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2009 DIGILAW 3092 (ALL)

DHARAM PAL SINGH v. STATE OF U. P.

2009-09-10

SHRI KANT TRIPATHI

body2009
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard the learned counsel for the revisionist and the learned AGA for the State and perused the impugned order dated 12.8.2009 as well as charge dated 24.4.2001 and 9.7.2009 framed by the learned Additional Sessions Judge in ST No. 563 of 2009. 2. The revisionist Dharam Pal Singh has preferred this revision against the order dated 12.8.2009 passed by the Additional Sessions Judge, Fast Track Court No. 2, Shahjahanpur, in ST No. 563 of 2000 whereby the learned Additional Sessions Judge rejected the revisionist’s application to recall the prosecution witnesses for further cross-examination. 3. It appears that on 24.4.2001 charges under Sections 376 and 506, I.P.C. and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, were framed against the revisionist by the then Additional Sessions Judge, Court No. 2, Shahjahanpur. On 3.7.2009 the learned Additional Sessions Judge, Fast Track Court No. 2, Shahjahanpur amended the charge framed under Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and substituted in its place a new charge under Section 3 (2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The revisionist denied the amended charge and claimed to be tried. After framing new charge under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the revisionist moved an application before the learned Additional Sessions Judge for summoning the prosecution witnesses for further cross-examination. The learned Additional Sessions Judge rejected the application on the ground that the application was moved for the purpose of causing delay in the disposal of the case. 4. The learned counsel for the revisionist submitted that the charge made by the learned Additional Sessions Judge was materially changed by substituting fresh charge and as such it was the duty of the learned Additional Sessions Judge to recall the prosecution witnesses for further cross-examination. 5. For the purpose of deciding the controversy raised in this criminal revision the provisions of Section 217, Cr.P.C. seems to be relevant which is reproduced as under : "Section 217. 5. For the purpose of deciding the controversy raised in this criminal revision the provisions of Section 217, Cr.P.C. seems to be relevant which is reproduced as under : "Section 217. Recall of witnesses when charge altered.—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." 6. A perusal of Section 217, Cr.P.C. reveals that where a charge is amended, the Court shall recall the witnesses for re-examination if the prosecution intends to re-examine them and also for further cross-examination if the accused expresses his intention to make further cross-examination in the light of the amended charge. Only in exceptional cases, by a reasoned order in writing, the Court may reject the prayer for re-examination as well as for further cross-examination of the witnesses if the purpose of recalling the witnesses is to cause delay in the disposal of the case or to defeat the ends of justice or is vexatious. It appears that the charge amended and substituted by the learned Additional Sessions Judge was not merely a correction of typing error but was by way of a material change and as such it was just and expedient to recall the prosecution witnesses on the request of the revisionist for further cross-examination so that veracity of the statements of the witnesses already examined may be tested in regard to the amended charge. But the learned Additional Sessions Judge without there being any justification refused to summon the witnesses by holding that only typing error was corrected in the charge. If there was only typing error, there was no question of framing a fresh charge separately. 7. For the reasons discussed above, the revision is allowed. The impugned order dated 12.8.2009 is set aside. If there was only typing error, there was no question of framing a fresh charge separately. 7. For the reasons discussed above, the revision is allowed. The impugned order dated 12.8.2009 is set aside. The learned Additional Sessions Judge is directed to recall the prosecution witnesses for further cross-examination to be made by the revisionist or his counsel. The revisionist shall bear the expenses of the witnesses to be summoned for further cross-examination. ————