Crl.Rev.No.1160 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No.1160 of 2009 (O&M) Date of decision: 2.3.2010 Dharmender @ Dhanna and others ......Petitioners Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepak Sharma, Advocate and Mr.V.C.Gautam, Advocate, for the petitioners. Mr.H.S.Beniwal, DAG, Haryana. Mr.Robin Dutt, Advocate, for the complainant. **** SABINA, J. This petition has been filed under Section 397 of the Code of Criminal Procedure (“Cr.P.C” for short) challenging the order dated 9.4.2009 passed by the Additional Sessions Judge-Jhajjar whereby application moved by the petitioners, under Sections 215 and 217 Cr.P.C. for recalling certain witnesses for further cross- examination on account of alteration of charge, was dismissed. Learned counsel for the petitioners has submitted that initially charge was framed against accused Dharmender @ Dhanna, Kuldeep @ Monu and Neetu Nihal on 20.4.2005. Thereafter, Crl.Rev.No.1160 of 2009 (O&M) 2 accused Rajesh @ Raju, Dinesh @ Datwa, Soni and Rajesh @ Mogli were arrested and charge was re-framed on 6.2.2006. The said charge was again amended on 19.12.2006 and the place of occurrence was mentioned as Shastri Nagar, Delhi from where the accused had allegedly kidnapped Rakesh Kumar Gupta (since deceased). After recording of the statements of the prosecution witnesses, the statements of accused under Section 313 Cr.P.C. were recorded on 17.11.2007. The case was adjourned for defence evidence. Thereafter, during the course of final arguments, the charge was again amended on 20.10.2008. The place of conspiracy for the offence punishable under Section 120-B IPC was mentioned as in the area of City Bahadurgarh. So far as offence under Section 364 read with Section 120-B IPC is concerned, the place of occurrence was stated to be in the area of Shastri Nagar, Delhi. So far as offence under Section 302 read with Section 120-B is concerned, the place of occurrence was mentioned as in the area of City Bahadurgarh. Learned counsel for the petitioners has further submitted that now due to amendment of charge, the petitioners wanted to further cross-examine PW-1 Devinder Gupta, PW-2 Hari Krishan, PW-5 Vipin Kumar, PW-23 ASI Sultan Singh and PW-24 DSP Samunder Singh. Learned State counsel, on the other hand, has opposed the petition. Section 217 reads as under:- Crl.Rev.No.1160 of 2009 (O&M) 3 Recall of witnesses when charge altered.- Wherever 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 for defeating the ends of justice. (b) also to call any further witness whom the Court may think to be material.” Thus, as per the above provision whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor as well as the accused are at liberty to recall or re- summon the witnesses already examined by the prosecution. The petitioners on account of alteration of charge want to further cross- examine PW-1, PW-2, PW-5, PW-23 and PW-24. Learned trial Court has erred in dismissing the application filed by the petitioners for recalling the said witnesses. Revision petition filed by Rajesh @ Mogli for his discharge was dismissed by this Court but the said decision would not have any binding on the present application in question moved by the petitioners seeking recalling of witnesses. The charge has been altered in this case at the stage of arguments Crl.Rev.No.1160 of 2009 (O&M) 4 but that does not mean that the compliance of Section 217 Cr.P.C. is to be bypassed. The purpose is that after the amendment of the charge prosecution as well as accused be given an opportunity to further examine the witnesses to enable them to examine or cross- examine the witnesses qua amendment of charge. In the present case the place of occurrence has been changed while amending the charge qua offence punishable under Sections 120-B IPC and 302 IPC read with Section 120-B IPC. Accordingly, this revision petition is allowed. The impugned order dated 9.4.2009 is set aside. Consequently, the application moved by the petitioners seeking recalling of witnesses PW-1, PW-2, PW-5, PW-23 and PW-24 for further cross-examination is allowed. SABINA) JUDGE Martch 02, 2010 anita