Allahabad High Court
Ashish Yadav @ Kaptan vs State Of U.P.And Another on 7 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL REVISION No. - 1028 of 2022 Revisionist :- Ashish Yadav @ Kaptan Opposite Party :- State Of U.P.And Another Counsel for Revisionist :- P.K. Singh Counsel for Opposite Party :- G.A. Hon'ble Om Prakash Tripathi,J.
Heard learned counsel for revisionist and learned A.G.A. for State.
This revision has been filed with a prayer to set aside the order dated 25.02.2022 passed by Additional Sessions Judge / Special Judge, (POCSO Act), Rape Cases-IIIrd, Jaunpur Fast Track Court, District- Jaunpur in Special Session Trial No. 171/2013 (State Vs. Ashish Yadav @ Kaptan) under Sections 363, 366, 376 I.P.C., P.S.- Sujanganj, District- Jaunpur.
It is submitted by learned counsel for revisionist that in the said trial charge under Sections 363, 366, 376 I.P.C. has been framed on 22.06.2013 and statement of PW-1 (informant) and PW-2 victim has been recorded and thereafter on 13.09.2021 charge under Section 4 of POCSO Act has been added/altered.
Learned counsel for revisionist has moved an application for summoning PW-1, PW-2 and PW-3 keeping in mind the provision of Section 217 Cr.P.C. which was rejected by the trial court on 25.02.2022 otherwise revisionist will be prejudiced.
Learned A.G.A. objected the contention of the revisionist and submitted that previously charge no. 1 made under Section 363 I.P.C. regard minority of the victim is similar to the present one Section 4 of POCSO Act. Impugned order is passed according to law and cannot be interfered in this revision.
Section 217 Cr.P.C. provides that :-
?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 end of justice;
(b) also to call any further witness whom the Court may think to be material.?
According to the said provision whenever charges altered or added by the court after commencement of the trial prosecutor and accused shall be allowed to recall re-summon for examine which reference to such alteration or addition any witness who may have been examined.
Thus, there appears substance in the submission of the revisionist. In case after alteration or addition of charge without cross examination of the witness on that point accused shall be prejudiced and thus in the light of Section 217 Cr.P.C. impugned order is liable to be interfered by this revisional court. Impugned order is set aside.
This criminal revision is allowed accordingly.
Prosecution shall summon/re-examine if thinks fit PW-1, PW-2, PW-3 and after the re-examination, opportunity of cross examination shall be given to the accused and thereafter evidence of PW-4 shall be concluded. Applicant-accused shall deposit Rs. 3000/- for the cost of the witness within fifteen days. Revisionist shall not linger the case and trial court is directed to conclude trial expeditiously.
Order Date :- 7.7.2022 Sharad/-