Section 240 BNSS: Recall of witnesses when charge altered (Formerly Section 217 CrPC)

Section 240 of Bharatiya Nagarik Suraksha Sanhita, 2023: Recall of witnesses when charge altered

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed—

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material.

Legal Commentary & Landmark Judgments: Section 240

Section 240 mandates that whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined (replacing Section 217 CrPC).

Alteration or Addition of Charge: Court modifies or adds a new charge under Section 239 BNSS.
Mandatory Right to Recall: Prosecution and accused have an absolute statutory right to recall and re-examine/cross-examine any witness already examined.
Court Restriction Safeguard: Court can disallow recall only if it records in writing that the application is made for the purpose of vexation or delay or defeating justice.

Key Landmark Precedents:

P. Kartikalakshmi v. Sri Ganesh (2017) 3 SCC 347: The Supreme Court held that when charges are altered, the right of the accused to recall witnesses under Section 217 CrPC (Section 240 BNSS) is a valuable statutory and constitutional right that cannot be casually denied.
State of Maharashtra v. Salman Salim Khan (2004) 1 SCC 308: Emphasised that alteration of charge to a more serious offence entitles the defence to fresh cross-examination on the new ingredients.
Anant Prakash Sinha v. State of Haryana (2016) 6 SCC 105: Affirmed that the right to recall witnesses upon alteration of charge ensures that the accused is not taken by surprise.

Courtroom Practice & Strategic Litigation Guidance:

Linchpin trial right: The moment the trial judge alters the charge (e.g., from Section 115 BNS simple hurt to Section 117 BNS grievous hurt), immediately file an application under Section 240 BNSS demanding the recall of the doctor and key eyewitnesses for fresh cross-examination.