Madhya Pradesh High Court
Jitendra Shivhare vs State Of M.P. on 18 December, 2015
Criminal Revision No.439/2013 18/12/2015
Parties through their counsel.
The present revision has been filed against the order dated 10/05/2013 by which the application preferred under Sec.217 of the Code of Criminal Procedure, 1973 to recall the witnesses has been rejected by the trial Court. 2- The facts of the case reveal that a FIR was lodged against the applicant for offence under Sec.302, 307, 450, 323/34 of the Indian Penal Code and a charge-sheet was filed in the matter. The charges were framed by the trial Court on 05/04/2008 for offences under Sec.302, 456 and 323 of the Indian Penal Code.
3- During the trial all the material witnesses were examined and the present applicant who is accused was also permitted to cross-examine all the witnesses, meaning thereby, the trial was at the verge of conclusion and at that stage an application was preferred by the prosecution for altering the charge from Sec.456 to 449 of the IPC. The trial Court has allowed the application. The matter is at the stage of final arguments.
4- At this stage, an application was preferred on behalf of the accused under Sec.217 of the Code of Criminal Procedure and a prayer was made for recalling all the witnesses. The trial Court has rejected the aforesaid application. Learned counsel for the applicant has vehemently argued before this Court that once the charge was altered, in all fairness, the trial Court should have recalled all the witnesses.
5- Heard learned counsel for the parties and perused the record.
6- Sec.217 of the Code of Criminal Procedure reads as under:-
"217. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-
(a) to recall or re-summon, and examine with reference to such alteration or 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."
7- This Court has carefully gone through the impugned order passed by the trial Court. The incident is dated 11/01/2008 and the facts of the case reveal that on 11/01/2008 the accused has entered into the house of deceased Nourangbai and after pouring kerosene upon her she was burnt alive. The FIR was lodged by the deceased himself at 17:00 hours and later on she succumbed to her injuries. The accused has already been charged for offence under Sec.302 of the Indian Penal Code and all the material witnesses have been examined and cross-examined by the trial Court.
8- The trial Court has observed that earlier the accused was charged for an offence under Sec.456 of the IPC i.e. punishment for lurking house-trespass or house-breaking by night and now he has been charged for committing house- trespass in order to commit the offence punishable with death and the trial Court has also observed that no material witnesses has to be examined and keeping in view the evidence already on record, the question of allowing the application does not arise, especially in light of the fact that the accused has already been charged for an offence under Sec.302 of the IPC, meaning thereby, the trial Court has justified its action in rejecting the application preferred by the accused under Sec.217 of the Code of Criminal Procedure, 1973.
9- The trial Court for the reasons recorded in writing has rejected the application for recalling of the witnesses and it has also been observed that the accused is deliberately trying to delay conclusion of the trial. In the considered opinion of this Court, keeping in view the totality of the facts and circumstances of the case and also keeping in view the statutory provisions as contained under Sec.217 of the Code of Criminal Procedure, 1973, this Court is of the opinion that the trial Court was justified in rejecting the application preferred under Sec.217 of the Code of Criminal Procedure. 10- Resultantly, the revision petition preferred being devoid of any merits and substance deserves to be dismissed and is accordingly, dismissed. The trial Court is directed to conclude the trial as the matter has already been fixed for final arguments, as expeditiously as possible preferably within a period of 30 days from today.
11- The Principal Registrar is directed to communicate the order forthwith to the trial Court and the accused is also directed to appear before the trial Court on 28/12/2015.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Tej