A criminal trial is not a battle left entirely to the prosecution and defence to win or lose on their own tactical choices. The trial court has an independent responsibility to ensure that justice is actually done — not merely that the process is followed. Where the prosecution deliberately avoids examining a crucial witness whose evidence could affect the outcome of the trial, the Supreme Court has now held that the trial court must actively question this conduct.

What the Court Held

A bench of the Supreme Court set aside orders of the Patna High Court and the trial court that had rejected the de-facto complainant's application under Section 311 CrPC seeking examination of a crucial witness. The Court held that where there is a total failure of the prosecution in not examining crucial witnesses, the court should — with alacrity — question the prosecution's conduct.

The Court stated clearly: "The Trial Court is not a moot spectator and even in the role of an unbiased adjudicator has the responsibility to ensure that the best evidence is not suppressed by the prosecution."

Section 311 CrPC / Section 348 BNSS — The Complainant's Tool

Section 311 of the CrPC (now Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023) empowers courts to summon any person as a witness or recall and re-examine any witness already examined, at any stage of a trial, if their evidence appears essential to a just decision. This power can be invoked by:

The Core Principle

It is a well settled principle of law that a criminal court is not a passive umpire. It has the responsibility to ensure that the best evidence available is brought on record. Where the prosecution suppresses evidence by not examining crucial witnesses, the court must not remain silent — it must question this conduct and, where necessary, invoke its powers under Section 348 BNSS to call the witness.

Practical Guidance

✅

If you are a complainant/victim and the prosecution is not examining a witness whose evidence is crucial to your case — file an application under Section 348 BNSS before the trial court. The Supreme Court has confirmed that such applications should be viewed favorably by courts.

✅

If the trial court rejects your Section 348 BNSS application — challenge the order by way of revision petition before the Sessions Court or the High Court. This Supreme Court ruling is strong precedent in support of such applications.

✅

For the accused: the same principle applies in reverse — where the prosecution fails to examine its witnesses but the court is also not acting, the accused can use Section 348 BNSS to seek examination of witnesses that may actually help establish innocence.

Case Reference
Anil Singh @ Anil Kumar Singh v. State of Bihar & Ors. | 2026 LiveLaw (SC) 875 | Hon'ble Justice J.B. Pardiwala & Hon'ble Justice K. Vinod Chandran | September 1, 2026 | Hon'ble Supreme Court of India

Frequently Asked Questions

Questions people commonly search on this topic

Can a victim ask the court to call a witness the prosecution is avoiding? +
Yes. Under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 311 CrPC), a de-facto complainant can apply to the court to summon or recall a witness at any stage of the trial. The Supreme Court has held that courts must actively use this power and must question prosecution conduct when crucial witnesses are being avoided.
What is Section 348 BNSS / Section 311 CrPC? +
Section 348 BNSS (formerly Section 311 CrPC) empowers the court to summon any person as a witness or recall any witness already examined at any stage of trial, if their evidence appears essential to a just decision. This power can be exercised by the court on its own or on application by any party.
Can a trial court remain silent when prosecution suppresses evidence? +
No. The Supreme Court has held that a trial court is not a moot spectator. It has an independent responsibility to ensure that the best evidence is placed before it and not suppressed. Where the prosecution is not examining crucial witnesses, the court must question this conduct with alacrity.
What should I do if prosecution is not examining key witnesses in my case? +
File an application under Section 348 BNSS / Section 311 CrPC before the trial court, specifically naming the witness and explaining why their evidence is essential. If rejected, file a revision petition before the Sessions Court or High Court. Cite this Supreme Court ruling in your application.