VEDPAL, J. - (1.) THIS petition under Section 482 Cr.P.C. has been filed by Shiv Shankar for setting aside the order dated 15.7.2010, passed by Additional Sessions Judge/Special Judge (E.C.Act) in S.T. No. 183 of 1999 State Vs. Shiv Kumar and others contained in Annexure no.1 to this petition whereby the application 221 Kha, moved by accused (petitioner herein) for recalling the prosecution witnesses after amendment of charge was rejected. It was further prayed that trial court be also directed to summon the witnesses in view of the provisions of Section 217 Cr.P.C.
(2.) ON the request of learned counsel for the petitioner as well as learned A.G.A. For the State, this petition was finally heard at the stage of admission and notice for opposite party no.2 was dispensed with. It reveals from the perusal of the record that the petitioner along with four others, namely Sonu, Akre, Sukhdeo and Amar Singh is facing trial in S.T.No. 183 of 1999 State Vs. Shiv Kumar and others before the Court below. On 12 July 2010 the case was fixed for arguments. When argument commenced, it came to the notice that there is an error in the 4th head of the charge which ought to have been S. 302/149 instead of S. 302/34 I.P.C.The learned trial court after exercising its power under Section 216 Cr.P.C. amended the 4th head of the charge of Section 302/34 I.P.C. to Section 302/149 I.P.C. and considering it a clerical error, posted the case to 15 July 2010 for further arguments. On 15 July 2010 an application 221 Kha was moved by accused/petitioner to recall the witnesses of fact. The said application was rejected by learned trial court by the impugned order Dated 15-07-2010. Feeling aggrieved with this order the petitioner has approached this court.
(3.) ASSAILING the legality and propriety of the impugned order it has been submitted by learned counsel for the petitioner that Section 217 Cr.P.C. provides that after alteration of the charge an opportunity shall be given to the prosecution as well as to the defence to recall and re-examine the witnesses, but the court below did not do so and when the petitioner moved an application for recalling the witnesses, the same was rejected on the ground that the purpose of moving application is to delay the proceeding and defeat the ends of justice. That when the defect in the charge was pointed out during the argument by the defence, the charge was altered to fill up the lacuna. That if the witnesses are not recalled for cross-examination, it will prejudice the accused in his defence and as such the impugned order passed by the court below is liable to be set aside. Learned counsel for the petitioner relied on Nanak Chand Vs. State of Punjab AIR 1955 S.C. 274.;