Ramnaresh Singh & Another vs State Of Madhya Pradesh

In this petition under Section 482 of the Cr.P.C, 1973, the petitioners have called in question legality, validity and propriety of the order dated

23/08/2018 passed by the Judicial Magistrate First Class, Lahar District Bhind (M.P.) in Criminal Case No. 314/2018 whereby application filed under

Section 317 of the Cr.P.C for recalling the witness has been rejected. The petitioners also challenged the order passed in Criminal Revision No.

133/2018 vide order dated 13/06/2019 passed by Second Additional Sessions Judge, Bhind (M.P.) affirming the order.

Prosecution story in short is that accused persons ill treated the complainant and also meted out cruelty and harassment after the death of her

husband and demanded the money for residing in the share of her husband's property. On 30/03/2011, the Investigating Agency registered the offence

punishable under  Sections 498A and 325/34 of the Indian Penal Code (In short “the IPCâ€​) against the family members of the complainant.

The petitioners were examined under Section 313 of the Cr.P.C. Thereafter, the case was fixed for final hearing on 23/08/2018. The petitioners

raised an objection that in the charge sheet date of incident is mentioned as 20/03/2011 in place of 30/03/2011. Petitioners preferred two applications

(i) for amendment in the order-sheet (ii) application under Section 317 of the Cr.P.C for recalling the prosecution witnesses i.e. complainant/

respondent No.2, Dr. R.L. Sharma and Shr Kashiram i.e. Investigation Officer.

The learned Trial Court heard and decided the application vide order dated 23/08/2018 and dismissed the same on the ground that due to

inadvertence, a typographical error had crept in and in place of 30/03/2011, 20/03/2011 had been mentioned and since there was no other section

added or altered, there was no necessity for recalling the prosecution witnesses. Being aggrieved, petitioners challenged the same by filing a criminal

revision before the Additional Sessions Judge. The Revisional Court dismissed the revision vide order dated 13/06/2019 affirming the order passed by

the Trial Court.

Learned counsel for the petitioners contends that amendment in the charge sheet has been carried out after completion of the trial after more than

ten years. The date of incident is of great importance , therefore, recalling of all the witnesses is necessary. In case, petitioners are not allowed to

cross examine the witnesses on the aspect of date of incident, irreparable injury would be caused and the same would amount to violation of principles

of natural justice.

On the other hand, Shri Anmol Khedkar, learned Panel lawyer appearing for the respondent No.1/State has contended that no charge has been

altered or added by the Court after commencement of the trial. Only the date of incident has been corrected which had crept in due to inadvertence

and typographical error and the same does not have any material bearing on the decision of the case. In such circumstances, there is no necessity to

recall the witnesses and the learned Trial Court as well as Revisional Court have rightly rejected the application.

To appreciate the rival submissions raised at the bar, it is apposite to refer to Section 217 of the Cr.P.C which reads as under :-

“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.â€​

On purposeful reading of the above provision, it becomes quite clear that unless there is an attempt to re-examine a witness for the purpose of

vexation or delay or in defeating the ends of justice the Court ordinarily should allow the recall or re-summon and examination of witnesses with

reference to such alternation or addition of charge.

In the instant case, no additional charge has been framed, altered or deleted. On bare perusal of the first information report it can be very well seen

that date of offence is mentioned as 30/03/2011. The entire trial proceeded on the assumption that date of incident is 30/03/2011 and not 20/03/2011.

Even in the complaint, it has specifically mentioned that accused used to harass the complainant from 30/03/2011. Both the courts below have

specifically indicated that petition has been filed with the purpose of vexation or delay or defeating the ends of justice. From bare perusal of the

record, it can be seen that petitioners have been filing the petition one after other. Earlier M.Cr.C. No. 6299/2012 was filed against framing of charges

which was dismissed. Thereafter, another petition under Section 482 of the Cr.PC bearing M.Cr.C. No. 7791/2013 was filed for seeking quashing of

FIR which was also dismissed. In this context, the observations of Law Commission in its 41st report, Vol. 1, p.156, para 19.5 are worth quoting and

the same read thus:-

“19.5 …...Now it may happen that the application for recalling and re-summoning the witnesses is made only for the purpose of vexation or delay

or defeating the ends of justice. In such cases, the Court should have power to refuse the application. If the evidence of a witness is of a purely

formal character and the other party merely desires to prolong the proceeding by taking advantage of the right given by the section, there is no reason

why it should be mandatory for the Court to re-summon the witnessâ€​.

As such, it can be seen that the Courts below have not committed any error in coming to the conclusion that application under Section 217 of the

Cr.P.C has been filed only with the purpose of delaying the trial. Even otherwise, charges have not been altered, typographical error has crept in while

framing charges have been corrected. Said correction would not amount to denial of opportunity to the accused persons to defend themselves. In such

circumstances, it cannot be said that the accused persons have not been given the fullest opportunity to defend themselves. I do not find any apparent

error in the orders passed by the courts below.

Accordingly, the petition being devoid of merit and substance is hereby dismissed.