Recall and examination of any witness who may have been earlier examined, after addition or alteration of a charge

Undoubtedly,   Section   217   of   the   Code   provides   for 
recall and examination of any witness who may have been earlier 
examined, after the addition or alteration of a charge.  The normal 
rule   laid   down   by   the   said   Section   is   recall   of   the   witness   for 
further examination and/or   cross examination, as the case may 

be,   consequent   upon   alteration   or   addition   of   the   charge. 
However, the Section also retains the power of the Court to refuse 
to recall, re­summon or re­examine the witness who has already 
been   examined,   in   limited   circumstances   :­   i.e.   if   the   Court 
considers   that   recall   and   proposed   re­examination   is   for   the 
Coming   to   the   facts   of   this   case,   admittedly,   the 


purpose of vexation, or delay, or for defeating the ends of justice.1
CRIMINAL REVISION APPLICATION NO. 146 OF 2013
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE OF BOMBAY

The State of Maharashtra,

VERSUS


Shrikant Bandu Bhojne


CORAM : ABHAY M. THIPSAY, J.
Dated: August 27, 2013

Citation; 2013 ALL M R(CRI)3831

1.
Heard.   By consent, admitted and taken up for final 
hearing forthwith.  By consent, calling for Record and Proceedings 
dispensed with.

The respondent is the sole accused in Sessions Case 
2.

No.116/2010 pending before the Sessions Court, at Parbhani.   In 
that case, the First Information Report came to be lodged on the 
allegations that the respondent herein and one Suresh Shelke had 
committed   the   offences   punishable   under   Sections   376   of   the 
Indian Penal Code and 366 of the Indian Penal Code read with 

Section   34   of   Indian   Penal   Code.   After   investigation,   the 
Investigating   Agency   filed   charge   sheet   only   against   the 
respondent alleging the commission of offences punishable under 
Sections 376 of Indian Penal Code and 366 of Indian Penal Code 
by   the   respondent.     The   charge   of   offences   punishable   under 
Sections 376 of Indian Penal Code and 366 of Indian Penal Code 
was framed on 20.4.2011 and the case was kept for recording of 
evidence.   After the evidence of the victim – the first witness for 
prosecution ­ was recorded, the prosecution filed an application 
before the Trial Court requesting the Court to frame an additional 
charge in the matter. The Court, however, completed the recording 
of the evidence of the victim – PW1.  After cross examination of the 
victim was over, prosecution filed an application (Exh.11) praying 

that the prosecution be permitted to re­examine the P.W.1.   The 
Court, however, rejected the same by an order dated  11.08.2011. 
The  Court  framed  an  additional charge in  respect  of  an offence 
punishable under Section 417 of Indian Penal Code on  17.8.2011 
against the respondent. The prosecution then made an application 
(Exh.12) for  recall  of PW  1 for  the purpose of re­examining  her. 

The Court, however, rejected said application by an order  dated 
18.08.2011.
Being   aggrieved   by   the   orders   dated   11.8.2011   and 
3.
18.8.2011   passed   by   the   learned   Additional   Sessions   Judge­2, 
Parbhani,   the   State   of   Maharashtra   has   approached   this   Court 
invoking its revisional jurisdiction and challenging the said orders.
4.
I   have   heard   Mr.   K.S.Patil,   learned   APP   for   the 
applicant­State. I have heard Mr.S.S.Rathi, learned counsel for the 
respondent original accused.   With their assistance, I have gone 
through   the   revision   application   and   all   the   annexures   thereto, 
including the the notes of evidence of the victim as recorded in the 
trial Court. 
5.
It   may   be   recalled   that   the   charge   sheet   was   filed 

against   the   respondent   alleging   the   commission   of   offences 
punishable under Sections 376 of the Indian Penal Code and 366 
of the Indian Penal Code, but in the course of the examination­in­
chief  itself,  the victim  stated that  the respondent  (accused)   had 
promised her that he would marry her and that had asked her to 
go with him.   The victim said that she had fallen a prey to the 

promise of the respondent and had gone with him to Surat.  She 
also stated in her evidence that respondent had sexual intercourse 
6.
with her from time to time at Surat under the promise of marriage.
Apparently, in view of this evidence of the victim, the 
prosecution felt it advisable to make an application for addition of 
a charge of an offence punishable under Section 417 of the Indian 
Penal Code.  After the Court had added the said charge, prayer for 
recall of the victim was made.
7.
Undoubtedly,   Section   217   of   the   Code   provides   for 
recall and examination of any witness who may have been earlier 
examined, after the addition or alteration of a charge.  The normal 
rule   laid   down   by   the   said   Section   is   recall   of   the   witness   for 
further examination and/or   cross examination, as the case may 

be,   consequent   upon   alteration   or   addition   of   the   charge. 
However, the Section also retains the power of the Court to refuse 
to recall, re­summon or re­examine the witness who has already 
been   examined,   in   limited   circumstances   :­   i.e.   if   the   Court 
considers   that   recall   and   proposed   re­examination   is   for   the 
Coming   to   the   facts   of   this   case,   admittedly,   the 

8.
purpose of vexation, or delay, or for defeating the ends of justice.
application   filed   by   the   prosecution   for   re­examination   of   the 
victim   had   already   been   rejected   by   the   trial   Court.     In   my 
opinion,   therefore,   under   these   circumstances   only   because   a 
charge was added subsequently, the prosecution was not entitled 
to seek the recall of the victim, as a matter of right and the Court 
could have examined whether it was a case of circumventing the 
previous   order   passed   by   it   viz.   of   refusing   permission   to   re­
examine the PW 1.  
9.
However,   the  State,  by   this  revision  application,  has 
also challenged the initial decision of the trial court not to permit 
re­examination of the victim.   That  order  therefore, needs to be 
considered independently.

It appears that the Public Prosecutor in charge of the 
10.

matter, formulated the questions that would be put to the victim 
in   the   re­examination.     I   have  gone   through   the   said   questions 
which were mentioned in the application (Exh.11) filed before the 
trial court.  
After hearing the learned APP and learned counsel for 
11.

respondent, the question no.1 proposed to be asked seems to be 
totally unnecessary and not relevant.  As regards question No.2, it 
appears that only the reason for not stating certain things to the 
police   (which   have   been   brought   on   record   as   omissions)   are 
sought to be obtained from the victim.   Considering the object of 
re­examination,  there  seems  to be no  bar  to  permit   this  line  of 
questioning.     Needless   to   say,   that   witness   thereafter   would   be 
subjected   to  further   cross  examination  on  the  basis  of   answers 
which   would   be   elucidated   on   the   basis   of   the   questions. 
Similarly, the question No.3 and question No.4 in the application 
(Exh.11) are also basically clarificatory and seek to elucidate some 
clarification   from   the   victim   with   respect   to   the   facts   already 
deposed   to   by   her.     These   questions   cannot   be   said   to   be 

Thus, in my opinion, though the underhand manner 
12.
impermissible in the re­examination.
in   which   the   prosecution   sought   to   nullify   the   effect   of   order 
passed by the trial Court refusing permission to re­examine the 
victim   was   not   proper   and   though,   the   prosecution   under   the 
circumstances   was   not   entitled   to   re­call   the   victim   for   re­

examination   only   on   the   ground  of  an   additional  charge  having 
been   framed,   still,   in   the   first   place,   the   trial   court   should   not 
have refused permission to re­examine the victim ­ at least for the 
purpose of putting questions mentioned at serial nos. 2, 3 and 4 
in the application at Exh.11.
13.
The   net   result   of   the   aforesaid   discussion   is   that 
Revision Application needs to be partly allowed.
14.
The orders dated 11.8.2011 and 18.8.2011 passed by 
the   trial   Court   below   applications   at   Exh.11   and   Exh.12, 
respectively,   are   set   aside   and   are   substituted   by   the   following 
order.
The   Trial   Court   shall   permit   the 
prosecution to recall the PW 1 for the purpose of re­
examining   her   by   putting   the   questions   mentioned   at 

Serial Nos.2,3 and 4 in the application at Exh.11, or 
any   other   questions   as   may   arise   purely   from   the 
answers given to the said questions.  Needless to say 
that the respondent shall be entitled to cross examine 
PW 1 further after her re­examination.”  
Revision   Application   is   disposed   of   in   the   aforesaid 
15.

terms.
JUDGE

       ( ABHAY M. THIPSAY )
            

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