K. Sukumaran, J.
1. The question referred to the Full Bench for decision concerns the interpretation of Section 217 of the Code of Criminal procedure, 1973(Act No. 2 of 1974). This section broadly corresponds to Section 231 of the Criminal Procedure Code, 1898. Section 217 reads as follows:
Recall of witnesses when charge altered: Whenever a charge is altered or added to by the Court after the commencement of I he trial, the prosecutor and the accused shall be allowed-
(a) to recall or resummon, and examine with reference to such alteraiion 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 defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
2. The skeletal facts necessary for the appreciation of the question raised are the following: The case was initially tried by the Court of Session, Allep-pey. Charges were framed against accused 1 to 3 on 30-10-1978 for offences punishable Under Sections 302, 326 and 324 read with Section 34 of the penal Code. The charges- were duly read over and explained to accused; they pleaded not guilty to the charges.
3. Exercising powers Under Section 216 of the Code, the Second Additional Sessions Judge, Ernakulam, to whose court the case stood transferred on the basis of an order of this Court, amended the charge before the .-judgment was pronounced. The facts which led to such amendment of the charges have been given by the Sessions Court in para 3 of the judgment under appeal. The Sessions Judge records;
In the charge framed by the learned Sessions Judge. Alleppey, it is seen that there has been an omission to specify the overt acts attributed to the second accused with reference to Koyappu. Under Section 216 of the Code, the Court may alter or add to any charge at any time before judgment is pronounced. The materials on record even before the charge was framed by the court showed that on Koyappu falling to the ground, he was stabbed also by the second accused with a knife. Hence the second count of charge has to be amended by adding after the words 'Al Abdul Rahiman again stabbed him two or three times', and before the words 'with a dangerous weapon like knife', the following words: 'with the dagger on his back and that A2 Haneefs also stabbed Koyomon two or three times on his back.' The charge accordingly is so amended by me before judgment is pronounced. The amended charge was read over and explained to the accused upon which they again pleaded not guilty to the charge.
The Sessions Judge found accused 1 and 2 guilty and sentenced them. The details of the offences in respect of which they have been held guilty and the sentences passed against them are not material for the purpose of (his reference and are not therefore given.
4. In the appeal, Criminal Appeal No. 452 of 1980, a specific ground of alleged procedural illegality, j3 raised by the accused-appellants. That ground, which contained the gist of the contentions, and elaborated by counsel in the course of arguments, reads:
The court below erred in law by amending the charge at the fag-end of the trial that is to say on the date of judgment and further erred in not asking the appellants whether they require a fresh trial on the amended charge or cross-examination of the prosecution witnesses in the light of amended charge. This procedural illegality has vitiated the trial and conviction following it. Prejudice to the accused is writ large when the mandatory provisions of law are violated.
5. The appeal was argued before a Bench of this Court, Bhaskaran and Kader, JJ. The contention based on ground No. 2 referred to above had been urged before the Division Bench with supporting case-law. Two decisions of the Allahabad High Court, the former in Mohan Lai v. King Emperor AIR 1924 All 665 :1924) 25 Cri LJ 798 and the latter Kormal v. Empreor AIR 1930 All 215:(1931) 32 Cri LJ 22) appear to have been discussed before that Bench. The Division Bench noted that the latter decision laid down the proposition that 'no duty is laid on the court uncler the provisions of Section 231 Cr.P.C. (corresponding to Section 217 of the new Code) to enquire of the accused whether they would like to recall or summon the witnesses'. However, a difference of opinion appears to have arisen before the learned Judges as regards the exact import and implication of the decision in Mohan Lai's case AIR 1924 All 665:(1924) 25 Cri LJ 798). The Division Bench thereafter ordered:.Considering the importance of the question of law raised, and the impact of the decision may have on the procedure to be followed by the trial courts on situations similar to this, it would be desirable to have the question of law decided more authoritatively by a larger Bench.
It is under the above auspices that the question has come uP for consideration of the Full Bench,
6. Section 216 of the Code confers the power on the court to alter or add to any charge at any time before the judgment is pronounced. We are not concerned in this case with the applicability or otherwise of the other Sub-sections of that section. Section 217 deals with the situation where the court in exercise of the power Under Section 216 has altered or added to a charge after the commencement of the trial. The statute provides that the prosecution and the accused shall be allowed to recall or resummon. and examine with reference to such alteration Or addition, any witness who may have been examined. This statutory right is subject to an exception. The exception operates when the prosecutor or the accused seeks sach a recall and re-examination of the witnesses but the court considers that such desire to recall or re-examine the witness is motivated by obiectionable purposes, such as vexation, delay or defeating the ends of justice.
7. Due emphasis has to be given to the fact that the recalling or resumrnon-ing of the witnesses is with reference to the alieration or addition in the charge and such recalling or resummoning is of 'any witness who may have been examined'. These ingredients of the section, to our mind, indicate that the opportunities statutorily conferred, have to be availed of either by the prosecution or by the accused depending upon the requirements of one party or the other. Among the large number of witnesses who may have been examined, it may be, that the alteration or addition to the charge necessitates the recalling and examination of only a few of the witnesses; it may even happen that in a given case it may be totally unnecessary to recall, or resummon any of the witnesses who had been examined. It is entirely for the prosecution or the accused to decide for itself or himself as to whether any witnesses at all should be recalled and re-examined or to choose such of those witnesses whose re-examination is necessitated in the light of the alteration of, or addition to, the charge. It goes without saying that once a decision is made to avail of such an opportunity, a request in that behalf should ordinarily be granted, unless the court specifically overrules juch a request in the light of th-- 'onsidera-tions stipulated in that behah for declining such request. The section does not. on its wording, cast a duty or obligation on the court to enquire of the prosecution or of the accused whether either party would like to recall or resummon the witnesses. The difference in the phraseology of Section 246(4) of the same Code is so striking as to go unnoticed. Section 246(4) reads:
If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-section (3, he shall be required to slate at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.
It is abundantly clear that wherever Parliament has sought to cast a duty on The court to require the accused to express his wish, it has employed effective and appropriate words conveying its intention,
8. The matter is not res integra. The approach indicated by us above commended itself for acceptance by Dalai, J. of the Allahabad High Court who decided Konmal's case AIR 1930 All 215:1931-32 Cri LJ 22). The learned Judge in the course of his discussion, compared the strikingly dissimilar phraseology employed by the legislature in enacting Section 231 of the old Code (which corresponds to Section 217 of the present one) and Section 256 of the old Code (which corresponds to Section 246 of the present one,
9. The Allahabad High Court in the above case noted the fact that there was no application by the accused to be permitted to call witnesses and that there was no oral request either for the recalling of the previous witnesses or to summon new ones. It is thereafter that the following prescient passage occurs in that judgment;-
There has, therefore, been in my opinion no breach of the provisions, of Section 231. It would be instructive to compare those provisions with the provisions of Section 256 where duty is laid on the Court to ask the accused to .state at a particular period of the trial whether he wishes to cross-examine any and, if so, which of the witnesses for the prosecution whose evidence has been taken. No such duty is laid on the Court under the provisions of Section 231. and so to make those provisions applicable there must be some evidence thai the Court refused the request of the complainant or the accused to recall or summon witnesses.
The decision in Mohan Lai v. Emperor AIR 1924 All 665:1924-25 Cri LJ 798, was referred to by Dalai, J. and with reference to that decision the learned Judge made the following observation :
In that case also the learned Judge has not stated that any duty lay on the Court to enquire of the accused whether they would recall previous witnesses or summon new ones.
The decision in Mohan Lai's case AIR 1924 All 665:1924-25 Cri LJ 798). as correctly observed by Dalai. J., does not deal with the specific issue. On the other hand, the very issue was the subject-matter of consideration before Dalai, J. As stated earlier, with the reasoning and conclusion of that learned Judge we are in full agreement.
10. We also find that the view token by us is supported by the observations of a Division of a Division Bench of the Patna High Court in Musahru v-Emperor AIR 1940 Patna 355:1940-41 Cri LJ 931). The contention which has a bearing on the issue before us, and which was raised in that case, was referred to by Rowland, J. in the following terms;-
The Sessions Judge amended four of the charges; he added a fresh charge and this it is said entitled the accused Under Section 291 read with See. 231, Criminal P. C, to have any witnesses summoned whom the accused might desire to call.
The following observations occurring in page 359(of AIR)(at p. 935 of Cri LJ) appear to be apposite :
When such amendments are made alter the commencement oE the trial, the prosecutor and the accused have the right not only to recall and resummon any witness who may have been examined but also to call any further witnesses whom the court may think to be material. A request to summon a fresh witness under this Section can, it seems, only be refused on the ground that the evidence of the witness is not thought by the Court lo be material. Had the accused after the amendment of the charges made a fresh application or renewed their application to the learned Judge to have defence witnesses summoned, such application could hardly be resisted, but in fact at the trial itself no such application was made and I think it must be taken that the wish on the part of the accused lo have those witnesses summoned was abandoned.'
11. Counsel for the appellants submitted that no other decision had dealt with the specific issue which arises for decision in this case. He, however, attempted to argue that irrespective of the question whether an accused (which according to him would quite often be an illiterate men) made a request for the recalling or resummoning of witnesses, the court was obliged to make such enquiry of the accused. According to him, the word 'allowed' occurring in the section has such a signification, in support of his contention, he referred us to the decision in Pimdarikaksha Basu v. Sardar Chandra Singh : AIR1967Cal538 . It will be extremely unsafe to adopt the interpretation made by a court of the term 'allow' in the setting and context of an entirely different statutory enactment, such as the West Bengal Non-agricultural Tenancy Act, 20 of 1949. Section 7(5) of which was the subject-matter of consideration in that case. That section provided that a tenant shall not be ejected, 'if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein....'' The section was object to a non obstante clause and other law or contract to the contrary would not prevail over the provision contained in the section. Construing the term 'allow' in that context, the learned Judge observed (Para 7):
I am, therefore, of opinion, that the word 'allow' means some positive sane- A tion and not mere permission or sufferS ance. In this case there is nothing positive in the sanction...
The observations do not support the contention of counsel for the appellants. On the other hand, they indicate the necessity for a preceding request for postulating the grant of 'positive sanction.' In a sense, it may be said that the auestion of giving a positive sanction by the court would arise only if initial-lv there is a request emanating from the party who seeks the por-itive sanction. This aspect also will tend to confirm our conclusion that on a proper reading of the section, it does not oblige a court to enquire of the prosecution or the accused whether they would like to recall or resummon the witnesses. In the light of the above discussion, we are of the view that the omission of the court to enquire of the prosecution or the accused whether they would like to exercise the right of recalling or re-summoning the witnesses would not result in any procedural illegality, there being no duty on the part of the court to make such an enquiry.
12. Having expressed our view on the true import and effect of the section, we must, however, observe that it is safer and desirable that the courts, in such situations, do enquire of the prosecution or the accused, as to whether they would like to exercise the right to recall or rosummon the witnesses or to have further witnesses examined as provided in the section. This, however, is not a statutory requirement and is only a rule of prudence. If a circular is issued in that behalf by this Court, 'we feel,' it would serve as a proper guidance for the subordinate courts.
13. We, therefore, answer the reference by holding that on a proper construction, Section 217 of the Code of Criminal Procedure does not cast a duty or obligation on the court to enquire of the prosecution or the accused whether they would like to recall or resummon the witnesses as referred to In Clause (a, or to call any further witnesses as dealt with in Clause (b) of that section.