Sarthak Dixit And Another vs State Of U.P. And 2 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 120 of 2026
Sarthak Dixit And Another
.....Revisionist(s)
Versus
State Of U.P. And 2 Others
.....Opposite Party(s)
Counsel for Revisionist(s) : Rajesh Kumar Mishra, Rohit Shukla
Counsel for Opposite Party(s) : Aryan Srivastava, Chandra Shekhar, G.A.
Court No. - 85
HON'BLE MANOJ BAJAJ, J.
Petitioners are aggrieved against the order dated 27.08.2025 passed by
Additional District and sessions Judge/Special Judge (POCSO Act), Court
No.1 Budaun in connected Sessions Trial Nos.446, 448 and 465 of 2023,
titled State Vs. Chand Mohammad and others , arising out of connected Case
Crime Nos.351, 352 and 353 of 2022, under Sections 302, 147, 148, 149,
120-B, 452 and 212 I.P.C. and Sections 27/30 Arms Act, 1959 all registered
at Police Station Ushait, district Badaun, whereby their prayer for recalling
prosecution witnesses, PW-8 and PW-9 for examination on the ground of
alteration of charge has been dismissed.
Learned counsel for the petitioners has argued that the petitioners being
accused are facing the prosecution in murder trial, wherein charges against
them in S.T. Nos.446 and 448 of 2023 were framed on 21.04.2023 under
Sections 3/25(1)(1b) and Section 3/25 Arms Act, 1959 respectively. Learned
counsel has argued that after the commencement of trial, the prosecution
examined its witnesses including PW-8-S.I. Jitendra Singh and PW-9-
Awadhesh Kumar Singh, Inchrage Station House Officer, who were
associated with the investigation. He further submits that after examination
of ten witnesses, the charges in Sessions Trial Nos.446 and 448 of 2023
were altered vide order(s) dated 06.06.2025 and the petitioners were also
additionally charged for alleged commission of offence punishable under
Section 5/27 Arms Act, 1959. Learned counsel submits that since the
charges were altered by the trial court on its own, therefore, the accused-
petitioners moved an application seeking recalling of the two prosecution
witnesses, PW-8 and PW-9 for further cross-examination, but the said prayer
has been declined through the impugned order dated 27.08.2025.

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Sri Rohit Shukla, learned counsel for the petitioners has drawn the attention
of the Court to the impugned order dated 27.08.2025 to argue that the trial
court has not carefully analyzed the provisions of Section 217 Cr.P.C., and it
erroneously proceeded to dismiss the applications on the sole ground that the
accused are making an attempt to delay the trial proceedings. He prays that
the impugned order be set aside and the application for recalling PW-8 and
PW-9 be allowed.
The prayer is vehemently opposed by Sri Chandrashekhar, learned counsel
for the complainant on the ground that the alteration is not surprising the
accused with a new charge as in the original order framing charges against
the accused they were made aware that they had committed an offence under
Arms Act, 1959. That apart, learned counsel has argued that the order in
respect of recalling a witness is interlocutory in nature, therefore, such an
order is not revisable in view of the bar contained in section 397(2) Cr.P.C.
In this regard, learned counsel has relied upon the decision of Delhi High
Court in Neelam Mahajan and another Vs. The State of others, 2016(229)
DLT, 29, therefore, according to him, the revision petition be dismissed as
not maintainable.
Lastly, according to learned counsel for the complainant the cross-
examination of PW-8 and PW-9 already stood conducted by the accused at
length and all the questions regarding weapon and recovery etc. had already
been put to the witnesses, therefore, apparently, the recall of witnesses by
the accused-petitioners is aimed to delay the trial proceedings, and the trial
court has rightly declined the prayer. According to him, the impugned order
dated 27.08.2025 does not call for any interference by this Court in exercise
of revisional jurisdiction. He prays that the revision petition be dismissed.
Learned State Counsel has argued that the witnesses, PW-8 and PW-9 are
related to the alleged recovery of weapon of crime and they have already
been subjected to cross-examination by the petitioners, but during hearing it
is not disputed by the learned State Counsel that the charges against the
petitioners were altered after completion of their testimony.
After hearing learned counsel for the parties and considering their
submissions, this Court finds that as far as the facts of the case are
concerned, the same are not disputed, as concededly, initially the charges
against the petitioners were framed on 21.04.2023, and the offence

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punishable under Section 5/27 Arms Act, 1959 in the connected trials
bearing Sessions Trial No.446 and 448 of 2023 was added vide order(s)
dated 06.06.2025. As far as alteration of the charge under Section 216
Cr.P.C. is concerned, the trial court is vested with this power to alter the
charge, at any stage, before the pronouncement of judgment, if, evidence and
material on record suggests that necessary and relevant charge was not
framed against accused as a result of an omission. If, the power vested with
trial court under Section 216 Cr.P.C. is exercised, the safeguard for the
prosecution as well as the accused are also provided in the following Section
217 Cr.P.C.. The said section reads as under:
" Section 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."
A careful reading of the above section would show that whenever the charge
against the accused is altered by the trial court during the trial proceedings, a
right is vested with the prosecution as well as the accused to recall or re-
summon any witness, who has already been examined, and this permission
to recall or re-summon the witness can be denied, if it is for the purpose of
vexation or causing delay.
At this juncture, it is relevant to read Section 311 Cr.P.C., which is extracted below:
" Section 311. Power to summon material witness, or
examine person present :
Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a
witness, or examine any person in attendance, though not

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summoned as a witness, or recall and re-examine any person
already examined; and the Court shall summon and examine
or recall and re-examine any such person if his evidence
appears to it to be essential to the just decision of the case."
A plain reading of the above section makes it abundantly clear that this
provision empowers the trial Court to analyze the relevance and importance
of any person as a witness, in the context of the trial or other proceedings
pending before it, and if, in the considered opinion of the trial Court, the
summoning of the said person for examination as a witness or recall of a
witness already examined for the purposes of re-examination, appears to be
necessary in order to reach at just conclusion, the exercise of discretionary
power would be justified. It is needless to observe here that this power being
extra ordinary in nature cannot be invoked in a routine manner, but in
exceptional situations, keeping in mind the facts and other attending
circumstances of the case.
The comparison of above two provisions contained in Code of Criminal
Procedure would show that the above two sections are distinct in nature, as
the expression contained in Section 217 Cr.P.C. makes it absolutely clear
that whenever there is alteration of the charge, prosecution or the accused, as
the case may be, can seek indulgence of the trial court to re-summon or
recall any witness, who has already been examined. If, an order rejecting the
prayer of an accused to recall or re-summon the prosecution witnesses is
rejected, it may affect the right contemplated by Section 217 Cr.P.C.,
therefore, such an order cannot be construed as an interlocutory in nature
and the bar contained under Section 397(2) Cr.P.C. would not be attracted.
Thus, Section 217 Cr.P.C. cannot be equated with Section 311 Cr.P.C., as
the discretionary power vested with the trial court to recall, re-examine or
summon any witness during inquiry, trial or other proceedings under Code
of Criminal Procedure cannot be pressed as a right. An order under Section
311 Cr.P.C. is purely discretionary, therefore, such an order being
interlocutory in nature is not revisable, and the judgment relied upon by
learned counsel for the complainant also deals with an order under Section
311 Cr.P.C., wherein it is held that the revision is barred under Section 397
(2) Cr.P.C. As a result, the judgment in
Neelam Mahajan and another Vs.
The State and others, (Supra) is not applicable in this case.
Concededly, the testimonies of PW-8-S.I. Jitendra Singh and PW-9-

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Awadhesh Kumar Singh, Incharge Station House Officer started on
18.12.2024 and the same completed on 03.06.2025 when the cross-
examination of PW-9 concluded. The application by the petitioners, who are
in custody was moved promptly on 19.06.2025 after alteration of charge on
06.06.2025, therefore, it cannot be said that the petitioners-accused moved
this application with an object to delay the trial proceedings. Even otherwise,
the accused-petitioners are confined in custody since their arrest on
11.11.2022 and the delay in trial would adversely affect them, therefore, the
observation by the trial court in the impugned order that the accused have
moved this application to delay the trial court proceedings is erroneous.
No doubt, the original charge apprises the accused about alleged commission
of offence punishable under Arms Act also, but the omission to frame charge
against them under Section 5/27 Arms Act, 1959 is not attributed to the
accused, and once the trial court has altered the charge, the accused, are well
within their right to seek recall of the prosecution witnesses PW-8 and PW-9
for cross-examination, who were directly related to the investigation, as well
as the recovery of weapon. Similarly, the argument by learned counsel for
the complainant that as the two prosecution witnesses have already been
subjected to lengthy cross-examination and all material questions have
already been put to them, their further cross-examination may not be
necessary is also without any force, because not only the cross-examination
of these two witnesses is prior to alteration in charge, but even the two
different offences defined under Arms Act, 1959 carry different
punishments.
Further, while examining the issue conversely, there is nothing on record to
suggest ,that in case, the permission is granted to the accused to recall PW-8
and PW-9 any prejudice would be caused either to the complainant or
prosecution. Most importantly, Article 21 Constitution of India also
guarantees right to fair trial to the accused, and if, the permission is denied to
the accused , it may deprive them of their right to fair trial, therefore,
considering the entire background of the case as well as the law on the
subject, this Court has no hesitation in holding that the trial court vide
impugned order dated 27.08.2025 has committed a serious error of law in
refusing to recall two prosecution witnesses, PW-8-S.I.Jitendra Singh and
PW-9-Awadhesh Kumar Singh, Inchaerge Station House Offiocer under
Section 217 Cr.P.C.

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Resultantly, the revision petition succeeds, impugned order dated 27.08.2025
is set aside and it is ordered that the two witnesses be recalled for cross-
examination by the accused-petitioners.
May 26, 2026
R./
(Manoj Bajaj,J.)
Digitally signed by :-
RAJEEV KUMAR SACHDEVA
High Court of Judicature at Allahabad