IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.1825 OF 2009 1. UPENDRA SINGH, SON OF LATE SURAJ SINGH, 2. OM PRAKASH SINGH, SON OF LATE BHIKHARI SINGH, BOTH OF SITALPUR BABU TOLA, PS DIGHWARA, DIST. SARAN AT CHAPRA …………………………………………………………………… PETITIONERS. VS. THE STATE OF BIHAR……………………………………OPPOSITE PARTY ************ FOR THE PETITIONERS : MR. CHIATTARANJAN SINHA, SR. ADVOCATE MR. UDAI SHANKAR SINGH, ADVOCATE FOR THE INFORMANT : MR. SURAJDEO YADAV. ************ 2 7-7-2009 This application has been filed for quashing the order, dated 17.12.2008 passed by Additional Sessions Judge XI, Patna in S.T. No. 155 of 1994. An application had been filed on behalf of the petitioners who are accused in this case that they may be permitted to examine Balindra Singh and Mukesh Kumar as court witnesses on the ground that they are independent witnesses and that their evidence have been recorded by the Investigating Officer. It is contended that the prosecution has deliberately not examined these witnesses as they will not support the prosecution case. Some background of this case is essential. It appears that a petition, dated 17.5.2005 was filed on behalf of the prosecution wherein it has been stated that Mukesh Kumar and Balindra Singh have gone in collusion with the accused persons and as such the 2 prosecution does not wish to examine them. By order, dated 15.7.2006 the court allowed the application on the ground that the court must examine the witnesses whose evidence will unfold the prosecution case and has presumed that these two witnesses will not unfold the prosecution case and has relied on a decision of the Supreme Court in the case of Sarwan Singh and others vs. State of Punjab, AIR 1976 SC 2304. In fact the court below while relying on the above decision has quoted a few lines of the judgment in order to support its findings. The judgment in the case of Sarwan Singh (supra) does not relate to the issue which was before the court. The question that has been decided in Sarwan Singh’s case is with respect to the contention of the defence that the charge sheet witnesses were not examined during the trial of the case and as such there are lacunae in the prosecution version which have prejudiced the case of the appellants accused. The Supreme court in that context has held that it is not essential to examine each and every witness even on minor point. It was further held that the prosecution is only bound to produce such witnesses as are essential for unfolding the prosecution narrated. The order, dated 15.7.2006 was challenged by the petitioners by filing a quashing application being Cr. 3 Misc. No. 38508 of 2006 in which this court had passed an interim order. This interim order was challenged in the Supreme court by the opposite party. The supreme court directed that the trial in the case should be concluded as expeditiously as possible and in any case within a period of six months. It was further directed that the Additional Sessions Judge should examine the accused persons under section 313 of the Code of Criminal Procedure on 17/18.11.2008. The petitioners have filed a petition in the S.L.P. praying for extension of time and as such the Supreme court passed an order that the High court should arrange for the disposal of this application within two months from that date. It was further directed that the trial judge should examine the defence witnesses during the interregnum period. Surprisingly the prosecution thereafter filed an application contained in Annexure 2 praying that the court should issue summons to secure the presence of witnesses Balindra Singh, Akaldeo Singh and Mukesh Kumar. This application was disposed of by order, dated 9.8.2008. While disposing of the application under Annexure 2, the court referred to the order, dated 15.7.2006 saying that a detailed order has been passed by the court refusing to examine Balindra Singh and Mukesh Kumar on the ground that they had allegedly 4 come in collusion with the accused persons. The present case is being heard on an application filed on behalf of the defence under section 311 of the Code of Criminal Procedure praying therein that the court may call Mukesh Kumar and Balindra Singh to be examined as court witnesses. It may be stated here that the defence has already examined Mukesh Kumar as a defence witness and as such the matter revolves around the question whether Balindra Singh should be examined as a court witness or not? The scope of section 311 of the Code of Criminal Procedure envisages that any court may at any stage of any enquiry or trial or other proceedings may summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined; and the court shall summon and examine or recall or re- examine any person if his evidence appears to be essential to the just decision of the case. This section consists of two parts, one gives the discretionary power to the court and the other imposes an obligation on it. The first part gives the discretionary power to summon any person as a witness or to examine any person in attendance though not summoned as a witness and further recall or re-examine any person already examined. 5 The second part of the section imposes an obligation on the court to summon and examine or recall any witness if his evidence is necessary to the „just decision‟ of the court. The facts that emerge in this case are that the court below has passed an order on 15.7.2006 on an application filed on behalf of the informant allowing him not to examine the witnesses Mukesh Kumar and Balindra Singh on the premise that these witnesses have gone in collusion with the accused. The reasons for coming to this finding that these witnesses are in collusion with the accused persons is no where mentioned in the order and in fact the order was passed merely on oral submissions. Be that as it may, it is also a fact that after the order of the Supreme court in this case, Cr. Misc. No. 38508/2006 was withdrawn by the petitioners and, therefore, it has been argued that the order, dated 15.7.2006 attained finality. Thus, according to the opposite party-informant the court has rightly rejected the application of the petitioners to examine Mukesh Kumar and Balindra Singh as court witnesses. In the opinion of this court there is a difference between an application filed on behalf of the prosecution or the informant making a prayer to the court 6 to exempt certain charge sheet witnesses to be examined as prosecution witnesses and a prayer made on behalf of the accused persons to examine those very witnesses as court witnesses as according to the accused persons- petitioners, these witnesses would be important for the just decision in the case. There is no doubt in my mind that the court to come to a “just” decision has to examine whether the prosecution has been able to prove its case and also whether the persons accused are responsible or involved in committing the crime alleged. Both aspects of the matter are distinguishable and fall within the ambit of consideration of the court for coming to a “just” decision. In this case it was the duty of the petitioners to demonstrate before the court below that these witnesses are essential for the purpose of coming to a correct decision regarding the involvement of the petitioners in the occurrence. From the order impugned it is clear that no finding of the court has been recorded with respect to this aspect of the matter. Learned counsel for the petitioners to substantiate the arguments has relied on a decision in the case of Vadlamudi Kutumba Rao, AIR 1957 (AP) 595. In this case the order is a preliminary enquiry of the 1st Class Magistrate who revised the order of the Magistrate dismissing an application made by the petitioner and co- 7 accused under section 540 of the of the Code of Criminal Procedure was dismissed. The prayer was for summoning and examining witnesses who had been mentioned as direct witnesses in the charge sheet but who had been given up by the Assistant Public Prosecutor at an enquiry. It was alleged by the applicant that they were given up with an oblique motive that they were not supporting prosecution version, and their evidence would have a direct bearing on the decision of the case. The Magistrate dismissed the application on the ground that the accused ought to examine these persons as defence witnesses. The court held that it is a cardinal rule and law of evidence that the best available evidence should be brought before the court. The court cannot compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to both in charge of the prosecution or the defence. But in weighing the evidence the court can take note of the fact that the best available evidence has not been given and draw an adverse inference. The aforesaid view supports my view that the court should not compel the defence to examine charge sheet witnesses as defence witnesses. It is, therefore, important that the court must mention the reasons for allowing or disallowing the application made on behalf of 8 the accused petitioners with respect to whether the evidence of the witnesses sought to be brought on record would be relevant for a just decision in this case and certainly the court has to examine this aspect in order to bring the best evidence on record. In the case of State of U.P. vs. Jaggo, AIR 1971 SC 1586, a similar situation was faced by the court. There was an argument in the case that the witnesses mentioned in the charge sheet have been gained over by the prosecution. The Court referring to this aspect held that a mere presentation of an application to the effect that a witness has been gained over was not conclusive of the question that the witness had been gained over. Relying on the aforesaid decision this court finds that the petitioners ought to demonstrate before the trial court the necessity of examining the witnesses as Court witnesses. The prayer, however, in this case has now been only limited to Balindra Singh. It would always be open to the prosecution and most certainly to the court while hearing the argument at the stage of trial to draw its own conclusion with respect to truthfulness of the witness so examined whether it be a witness for the prosecution, the defence or a court witness. Learned Counsel for the petitioner has also submitted that the Supreme Court has fixed the time for 9 disposal of the trial itself. I may point out that it is the parties, both the prosecution and the defence, who have filed applications one after the other to agitate interim issues. In the result, this objection of the petitioners cannot be said to be valid. However, the Court should be conscious of the fact that such matter should not be linger specially when there is a direction of the Supreme Court to complete the trial within four months. In the circumstances, the Court may hear the matter and dispose it of within a period of one week after receiving a copy of this order. The parties should cooperate and if they do not file the application before the Court below within the aforesaid period with a prayer to rehear the matter, they will not be allowed to agitate the matter any further. This application is allowed for the reasons mentioned above. Let a copy of this order be communicated to the Additional Sessions Judge XI, Patna in connection with Sessions Trial No. 155 of 1994 through fax at the cost of the petitioner. Haque/Anand (Sheema Ali Khan, J.)