IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14548 of 2011 Bijay Jha Versus The State Of Bihar ----------- 2/ 26-09-2011 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. Petitioner/accused being aggrieved and dissatisfied with the order passed by the Additional Sessions Judge, FTC- II, Banka in Sessions Trial No. 298/2008 whereby and whereunder learned Sessions Judge had rejected the petition filed by the petitioner, has filed the instant petition. Simple submission on behalf of the petitioner is that after addition of the charge, a right vested to him has accrued to recall the PW in defence of his plea, so far, confining the addition of the charge is concerned. Non providing the opportunity by the learned lower court has really and will cause prejudice to his interest. So submitted that the order impugned is fit to be set aside. On the other hand, learned APP opposes the prayer and submitted that the reason whatever been for declining the prayer of the petitioner by the lower court, is itself incorporated in the order impugned and that justifies the finding of the learned lower court. 2 From the order impugned whatever transpires that coming at the fag end of the trial, it has been pointed out by the prosecution that though the case was registered under Section 27 of the Arms Act along with other Sections of the penal law, the charge-sheet was submitted there-under followed with taking of cognizance which, inadvertently been missed while framing of charge. Later on, the aforesaid laches have been detected which resulted in filing of a petition by the prosecution for addition of the charge and the same has been done. Now, the sole question happens to be before the Court whether the witnesses should be recalled. From the two provisions available in the Cr.P.C. on this score and those are Section 216 as well as 217 of the Cr.P.C. out of which Sub- section 3 of Section 216 of the Cr.P.C. gives a special theme to the Court to refuse the prayer in case the aforesaid addition is not going to prejudice the interest of the accused. Therefore, as per Section 216, Sub-section 3 of the Cr.P.C, a duty is cast upon the shoulder of the Court to see that no prejudice is caused by way of addition of charge. There are other grounds also enumerated under Section 217(a) of the Cr.P.C for refusal but the main ingredients happen to be that no prejudice should be caused to the accused in the aforesaid background. 3 Moreover, by Section 464 of the Cr.P.C., a protection has been given over challenging the proceeding conducted by the lower court before the higher Court in an appeal or revision, whichever may be, with certain laxity but again the interest of the accused appears to be of paramount consideration. Therefore, even though by addition of Section 27(i) of the Arms Act, the basic feature of prosecution case is not going to change but after all, it is the interest of the accused which is to be seen and protected till held contrary by the court. As such, the order impugned is set aside. Consequent thereupon, the petition is allowed. The learned lower court is directed to recall the material witnesses only for further cross-examination confining addition of charge for which the accused only found entitled to cross-examine. perwez (Aditya Kumar Trivedi,J.) 4