Calcutta High Court (Appellete Side)
Nikhil Kumar Singh & Ors vs State Of West Bengal on 16 January, 2015
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 Form No. J(1) IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDCITION APPELLATE SIDE Present:
The Hon'ble Justice Ashim Kumar Roy CRR No. 3347 of 2014 Nikhil Kumar Singh & Ors.
-vs-
State of West Bengal For the petitioners : Mr. Sourav Chatterjee, Mr. Debapratim Guha For the State : Mr. Kazi Safiullah Heard on:- 15th December 2014 Judgment on : 16-01-2015.
The petitioners were facing their trial on a charge under section 498A/302/34 IPC before the learned Additional Sessions Judge, 1st Court, Darjeeling. After examination of 12 witnesses were over out of total 19 witnesses, the trial court invoking section 216 CrPC altered the charge, adding section 304B IPC. While making such order the learned Judge made following observation, "it is not necessary to offer a blanket opportunity to the defence to cross-examine prosecution witness on the ground of addition of charge 2 and in my opinion, such will not prejudice the accused in their defence, prosecution in conduct of the case."
The learned counsel appearing on behalf of the petitioner referring to section 217 CrPC submitted that the decision of the trial court is contrary to the mandate of section 217 CrPC. He therefore submitted the order impugned be quashed.
On the other hand, Mr. Kaji Safiullah, the learned appearing on behalf of the State submitted that when the charge is altered the accused ought to be given an opportunity to cross-examine the witnesses.
Heard the learned counsel appearing on behalf of the parties. Considered their respective submissions. Perused the impugned order.
Before considering the order impugned on merit, the provisions of section 217 CrPC be referred first and is quoted below,
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- 3
(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. B.- Joinder of charges.
It is abundantly clear from a plain reading of the aforesaid provision whenever a charge is altered or a new charge is added while prosecution has a right to recall or re-summon and examine any witness with reference to such alteration and addition, the accused has also a right to cross-examine the witness. Court may, however, deny such right of the prosecution or the accused, as the case may be if it is of the opinion and for the reason to be recorded in writing that the purpose is vexation or delay or for defeating the ends of justice. The question of denial of such right to the prosecution or to the defence would arise when the court alter or add a charge and unless such a prayer is made. When a charge is altered or is added if not it be noted for the prosecution to adduce further evidence but certainly the right of the defence to cross-examine the witness even fresh 4 cannot be denied. The court must not be oblivious the defence is not obliged to cross-examine a witness when he is testified in respect of any offence for which the accused is not facing his trial, if therefore on the evidence already recorded, a charge is altered or a new charge is added, the defence must be given an opportunity to cross-examine the witness with reference to that. It is not enough for the court and not at all any compliance far less sufficient compliance with the mandate of section 217 CrPC that while adding a new charge at this stage, the court to observe that it was not necessary to offer a blanket opportunity to the defence to cross-examine the prosecution witnesses on the ground of addition of charge and that would not cause any prejudice to it. The right to cross-examine the witness is a very valuable right of the defence and an integral part of the fair trial that was the object for incorporating in the provisions of section 217 CrPC making it essential for the court to record its reason in the order while it refuses to such an opportunity to the prosecution or to the defence. The recording of reasons does not mean to record that offering blanket opportunity is not necessary to the defence to cross- examine the witness and that would not prejudice it. In such a situation court is obliged to record the reason in detail why the opportunity is denied and how that would not prejudice the accused. 5
Last but not least section 217 does not require the court to offer but it is the intention of the prosecution or the defence. The order impugned is totally illegal and erroneous and accordingly stands set aside. The trial court is directed to consider the prayer of the prosecution to recall or re-summon and examine any witness with reference to such addition and the prayer of the defence to cross- examine any witness with reference to additional charge in the light of the provisions of section 217 CrPC.
It goes without saying if the trial court deny such opportunity either to the prosecution or to the defence, there must not be an order in writing but such an order must contain enough reasons for negating such prayer.
This application thus stands allowed and disposed of. Office is directed to supply Photostat certified copy of this order to the parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) 6