Allahabad High Court
Lalji Alias Lala Yadav And 2 Others vs State Of U.P. And Another on 6 September, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:145296 Court No. - 76 Case :- APPLICATION U/S 482 No. - 28838 of 2024 Applicant :- Lalji Alias Lala Yadav And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicants, learned AGA for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been preferred against order dated 09.08.2024, passed by the learned Additional Sessions Judge/ F.T.C., Court No.2, Prayagraj in S.T. No.1330 of 2004 (State Vs. Lalji and others), arising out of Case Crime No.297 of 1997, under Sections 498-A, 304-B, 302 IPC and Section 3/4 D.P. Act, P.S. Phoolpur, District Prayagraj, whereby, the application filed by applicants/ accused under Section 217 Cr.P.C. for recalling of the prosecution witnesses has been rejected.
3. Learned counsel for the applicants submitted that impugned order dated 09.08.2024 is against facts and law and thus, liable to be set aside. The applicants were facing trial in the aforesaid case for offences under Sections 498-A, 304-B IPC and 3/4 D.P. Act. During trial, the trial Court has framed alternative charge under Section 302 I.P.C. and thus, the applicants have moved an application under Section 217 Cr.P.C. for recalling of PW-3,4,6,7 & 8 for further cross-examination but the same was rejected by the trial Court. It was submitted that in view of provisions of Section 217 Cr.P.C., the trial Court is bound to recall the witnesses, for which prayer has been made under Section 217 Cr.P.C. In this connection, learned counsel has referred case of Indrajeet Singh Vs. State of U.P., (2016) 10 ADJ and R. Rachaiah Vs. Home Secretary, Bangalore (2016) 95 ACrC 980.
4. Learned learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order. The alleged alternative charge was framed on 10.09.2013 and after that an application was moved on behalf of applicants under Section 217 Cr.P.C. for recalling of two witnesses, who were duly recalled by the trial Court. At that time, no prayer was made for recalling of any other witness. After 10 years, when the case is at the stage of statement under section 313 Cr.P.C., the applicants/accused have filed this application with malafide intention in order to delay the trial.
5. I have considered the rival submissions and perused the record.
6. Before proceeding further, it would be apt to refer provision of Section 217 Cr.P.C, which reads as under :-
"Section 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. In case of Indrajeet Singh (supra), it has been observed by this Court that in any case, unless the court considers that the application for recall and reexamination of a particular witness has been made for the purpose of vexation or for delay or for defeating the ends of justice, it should permit all the witnesses which if the accused or the prosecution desire to recall as a consequence of alteration or addition of a charge.
8. In case of R. Rachaiah (supra), in para no.9 and 10, Hon'ble Apex Court has held as under:-
" 9. The bare reading of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and 4 of Section 216 of the Code. Sub-section(3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section(4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct."
10. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the Court is to even allow any further witness which the Court thinks to be material in regard to the altered or additional charge.
9. From the provisions of Section 217 Cr.P.C. as well as from the aforesaid case laws, it is apparent that if an application has been moved for recalling of the witness for the purpose of vexation, or for delay, or for defeating the ends of justice, in such situation, the Court can reject such application.
10. In the instant matter, perusal of the record shows that accused persons were facing trial for the offences under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act since the year 2004. It appears that alternative charge under Section 302 IPC was framed on 01.03.2013. After that the accused persons have filed an application for recalling of two witnesses, which was allowed and they were accordingly recalled by the trial Court for further cross-examination. It appears that now the case is at the stage of statement under Section 313 Cr.P.C. This application under Section 217 Cr.P.C. for recalling of formal witnesses has been filed after more than 10 years of the said alteration of charge. The trial Court has observed that this application was moved by the applicants accused with malafide intention and to delay the trial. Considering the entire facts, the observation of the trial Court that the application under Section 217 Cr.P.C. was moved with malafide intention and to delay the trial, cannot be said without any basis. The application filed by the applicants have been rejected by a reasoned order. This Court does not find any such material illegality or perversity in the impugned order so as to require any interference by this Court by invoking extra ordinary jurisdiction under Section 482 Cr.P.C.
11. The application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed.
12. Application under Section 428 Cr.P.C. is hereby dismissed.
Order Date :- 6.9.2024 RKM