ORDER

Dated this the 18th day of October, 2022 The petitioners are accused Nos.1 and 2 in C.C.

No.44/2012 on the file of the Judicial First Class Magistrate's Court, Ambalapuzha. The aforesaid case arises from crime No.154/1993 of Mavelikkara Police Station, which was registered for the offences punishable under Sections 467, 468, 471, 477(A), 409, 418, 420, 120(B) and 34 of the Indian Penal Code. Later, the investigation was taken over by the Crime Branch and the same was re-registered as 256/CR/93.

2. In the said case, the trial commenced on 21.01.2019 and as part of the same PWs 1 to 25 were examined from the side of the prosecution. The statements of the accused were also recorded under Section 313 Cr.P.C. and the hearing of the matter was also concluded. At that point of time, the learned Magistrate noticed that the charges in this case were not framed. Therefore, Annexure-4 order dated 17.09.2022 was passed, as per which the charges were framed and read over to the accused. In the said order, it is also mentioned that, since the trial proceeded without framing the charge, denovo trial is necessary and hence the matter was scheduled for trial. Now the matter is posted on 25.10.2022. The petitioners who are the accused are challenging the said order.

3. Heard Sri. P. Vijayabanu, the learned Senior Counsel appearing for the petitioners and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor for the State.

4. The specific contention put forward by the learned counsel for the petitioners is that the order passed by the learned Magistrate to conduct the denovo trial is unsustainable and would cause serious prejudice to the petitioners. The learned Senior Counsel points out that the crime is of the year 1993, and the trial itself commenced only in the year 2019. Therefore, the conduct of the denovo trial is practically impossible. It is pointed out that it would cause serious prejudice to the petitioners as all the witnesses were examined and cross-examined by the petitioners and the statements under Section 313 also were recorded.

5. The learned Senior Counsel relies on Section 216 of the Cr.P.C. and contends that, the conduct of the denovo trial is not at all necessary in all circumstances when the charge is altered. It is pointed out that as per the statutory stipulation contained in Section 216(3), the court can decide at its discretion, as to whether to proceed with the trial as if the altered or added charge had been the original charge. It is also pointed out that sub-section 4 of Section 216 provides that, the new trial is contemplated only if the court is of the opinion that, on account of the continuation of the trial, any prejudice will be caused to the accused or the prosecution.

6. After considering all the relevant aspects, I am of the view that there is some force in the contention put forward by the learned counsel for the petitioner. The conduct of the denovo trial concerning a crime which occurred in 1993 is practically impossible. It is also to be noted that the trial in this case commenced in 2019 and all the witnesses from the prosecution's side have been examined. The petitioners were also examined under Section 313 Cr.P.C. Therefore, the conduct of the denovo trial at this juncture may cause prejudice to the accused. Apart from the above, since there is a long time gap between the commission of the offence and the trial, it is highly unlikely for the prosecution to make all the witnesses they cited in support of their case available.

7. The learned Senior Counsel for the petitioners places reliance on section 216 of the Cr.P.C to substantiate his contention that a denova trial is not warranted in all cases where the charges were altered subsequently and the same is necessary only when the continuation of the trial causes prejudice to the accused or prosecution. Even though the said provision deals with a situation where the charge is altered, or new charges are added, the stipulations contained therein in