State of Uttar Pradesh v. Hemlata Gupta alias Hema and others

Gupta alias Hema and others. The trial Court based upon the charge sheet framed the charges under Sections 365, 346, 306 I.P.C. on 09.11.2009.

5. During trial, in support of its case, the prosecution had examined fourteen witnesses. All these witnesses were also cross-examined by the accused. In the meanwhile, accused Onkar Nath Gupta died and as such, the trial was proceeded against two accused persons, namely, respondents no. 2 and 3. After completion of evidence, the trial Court had fixed the case for judgment on 03.06.2023, however, based on the evidence on record and on the strength of the provisions of Section 216 Cr.P.C., the trial Court had altered Section 306 I.P.C. into Section 305 I.P.C. and Section 5 of the Human Trafficking Act, 1956 and the case was fixed on 07.06.2023 for judgment.

6. Not being satisfied with the aforesaid alteration of offences, accused/respondents no. 2 and 3 had filed an application dated

05.06.2023 under Section 217 Cr.P.C. for providing opportunity for cross-examination from all the witnesses, which was rejected by the trial Court on 07.06.2023.

7. Feeling aggrieved by the aforesaid order dated 07.06.2023, respondent no.2 and 3 had approached this Court by filing Application U/S 482 No. 6227 of 2023 : Bhagwati Prasad Gupta and another Vs. State of U.P. and another. A Co-ordinate Bench of this Court, vide order dated 04.07.2023, allowed the aforesaid application under Section 482 Cr.P.C., set-aside the order dated 07.06.2023 and directed the trial Court to pass fresh order after considering the submissions of necessary parties.

8. In compliance of the aforesaid order dated 04.07.2023, the trial Court had considered the matter afresh and in absence of any objection, the trial Court directed to summon all the prosecution witnesses for cross-examination vide impugned

26.10.2023. Feeling aggrieved, applicant/complainant had filed application for recall of the order dated 26.10.2023, which was rejected by the trial Court vide order dated 17.12.2024, however, by the same order dated

17.12.2024, the trial Court allowed the application of the accused for summoning P.W.1 for cross-examination with cost of Rs.1000/-. Both the orders i.e. order dated 26.10.2023 and

17.12.2024 have been challenged in the present application by the applicant.

9. The provisions of Sections 216 and 217 of Code of Criminal Procedure are reproduced hereinbelow :- "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 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.”

10. A conjoint reading of Sections 216 and 217 Cr.P.C would show that the accused person who is charged with the additional charge ought not to be prejudice as far as his defence is concerned, inasmuch as, the new charges may carry implications which have not been covered in the evidence already recorded and for which the accused person ought to be given the opportunity to further cross-examine the witnesses in line with the new or altered charges. Similarly, the prosecution may also be prejudice by the new or altered charges for which the witnesses may have to be recalled to incorporate evidence in that regard. Section 217 of the Code has created provision to allow the prosecutor as well as the accused to recall or re- summon and examine the witnesses with reference to such alteration or addition.

11. The Hon'ble Supreme Court in the case of R. Rachaiah v. Home Secretary, Bangalore: (2016) 12 SCC 172, at paragraph 14 has held that :- "14... It hardly needs to be demonstrated that the provisions of Sections 216 and 217 are 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. Cross-examination of the witnesses, in the process is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross- examination by the accused person."

12. In this case, after recording the statement of all fourteen prosecution witnesses, charges have been altered. At this stage, respondents no. 2 and 3/accused have filed application before the trial Court for summoning the prosecution witnesses for re- cross-examination, however, the same was rejected vide order dated 07.06.2023, which was assailed by the accused in Application U/S 482 No. 6227 of 2023. A Co-ordinate Bench of this Court, vide order dated 04.07.2023, allowed the said application under Section 482 Cr.P.C., set-aside the order dated

04.07.2023 and directed the trial Court to pass fresh order after considering the submissions of the necessary parties. It appears that in compliance of the aforesaid order dated 04.07.2023, the trial Court had considered the mater afresh and while considering it, the trial Court has passed the order dated

26.10.2023, directing to summon all the prosecution witnesses.

13. Having regard to the aforesaid facts and circumstances of the case and also considering the aforesaid provisions, this Court is of the view that there is no illegality or perversity in the impugned orders passed by the trial Court.

14. However, this Court hope and trust that the trial Court shall call the prosecution witnesses on day-to-day basis and shall provide an opportunity to the accused persons to cross-examine the witnesses. In the event, the Counsel representing the accused fails to examine the witnesses on any date without any reasonable/plausible grounds, the trial Court shall proceed in the matter without giving any further opportunity to the accused to lead their evidence.

15. Since the records indicate that the matter is oldest one, the trial Court is directed to take up the matter on day-to-day basis and dispose of the trial as early as possible but not later than six months from the date of receipt of a copy of this order.

16. The present application under Section 482 Cr.P.C. stands disposed of finally.

17. Senior Registrar of this Court is directed to communicate this order to the District Judge, Lucknow for information and compliance. . Order Date :- 3.7.2025 Ajit/Arnima (Om Prakash Shukla, J.) AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Gupta alias Hema and others. The trial Court based upon the charge sheet framed the charges under Sections 365, 346, 306 I.P.C. on 09.11.2009.

5. During trial, in support of its case, the prosecution had examined fourteen witnesses. All these witnesses were also cross-examined by the accused. In the meanwhile, accused Onkar Nath Gupta died and as such, the trial was proceeded against two accused persons, namely, respondents no. 2 and 3. After completion of evidence, the trial Court had fixed the case for judgment on 03.06.2023, however, based on the evidence on record and on the strength of the provisions of Section 216 Cr.P.C., the trial Court had altered Section 306 I.P.C. into Section 305 I.P.C. and Section 5 of the Human Trafficking Act, 1956 and the case was fixed on 07.06.2023 for judgment.

6. Not being satisfied with the aforesaid alteration of offences, accused/respondents no. 2 and 3 had filed an application dated

05.06.2023 under Section 217 Cr.P.C. for providing opportunity for cross-examination from all the witnesses, which was rejected by the trial Court on 07.06.2023.

7. Feeling aggrieved by the aforesaid order dated 07.06.2023, respondent no.2 and 3 had approached this Court by filing Application U/S 482 No. 6227 of 2023 : Bhagwati Prasad Gupta and another Vs. State of U.P. and another. A Co-ordinate Bench of this Court, vide order dated 04.07.2023, allowed the aforesaid application under Section 482 Cr.P.C., set-aside the order dated 07.06.2023 and directed the trial Court to pass fresh order after considering the submissions of necessary parties.

8. In compliance of the aforesaid order dated 04.07.2023, the trial Court had considered the matter afresh and in absence of any objection, the trial Court directed to summon all the prosecution witnesses for cross-examination vide impugned

26.10.2023. Feeling aggrieved, applicant/complainant had filed application for recall of the order dated 26.10.2023, which was rejected by the trial Court vide order dated 17.12.2024, however, by the same order dated

17.12.2024, the trial Court allowed the application of the accused for summoning P.W.1 for cross-examination with cost of Rs.1000/-. Both the orders i.e. order dated 26.10.2023 and

17.12.2024 have been challenged in the present application by the applicant.

9. The provisions of Sections 216 and 217 of Code of Criminal Procedure are reproduced hereinbelow :- "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 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.”

10. A conjoint reading of Sections 216 and 217 Cr.P.C would show that the accused person who is charged with the additional charge ought not to be prejudice as far as his defence is concerned, inasmuch as, the new charges may carry implications which have not been covered in the evidence already recorded and for which the accused person ought to be given the opportunity to further cross-examine the witnesses in line with the new or altered charges. Similarly, the prosecution may also be prejudice by the new or altered charges for which the witnesses may have to be recalled to incorporate evidence in that regard. Section 217 of the Code has created provision to allow the prosecutor as well as the accused to recall or re- summon and examine the witnesses with reference to such alteration or addition.

11. The Hon'ble Supreme Court in the case of R. Rachaiah v. Home Secretary, Bangalore: (2016) 12 SCC 172, at paragraph 14 has held that :- "14... It hardly needs to be demonstrated that the provisions of Sections 216 and 217 are 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. Cross-examination of the witnesses, in the process is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross- examination by the accused person."

12. In this case, after recording the statement of all fourteen prosecution witnesses, charges have been altered. At this stage, respondents no. 2 and 3/accused have filed application before the trial Court for summoning the prosecution witnesses for re- cross-examination, however, the same was rejected vide order dated 07.06.2023, which was assailed by the accused in Application U/S 482 No. 6227 of 2023. A Co-ordinate Bench of this Court, vide order dated 04.07.2023, allowed the said application under Section 482 Cr.P.C., set-aside the order dated

04.07.2023 and directed the trial Court to pass fresh order after considering the submissions of the necessary parties. It appears that in compliance of the aforesaid order dated 04.07.2023, the trial Court had considered the mater afresh and while considering it, the trial Court has passed the order dated

26.10.2023, directing to summon all the prosecution witnesses.

13. Having regard to the aforesaid facts and circumstances of the case and also considering the aforesaid provisions, this Court is of the view that there is no illegality or perversity in the impugned orders passed by the trial Court.

14. However, this Court hope and trust that the trial Court shall call the prosecution witnesses on day-to-day basis and shall provide an opportunity to the accused persons to cross-examine the witnesses. In the event, the Counsel representing the accused fails to examine the witnesses on any date without any reasonable/plausible grounds, the trial Court shall proceed in the matter without giving any further opportunity to the accused to lead their evidence.

15. Since the records indicate that the matter is oldest one, the trial Court is directed to take up the matter on day-to-day basis and dispose of the trial as early as possible but not later than six months from the date of receipt of a copy of this order.

16. The present application under Section 482 Cr.P.C. stands disposed of finally.

17. Senior Registrar of this Court is directed to communicate this order to the District Judge, Lucknow for information and compliance. . Order Date :- 3.7.2025 Ajit/Arnima (Om Prakash Shukla, J.) AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench