The main legal point established in the judgment is the mandatory nature of the right of the defense to seek further cross-examination of the prosecution witness under section 217 Cr.P.C. after an alteration or addition of the charge.

Saumitra Dayal Singh, J.

Heard learned counsel for the parties.

2. The present criminal revision has been filed to quash the order dated 07.08.2018 passed by the Addl. Sessions Judge/Fast Track Court, Mainpuri in Session Trial No. 652 of 2013 (State Vs. Updesh @ Shibbe & Others), arising out of Case Crime No. 243 of 2013, under Sections- 147, 148, 149, 307, 302, 504, 506, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station- Kishani, District- Mainpuri by which the learned Court below has rejected the prayer made by the defence for recall of three prosecution witnesses namely PW-1, PW-2 and PW-3 upon alteration of charge made on 30.07.2018.

3. Short submission advanced by Shri. Upendra Upadhyay learned counsel for the applicant is:- though the applicant had been charged vide order dated 17.02.2014, amongst others for offence alleged under Section 302 IPC read with Section 120-B IPC, however, by the subsequent order dated 30.07.2018, after evidence had been recorded, the charge was altered. In such fact, learned counsel for the applicant submits that the applicant was entitled to recall the prosecution witness of fact, more as a matter of right and less as a matter of discretion to be exercised by the learned Court below.

4. In this regard, reliance has been placed on Section 217(a) Cr.P.C. It is further submitted that the learned Court below has not recorded any specific reason in writing, either that the defence was seeking to recall the prosecution witness for the purpose of vexation or to cause delay or to defeat the ends of justice. Merely, because the learned Court below observed that certain prosecution witness had been earlier examined on the aspect of conspiracy, it would not justify the denial of the statutory right of the defence/accused person to seek recall of the prosecution witness, though no fresh trial may have been directed and though the prosecution, may have waived its right to further examine the witness.

5. Sri A.B. Maurya, Advocate and Sri Narendra Kumar Maurya, learned counsel appearing for the opposite party no. 2 would contend that there is no material alteration of the charge and only certain errors had been rectified and; all aspects of cross-examination had been covered during the original cross-examination. Therefore, by seeking further cross-examination, without first disclosing any specific question, the applicant only sought to delay the trial proceedings that have remained pending since 2013. It is further stated that the trial has remained pending despite many orders passed by this Court.

6. Sri Sanjay Kumar Singh, learned AGA has also supported the contention advanced by learned counsel appearing for the opposite party no. 2. He submits that neither any new charge with reference to a new offence or section had been added by way of altered charge nor any new person had been summoned or charged as an accused person. Therefore, the applicant who is an accused person would not be entitled to recall of the prosecution witness.

7. Having considered the arguments so advanced by learned counsel for the parties, it is undisputed that originally, by order dated 17.02.2014, the applicant had been charged as below:

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8. The trial was held and evidence was also received, amongst others, on that charge. Thereafter, by order dated 30.07.2018, the aforesaid charge stood modified as below:

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9. Clearly, the date, time and place of the occurrence and or the conspiracy has been first specified in the charge framed on 30.07.2018 and not earlier. Also, it is undisputed that the entire evidence had been led and the prosecution witness had been examined and cross-examined, prior to the date 30.07.2018. Coupled with the above, it is noted, the applicant is facing trial for a heavy charge of offence under Section 302 IPC read with Section 120-B IPC.

10. Thus, it appears, in the first place, the charge had been materially altered, by order dated 30.07.2018 in so far as the specification of t