IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18290 of 2007 CHANDRA MOHAN CHOUDHARY, Son of late Jai Narayan Choudhary, R/o Govindpur, P.O. Laheriasarai, P.S. Bahadurpur, District Darbhanga ….. Petitioner Versus STATE OF BIHAR & ors. ….. Opp. Parties. ----------- For the petitioner : Mr. Kaushalesh Choudhary, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. Nos. 2 to 7 : Mr. Manendra Nath Tiwary, Advocate ORDER The informant of Bahadurpur P.S. Case No. 152 of 2003, G.R. No. 2072 of 2003 has filed this application for quashing of order dated 24.11.2006 passed by Sri P.C. Verma, the erstwhile Judicial Magistrate, 1st Class, Darbhanga, whereby the petitioner’s petition under section 311 Cr.P.C. for being examined as a witness and allowing him to produce other witnesses for their evidence has been rejected and amount of his P.R. Bond forfeited, as also the consequential order dated 7.3.2007 passed by the learned Sessions Judge, Darbhanga, whereby he dismissed the Cr. Revision No. 513 of 2006 preferred against the order dated 24.11.2006. Pursuant to the written report submitted by the petitioner herein alleging commission of offences at the hands of the accused named therein on 19.10.2003, Bahadurpur P.S. Case No. 152 of 2003 was registered against the six FIR named accused under sections 147, 148, 323, 379, 427 and 504 IPC. The police after due investigation submitted a charge sheet against all the six 2 FIR named accused under the sections whereunder the case was registered. It appears from the perusal of the complete order sheet appended with this petition that on 11.10.2004 P.W. 1 Indramohan Choudhary was examined in part and his cross- examination was adjourned to 6.11.2004 on the request of the defence. On 18.10.2004 during the annual vacation, witnesses Chandra Mohan Choudhary and Ratnesh Choudhary filed their appearance along with a petition with a prayer to recall the warrant issued against them which was allowed subject to their executing P.R. Bonds. Thereafter on 6.11.2004 although attendance was filed on behalf of the informant and witnesses Indramohan Choudhary and Ratnesh Kumar Choudhary they could not be examined as the P.O. had gone for training. Then the Presiding Officer was transferred but no attendance was filed on behalf of any prosecution witness on 18.12.2004, 18.1.2005, 7.2.2005, 23.3.2005, 21.5.2005 and 7.6.2005. On 30.6.2005, which was not the date fixed in the case, prosecution witnesses Bansh Choudhary @ Bumbum Choudhary appeared and filed a petition praying for recall of the warrant issued against him which was allowed till 8.8.2005 i.e. the date fixed in he case on his executing P.R. Bond. On 8.8.2005 as the Court remained vacant the case was transferred and before the transferree court on 8.9.2005 no witness was in attendance. On 26.10.2005 one witness was in attendance but was not examined as P.W. 1’s deposition had not 3 been completed. It was completed on 17.11.2005. On 29.12.2005 no witness was on behalf of the prosecution was in attendance but on 10.1.2006 prosecution witness Bumbum Choudhary @ Bansh Choudhary was examined and discharged. On 4.4.2006 P.W. 3 Ratnesh Choudhary was examined and discharged. However, on 22.2.2006, 9.3.2006, 10.4.2006, 25.4.2006, 8.6.2006, 29.6.2006, 19.7.2006 and 28.7.2006 no prosecution witnesses were present in court and accordingly on perusal of the records and due to non appearance of prosecution witnesses over considerable period and notwithstanding orders having been passed earlier for the presence of prosecution witnesses, the prosecution evidence was eventually closed and 11.8.2006 was fixed for recording the statement of the accused. On 11.8.2006 a petition under section 311 Cr.P.C. was filed by the prosecution with a prayer for examining the informant as he has not examined. After perusal of the petition and the rejoinder filed by the defence the prayer of the prosecution was rejected on 24.11.2006 and the informant was noticed to show cause why the amount of his P.R. Bond be not forfeited. Cr.Revision No. 513 of 2006 preferred before the Sessions Court was dismissed vide order dated 7.3.2007. As before the trial court and the Sessions Court so before this Court the constant submission on behalf of the informant – petitioner is that as he was a candidate for he post of Mukhia in the Panchayat election he was busy in connection 4 therewith and, therefore, could not get information about the progress of the case and also could not appear in court and as soon as he came to know about the closer of the prosecution evidence he immediately appeared and the petition under section 311 Cr.P.C. was filed. The reasons assigned for non appearance of the informant – petitioner in court for his evidence appears to be fallacious and cannot be accepted, since the petitioner was well aware of the fact that he had executed a P.R. Bond for his appearance in Court and notwithstanding the same he absented in court for about a year and half. Being the informant as also having executed P.R. Bond it was all the more necessary that he should have been vigilant. His being busy with the Panchayat election can by no means be considered to be a plausible reason for absenting himself from appearing in court and that too over a period of one and half years. The court cannot be the handmaid of a witness and act on the whims and fancies of the witnesses. For the reasons stated above I find no merit in this application which is dismissed. Patna High Court, Patna. Dated : The 28th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)