Trial Court Can't Refuse To Entertain Plea Seeking Recall Of Witnesses After Alteration Of Charges: Madras High Court

Justice Victoria Gowri held that though the provision gives liberty to the court to refuse to recall a witness if the same is sought to delay the process, such discretion should be exercised judicially and not mechanically. The court held that it was required to first receive the petition, number it, and then adjudicate it on its merits.

“Section 217 CrPC itself permits the Court to refuse recall if the request is intended merely for vexation, delay or defeating the ends of justice. Therefore, the trial Court retains judicial discretion to regulate the scope of recall,” the court observed.

“However, such discretion must be exercised judicially and not mechanically. Most importantly, the application seeking recall must first be received, numbered and adjudicated on merits. Refusal even to entertain such petition would strike at the very root of procedural fairness,” the court said.

The court was hearing a petition filed by Ramesh @ Kaviya Ramesh seeking direction to the District and Sessions Judge in Karur to number his petition under Section 217 of CrPC and dispose of the same in a time frame fixed by the court. Ramesh had filed another plea seeking to transfer the trial from the court of the Principal District Judge, Karur, to any other court.

The case against Ramesh was that he had helped the accused in a murder case by watching the movements of the deceased immediately prior to the occurrence. It was also alleged that after the occurrence, Ramesh was contacted by the other accused, and he made arrangements to facilitate the escape of the principal offenders.

According to the petitioner, after the trial commenced and examination of prosecution witnesses was substantially concluded, and the matter progressed to an advanced stage, the trial judge altered the charges and introduced charges under Section 302 read with 34 of the IPC and Section 302 read with Section 120B of the IPC against him. Following the alteration, the petitioner filed a plea under Section 217 CrPC seeking to recall the witnesses, which the trial judge refused to entertain. Against this, the petitioner had approached the court.

The petitioner submitted that the trial judge had altered serious charges without proper opportunity to the accused. It was submitted that even the application seeking to recall witnesses was not entertained, and the conduct of the trial judge created a reasonable apprehension of bias. It was thus argued that the defence was denied adequate opportunity to establish the falsity of the prosecution witnesses. Thus, arguing that there would be a denial of a fair trial, the petitioner sought to transfer the case.

The Additional Public Prosecutor, on the other hand, argued that the parties were permitted to recall the witnesses if they desired, and the accused themselves had made endorsements stating that they had no defence witnesses. It was thus argued that the accused had sought to reopen the proceedings with the only intention of delaying the conclusion of the trial.

The court noted that whenever charges are altered or added after the commencement of trial, the law mandates that both the prosecution and the defence must be given an opportunity to recall or re-summon the witnesses already examined and to examine further witnesses with reference to the altered charges.

“The legislative object behind the provision is self-evident. Cross-examination strategy in criminal trials is invariably shaped by the precise nature of accusations then existing against the accused. When the complexion of accusation changes substantially, fairness requires corresponding opportunity to revisit evidence already recorded,” the court said.

In the present case, the court noted that after altering the charges, the petitioner's entitlement to invoke Section 217 CrPC should not have been brushed aside lightly. At the same time, the court noted that it could not accept the petitioner's broad proposition that alteration of charges automatically necessitates a de novo trial.

With respect to the plea for transfer of trial, the court held that judicial officers could not be transferred merely because adverse procedural orders were passed during the trial. The court observed that criminal trials often generate intense adversarial exchanges and judicial comments does not automatically constitute legal bias unless it demonstrates prejudgment.

Thus, though the court was not inclined to transfer the trial, the court said that interest of justice would be protected if the petitioner was granted liberty to pursue the petition under Section 217 CrPC, the petition was decided on merits, and the proceedings were deferred till such petition was adjudicated. The court thus ordered accordingly.

Counsel for Petitioner: Mr. T. Lajapathi Roy, Senior counsel, For Roy and Roy Associates

Counsel for Respondents: Mr. S. Ravi, Additional Public Prosecutor

Case Title: B. Ramesh @ Kaviya Ramesh v The State of Tamil Nadu

Citation: 2026 LiveLaw (Mad) 319

Case No: Crl OP (MD) Nos 1362 of 2026 & 21832 of 2025