# Smt. Rekha v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1568
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Application U/S 482 No. 43580 of 2019
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-v-state-of-u-p-anr-45542
- **Pages:** 6

## Headnote

A. Criminal law - Code of Criminal
Procedure,
1973-Sections
216
and
217- Amended Charge- The provisions of
Sections 216 and 217 are mandatory in
nature as they not only sub-serve the
requirement of principles of natural justice
but guarantee an important right which is
given to the accused persons to defend
themselves appropriately by giving them
full opportunity of cross-examination of the
witnesses.

It is incumbent upon the trial court to
afford the accused an opportunity of crossexamination, once the charge is amended
and denial of such opportunity will amount
to violation of the principles of natural
justice and render the trial vitiated. ( Para
12, 13, 14)

Criminal Application disposed of.

Case law discussed:-

Bhimanna Vs. St. of Karnataka, (2012) 9 SCC 650

## Text

1568 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1568

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 No. 43580 of 2019
&
Application U/S 482 No. 43493 of 2019

Smt. Rekha ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohad. Rashid Siddiqui, Sri Abhinav
Gaur, Sri Anoop Trivedi

Counsel for the Opposite Parties:
A.G.A., Sri Swetashwa Agarwal

A. Criminal law - Code of Criminal
Procedure,
1973-Sections
216
and
217- Amended Charge- The provisions of
Sections 216 and 217 are mandatory in
nature as they not only sub-serve the
requirement of principles of natural justice
but guarantee an important right which is
given to the accused persons to defend
themselves appropriately by giving them
full opportunity of cross-examination of the
witnesses.

It is incumbent upon the trial court to
afford the accused an opportunity of crossexamination, once the charge is amended
and denial of such opportunity will amount
to violation of the principles of natural
justice and render the trial vitiated. ( Para
12, 13, 14)

Criminal Application disposed of.

Case law discussed:-

Bhimanna Vs. St. of Karnataka, (2012) 9 SCC 650

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard Sri Anoop Trivedi, learned Senior
Counsel assisted by Sri Mohd. Rashid Siddiqui
and Abhinav Gaur, learned counsel for the
applicant and Sri Swetashwa Agarwal, learned
counsel for the opposite party no. 2 and learned
A.G.A. for the State.

2. The present 482 Cr.P.C. Application
No.43580 of 2019 has been filed to quash the
orders dated 18.11.2019, 19.11.2019 and
20.11.2019 passed by learned Additional
Sessions Judge, Baghpat in S.T. No. 26 of 2017
and S.T. 149 of 2017 (State Vs. Rekha and
others), under Sections 147, 148, 149, 302, 307
and 120B IPC, arising out of Case Crime No.271
of 2016, Police Station Binauli, District Baghpat.

3. So far as the Application under Section
482 Cr.P.C. bearing No. 43493 of 2019 is
concerned, has also been filed to quash the order
dated 19.11.2019 passed by Additional Sessions
Judge, IVth, Baghpat in Session Trial No.26 of
2017 (State Vs. Satendra and others), arising out
of Case Crime No. 271 of 2016, under Sections
147, 148, 149, 302, 307, 120B IPC, Police
Station Binauli, District Baghpat.

4. Both these applications mentioned
above are being decided by a common judgment
and order as the controversy involved in these
two applications is same and identical.

5. The police investigated the matter
and submitted the charge sheet against the
accused persons, namely, Satendra, Smt.
Rekha, Manoj, Nirbhay, Anil, Subodh
along with Arjun and the trial commenced.
The accused Rekha was charged under
Section 120B read with Section 302 IPC
and she was further charged under Section
120B read with Section 307 IPC and the
accused Manoj was also charged under
Section 120B read with Section 302 and
307 IPC and all other accused persons
were charged under Sections 302, 147,
2 All. Smt. Rekha Vs. State of U.P. & Anr.
1569
148, 149, 307 and 120B IPC and session
trial
commenced
and
evidence
of
prosecution witnesses were recorded. After
recording the evidence of the prosecution
witnesses, an application was given, copy
whereof has been annexed on page 25
onwards under Section 216 Cr.P.C. with
the prayer to amend the charges against
the accused persons, namely, Rekha and
Manoj, charged under Sections 147, 148,
149, 302, 307, 120B IPC. This application
was moved on 31.7.2019 and the Court
allowed this application vide order dated
18.11.2019, the order has been annexed on
page 36 of the paper book and directed
that the charge be amended and thereafter
the charges against the accused persons,
namely, Smt. Rekha and Manoj were
amended
on
19.11.2019.
After
the
amendment of the charge against the
accused Smt. Rekha and Manoj, an
application was moved by the prosecution,
which is annexed on page 53; which states
that the witnesses were present in the
Court and they were also ready for crossexamination, but no order was passed by
the learned trial Court on the application
dated
19.11.2019,
moved
by
the
prosecution. Then, again, an application
was moved by accused namely Smt.
Rekha praying therein that the accused
persons may be given an opportunity to
cross-examine the prosecution witnesses
and the same was rejected. In that
application the order was passed on
19.11.2019 by the learned trial Court,
which is annexed on page 40 onwards and
the operative portion reads as follows:-

"41 वाि के कवद्वान अकधवक्ता द्वारा
प्रािमना पत्र प्रस्तुत ककया गया है कक अकभयुक्ता
रेिा व मनोज पर चाजम में धारा 302 भा०िों०सों०
क बढ़ोत्तर क गय है। इस स्तर पर
अकभयोजन अपने साक्ष गण से अकभयुक्तगण
द्वारा कजरह कराने को तैयार है। अकभयुक्तगण
के कवद्वान अकधवक्ता द्वारा कोई आपकत्त नह ों है
और वे कजरह हेतु तैयार हैं। पत्रावल के
अवलोकन से पूवम में ह यह स्पष्ट हो चुका है
कक अकभयुक्तगण द्वारा अकभयोजन पक्ष के
साक्ष गण से सम्पूणम कजरह क जा चुक है
और धारा 261 िों०प्र०सों० के उपबि-3 के
अनुसार अकभयुक्तगण को आरोप पररवकधमत
ककये जाने से कोई भ प्रकतकूल प्रभाव पड़ने
क सम्भावना भ प्रत त नह ों होत है तिा
पररवधमन के पश्चात अकभयोजन द्वारा ककस
अकभयोजन साक्ष का मुख्य पर क्षण नह ों
कराया जाना है तिा पूवम में अकभयुक्तगण
द्वारा अकभयोजन साक्ष गण से प्रकतपर क्षण
कवस्तृत रुप से क जा चुक है। मानन य उच्च
न्यायालय के आिेिानुसार पत्रावल का
कनस्तारण
करने
के
उपरान्त
किनाोंक
02.12.2019 तक सूचना मानन य उच्च
न्यायालय को प्रेकित क जान है। मानन य
उच्च न्यायालय द्वारा भकवष्य में भ समयवृन्धद्ध
न ककये जाने का कनिेि भ किया गया है।
अतः उपरोक्त तथ्योों एवों पररन्धथिकतयोों में वाि
का प्रािमना पत्र स्व कार ककये जाने योग्य नह ों
है। ति्नुसार प्रािमना पत्र कनरस्त ककया जाता
है।"

6. The order passed on the
application of the accused persons is
annexed to the supplementary affidavit
oat page 8 dated 20.11.2019, filed in
this application. The learned trial Court
rejected the application moved by the
accused
persons
for
recrossexamination of the witnesses as
fresh and the learned trial Court has
opined that if the trial is being
proceeded
without
affording
an
opportunity
to
cross-examine
the
prosecution witnesses to the accused
persons, there will be no adverse effect
on the accused persons and thereafter
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected the right of cross-examination
of the accused persons.

7. Learned counsel for the applicants
has submitted that the trial Court by not
affording the opportunity to cross-examine
the prosecution witnesses has committed
manifest error and has totally bypassed the
settled principles of law and by not
permitting the accused to cross-examine
the prosecution witnesses after amendment
of the charge which has been specifically
provided by the Sections 216 and 217
Cr.P.C.

8. He further submitted that initially
both the accused persons were charged
under Section 120-B read with Section 302
IPC and again charged under Section 120B
and 302 IPC and they were not charged
with the offence under Sections 147, 148,
149, 302 IPC. He further submits that
initially the charges were confined only to
the conspiracy and now by way of
amendment of the charge, substantial
change in the charges levelled earlier has
been made and a new role has been
assigned and attributed to the accused
persons by amending charge and the
accused persons were not able to defend
themselves legally and they have not been
provided and afforded an opportunity to
cross-examine the prosecution witnesses in
light of amended charges and their legal
rights have been curtailed and slashed by
the learned trial Judge.

9. Sri Swetashwa Agarwal, learned
counsel for the opposite party no.2 has not
disputed the fact that the charge was amended
and he has accepted that the charges were
already amended; and in the proper interest of
justice the accused should have been provided
the right to cross-examine which has never
been catered.

10. The provisions of Sections 216 and
217 of Code of Criminal Procedure, which are
relevant and necessary for just and proper
decision of the controversy, are reproduced
below:-

"216. Court may alter charge.

(1) Any Court may alter or add to
any charge at any time before judgment is
pronounced.

(2) Every such alteration or
addition shall be read and explained to the
accused.

(3) If the alteration or addition to a
charge is such that proceeding immediately
with the trial is not likely, in the opinion of the
Court, to prejudice the accused in his defence
or the prosecutor in the conduct of the case,
the Court may, in its discretion, after such
alteration or addition has been made, proceed
with the trial as if the altered or added charge
had been the original charge.

(4) If the alteration or addition is
such that proceeding immediately with the
trial is likely, in the opinion of the Court,
to prejudice the accused or the prosecutor
as aforesaid, the Court may either direct a
new trial or adjourn the trial for such
period as may be necessary. (5) If the
offence stated in the altered or added
charge is one for the prosecution of which
previous sanction is necessary, the case
shall not be proceeded with until such
sanction is obtained, unless sanction has
been already obtained for a prosecution on
the same facts as those on which the
altered or added charge is founded.

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
2 All. Smt. Rekha Vs. State of U.P. & Anr.
1571
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 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 subsection(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.

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.

11. When this Court applies the
aforesaid principles to the facts of this
application it emerges out that initially the
accused persons were charged for an
offence under Section 120B read with
Section 302 IPC and later on charges were
amended to Sections 147, 148, 149, 302
IPC and initially the accused persons were
considering that they had to defend
themselves against the charge with which
they were charged that is criminal
conspiracy, later on they were charged
with offence of murder they were charged
under Sections 147, 148, 149, 302 IPC
now they have to defend themselves under
the amended charge and the amended
charges are bound to create prejudice to
the applicants. In order to take care of the
said prejudice, it was incumbent upon the
prosecution
to
recall
the
witnesses,
examine them in the context of the charge
under Section 302 IPC and other relevant
sections and allowed the accused persons
to cross-examine the prosecution witnesses
in the light of amended charge.

12. In the present case, with the
framing of alternative charge, testimony of
those witnesses recorded prior to that date
could even be taken into consideration and
this Court is of the opinion that the
provisions of Sections 216 and 217 are
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
mandatory in nature as they not only subserve the requirement of principles of
natural justice but guarantee an important
right which is given to the accused persons
to defend themselves appropriately by
giving them full opportunity of crossexamination of the witnesses.

13. The credibility of any witness can
be established only after the said witness is
put to cross-examination by the accused
persons in connection with the charged
offence. In the instant case, no crossexamination of the prosecution witnesses
has taken place insofar as concerned
charge under Sections 147, 148, 149 and
302 IPC and if the accused persons are not
provided an opportunity to cross-examine
the prosecution witnesses then the trial
will be vitiated.

14. It is principle of natural law
that
nobody
will
be
condemned
unheard and proper and due hearing
should be provided to the accused and
the cross-examination is one of the
facet of due hearing which ought to be
provided to every accused to defend
himself of the charge being levelled
against him.

15. In Bhimanna Vs. State of
Karnataka reported in(2012) 9 SCC
650, it has been held:-

"19. It is a matter of great
regret that the trial court did not
proceed with the case in the correct
manner. If the trial Court was of the
view that there was sufficient evidence
on record against Yenkappa (A- 1) and
Suganna (A-3), which would make
them
liable
for
conviction
and
punishment for offences, other than
those under Section 447 and 504/34
IPC, the court was certainly not
helpless to alter/add the requisite
charges, at any stage prior to the
conclusion of the trial. Section 216 of
the Code of Criminal Procedure, 1973
(hereinafter
called
"Cr.P.C.")
empowers the trial Court to alter/add
charge(s), at any stage before the
conclusion of the trial. However, law
requires
that,
in
case
such
alteration/addition of charges causes
any prejudice, in any way to the
accused, there must be a fresh trial on
the said altered/new charges, and for
this purpose, the prosecution may also
be given an opportunity to recall
witnesses as required under Section
217 Cr.P.C."

16. After considering the rival
submissions and considering the facts
and circumstances of this case, this
Court deems it proper to direct that the
learned trial Court will provide an
opportunity to the applicants for crossexamination
of
the
prosecution
witnesses in the interest of justice and
will protect the constitutional rights of
due hearing and fair trial of the
accused. It is further directed that the
learned
trial
Court will
call
the
prosecution witness day by day and
will provide an opportunity to the
accused persons to cross-examine the
witnesses and it is also being directed
that the prosecution witnesses will
present as and when required by the
trial Court and the accused persons
will
not
take
any
unnecessary
adjournment, if the witnesses are
present in the Court. After providing
opportunity to the accused persons for
cross-examination of the prosecution
witnesses and after recording the
statements of the accused persons
2 All. Sonu Vs. State of U.P. & Anr.
1573
under Section 313 Cr.P.C., the learned
trial Court will pass the judgment.

17. The learned trial Court will not
act in haste in deciding this session trial
and the trial Court will follow and adhere
to the mandatory provisions of law.

18. With the above observations,
both the applications are finally disposed
of.
----------
(2020)02ILR A1573

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 44125 of 2019

Sonu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Bhaskar Bhadra

Counsel for the Opposite Parties:
A.G.A.

A. Criminal law - Code of Criminal
Procedure, 1973- Section 311 - Very object
of Section 311 is to bring on record evidence
not only from the point of view of accused and
prosecution but also from the point of view of
the orderly society .The court enjoys vast
power to summon any person as a witness or
recall and re-examine a witness provided same
is essentially required for just decision of the
case. Moreover, such exercise of power can be
at any stage of inquiry, trial or proceedings
under the Code, meaning thereby, applicant
can file an application at any time before
conclusion of trial.
The power of the Court to summon or reexamine any witness, under the exercise of its
powers u/s 311 Cr.Pc , is unfettered and can be
exercised at any stage of the trial in the
interest of justice.

B. Criminal Law - Code of Criminal Procedure,
1973- Section 311- Delay in re-examination of
Prosecution witness - Grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right. If substantial justice and technicalities
are pitted against each other, the cause of
substantial justice should not be defeated on
technicalities. No procedure in a Court of law should
be allowed to defeat the cause of substantial justice
on some technicalities.

Even though the trial court has allowed the
application for re-examination of a witness u/s 311
of the Cr.Pc after 19 years and after the evidence of
the prosecution has ended, the order of the trial
court is just and proper since delay being a
technicality, cannot defeat the ends of substantial
justice. ( Para 7, 11, 13)

Criminal Application rejected.

Case Law discussed:-

1. Raghunath Prasad Vs. Filed u/s 311 Cr.Pc St.
of Raj.,1997 LawSuit (Raj) 12 ( Distinguished)

2. Raja Ram Prasad Yadav Vs. St. of Bih. &
anr., (2013)14 SCC 461

3. Mannan SK & ors. Vs. St. of W.B & anr., AIR
(2014) SC 2950

4. Jai Jai Ram Manohar Lal Vs. National
Building Material Supply; AIR (1969) SC 1267

5. Ghanshyam Dass & ors. Vs. Dominion of
India & ors.; (1984) 3 SCC 46

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Bhaskar Bhadra,
learned counsel for the applicant and Mr.