”

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(Emphasis supplied)

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8 . In the instant case, though this Court possesses inherent powers under Section 528 of the BNSS (similar to Section 482 of the CrPC) to meet the ends of justice, but in absence of valid reasons shown by the accused/applicant in his application seeking recall/re-examination of witnesses, it is not automatically open to invoking Section 311 of the CrPC (or its equivalent in BNSS, Section 348) for re-examining witnesses. It would not be appropriate to exercise the inherent power merely on the basis of change of the lawyer. In view of the provisions of Section 33(5) of the POCSO Act, I do not find any infirmity in the impugned order warranting interference by this Court.

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9 . Accordingly, the instant petition is hereby dismissed at motion stage itself. Sd/-

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(Sanjay Kumar Jaiswal)

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Judge

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Sourabh P.

Mohammad Nasir v. State of Chhattisgarh

Case brief

What is this about?

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Mohammad Nasir v. State of Chhattisgarh

Case brief

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