[Cites 7, Cited by 0]
Chattisgarh High Court
Charandas Gaikwad vs State Of Chhattisgarh on 10 March, 2026
1
2026:CGHC:11354
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 689 of 2026
1 - Charandas Gaikwad S/o Chhabiram Gaikwad, Aged About
24 Years R/o Village- Saloni, Chhachhanpairi Road, Police
Station- Mujgahan, District Raipur C.G.
... Petitioner
versus
1 - State Of Chhattisgarh Through Station House Officer, Police
Station Kabirnagar, District Raipur C.G.
... Respondent
For Petitioner : Mr. Mayank Chandrakar, Advocate.
For Respondent : Mr. Anish Tiwari, Dy. G.A.
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
10/03/2026
1. The instant petition has been filed under Section 528 of
BNSS, 2023 against the order dated 06.12.2025 passed by
the learned Sessions Judge, Raipur, District - Raipur (C.G.)
in Sessions Case No. 247/2024, whereby the application
under Section 311 of Cr.P.C./348 of BNSS filed by the
petitioner has been rejected.
2. Briefly, the facts of the case are that on the basis of
Digitally
signed by
HEERA HEERA
LAL SAHU
LAL Date:
SAHU 2026.03.11
10:18:51
+0530
complaint made by the complainant Bindiya Nishad FIR
bearing Crime No. 168/2024 under Section 109 of BNS and
Sections 25 & 27 of Arms Act has been registered against
the present petitioner and on completion of investigation,
charge sheet dated 01.10.2024 has been filed by the
concerned police station against the petitioner and the
same is pending for its trial. In this case, during the trial
on 30.10.2025, the petitioner filed an application under
Section 348 of BNSS for re-cross-examination of PW-1, PW-
2, PW-3 and PW-5, which was rejected by the trial Court.
Hence the petition.
3. Learned counsel appearing for the Petitioner submits that
during the cross-examination of PW-1, PW-2, PW-3 and
PW-5 by the earlier counsel some important question was
not cross-examined, therefore, an application for re-cross-
examination of the aforesaid witnesses has been filed which
was dismissed by the trial Court, which is arbitrary,
perverse, and violative of principles of natural justice, as it
deprives the petitioner of his fundamental rights to a fair
trial under Article 21 of the Constitution of India. He placed
reliance on the decision of the Hon'ble Supreme Court in
the matter of Natasha Singh vs. C.B.I., reported in (2013)
5 SCC 741 and submits that the Hon'ble Supreme Court in
the said matter has held in para 16 that "Fair trial is the main
object of criminal procedure, and it is the duty of the Court to ensure
that such fairness is not hampered or threatened in any manner. Fair
trial entails the interests of the accused, the victim and of the society,
and therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must be ensured
as this is a constitutional, as well as a human right....". Hence, the
impugned order dated 06.12.2025 is liable to be quashed,
and the trial Court may be directed to give an opportunity
for re-cross-examination of the aforesaid witnesses.
4. Learned State counsel submits that a perusal of the record
clearly shows that the learned trial Court had granted
sufficient opportunity to the accused to cross-examine the
said witnesses and that detailed cross-examination of those
witnesses was in fact conducted on behalf of the accused;
therefore, the petition is liable to be dismissed.
5. I have heard learned Counsel appearing for the parties and
perused the documents annexed with the petition including
the order impugned.
6. Section 348 of BNSS, 2023 states as under :-
348. Power to summon material witness, or
examine person present.- Any Court may, at
any stage of any inquiry, trial or other
proceeding under this Sanhita, summon any
person as a witness, or examine any person in
attendance, though not summoned as a witness,
or re-call and re-examine any person already
examined; and the Court shall summon and
examine or re-call and re-examine any such
person if his evidence appears to it to be
essential to the just decision of the case.
7. The Hon'ble Supreme Court in the matter of State (NCT of
Delhi) vs. Shiv Kumar Yadav and Another, reported in
(2016) 2 SCC 402 has held that it is not justified to
repeatedly summon the witness/victim merely on the basis
of change of advocate or alleged deficiency in cross-
examination. Paragraph 15 of which is as follows:-
"15. The above observations cannot be read as
laying down any inflexible rule to routinely permit
a recall on the ground that cross-examination was
not proper for reasons attributable to a counsel.
While advancement of justice remains the prime
object of law, it cannot be understood that recall
can be allowed for the asking or reasons related to
mere convenience. It has normally to be presumed
that the counsel conducting a case is competent
particularly when a counsel is appointed by
choice of a litigant. Taken to its logical end, the
principle that a retrial must follow on every
change of a counsel, can have serious
consequences on conduct of trials and the
criminal justice system. The witnesses cannot be
expected to face the hardship of appearing in
court repeatedly, particularly in sensitive cases
such as the present one. It can result in undue
hardship for the victims, especially so, of heinous
crimes, if they are required to repeatedly appear
in court to face cross-examination."
8. Looking to the material available on record and on perusal
of the order impugned it is clear that the evidence of the
injured Bindiya Nishad (PW-1) and witness Kanti Nishad
(PW-2) was recorded on 31.01.2025 in the presence of the
accused and his counsel, Shri Bhanjan Kumar Jangde,
Advocate. Similarly, the evidence of Reena Yadav (PW-3)
was recorded on 12.05.2025, and the evidence of Hema
Yadav (PW-5) was recorded on 13.05.2025 in presence of
the accused and his counsel, Shri Ashwani Kumar,
Advocate and the aforesaid witnesses have been cross-
examined in detail by the counsels for the accused the
defence was given a reasonable opportunity to cross-
examine the said witnesses. Thus, considering the fact that
the accused has already cross-examined the witnesses on
the points mentioned in the application. Following the
cross-examination of the aforesaid witnesses, the accused
has replaced the previous counsel with Advocate Shri
Horilal Chandrakar and other, according to accepted
principles and the provision of Section 348 of BNSS,
permission for re-examination cannot be granted to
compensate for the lack of cross-examination of witnessed
due to a change of counsel for the absence of cross-
examination on any point in the cross-examination, the
application of the petitioner has been rejected.
9. Thus, in view of the aforesaid decision of the Hon'ble
Supreme Court in the subject matter, the case cited by the
counsel for the petitioner is not in support of him and
considering the facts and circumstances of the case, and
also considering the fact that sufficient opportunity has
been granted to cross-examine the aforesaid witnesses to
the accused/petitioner, I do not see any illegality or
perversity in the order impugned to interfere with the order.
10. Accordingly, the instant petition is hereby dismissed at
motion stage itself.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
H.L. Sahu
