IMPORTANT POINT
In terms of Section 217 Criminal Procedure Code 1973 whenever a charge is altered or added after the commencement of trial, the prosecution or the accused be allowed to recall witnesses examined earlier unless the recalling is for the purpose of vexation, delay or defeating the ends of justice.

JUDGMENT

K. Bhaskaran, J. - The appellants who were accused 1 and 2 before the Sessions Court have come up to this Court with this Criminal Appeal challenging the correctness of their conviction and sentence by the learned Sessions Judge.

2. From para 3 of the judgment under appeal it is seen that the charge was amended by the Court below adding after the words "Al Abdul Rahiman again stabbed him two or three times" and before the words "with a dangerous weapon like knife," the following words, "with the dagger on his back and that A2 Hanefa also stabbed Koyamon two or three times on his back."

3. The second appellant had before the learned Sessions Judge filed an application dated 3-11-1980 purported to be under section 216 of the Criminal Procedure Code praying for permission to re-summon or recall the witnesses examined in the Sessions Court before the charge was amended as mentioned above. This application was rejected by the learned Sessions Judge by his order dated 10-11-1980, the operative portion of which reads as follows:

"Notice taken by Public Prosecutor. Heard. No plea for a re-examination of the witnesses was made on behalf of the accused at the time when the charge was amended and before the court pronounced the judgment finding the first and second accused guilty. Further no prejudice has been caused to the accused by reason of the charge being amended because the trial proceeded on the basis that the charge which the accused when called upon to amend was the charge as it came to be subsequently amended. This application cannot be allowed and is hence dismissed"

4. The contention of Sri P. V. Ayyappan, the counsel for the appellants, is that the order amending the charge was passed only on 31-10-1980; and it was on the same day the learned Sessions Judge passed orders convicting the appellants. This according to him was done in undue haste, without giving sufficient opportunity to the appellants-accused even to bestow thoughts as to whether, in the light of the amendment effected, it would be necessary for them to recall or re-summon the witnesses examined on the side of the prosecution before the amendment of the charge.

5. The 2nd appellant's application dated 3-11-1980 is seen to have been filed after the conviction part of the judgment under appeal was pronounced on 31-10-1980 and before the sentence part thereof was passed on 10-11-1980.

6. In his order dated 10-11-1980 rejecting the application of the 2nd appellant dated 3-11-1980, the learned Sessions Judge has observed that no prejudice had been caused to the 2nd appellant. This, we are afraid amounts to prejudging the issue. The 2nd appellant in his application dated 3-11-1980 had specifically averred that unless he was allowed to re-summon/recall the witnesses, he might be put to considerable prejudice. The Court, having, at the last moment, chosen to amend the charge, in fairness to the accused, should have allowed the re-summoning/recalling of the witnesses as desired by him. It is unfortunate that in this case the 2nd appellant could not make the application, which in effect and substance was one under section 217 of the Criminal Procedure Code, though purported to have been filed under section 216 Criminal Procedure Code, before the pronouncement of the conviction part of the judgment, because of sheer impossibility as the order amending the charge and the conviction part of the judgment appear to have been pronounced with little or no interval between one and the other, if not simultaneously. This unpleasant situation could possibly have been avoided had the learned Sessions Judge as pointed out, by the Full Bench (1982 Cri. L.J. 1384) in para 12 of the order answering the reference in this very appeal, on the question of proper construction of section 217 of the Code, enquired of the accused as to whether they would like to exercise the right to recall or re-summon the witnesses or to have further witnesses examined as provided in the section an