IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.MC.No. 1396 of 2010() ------------------------- AGAINST THE ORDER DATED 13/04/2010 IN CRMP 259,260,261,262/10 IN SC.885/2006 of ADDL. SESSIONS COURT, VADAKARA .................... PETITIONERS: 4TH AND 5TH ACCUSED. ----------------------------------- 1. JYOTHISH KUMAR, S/O. KUNHIKANNAN, VAZHAYIL HOUSE, VYTHIRI, CHUNDEL, WAYAND DISTRICT. 2. JIJI, S/O. VARKEY, MULANHIYIL HOUSE, SUGHANDHAGIRI, VYTHIRI, WAYANAD DISTRICT. BY ADV. SRI.DEVAPRASANTH.P.J. RESPONDENT: COMPLAINANT. --------------------------- STATE OF KERALA, REPRESENTED BY CBCID, KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/06/2010, ALONG WITH Crl.M.C.No.1408/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------------------ Crl.M.C.Nos.1396 & 1408 of 2010 ------------------------------------------------- Dated this the 23rd day of June, 2010 ORDER Criminal M.C.No.1396/2010 is filed by accused Nos.4 & 5 and Criminal M.C.No.1408/2010 is filed by accused Nos.6 & 7 in Sessions Case No.885/2006 on the file of the Additional Sessions Court (Vadakara). They challenge the order dated 13/4/2010 passed by the Sessions Judge dismissing their applications to re-summon and re-examine Pws.1 to 126. In the case of A1, the court below felt that he should be given an opportunity to further cross-examine the prosecution witnesses since the original court charge contained a mistake to the effect that it was the first accused who had given a push to driver Sivan when as a matter of fact driver Sivan was charge witness No.1. 2. The learned Judge was of the view that the order amending the charge contained only the aforesaid mistake entitling the first accused re-summon the prosecution witnesses and that there was nothing new in the amended charge entitling the petitioners to re-summon the prosecution witnesses. Crl.M.C.Nos.1396 & 1408/2010 : 2 : 3. Annexure-I is the original charge framed by the court on 22/2/2007. Annexure-II is the amended charge dated 9-4-2010. Going by the original charge framed by the court it was only A4 to A7 along with absconding accused Haneefa who had hatched the criminal conspiracy falling under Section 120B of I.P.C. But going by Annexure-II amended charge dated 9/4/2010 A4 to A7 along with absconding accused Haneefa @ Kuttappu had conspired with A1 to A3 and A8 along with three other absconding accused from 8/2/2006 to 11/2/2006. To this extent the amended charge included more number of conspirators and had also mentioned the period of conspiracy from 8/2/2006 to 11/2/2006. Hence the court below was not justified in saying that only a typographical mistake in the original charge which necessitated the charge to be amended. The amended charge has substantially improved upon the number of conspirators and the period of conspiracy hatched. If so, it was not a cosmetic change which was brought about in the original charge so as to deprive the petitioners of their right to re-summon witnesses within the meaning of Section 217(a) of Code of Criminal Procedure. Crl.M.C.Nos.1396 & 1408/2010 : 3 : The learned counsel for the petitioners conceded before me that they do not want all the 126 prosecution witnesses to be re-called for further cross-examination and that they will confine their request to re-call only a maximum number of four prosecution witnesses whose names will be furnished before the court below within ten days from today. The above submission is recorded. These Criminal M.Cs. are disposed of as above and the order dated 13/4/2010 passed by the Additional Sessions Court shall stand modified accordingly. V.RAMKUMAR, JUDGE skj