Right to recall witnesses under Section 217 Cr.P.C. is mandatory upon alteration of charges.

The petitioners are accused in a murder trial (Sessions Trial Nos. 446, 448, and 465 of 2023) involving charges under Sections 302, 147, 148, 149, 120-B, 452, and 212 of the IPC.

Initially, on April 21, 2023, charges under the Arms Act, 1959, were framed under Sections 3/25.

After ten prosecution witnesses were examined—including investigating officers PW-8 (S.I. Jitendra Singh) and PW-9 (SHO Awadhesh Kumar Singh)—the trial court altered the charges on June 6, 2025, adding Section 5/27 of the Arms Act.

The petitioners moved an application under Section 217 of the Cr.P.C. to recall PW-8 and PW-9 for further cross-examination regarding the altered charges.

The trial court dismissed this application via an order dated August 27, 2025, citing that the request was a tactic to delay the trial.

The court primarily applied Section 217 of the Cr.P.C., which mandates that when a charge is altered or added to after the commencement of trial, the court shall allow the accused to recall or re-summon witnesses unless it considers the request is for vexation or delay.

Section 311 Cr.P.C., which provides general discretionary power to the court to summon material witnesses at any stage.

Section 397(2) Cr.P.C., which bars revisions against interlocutory orders, noting that orders affecting substantive rights under Section 217 are not purely interlocutory.

The court also invoked Section 397(2) Cr.P.C., which bars revisions against interlocutory orders, noting that orders affecting substantive rights under Section 217 are not purely interlocutory.

The court relied on the guarantee of a fair trial under Article 21 of the Constitution of India.

The court reasoned that Section 217 Cr.P.C. creates a specific statutory right for the accused that is distinct from the discretionary power under Section 311 Cr.P.C.

While Section 311 orders are interlocutory and non-revisable, an order denying the right under Section 217 affects a fundamental procedural safeguard and is therefore subject to revision.

The court found the trial court’s "delay" justification erroneous; the petitioners, being in custody since 2022, had no incentive to stall proceedings and had filed the application promptly after the charge was altered.

The court noted that because PW-8 and PW-9 were directly involved in the recovery of weapons, their cross-examination prior to the addition of Section 5/27 of the Arms Act was insufficient to cover the nuances of the new, more severe charges.

The petitioners are entitled to recall the witnesses to ensure a fair trial.

The revision petition was allowed, the impugned order dated August 27, 2025, was set aside, and the trial court was directed to recall PW-8 and PW-9 for further cross-examination by the accused-petitioners.