GOPAL KRISHNA SHARMA, J. - (1.) THIS petition under Section 482 is directed against the order of learned Addl. Sessions Judge, Deeg dated 28 -1 -1987.
(2.) A challan under Sections 302, 307, 147, 148 and 149, I.P.C. was pending before the Addl. Sessions Judge, Deeg against the petitioner and other persons. The evidence in that case was concluded on 22 -8 -1985 and the case was fixed for final argument on 29 -8 -1985. On this date instead of hearing final arguments, the learned trial Court suo moto modified the charges and ordered to frame charge substantively Under Section 307 and 302, I.P.C. This modification in the charge was not challenged by the accused persons and they agreed to it. Thereafter, on 29 -8 -1985 an application was moved by prosecution to examine Shivganesh as their witness. He was examined and the case was fixed for further cross -examination of the prosecution witnesses with regard to modified charge. The case was fixed for 27 -1 -1987 and on this date the prosecution wanted to examine Uttam Lal who was initially cited as a witness by the prosecution but was not examined. No application was moved by the prosecution to examine Uttam Lal but it seems that the trial Court suo moto ordered to examine Uttam Lal. The accused persons moved an application on 27 -1 -1987 requesting that further cross -examination of the prosecution witnesses be completed and thereafter the Court may examine Uttam Lal. On this application the Court passed the order to pay cost to Uttam Lal by the accused persons and Uttam Lal was bound down for next date. Shri Dhankad, learned Counsel for the petitioner argued that the trial Court has committed error in ordering record the statement of Uttam Lal prior to completing the further cross -examination of the prosecution witnesses. In this regard the provision of Section 217 have been perused. Under Clause (a) of this section the accused persons are entitled to recall or return the prosecution witnesses and under Clause (b) the prosecution is also empowered to examine any further witness whom the Court think to be material. In the present case the evidence of Uttam Lal was closed by the Court and the case was fixed for final argument. When the charge was modified and Court permitted further cross -examination to the prosecution witnesses then it was for the Court to comply the provision of Section 217 Clause (a) first and thereafter the Court should permit the prosecution to cross -examine further witnesses. So the remaining prosecution witnesses should have been permitted to be cross -examined by the accused persons first and then the Court should have granted permission to examine Uttam Lal. While permitting Uttamlal to be examined by the prosecution the Court has to keep in mind the provision of Section 217 Clause (b), Cr. P.C. Uttam Lal can be examined only with regard to amendment or modified charge because his evidence has already been closed with regard to the charges prior to their modification. Therefore, the trial Court has committed error in ordering to examine Uttam Lal prior to completing further cross -examination of the prosecution witnesses.
(3.) UNDER such circumstances, the petition under Section 482 is accepted and the trial Court is directed to permit the accused person to further cross -examine the prosecution witnesses and thereafter permit the prosecution to examine Uttam Lal and that too for the modified charge.;