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2016 DIGILAW 3400 (ALL)

INDRAJEET SINGH v. STATE OF U. P.

2016-10-05

ABHAY MAHADEO THIPSAY

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JUDGMENT : Hon'ble Abhay Mahadeo Thipsay,J. 1. Heard the learned counsel for the petitioners and the learned Additional Government Advocate. 2. Leave to delete the opposite party No.2, granted. 3. Necessary amendment be carried out forthwith. 4. The question that is raised by filing the present petition is quite simple; and, therefore, by consent of the learned counsel for the parties, the petition is heard finally forthwith. 5. The petitioners are the accused in Session Trial No. 992 of 2002 pending before the learned Additional Sessions Judge, Lucknow. Initially a charge of offences punishable under Sections 498-A of the IPC and 304-B of the IPC was framed against the accused persons and the trial proceeded on that basis. After the entire evidence of the prosecution was over, the learned Additional Sessions Judge framed a charge of an offence punishable under Section 302 of the IPC relying upon the decision of the Supreme Court of India in the case of Rajbir @ Raju and another Vs. State of Haryana (Crl. MP. No. 23051 of 2010). In view of the addition of this charge the accused wanted that the prosecution witnesses examined previously to be recalled for further cross-examination. On 13.04.2011 the learned Additional Sessions allowed the application for recalling of the prosecution witnesses examined earlier, for cross-examination. He, however, summoned P.W.1 and P.W.2 on the next date fixed by him for cross-examination. Later there was a change in the Presiding Officer and the new Additional Sessions Judge, who was seized of the matter, refused to recall the other witnesses, examined earlier by the prosecution on the ground that his predecessor had summoned only P.W.1 and P.W.2 after addition of the new charge. It is this order, that is being challenged by the present petition wherein the petitioners pray that by invoking the inherent powers of this Court the order refusing to recall the other prosecution witnesses, be quashed and set aside; and that, appropriate directions be given in the matter. 6. Section 217 of the Code of Criminal Procedure (the ''Code') categorically lays down that whenever a charge is altered or added to by the Court after the commencement of trial, the prosecutor and the accused shall be allowed to recall or re-summon and to re-examine with reference to such alteration or addition, any witness who might have been examined earlier. Section 217 of the Code of Criminal Procedure (the ''Code') categorically lays down that whenever a charge is altered or added to by the Court after the commencement of trial, the prosecutor and the accused shall be allowed to recall or re-summon and to re-examine with reference to such alteration or addition, any witness who might have been examined earlier. The use of the word ''shall' indicates that the Court has to allow such application for recalling of witnesses, made by the prosecution, or the accused. The only circumstance, in which such an application can be refused, is mentioned in the said section itself. It is only when the court, for the reasons to be recorded, considers that the witnesses are being recalled or sought to be re-examined only for the purpose of vexation or for delay, or for defeating the ends of justice, then the court may refuse to recall and re-summon the witness/witnesses. 7. In the instant case, no such finding has been recorded. As a matter of fact, the order passed on 13.04.2011 clearly indicates that the view of the learned Trial Judge was that all the witnesses previously examined, should be recalled as it was proper to give an opportunity to the accused persons to cross-examine the said witnesses. He, however, summoned only two witness on the next date which was probably because he did not want to summon all the witnesses on the same day. This order dated 13.04.2011 has been wrongly construed by his successor Judge(vide the order dated 03.06.2016) by observing that ''his predecessor had permitted to recall and re-examine only two prosecution witnesses, i.e., P.W.1 and P.W.2'. He has ignored the observations made in the order dated 13.04.2011 that it would be proper to give an opportunity to the accused to cross-examine the witnesses previously examined. In the order dated 13.04.2011 the learned Judge did not qualify his order by saying that only two of the prosecution witnesses examined previously ought to be recalled for cross-examination. 8. In any case, unless the court considers that the application for recall and re-examination of a particular witness has been made for the purpose of vexation, or for delay, or for defeating the ends of justice, it should permit all the witnesses which if the accused or the prosecution desire to recall as a consequence of alteration or addition of a charge. 9. 9. The impugned order is not proper or legal. The same is required to be interfered with in the interest of justice. 10. The petition is allowed. 11. The impugned orders are set aside. 12. The learned Additional Sessions Judge shall recall and permit the accused persons to cross examine the prosecution witnesses, already examined before the alteration of charge, unless he considers the application for recalling of the other witnesses has been made for vexation, or for delay, or for defeating the ends of justice, in which case he is bound to record the reasons for coming to such a conclusion, in accordance with the provisions of Section 217 of the Code. 13. The petition is disposed of in the aforesaid terms.