IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52961 of 2007 1. RAJ KUMAR CHAUDHARY 2. Rajesh Kumar Chaudhary @ Rajesh Chaudhary Both are sons of Sri Rajendra Prasad 3. Rajendra Prasad Chaudhary, Son of Late Mauzi Lal Chaudhary All are residents of village Gerabari, P.S. Korha, District Katihar ….. Petitioners Versus 1. STATE OF BIHAR 2. Usha Devi, W/o Sri Ashok Chaudhary, R/o Gerabari, P.S. Korha, District Katihar. ……. Opp. Parties ----------- 2 11.2.2009 Heard Mr. N.K.Malhotra, learned counsel for the petitioners, Mr. Ajit Singh, learned counsel for O.P. No. 2 and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. The grievance of the petitioners who are FIR named accused in Sessions Trial No. 401 of 2002 arising out of Korha P.S. Case No. 158 of 2002 are aggrieved by and have prayed for the quashing of order dated 8.11.2007 passed in the Sessions Trial by the learned Presiding Judge, Fast Track Court No. IV, Katihar, whereby he has rejected the defence petition of summoning Sub Inspector of Agamkuan P.S., B.P.Singh as a prosecution witness under section 311 Cr.P.C. The reason for summoning the said B.P. Singh is that he had recorded the statement of the father of the deceased in course of the treatment. From the impugned order it appears that the primary reason weighing with the court for rejecting the petition was that neither did the name of B.P. Singh figure as witness of the prosecution in the charge sheet nor did his name crop up in course of investigation. - 2 - However, through the impugned order the learned Presiding Judge has given liberty to the defence to examine the said witness to move for his summoning when the defence evidence commences and in such event the court would take it into consideration. Ordinarily the defence could not ask the prosecutor or the court to examine such and such witness or summon him under section 311 Cr.P.C. It is for the prosecutor to examine the witnesses of the charge sheet as he feels like examining and the options is wholly his. If the defence feels it necessary that the said B.P.Singh should be examine then when the defence evidence starts they may move the court to examine the said B.P.Singh as defence witness and in that event the court in seisin of the case take all steps to summons such witness. With the aforesaid application this application is disposed of. Spd/- (Abhijit Sinha, J.)