JUDGMENT M.K. Mittal, J.
1. This application has been filed under Section 482 Cr.P.C. to quash the amended charge dated 4.1.1994, order dated 21.4.2003, 14.12.2005 and the entire proceedings in Sessions Trial No. 195 of 1991 State v. Mansur Ahmad and Ors. under Sections 302, 307, 34, IPC, P.S. Dhumanganj, District Allahabad, pending in the Court of Addl. Sessions Judge, Room No. 2 Allahabad.
2. Heard Sri L. K. Pandey, learned Counsel for the applicants, learned A.G.A. and perused the record.
3. Brief facts of the case are that the complainant Maqbool Ahmad filed an F.I.R. on 9.6.1990 alleging that the accused applicants fired with their guns at his father Mehboob, his brother Mashooq Ahmad and Puddan. In this incident, Mashooq Ahmad died at the spot, Mahboob died in the hospital and Puddan also received firearm injuries. After investigation charge sheet was submitted and charges were framed on 4.1.1994. The parties led their evidence and arguments were heard and the case was fixed for judgement. Before delivery of judgement, learned Sessions Judge on 21.4.2003 found that there was some clerical mistake in the charge and that additional charge was also to be framed. Consequently he amended the charge as framed on 4.1.1994 and in place of Suddan, Puddan was substituted as the name of the injured person. Learned Judge also framed additional charge No. 3 which was read over and explained to the accused applicants.
4. Learned Trial Court asked the prosecutor if he wanted to give any additional evidence and the learned A.D.G.C. (Crl) stated that no further evidence was to be given. Learned Counsel for the accused appellants, was also asked if he wanted to further cross examine any witness and he expressed his desire to further cross examine the witnesses and therefore the date was fixed for evidence and the prosecutor was directed to produce the witnesses already examined. Inspite of sufficient time given to prosecution, it could not produce the witnesses and on 19.10.2005 witness P.W.-l was present but was not produced for cross examination and learned Trial Court fixed 25.10.2005 for arguments in the case. Thereafter learned Counsel for the State moved an application on 10.11.2005 for setting aside/recalling the order dated 19.10.2005 whereby the evidence was closed and prayed that prosecution be allowed to produce the witness P.W.-l Maqbool Ahmad for further cross examination. Learned Trial Court by order dated 10.11.2005 allowed this application and directed that Maqbool Ahmad shall appear on 11.11.2005 for cross examination as learned defence counsel was not feeling well on 10.11.2005 and was unable to cross examine the witness on that date. On 11.11.2005, P.W.-l Maqbool Ahmad was present and was further cross examined by the defence. Since other witnesses were not present, application for adjournment was filed by the learned State counsel and hearing was adjourned.
5. On 16.11.2005, accused moved an application for rejection of the application filed by the learned State Counsel as the prosecution evidence had been closed and the order was final and the witnesses could not be recalled under Section 311 Cr.P.C. as this provision could not be used to fill the lacuna of the prosecution. On 21.11.2005, P.W.-2 Puddan was present in the Court and application was filed by the learned State Counsel for permitting his further cross examination. Time was taken by the accused for filing objection. Learned Trial Court by impugned order dated 14.12.2005 allowed the application filed by the State counsel on the ground that after the framing of the additional charge, Court was required to give opportunity for further cross examination to the witnesses. It was directed that in compliance of the order dated 21.4.2003, it was necessary that the witnesses be further cross examined. Accused wanted time to file a petition against this order in the High Court and the learned Trial Court passed a separate order the same day that since defence counsel was showing his inability to cross examine P.W.-2 and the case very old i.e. of the year 1991, therefore, he closed the opportunity of the defence for further cross examination of Puddan P.W.-2. Feeling aggrieved this application has been filed.
6. Learned Counsel for the applicants has contended that the learned Trial Court did not read and explain the amended charge as required under law and that the application of the learned State counsel was wrongly allowed after it had closed the evidence and that the opportunity to cross examine Puddan has been wrongly denied and that a de-novo trial is required.
7. Learned Counsel for the State has contended that the amendment under the Charge was of clerical nature and it did not prejudice or adversely affect the accused persons as they knew the name of the injured person. He has also contended that after framing of additional charge opportunity has to be given to the defence to further cross examine the witnesses and the same was give and the order dated 19.10.2005 was not a legal order as the opportunity could not be denied. He has also contended that this order did not become final under Section 362 Cr.P.C. as argued by the learned Counsel for the applicants and the opportunity for further cross examination of P.W.-2 Puddan can be given although the defence did not cross examine Puddan P.W.-2 on 14.12.2005. He has also contended that there is no ground for de novo trial
8. In this connection, it is relevant to mention sections 215, 216 and 217 Cr.P.C. Section 215 Cr.P.C. reads as under:
No error in stating either the offence or the, particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
9. Under Section 216 Cr.P.C. the court may alter or add to any charge at any time before judgement is pronounced and every such alteration or addition has to be read and explained to the accused.
10. Section 217 Cr.P.C. provides that whenever a charge is altered or added by the Court after the commencement of the Trial, the prosecutor and the accused shall be allowed 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 the reasons to be record 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 or to call any further witness the Court may think to be material.
11. In the instant case, charge was amended by substituting the name of Puddan in place of Suddan. Section 215 provides that no error in stating either the offence or the particular required to be stated in the charge shall be material unless such error or omission misleads accused or results in failure of justice. In the charge the substitution of the name was not very material as the accused knew from the beginning the prosecution case as to who was injured. If there is no specific order showing that this amendment was read over and explained to accused, it is not material as it is not the case of the accused that they have been mislead or it has resulted in failure of justice. The accused have taken this plea for the first time in application under Section 482 Cr.P.C. regarding this amendment although they have been agitating in the lower Court in connection with the addition of the charge. They did not take any such plea therefore this contention of the learned Counsel for the applicants is not acceptable. Moreover no prejudice having been caused to the accused, it does not adversely effect the proceedings in the case.
12. Learned Counsel for the applicants has further contended that learned Trial Court had no power to recall the witness under Section 311 Cr.P.C. for further cross examine as the order closing the evidence had become final under Section 362 Cr.P.C. But this contention of the learned Counsel for the applicants is again not tenable. Section 362 Cr.P.C. requires that no Court when it has signed its judgement or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. In the instant case, opportunity was given to the accused for further cross examination of the witnesses in view of Section 217 Cr.P.C. It is mandatory requirement and the closure of the evidence is not a final order as the Court has power to recall the witnesses at any stage of the trial if it considers it necessary in the interest of justice. Therefore if the order dated 19.10.2005 was passed for final argument, it was not a final order and was against the provision of Section 217 Cr.P.C and could certainly be recalled by the learned Trial Court as has been done in this case. It is also important to note that after the recall of that order, accused further cross examined P.W.-l. When prosecution moved application for summoning other witnesses, the objection was filed by the accused persons raising the plea that the order could not be recalled. Therefore there is no ground to set aside the orders dated 21.4.2003 and 19.10.2005.
13. Learned Trial Court after rejecting the objection of the accused persons denied opportunity for further cross examination of P.W.-2 Puddan, on the ground that case was very old. This order was passed when the application was filed by the applicants that they wanted to file petition in this Court against the rejection of their objection. It is correct that case is very old but when the learned Trial Court had given opportunity for further cross examination of the witnesses and when the accused wanted some time for filing the petition in this Court against the order passed against them, one opportunity could have been given to the accused persons and in my opinion, learned Trial Court has erred in closing the evidence of P.W.-2. Therefore this application is to be partly allowed to the extent that opportunity shall be given to the accused for further cross examination of P.W.-2 also. Rest of the order as passed on 14.12.2005 does not need any interference.
14. Application is finally disposed of with the direction that learned Trial Court shall summon the prosecution witness P.W.-2 and other witnesses except P.W.-l and shall give an opportunity to the accused to further cross examine those witnesses. Since the case is very old, it is expected that both the parties shall cooperate in expeditious hearing of the case. If the witnesses are present and the learned Trial court finds that the accused are not further cross examining for insufficient reasons, it can close their evidence. Learned Trial Court shall try to conclude the trial while proceedings under Section 309 Cr.P.C. within two months from the date the copy of this order is received by it. Copy by sent within a week.