Alteration of charge ordinarily mandates recalling examined witnesses for limited further cross-examination.

The petitioner was the sole accused in C.C. No. 284 of 2016 pending before the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha, arising from Crime No. V.C. 03/2010 of the VACB, Ernakulam.

During the examination of PW1 on 23 August 2025, the witness deposed that the petitioner had demanded money on 23 January 2010, 27 January 2010 and 28 January 2010. However, the charge originally framed did not include the alleged demand dated 28 January 2010.

On the prosecution’s application under Crl.M.P. No. 1820 of 2026, the trial court altered the charge to incorporate the alleged demand on 28 January 2010.

The petitioner thereafter sought recall of PW1 for further cross-examination with reference to the altered charge. The Special Judge rejected the application, holding that the accused had already cross-examined PW1 regarding the incident and that recalling him would delay the trial.

Whether, after alteration of the charge during trial to include the alleged demand dated 28 January 2010, the accused was entitled to recall PW1 for further cross-examination with reference to the altered charge under Section 217 Cr.P.C. / Section 240 BNSS

Whether the trial court was justified in refusing recall on the grounds that the accused had already had an opportunity to cross-examine PW1 and that recall would cause delay

The Court applied Section 217 of the Code of Criminal Procedure, 1973, which provides that when a charge is altered or added after commencement of trial, the prosecutor and accused shall ordinarily be permitted to recall and examine previously examined witnesses with reference to the alteration; recall may be refused only for recorded reasons where it is sought for vexation, delay or defeating the ends of justice.

The Court held that Section 240 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is pari materia with Section 217 Cr.P.C.

The statutory scheme makes recall the general rule to ensure a fair trial, while the power to refuse recall is an exceptional discretion that must not be exercised routinely so as to render the provision ineffective.

The High Court held that the alteration of the charge materially incorporated the alleged demand dated 28 January 2010 as an additional date of demand.

Although PW1 had referred to that date in his examination-in-chief and certain suggestions had been put to him in cross-examination, the High Court found that there had been no effective cross-examination specifically addressing the allegation as an ingredient of the altered charge.

Therefore, the accused’s statutory right to recall PW1 was not displaced merely because the witness had previously been questioned generally about the incident.

The trial court’s reliance on the possibility of delay was insufficient, since the exception under Section 217(a) could be invoked only in an exceptional case where recall was intended for vexation, delay or to defeat the ends of justice.

To secure a fair trial, the accused was required to be given a limited opportunity to cross-examine PW1 concerning the demand allegedly made on 28 January 2010.

The trial court was directed to recall PW1 and permit the petitioner to cross-examine him only on the alleged demand dated 28 January 2010, without allowing unrelated questions.

The Special Judge was permitted to secure PW1’s physical presence or, if that was not feasible, conduct the examination through video conferencing.

The recall and limited cross-examination were directed to be completed within ten days from receipt of the judgment.