[2025:RJ-JP:33951] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 5078/2025 Banay Singh S/o Dinesh, Aged About 26 Years, R/o Sakku Ka Nagla, P.S. Bhusawar, Bharatpur (Raj). ----Petitioner Versus State Of Rajasthan, Through its Public Prosecutor. ----Respondent For Petitioner(s) : Mr. Anurag Sharma Mr. Akshay Sharma For Respondent(s) : Mr. Rishi Raj Singh Rathore, PP Mr. B.L. Dhakar for the complainant. HON'BLE MR. JUSTICE SUDESH BANSAL Order 26/08/2025 1. Under challenge is the interlocutory order dated 01.08.2025, passed in Sessions Case No.06/2024 (State Vs. Purushottam Alias Monu & Ors.) by the Court of Additional Sessions Judge Weir, District Bharatpur, denying to re- summon the two prosecution witnesses PW-1-Shivdei and PW-2-Banay Singh, who are material witnesses. 2. Contention of counsel for the accused-petitioner is that the prayer to re-summon both prosecution witnesses was made in the backdrop of the facts that after recording the statements of three prosecution witnesses, including PW-1 and PW-2, charge of offence under Section 302 of IPC was altered by addition of charge under Section 34 of IPC. Learned counsel submits that it is trite law that after alteration of charges, an opportunity must be given to the [2025:RJ-JP:33951] (2 of 4) [CRLMP-5078/2025] prosecution as well as to the defence, to recall or re-examine the witnesses in reference to the alteration of charges. 3. In support of such submission, reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of Madhusudan and ors. Vs. State of Madhya Pradesh [2024 SCC OnLine SC 4035]. 4. Counsel for the complainant has put in appearance and states at bar that in order to prevent the procrastination of the criminal trial, complainant (PW-1) herself is agreeable to appear before the trial Court on her own as also shall ensure appearance of PW-2 Banay Singh, to provide an additional opportunity to the accused persons for their cross examination, in respect of alteration of charges, hence, there is no need to re-summon both witnesses PW-1 & PW-2 through Court. 5. In view of the statements made by counsel for the complainant, Public Prosecutor does not oppose the production of both witnesses PW-1-Shivdei and PW-2-Banay Singh on their own before the trial Court, without resorting to the process of issuing new summons to them by the trial Court. 6. Heard. Considered. 7. Indisputably, on the prayer of complainant, charge against accused persons was altered and in addition to charge of Section 302 IPC, charge of Section 34 of IPC was framed against accused petitioner and other accused persons. In the light of judgment of Hon’ble Supreme Court in the case of Madhusudan (supra), the prayer of accused petitioner to [2025:RJ-JP:33951] (3 of 4) [CRLMP-5078/2025] re-summon the two prosecution witnesses, PW1-Shivdei and PW-2 Banay Singh for cross examination in respect of alteration of charges, may not be held to be ingenuine or to cause delay in conclusion of criminal trial. Such a prayer is within parameters of law and supported by the judgment of Hon’ble Supreme Court in Madhusudan (supra). Relevant para No.21 of the judgment, referred hereinabove, is being reproduced as under:- “21. The case materials nowhere indicate that the Court intended to alter the charge and it is unlikely that the altered charge was formally framed, read out, and explained to the accused. A Court may alter or add to any charge before judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the CrPC, both to the Prosecution and the defence, to recall or re-examine witnesses in reference to such altered charges. More importantly, in case, charges are altered by the Court, reasons for the same must be recorded in the judgment.” 8. In view of the above, denying to re-summon the two prosecution witnesses on behest of accused petitioner by the trial Court may not be affirmed and the impugned order to this extent is set aside. However, instead of allowing to re-summon both prosecution witnesses PW-1 and PW-2 through Court, respondent-complainant (PW-1-Shivdei) is directed to appear herself as also to produce another prosecution witness PW-2 Banay Singh, before the trial Court for the purpose of cross examination by the accused-petitioner so also by the other accused persons, for which counsel appearing on behalf of the respondent-complainant do agree and undertakes to produce both the witnesses. [2025:RJ-JP:33951] (4 of 4) [CRLMP-5078/2025] 9. It is hereby observed that the trial Court shall fix a date for production of both the witnesses PW-1 Shivdei and PW-2 Banay Singh, by their own and shall permit the accused petitioner and other accused persons to cross examine them in respect of alteration of charges. The cross-examination should be concluded on the very day of appearance of PW-1 and PW-2 or on the next succeeding day and no further opportunity shall be granted to the accused persons. 10. With the aforesaid, the criminal misc. petition stands disposed of. 11. Stay application, and pending application(s), if any, also stand disposed of. (SUDESH BANSAL),J pcg/32