JUDGMENT : During course of consideration of prayer having been made at the end of the appellant relating to suspension of sentence followed with grant of bail till pendency of instant appeal, certain deficiencies have been perceived in the judgment impugned and on account thereof, vide order dated 09.01.2018, it has been directed to list under the heading of hearing on priority basis. Accordingly, heard learned counsel for the appellant as well as learned Additional Public Prosecutor. 2. Sole appellant, Santosh Kumar has been found guilty for an offence punishable under Section 498A of the I.P.C. and sentenced to undergo R.I. for two years as well as to pay fine appertaining to Rs.5,000/-, and in default thereof, to undergo S.I. for three months, additionally, under Section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for two years as well as to pay fine appertaining to Rs.5,000/- and in default thereof, to undergo S.I. for three months, additionally, with a further direction to run the sentences concurrently by the Additional Sessions Judge-14th, Muzaffarpur in Sessions Trial No.206 of 2010. 3. As, details of facts of the case is not at all needed in getting the points properly adjudicated upon, hence same is escaped. This happens to be the second round of litigation. During course of first round, appellant was prosecuted and convicted for an offence punishable under Section 302 of the I.P.C. and sentenced to death, under Section 201/34 of the I.P.C. and sentenced to undergo R.I. for five years as well as to pay fine appertaining to Rs.5,000/- and in default thereof, to undergo S.I. for six months. Appellant filed of Cr. Appeal (D.B.) No.09 of 2015 as well as Death Reference No.03 of 2014 was registered over matter placed under Section 366 of the Cr.P.C., which was finally decided by the Division Bench vide judgment dated 11.05.2015 whereby and whereunder the judgment of conviction dated 01.12.2014 and order of sentence dated 04.12.2014 was set aside. Simultaneously, it has also been observed that from the evidence available on the record, prima facie case under Section 498A of the I.P.C. as well as Section 4 of the Dowry Prohibition Act have duly been surfaced and that being so, the learned lower Court was directed to take proper exercise in accordance with law. Simultaneously, it has also been observed that from the evidence available on the record, prima facie case under Section 498A of the I.P.C. as well as Section 4 of the Dowry Prohibition Act have duly been surfaced and that being so, the learned lower Court was directed to take proper exercise in accordance with law. Because of the fact that the fate of instant appeal will roam around the aforesaid sphere, that being so, it looks better to incorporate the finding of the Division Bench in verbatim:- “82. In the result, and for the reasons discussed above, while the conviction of the accused-appellant under Sections 302 and 201 read with Section 34 of the Indian Penal Code and the sentences passed against him are hereby set aside and he (i.e., the accused-appellant) is acquitted of the same and the case is remanded to the learned trial Court with direction to frame a charge under Section 498A of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act, 1961, against the accused-appellant and proceed with his trial in accordance with law. In the trial, which may be so held, the prosecution as well as the defence shall have the liberty to recall all or any of the witnesses, who have already been examined at the trial of the accused-appellant, and/or to adduce such further or other evidence as may be permissible in the law. 83. In terms of what have been observed and directed above, this appeal stands partly allowed and the reference stands answered accordingly. 84. In order to expedite disposal of the case against the accused-appellant, it is further directed that the learned trial Court shall proceed with the case expeditiously and dispose off the same in accordance with law, preferably, within a period of three months from the date of receipt of the case record with a copy of this judgment and order, by holding, if necessary, day-to-day trial and ensuring that no adjournment is allowed to any of the parties unless any adjournment becomes indispensable in the interest of justice.” 4. From the L. C. Record, it is evident that after receiving judgment, the lower Court had not added charge in terms of Section 216 Cr.P.C., rather took up trial from initial stage and proceeded from the stage of Section 228 Cr.P.C. whereunder the learned lower Court framed charge against the appellant for an offence punishable under Section 498A of the I.P.C. as well as Section 4 of the Dowry Prohibition Act on 30.06.2015 and even in absence of prayer at the end of prosecution, summoned the C.S. witness afresh and after whose presence, PW-1 was examined, cross-examined and discharged on 17.08.2015, PW-2 was examined, cross-examined and discharged on 18/ 19.08.2015, PW-3 was examined, cross-examined and discharged on 24.08.2015, PW-4 was examined, cross-examined and discharged on 28.08.2015/ 02.09.2015, PW-5 was examined, cross-examined and discharged on 13.01.2016 and I.O. PW-6 was examined, cross-examined and discharged on 23.03.2016. Then thereafter, statement of the appellant/ accused under Section 313 of the Cr.P.C. was recorded and then, during course of defence, DW-1 was examined on 22.04.2016 while DW-2 Chandra Bhushan Singh and DW-3 Ravi Ranjan Kumar were examined on 23.04.2016. Then thereafter, argument was heard and by the judgment impugned the learned lower Court convicted and sentenced in a manner, subject matter of instant appeal. 5. The sole question now is to be answered, is with regard to legality of the trial. The learned Division Bench had found a prima facie case under Section 498A of the I.P.C. as well as Section 4 of the D.P. Act, on the evidence, which was existing and appreciated by the Division Bench. That was the evidence, which was scrutinized by the Division Bench and during course thereof, came to a conclusion that on account of presence of prima facie evidence to justify framing of charge, though acquitted for an offence punishable under Section 302 of the I.P.C. as well as Section 201/34 of the I.P.C., observed and directed the learned lower Court to frame charge under the aforesaid Sections and proceed with the trial in accordance with law. The aforesaid direction happens to be in accordance with Section 386 (2)(b) of the Cr.P.C. and the addition and alteration of the charge is found permissible in accordance with Section 216 of the Cr.P.C. Furthermore, the subsequent activity which the Court is expected to adopt on the prayer of the either the prosecution or the accused is found duly engrafted under Section 217 of the Cr.P.C. For better appreciation, the aforesaid two Sections are quoted below:- “216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. 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- 1. 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; 2. also to call any further witness whom the Court may think to be material.” 6. From plain reading of aforesaid relevant Sections, it is apparent that whenever charge is added or altered, an opportunity, in case so prayed for either on behalf of prosecution or on behalf of accused is to be taken into consideration and in case, the Court finds that the same happens to be vexatious one and has been made only to delay the trial, then in that event, would reject the prayer otherwise will allow recalling the witnesses already so examined either for reexamination or for cross-examination and that happens to be reason behind that in the judgment, the Division Bench had not directed the learned lower Court to proceed with de novo trial, because of the fact that in such circumstances, a new evidence would have, which could frustrate the finding of the Division Bench by which, there happens to be acquittal of the appellant for an offence punishable under Section 302 of the I.P.C. as well as Section 201/34 of the I.P.C. as well as also frustrate the observation of the Division Bench to proceed against accused/appellant for an offence punishable under Section 498(A) I.P.C. as well as Section 4 of Dowry Prohibition Act. 7. Accordingly, without peeping into the evidences whatever been collected during course of trial, which the learned lower Court proceeded illegally followed with the judgment impugned, the judgment impugned is found contrary to the spirit of law and that being so, happens to be illegal. Consequent thereupon, same is set aside. Appeal is allowed. Matter is remitted back to the learned lower Court to proceed afresh in terms of finding having recorded hereinabove. Appellant, who is under custody, is to be placed before the learned lower Court and in case, so prayed, the learned lower Court will consider the prayer for bail without being prejudiced by the judgment impugned.