An accused has the right to recall and examine witnesses in light of any alteration or addition to the charges against them, unless the court finds that it would delay or defeat the ends of justice.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 216, 217 - POCSO ACT - SECTION 5(k) - IPC - SECTION 377 - CHARGE - ADDITION - RECALLING OF WITNESSES - RIGHT OF ACCUSED
Fact of the Case:

The petitioner was charged with offences under Sections 341, 323, 506(i) of the IPC and under Section 3(a) read with Section 4 and Section 7 read with Section 8 of the POCSO Act. During the trial, the prosecution filed a petition to add charges under Section 5(k) of the POCSO Act and Section 377 of the IPC. The court allowed the petition. The petitioner then filed petitions to recall certain witnesses already examined in light of the added charges, but these petitions were dismissed by the court.
Finding of the Court:

The court found that there were materials to suggest that the offences under Section 377 of the IPC as well as under Section 5(k) of the POCSO Act were involved. Therefore, the court confirmed the order adding the charges.
Issues: 1. Whether the court was justified in adding the charges under Section 5(k) of the POCSO Act and Section 377 of the IPC? 2. Whether the court was justified in rejecting the petitioner's request to recall witnesses in light of the added charges?
Ratio Decidendi: 1. Section 216 of the Cr.P.C. empowers the court to alter or add to a charge after the commencement of the trial if there is sufficient evidence to support the new charge. 2. Section 217 of the Cr.P.C. provides that when a charge is altered or added to, the prosecutor or the accused may recall and examine witnesses with reference to the alteration or addition. However, the court may reject this request if it finds that it would delay or defeat the ends of justice.
Final Decision: The court confirmed the order adding the charges under Section 5(k) of the POCSO Act and Section 377 of the IPC. However, the court set aside the orders rejecting the petitioner's request to recall witnesses and allowed the petitioner to recall and examine the witnesses with reference to the added charges.

JUDGMENT

Exts.P7, P12 and P13 orders passed by the court below are under challenge in this original petition.

2. The petitioner is the sole accused who faces trial at the court below in S.C.No.611/2017 for the offences punishable under Sections 341, 323 and 506(i) of the IPC and under Section 3(a) read with Section 4 and Section 7 read with Section 8 of PoCSO Act.

3. After the completion of the examination of all the witnesses Special Public Prosecutor filed a petition as Crl.M.P.No.765/2020 invoking Section 216 of the Cr.P.C. to add charge under Section 5(k) of PoCSO Act and Section 377 of the IPC. The court below after hearing both sides allowed the said petition as per Ext.P7 order. Thereafter the petitioner filed two petitions at the court below as Crl.M.P.No.947 of 2020 (Ext.P10) and Crl.M.P.No.965/2020 (Ext.P11) to recall certain witnesses already examined in the light of the adding of charge. Those petitions were also dismissed by the court below as per Exts.P12 and P13 orders. All these three orders are under challenge in this original petition.

4. Heard Sri.Aravind Ghosh, the learned counsel for the petitioner and Sri.M.P.Prashant, the learned Public Prosecutor for the respondent.

5. A perusal of the evidences adduced by the victim and other witnesses would show that there are materials to suggest that the offences under Section 377 of the IPC as well as under Section 5(k) of PoCSO Act is involved. Therefore, I see no reason to upset Ext.P7 order in exercise of the jurisdiction under Article 227 of the Constitution of India.

6. As per Section 217 of the Cr.P.C., whenever a charge is altered or added to by the court after the commencement of the trial, the Prosecutor or the accused, as the case may be, shall be allowed to recall and examine the witnesses with reference to such alteration or addition. However, the court is empowered to reject the said prayer if it is found that the recalling or re-examination would delay or defeat the ends of justice. A perusal of Exts.P12 and P13 orders would show that no reason has been shown by the court below to reject the prayer for recalling or re-examination of the witnesses. When two more Sections are added, the accused has every right to cross-examine the witnesses already examined with reference to such addition. Considering the entire facts and circumstances of the case, I am of the view that, the court below was not justified in rejecting the prayer for recalling the witnesses. Hence, Exts.P12 and P13 orders are liable to be set aside.

7. In the result, this Original Petition (Crl.) is disposed of as follows:-

Ext.P7 order is confirmed. Exts.P12 and P13 orders are set aside. Exts.P10 and P11 petitions stand allowed. After the completion of the prosecution evidence, the court below shall consider the request of the petitioner to examine the defence witnesses.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE skj APPENDIX PETITIONER’S EXHIBITS:

EXHIBIT P1 TRUE COPY OF FINAL REPORT IN CRIME N0.675/2017 OF THE AMBALAPUZHA POLICE STATION.

EXHIBIT P2 TRUE COPY OF FIR IN CRIME NO.675/2017 OF AMBALAPUZHA POLICE STATION.

EXHIBIT P3 TRUE COPY OF FIS IN CRIME NO.675/2017 OF AMBALAPUZHA POLICE STATION.

EXHIBIT P4 TRUE COPY OF DISABILITY CERTIFICATE OF THE PW3 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-

1,ALAPPUZHA.

EXHIBIT P5 TRUE COPY OF THE CRL.M.P.NO.765/2020 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA DATED 15/02/2020.

EXHIBIT P6 TRUE COPY OF OBJECTION IN CRL.M.P.NO.765/2020 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA EXHIBIT P7 THE TRUE COPY OF THE ORDER IN CRL.M.P.NO.765/2020 DATED 15/02/2020 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA EXHIBIT P8 THE TRUE COPY OF THE DEPOSITION OF PW20 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA EXHIBIT P9 THE TRUE COPY OF THE STATEMENT OF PW3 RECORDED BY THE JUDICIAL FIRST CLASS MAGISTRATE UNDER SECTION 164 CRPC EXHIBIT P10 TRUE COPY OF CRL.M.P.NO.947/2020 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS C

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