IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.37028 OF 2008 1. MAHENDRA SINGH, SON OF SUCHIT SINGH 2. SHAMSHER BAHADUR SINGH @ SHAMSHER SINGH, SON OF LATE UMA SINGH 3. ANUJ SINGH, SON OF SHAMSHER BAHADUR SINGH @ SHAMSHER SINGH 4. CHHOTAK SINGH, SON OF SHAMSHER BAHADUR SINGH @ SHAMSHER SINGH ALL RESIDENT OF VILLAGE BIMWAN, POLICE STATION JAGDISHPUR, DISTRICT BHOJPUR …………………………………………………………………………..PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. SMT. MEENA DEVI, WIFE OF SHRI PRAMOD SINGH, RESIDENT OF VILLAGE BIGWAN, POLICE STATION JAGDISHPUR, DISTRICT BHOJPUR ………………………………………………………………………..OPPOSITE PARTIES ********** 5 26/07/2011 Heard Counsel for the parties. In this case, the Court has rejected the application under Section 311 of the Code of Criminal Procedure filed on behalf of the defence in which it is prayed that they may be permitted to produce 15 witnesses on their behalf for their examination. An application was filed under Section 233 of the Code of Criminal Procedure by the defence. In the said application filed under Section 233 of the Code of Criminal Procedure, no order was passed by the Trial Court. Therefore, a second application has been filed. The Trial Court has rejected the application on two grounds, namely, that the defence has given a list of 15 witnesses without stating as to why they 2 should be examined and the defence has filed this application only to delay the proceedings. Section 233 of the Code of Criminal Procedure envisages that the accused, if not acquitted should be permitted to lead evidence in support of his defence, Sub-Section (3) of Section 233 of the Code of Criminal Procedure provides that the Court may issue process for compelling the attendance of any witness or the production of any document or thing unless the Court finds that the application for calling the witnesses has been filed for vexatious purpose or for causing delay in the trial or for defeating the ends of justice. It is obvious that the petitioners had not given any reason for asking the Trial Court to issue summons to the witnesses and, therefore, it cannot be said that, per se, the order of the Trial Court was illegal or wrong. However, it is also the right of the petitioners to lead defence in each case. A supplementary affidavit has been filed in which it has been mentioned that the defence wants to examine Radha Singh, Sanjay Yadav, Surendra Rai, Krishna Yadav, Sukul singh and Dhananjay Singh. The grounds for examining these witnesses have also been stated in the supplementary affidavit. It is firstly submitted that the defence wants to establish that the 3 deceased father-in-law of the informant had died due to old age and the fire arm injuries have been manufactured on the deceased. The second ground is that by examining these witnesses, the petitioners want to establish that the accused Jitendra Singh and Dharmendra Singh were not present at the place of occurrence as they did not reside in the village. It has also been stated that the petitioner undertakes that if summons will be issued, the examination of the witnesses would be completed within a period of three months provided the Trial Court grants them the dates required for the examination of these witnesses. In the circumstances aforesaid, the petitioners are permitted to produce a copy of this order before the Trial Court within a period of one month from today, failing which this application shall stands dismissed. On receiving a copy of this order, the Trial Court will issue summons on all the six witnesses mentioned aforesaid for their deposition in the trial. The Trial Court will fix the dates for appearance of the witnesses, and if on the particular date, the witnesses do not appear and time petition is filed, the same should be rejected outright. This application is allowed with the 4 aforesaid observations and directions. Anand (Sheema Ali Khan, J.)