D.P.Jain & another vs State of U.P.& another.

A.K. Roopanwal, J.

This writ petition has been filed against the orders dated 12.5.2008 and 29.9.2008 passed by the courts below. Vide order dated 12.5.2008 an application moved by the petitioners for recalling the order dated 27.3.2008 passed by the court below and to make available the witnesses for crossexamination was rejected. This order was challenged in revision and that revision was dismissed vide order dated 29.9.2008.

I have heard Mr. Amit Daga, learned counsel for the petitioners, learned AGA for the State and perused the record.

It appears from the facts of the case that before the Magistrate the petitioners were charged for the offence punishable u/s 332, 342, 504 I.P.C. The trial continued and when the case was reserved for judgment the trial court found it appropriate to frame a formal charge u/s 353 I.P.C. Accordingly, the charge was framed and the witnesses were recalled for crossexamination. On 27.3.2008 the prosecution asserted that it did not want to produce the witnesses and therefore, the opportunity of crossexamination was closed vide order dated 27.3.2008. As the petitioners did not feel happy with this order, they moved an application for recall of this order and to make available the witnesses for crossexamination. That request was turned down vide order dated 12.5.2008.

It has been argued by Mr. Daga that once the witnesses were summoned after addition of the charge u/s 353 I.P.C. the witnesses should have been made available for crossexamination on the request of the accused petitioners and it was not the prerogative of the prosecution to close the evidence.

To appreciate the arguments of Mr. Daga it would be expedient to reproduce the provisions of section 217 Cr.P.C.

"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 resummon, 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 reexamine 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."

A look at the above provisions would make it clear that ordinarily after the addition of the charge, the court shall afford an opportunity of crossexamination to the accused with the witnesses requested for by them. If the court considers that under the circumstances of a particular case it is not desirable to make available such witness or the production of the witness is just for vexation or delay in the trial then the court is fully empowered to refuse such an opportunity to the accused.

Now it is to be seen as to whether in the present case the power exercised by the Court u/s 217 Cr.P.C. was correctly exercised or not.

It is apparent from the record that initially the petitioners were charged for the offence u/s 332 I.P.C. and in connection with this charge they had full and complete opportunity of crossexamination with the prosecution witnesses. Subsequently, a charge u/s 353 I.P.C. was added. As this charge is virtually included in the charge u/s 332 I.P.C., hence I am of the view that there could be no justification to recall the witnesses as on the same points, which were required for the offence u/s 353 I.P.C., the opportunity of crossexamination had already been given when the contest was made for the offence u/s 332 I.P.C. and finding such thing on the record the trial court also did not opt to give an opportunity of crossexamination with the prosecution witnesses to the accused persons.

I feel that in the circumstances of the case the stand taken by the courts was neither improper nor prejudicial to the interest of the petitioners and there can be no reason at all to interfere with the stand taken by the courts below. I, therefore, find no merits in the petition. It is dismissed.