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1996 Supreme(Ori) 212
IN THE HIGH COURT OF ORISSA
P.K. Misra, J.
BHABAGRAHI NAYAK - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revision Nos. 154, 155 and 156 of 1996
Decided On : 06-12-1996
D.P. Dhal and S.K. Nayak-3, for the Appellant; Standing Counsel, for the Respondent
A Court can reject an application to recall or re-summon a witness under Section 217 of the Code of Criminal Procedure only if it is of the opinion that the application has been filed with a view to delay the proceeding or for defeating the ends of Justice or for the purpose of vaxation.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 217 - RECALL OF WITNESSES WHEN CHARGE ALTERED - COURT'S DISCRETION TO REJECT APPLICATION - REASONS TO BE RECORDED - APPLICATION FILED FOR VEXATION, DELAY OR DEFEATING ENDS OF JUSTICE.
Fact of the Case:
The petitioner was convicted under Sections 409 and 468, Indian Penal Code, by the trial Court and the appellate Court. The High Court allowed the revision petition and remitted the matter to the trial Court for fresh disposal. The trial Court split the case into three cases and re-framed the charges. The petitioner filed applications in the three trial cases for recalling the prosecution witnesses for further cross-examination. The trial Court rejected the applications on the ground that the High Court had not directed cross-examination of the witnesses already examined.
Finding of the Court:
The High Court held that the trial Court erred in rejecting the applications for recalling the prosecution witnesses without recording reasons that the applications were filed for the purpose of vexation, delay, or defeating the ends of justice. The Court held that Section 217 of the Code of Criminal Procedure confers a discretion on the Court to reject an application to recall or re-summon a witness, but such discretion is not unbridled and must be exercised for the reasons indicated in the provision itself.
Issues: Whether the trial Court erred in rejecting the applications for recalling the prosecution witnesses without recording reasons that the applications were filed for the purpose of vexation, delay, or defeating the ends of justice.
Ratio Decidendi: The Court held that the provisions of Section 217 of the Code of Criminal Procedure are mandatory and if there is any alteration of charge after commencement of trial, the parties are to be given opportunity for further examining or cross-examining the witnesses. The Court held that the trial Court has nowhere recorded that the application has been filed for the purpose of vexation, or delay, or defeating the ends of Justice. It has rejected the application merely because the High Court had observed that the evidence on record should be considered while disposing of the case.
Final Decision: The Court allowed the revision petitions and directed the trial Court to reconsider the applications filed by the accused person and pass necessary orders in accordance with law keeping in view the provisions of Section 217 of the Code and the observations made in the judgment.
JUDGMENT :
P.K. Misra, J. - The three Criminal Revisions relate to same petitioner and since common questions of fact and law are involved, all the three matters are being disposed of by this judgment.
2. The petitioner was initially convicted under Sections 409 and 468, Indian Penal Code, by the trial Court and the order of conviction was confirmed by the appellate Court. Criminal Revision No. 638 of 1932 filed by the petitioner was allowed by this Court by judgment dated 7-2-1994 reported in (1994) 7 OCR 215 (Bhabagrahi Mayak v. State of Orissa). The revision was allowed and the matter was remitted to the trial Court for fresh disposal on the ground that there had been improper framing of charges in contravention of Sections 219 and 220 of the Code of Criminal Procedure (hereinafter referred to as the "Code") and that there had been defective examination of the accused person u/s 313 of the Code. The matter was remitted to the trial Court with the following observations :
"In the result, the Criminal Revision is allowed, judgments of the Courts below are set aside and remitted to the trial Court for fresh disposal of the case in accordance with law. The evidence on record shall be considered while disposing of the case......."
After the matter was remitted, it appears that the trial Court split up the single case into three cases which have been re-numbered as G. R. Case Nos. 455, 455-A and 455-B of 1986 (corresponding to Criminal Revision Nos. 156/96, 154/95 and 155/96 respectively) and the charges were re-framed and altered. The accused-petitioner, filed three separate applications in the three trial cases for recalling the prosecution witnesses for further cross-examination. By separate orders passed on 11-1-1996 in the three different cases, the trial Court rejected such applications solely on the ground that in the judgment passed by the High Court in the Criminal Revision remitting the matter for fresh disposal, no direction had been given to cross-examine the witnesses already examined. The trial Court opined that since the High Court had observed that "the evidence on record shall be considered while disposing of the . case", there was no scope for any further cross-examination of any of the prosecution witnesses. The legality of the aforesaid orders in the three trial cases has been questioned by filing three separate revision applications.
3. Evidently, the applications for recalling the prosecution witnesses for further cross-examination had been filed in accordance with Section 217 of the Code. The said provision is extracted hereunder:
"217. Recall of witnesses when charge altered :
Whenever a charge is altered or added to by the Court after the commencent of the trial, the prosecutor and the accused shall be allowed-
(a) to recall or resummon and examine with reference to such alteration of 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."
The said provision corresponds to Section 231 of the old Code with the addition of the words "unless the Court, for reasons to be recorded in writing, considers that the prosecutor Of 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".. It had been held in some cases rendered under the old Code that the provisions of Section 231 (which now corresponds to Section 217) were mandatory and if there is any alteration of charge after commencement of trial, the parties are to be given opportunity for further examining or cross-examining the witnesses. There has been slight alteration in the new provision and a direction is now vested in the Court u/s 217(a), regarding recalli
