Honble SINGH, J.–Heard the learned counsel for the petitioner.

(2). Admit. Issue notice to the Public Prosecutor.

(3). The Public Prosecutor accepts the notice on behalf of the State, hence service is complete.

(4). Both the parties agree that the petition may be finally disposed of today.

(5). The learned counsel for the petitioner has submitted that after the conclusion of the trial, the learned trial Magistrate deemed it fit to amend the accusations by substituting the word ``misbranded in place of ``adulterated and the amended accusation was read over and explained to the accused petitioner and his plea was recorded. But, the petitioner was not given an opportunity to examine himself in defence, and as such there has been violation of the provisions contained in Section 217(b) of the Criminal Procedure Code, 1973.

(6) A perusal of the order dated 18th July, 1998 passed by the learned Chief Judicial Magistrate, Udaipur shows that he read over and explained the amended accusation to the accused petitioner and recorded his plea of not guilty. The prose- cution declined to produce any other evidence and the accused petitioner also exp- ressed unwillingness to cross examine any witness. A prayer was however made by the learned counsel for the accused petitioner that accused should be permitted to examine himself in defence. The learned Chief Judicial Magistrate has observed in his order that the accused had examined himself as D.W. 1 before the amended accusation was read over and explained to him and his earlier application filed before the amendment of accusation was rejected vide order dated 13th July, 98.

(7). I have carefully considered the order passed by the learned Chief Judicial Magistrate, Udaipur and the submissions made by the learned counsel for the petitioner as well as by the learned Public Prosecutor.

(8). In view of the decision given in Tola Ram & Ors. vs. State of Rajasthan (1), the provisions of Sec. 217 Cr.P.C. are applicable to the amendment of accusations in a summons case. In the instant case, the learned Chief Judicial Magistrate amended the accusation and read over and explained the amended accusation to the accused petitioner and recorded his plea of not guilty. The provisions of Sec.217 Cr.P.C. were therefore, applicable to this case. Clause (a) of Section 217 entitles the prosecutor and the accused to recall or re-summon and examine with reference to such alteration or addition, any witness whom 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. Clause (b) of Sec. 217 entitles the prosecutor and accused to call any further witness whom the Court may think to be material.

(9). It appears from the record that neither the prosecutor nor the accused made any prayer for recalling any witness under clause (a) of Sec. 217 Cr.P.C. It is the accused, who wanted to examine himself under clause (b) of Sec. 217 Cr.P.C.

(10). The crucial question is whether a accused person can examine himself in defence under clause (b) of Sec.217 after the amendment of the charge of the accusation on which he is being tried. U/Sec. 315 Cr.P.C., an accused person, who is being tried by a criminal Court, is a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. Of course, an accused person can be examined on his request in writing only.

(11). After carefully considering the provisions of Sec. 315 and Sec.217 (b)Cr.P.C., I am of the opinion that the expression ``witness in clause (b) of Sec.217 Cr.P.C. covers an accused person, who on his own request wants to examine himself as a defence witness u/s 315 Cr.P.C.

(12). In view of the above position of law, this petition deserves to be allowed and is hereby allowed. The

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