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ŒŠ-Œ++-,,Œf++ ,0Mh0th0lh0 us crk;k fd mUgsa vfrfjDr lk{; ugha nsuk gS vr% fMQsUl dh vksj ls Hkh vfrfjDr lk{; u nsus dh ckr dgh tk jgh gSA vr% f+-Œ++-,,Œf++ dks cgl gsrq is'k gksA f+-Œ++-,,Œf++ okn iqdkjk x;k A vfHk;qDr vfuy dqekj ;kno tsjs fgjklr mifLFkrA 'ks"k vfHk;qDRkx.k tsjs tekur mifLFkr A ijUrq vf/koDrkx.k U;kf;d dk;Z ls fojr gSA vr% i=koyh fnukad ,,Œ-Œ++-,,Œf++ dks cgl gsrq is'k gksA Learned counsel for the accused-appellant submits that after framing of additional charge on 20.04.2015, the court vide order dated 30.04.2015 has directed the parties to adduced their evidence, however as the prosecution has not decided to lead any evidence after framing of the additional charge under Section 302 IPC read with Section 34 IPC and defence has also not led any evidence in this regard and order dated 08.05.2015 has been passed. However, inspite of said fact, a mandatory duty has been casted upon the trial court as per Section 216 Sub Section 4 Cr.P.C. read with Section 217 Cr.P.C. to record the statement of the accused-appellant under Section 313 Cr.P.C. and also it is incumbent upon the trial court to follow the procedure as provided under Sub Section 4 of Section 216 Cr.P.C. read with Section 217 Cr.P.C. to call upon the prosecution witnesses to be examined in the light of additional charge framed under Section 302/34 IPC.

Further, on a reading of Sub-Section 4 of Section 216, the position which emerges out is that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguard by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over the explained to the accused has been made. (See Ranbir Yadav v. State of Bihar, (1995) CrL.J. 2665 (para 23).) After framing of the additional charge under Section 302/34 IPC, the court has to follow the procedure as provided under Section 217 Cr.P.C., the same reads as under:

Section 217 Cr.P.C.-
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."

The intention of legislature in framing of Section 217 Cr.P.C. is to the effect that an amendment of the charge after witnesses have been examined may prejudice either party unless it is allowed to call fresh witnesses or to re-examine or cross-examine further the witnesses who have been already examined, an opportunity is offered in that behalf by the present section.

The light to re-summon or further examination is, however, subject to the following limitations :-