K. Bhaskaran, J.
1. The appellants who were accused 1 and 2 before the Sessions Court have come up to this Court with this Criminal Appeal challenging the correctness of their conviction and sentence by the learned Sessions Judge,
2. From para 3 of the judgment under appeal it is seen that the charge was amended by the Court below 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 Hanefa also stabbed Koyamon two or three limes on his back.'
3. The second appellant had before the learned Sessions Judge filed an application dated 3-11-1980 purported to be under Section 216 of the Cr. P.C. praying for permission to resummon or recall the witnesses examined in the Sessions Court before the charge was amended as mentioned above. This application was rejected by the learned Sessions Judge by his order dated 10-11-1980, the operative portion of which reads as follows:
Notice taken by Public Prosecutor. Heard. No plea for a re-examination of the witnesses was made on behalf of the accused at the time when the charge was amended and before the court pronounced the judgment finding the first and second accused guilty. Further no prejudice has been caused to the accused by reason of the charge being amended because the trial proceeded on the basis that the charge which the accused when called upon to amend was the charge as it came to be subsequently amended. This application cannot be allowed and is hence dismissed.
4. The contention of Sri P.V. Ayyappan, the counsel for the appellants, is that the order amending the charge was passed only on 31-10-1380; and it was on the same day the learned Sessions Judge passed orders convicting the appellants.. This according to him was done in undue haste, without giving sufficient opportunity t0 the appellants-accused even to bestow thoughts as to whether, in the light of the amendment effected, it would be necessary for them to recall or resummon the witnesses examined on the side of the prosecution before the amendment of the charge.
5. The 2nd appellant's application dated 3-11-1980 is seen to have been filed after the conviction part of the judgment under appeal was pronounced on 31-10-1980 and before the sentence part thereof was passed on 10-11-1980.
6. In his order dated 10-11-1980 rejecting the application of the 2nd appellant dated 3-11-1980, the learned Sessions Judge has observed that no prejudice had been caused to the 2nd appellant. This, we are afraid amounts to prejudging the issue. The 2nd appellant in his application dated 3-11-1980 had specifically averred that unless he was allowed to resummon/recall the witnesses, he might be put to considerable prejudice. The Court, having, at the last moment, chosen to amend the charge, in fairness to the accused, should have allowed the resummoning/recalling of the witnesses as desired by him. It is unfortunate that in this case the 2nd appellant could not make the application, which in effect and substance was one under Section 217 of the Crl. P.C. though purported to have been filed under Section 216 Crl. P.C. before the pronouncement of the conviction part of the judgment, because of sheer impossibility as the order amending the charge and the conviction part of the judgment appear to have been pronounced with little or no interval between one and the other, if not simultaneously. This unpleasant situation could possibly have been avoided had the learned Sessions Judge, as pointed out by the Full Bench 1982 Cri LJ 1384 in para 12 of the order answering the reference in this very appeal, on the question of proper construction of Section 217 of the Code, enquired of the accused as to whether they would like to exercise the right to recall or reummon the witnesses or to have further witnesses examined as provided in the section and given them reasonable time to make up their minds in that behalf, following the rule of prudence, though, on a strict consideration of the section, no statutory obligation is found to be cast on the Court, in that behalf.
7. It has to be borne in mind in terms of Section 217 Crl. P.C. whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecution and the accused shall be allowed to recall or resummon, and examine, 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. In his order dated 10-11-1980 rejecting the 2nd appellant's application dated 3-11-1980, the learned Sessions Judge has not stated that it was considered that the application was made for the purpose of vexation or delay or defeating the ends of justice. No such reason having been recorded, and there being nothing to indicate that the learned Sessions Judge had considered that it was made for the purpose of vexation or delay or defeating the ends of justice, the application filed by the 2nd appellant in assertion of his statutory right under Section 217 Crl. P.C. ought to have been allowed; that is especially so considering the gravity of the charges which include one for murder, besides the direction in the section being mandatory in character.
8. In the light of the legal position and the facts and circumstances of the case referred to above, we feel constrained to allow this appeal; we do so setting aside the convictions and sentences passed against the appellants (accused 1 and 2) without in any way disturbing the order of acquittal passed under the very same judgment in so far as it relates to the 3rd accused, and remanding the matter to the Court below with a direction to allow the resummoning/recalling of the witnesses as had already been or might be requested for by the appellants. The trial will be continued from the stage at which the charge was amended according to law with particular reference to Section 216 Crl. P.C. The learned Sessions Judge would give top priority to the trial of this case and dispose it of as expeditiously as possible, at any rale within three months from the date of receipt of the records in his Court. The office will send down the records forthwith.
9. During and till the trial the appellants-accused are understood to have been on bail: the learned Sessions Judge would, therefore, allow them to be on bail if moved in that behalf on the same terms and conditions which governed the grant of bail in their favour earlier.