Introduction:
The Jammu & Kashmir and Ladakh High Court has clarified that the inherent powers preserved under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), cannot be used as a substitute for a second revision petition when the law expressly prohibits such a remedy. The Court further held that although Section 528 BNSS does not prescribe a specific limitation period, a period of 90 days should ordinarily be considered reasonable for invoking the provision. A petitioner approaching the High Court beyond that period must provide a satisfactory explanation for the delay.
In the same decision, the Court addressed the scope of an accused person’s right to lead defence evidence in proceedings concerning cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881. It observed that an accused is not required to prove a defence beyond reasonable doubt and may establish its probability through relevant documentary evidence. Where original or certified copies of sale deeds are available to substantiate alleged land transactions, it may not be necessary to examine every person connected with those transactions.
Justice Sanjay Dhar made these observations while dismissing a petition filed by Bansi Lal Bhardwaj, who had challenged orders restricting the number of defence witnesses he could examine in a cheque dishonour case initiated by S. Gagandeep Singh. The petitioner had first challenged the trial court’s order before the revisional court and, after failing there, approached the High Court under Section 528 BNSS. The High Court concluded that the petition effectively sought a second revision under the guise of invoking inherent jurisdiction. It also found that the petition had been filed after an unexplained delay of approximately eleven months and that the challenge to the restriction on defence witnesses was not sustainable on merits.
The ruling addresses three important aspects of criminal procedure: the limits of the High Court’s inherent jurisdiction, the requirement to approach the court within a reasonable period, and the extent to which an accused may insist on summoning witnesses to establish a defence. It underscores that the right to a fair trial must be balanced against statutory restrictions and the need to prevent criminal proceedings from being unnecessarily prolonged.
The dispute originated in a complaint concerning a cheque dated September 20, 2009, for ₹10 lakh, drawn on Jammu Rural Bank, Bohri Patta, Jammu. The complainant alleged an offence under Section 138 of the Negotiable Instruments Act, which deals with cheque dishonour in circumstances specified by the statute. After the complainant completed his evidence, the accused chose to lead defence evidence to establish that he did not owe the amount claimed.
Bhardwaj’s defence was linked to a series of land transactions involving the complainant, who was described as a property dealer, and the accused’s friends and relatives. He maintained that the financial dealings and a subsequent settlement were relevant to explaining the circumstances surrounding the cheque. To establish this version, he submitted a list of 19 witnesses. The trial court, however, permitted him to examine certain witnesses while refusing to summon the remainder, observing that the extensive list appeared likely to delay the proceedings.
The Judicial Magistrate First Class, Jammu, passed the order restricting the witnesses, and the 3rd Additional Sessions Judge, Jammu, upheld it on November 16, 2024. Bhardwaj subsequently approached the High Court on October 15, 2025, invoking Section 528 BNSS and contending that the restriction on his evidence prejudiced his ability to present a complete defence.
The High Court examined the petition first from the perspective of maintainability and delay, before considering the challenge to the restriction on defence evidence. Its decision demonstrates that inherent jurisdiction, though important for preventing abuse of judicial process and securing justice, does not give a litigant unrestricted access to remedies that the statute has expressly barred.
Arguments of the Parties:
The petitioner, Bansi Lal Bhardwaj, challenged the trial court’s decision to restrict his defence witnesses, contending that the order interfered with his ability to establish the true nature of the financial dealings underlying the cheque in question. His defence was that the amount claimed by S. Gagandeep Singh did not represent an enforceable debt owed by him, but arose in the context of disputes concerning land transactions and a settlement between the parties.
According to Bhardwaj, the complainant had purchased approximately 30 kanals of land from the accused’s friends and relatives at a rate of ₹1.46 lakh per kanal. The complainant allegedly resold the land to his clients at ₹2.30 lakh per kanal. A dispute subsequently arose when one of the accused’s relatives, Sham Lal, refused to sell his land. Bhardwaj maintained that the parties later reached a settlement under which the complainant would retrieve the land from his clients and refund the money at a rate of ₹3 lakh per kanal.
The petitioner further claimed that six cheques were issued in connection with the settlement, but the complainant subsequently refused to return the land. He relied on these circumstances to argue that the financial dispute was more complicated than a straightforward claim for repayment of a loan and that evidence relating to the transactions was necessary to establish his position in the Section 138 proceedings.
To support this defence, Bhardwaj submitted a list of 19 witnesses and deposited the prescribed diet expenses. His position was, in substance, that the proposed witnesses were relevant to establishing the background and details of the land transactions, the settlement allegedly reached between the parties, and the circumstances in which the cheques came to be issued. Restricting the evidence, he argued, risked preventing him from presenting the full factual context of his defence.
After the Judicial Magistrate First Class refused to summon the remaining witnesses, the petitioner challenged that order before the 3rd Additional Sessions Judge, Jammu. When the revisional court upheld the Magistrate’s decision on November 16, 2024, Bhardwaj approached the High Court under Section 528 BNSS. His challenge rested on the contention that the High Court’s inherent powers could be exercised to correct an order that allegedly impaired his right to a fair trial.
The petitioner therefore sought the High Court’s intervention against the restrictions imposed on his defence evidence. His underlying argument was that, because the land transactions were central to his explanation of the cheque, he should be permitted to examine the persons he considered necessary to substantiate that explanation.
The respondent’s position was reflected in the complainant’s case under Section 138 of the Negotiable Instruments Act and the judicial orders that had rejected the petitioner’s request to summon every proposed witness. The complaint concerned the cheque for ₹10 lakh dated September 20, 2009. The complainant had completed his evidence, following which the accused was given the opportunity to lead evidence in support of his defence.
The trial court permitted the examination of the Record Keeper of the Income Tax Department and certain other witnesses, but declined to summon the remainder of the 19-person list. It considered the lengthy list unnecessary and potentially intended to prolong the proceedings. The revisional court subsequently upheld this approach. These orders reflected the view that the accused’s opportunity to present a defence did not automatically entitle him to examine every person he wished to call, particularly where the relevant facts could be established through documentary evidence.
The complainant’s position also had to be considered alongside the procedural objection that the petitioner had already pursued a revision before the Sessions Court. After that challenge failed, he sought to question the same orders before the High Court through Section 528 BNSS. The central legal issue was therefore not merely whether the petitioner wanted to produce additional evidence, but whether he could use the High Court’s inherent jurisdiction to obtain a further review of an order already examined by a revisional court.
The High Court considered the statutory restriction on successive revision petitions, the considerable delay between the revisional court’s order and the filing of the High Court petition, and the actual necessity of the proposed witnesses. It ultimately found that the petitioner could not overcome these obstacles merely by invoking the inherent powers of the Court.
Court’s Judgment:
Justice Sanjay Dhar dismissed the petition filed by Bansi Lal Bhardwaj, holding that it was not maintainable because it effectively sought a second revision petition through Section 528 BNSS. The Court also found that the petition had been filed after an unexplained delay of approximately eleven months, which independently justified rejecting the challenge. On the merits, it concluded that the trial court was justified in restricting the defence witnesses because the alleged land transactions could be established through documentary evidence without examining every person associated with them.
The judgment is significant because it clarifies that the High Court’s inherent jurisdiction cannot be treated as an alternative route for bypassing statutory procedural restrictions. It also explains how the right of an accused to lead defence evidence must be exercised in a manner consistent with the relevance and necessity of the evidence sought to be produced.
Inherent Powers Under Section 528 BNSS Cannot Circumvent the Bar on a Second Revision
The first issue before the High Court was whether Bhardwaj could invoke Section 528 BNSS after having already challenged the Magistrate’s order before the revisional court. The petitioner had approached the 3rd Additional Sessions Judge, Jammu, against the trial court’s decision restricting his defence witnesses. After the revisional court upheld the Magistrate’s order on November 16, 2024, he sought to challenge the same orders before the High Court under Section 528 BNSS.
Section 528 preserves the inherent powers of the High Court to make orders necessary to give effect to an order under the Sanhita, prevent abuse of the process of any court, or otherwise secure the ends of justice. These powers are important because procedural law cannot anticipate every situation in which judicial intervention may be required to prevent injustice. Nevertheless, the existence of inherent jurisdiction does not mean that statutory restrictions can be disregarded whenever a litigant is dissatisfied with an earlier decision.
The Court examined Section 438(3) BNSS, which restricts successive revision applications by the same person after a revision has been entertained by either the High Court or the Sessions Judge. The provision is intended to prevent repeated challenges to the same order through successive revisional proceedings. Without such a restriction, a litigant could continue contesting an order before different forums, undermining procedural finality and unnecessarily prolonging criminal litigation.
Justice Dhar found that the substance of Bhardwaj’s petition was decisive. Although the petitioner had invoked Section 528 BNSS rather than filing another revision petition, he was effectively seeking another examination of the same orders after his earlier challenge had failed before the revisional court.
The Court observed, “The petitioner/accused by filing the present petition under section 528 of the BNSS is, in effect, invoking the revisional powers of this Court after having failed in his attempt before the revisional court.”
This observation highlights an important principle of procedural law: the nature of a legal proceeding depends on its substance and purpose, not merely the provision cited in its heading. A litigant cannot avoid a statutory prohibition simply by describing a challenge as an application invoking inherent powers.
The Court accordingly held that Section 528 BNSS could not be employed to circumvent the restriction imposed by Section 438(3). Since the petitioner had already pursued a revision before the Sessions Court, he could not use the High Court’s inherent jurisdiction to secure what would effectively amount to a second revision against the same orders.
The ruling does not mean that inherent powers become unavailable whenever a party has previously approached another court. Rather, it reinforces the distinction between exercising inherent jurisdiction to prevent a genuine abuse of process or secure justice and using it as a substitute for a remedy that the statute does not permit. The provision cannot ordinarily be used to reopen a matter merely because the earlier statutory challenge was unsuccessful.
Ninety Days Considered a Reasonable Period for Invoking Section 528 BNSS
The High Court next considered the delay in filing the petition. The revisional court had passed its order on November 16, 2024, but Bhardwaj approached the High Court only on October 15, 2025. The petition was therefore filed approximately eleven months after the order he sought to challenge.
Section 528 BNSS does not prescribe an express limitation period for invoking the High Court’s inherent jurisdiction. However, the absence of a specified statutory deadline does not mean that a litigant may approach the Court at any time without explaining the delay. The exercise of inherent powers must remain consistent with the principles of fairness, procedural discipline and the proper administration of criminal justice.
The Court reasoned that proceedings should not be disrupted at a belated stage by challenges brought after an unreasonable period, particularly when the applicant offers no convincing explanation for having failed to approach the Court earlier.
For determining what could ordinarily be considered a reasonable period, the Court drew an analogy with the time available for filing a revision petition. It held that 90 days should generally be treated as a reasonable period for filing a petition under Section 528 BNSS. Where a petition is filed beyond that period, the applicant must explain the cause of the delay.
The Court stated, “A revision petition challenging an order can be filed within 90 days from the date of order and on that analogy, a period of 90 days should be treated as a reasonable time to file a petition under section 528 of the BNSS and if it is filed beyond the period of 90 days, the petitioner would have to explain the cause of delay.”
This observation provides guidance for litigants seeking to invoke the High Court’s inherent jurisdiction. Although the provision contains no express limitation period, a person challenging a judicial order should not assume that the absence of a statutory deadline permits an unexplained delay of several months.
The Court relied on its earlier decision in Eapen Chakoo v. Union Territory of J&K while considering the question of delay and laches. Applying the relevant principle, it found that Bhardwaj had failed to offer a plausible explanation for approaching the High Court after approximately eleven months.
Consequently, the petition was liable to be rejected on the additional ground of delay and laches. The Court’s reasoning makes clear that the lack of an express limitation period under Section 528 does not eliminate the obligation to act within a reasonable time. The 90-day period serves as a judicially identified benchmark, and a party approaching the Court beyond it must account for the delay.
It is important to distinguish this observation from the creation of an express statutory limitation period. The Court drew an analogy with the period applicable to revision proceedings and described 90 days as a reasonable period. The consequence of exceeding that period is that the applicant must explain the delay; it does not follow from the observation alone that every petition filed after 90 days must automatically fail regardless of its circumstances.
In Bhardwaj’s case, however, the delay was substantial and remained unexplained. The Court therefore found no justification for exercising its inherent jurisdiction in his favour.
An Accused Need Not Prove the Defence Beyond Reasonable Doubt
After addressing maintainability and delay, the High Court considered the petitioner’s challenge to the restriction on defence witnesses. Bhardwaj argued that the land transactions and the alleged settlement were relevant to demonstrating that he did not owe the complainant the amount claimed under the cheque.
The Court examined the evidentiary burden applicable to an accused in criminal proceedings and emphasised that an accused seeking to establish a defence is not required to prove it beyond reasonable doubt. The prosecution bears the burden of establishing guilt in accordance with the applicable standard of proof. By contrast, an accused relying on a defence need only make that defence probable, subject to the legal requirements governing the particular proceeding.
Justice Dhar expressed this principle in clear terms: “An accused is not required to prove his defense beyond reasonable doubt. He has only to probablise his defense.”
This distinction is particularly relevant in cheque dishonour cases under Section 138 of the Negotiable Instruments Act. Such proceedings may involve disputes over the existence of a legally enforceable debt or liability and the circumstances in which a cheque was issued. The statutory presumptions applicable to cheque transactions may also be relevant, depending on the evidence and the stage of the case. An accused may seek to rebut those presumptions by presenting a probable defence through oral evidence, documentary evidence, or a combination of both.
The High Court’s observation did not dispense with the petitioner’s responsibility to produce relevant evidence. Rather, it recognised that the nature and extent of the evidence required should be assessed in light of the burden applicable to the defence. The accused was not required to establish every detail of the alleged transactions through an unnecessarily extensive list of witnesses if the material facts could be demonstrated through reliable documents.
In the present case, the petitioner sought to rely on land transactions involving his friends and relatives, the complainant’s alleged purchases and subsequent sales, and a settlement said to have followed a dispute over the land. The Court considered whether every person connected with those transactions had to be examined to make the defence probable.
It concluded that the transactions could be established by producing original sale deeds or certified true copies. Where such documentary evidence was available, examining every person who executed or witnessed the sale deeds was not necessarily essential.
Sale Deeds May Be Sufficient Without Examining Every Executant or Witness
A central aspect of the petitioner’s challenge concerned the trial court’s refusal to summon all 19 proposed defence witnesses. Bhardwaj maintained that the witnesses were necessary to establish the background of the land transactions and the circumstances surrounding the cheques. The Magistrate, however, had permitted him to examine the Record Keeper of the Income Tax Department and certain other witnesses while declining to summon the remaining persons.
The High Court found that the relevance of evidence must be distinguished from the mere number of witnesses a party wishes to examine. A person may have a legitimate opprtunity to present a defence without having an unrestr