IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51377 of 2008 1. SARYUG PRASAD ARYA, SON OF SABOJE RAI. 2. RAM PUKAR RAI, SON OF RAMASHISH RAI. 3. YASHVANT KUMAR RAI @ YASHVANT RAI, SON OF RAM BALLAM RAI. ALL RESIDENTS OF CHAKLAJ SHAHI, P.S. TAJPUR IN THE DISTRICT OF SAMASTIPUR. ----- PETITIONERS Versus 1. THE STATE OF BIHAR. 2. RAM SEWAK PRASAD, SON OF HARILAL BHAGAT. RESIDENT OF VILLAGE BANBIRGANJ, P.S. TEJPUR IN THE DISTROCT OF SAMASTIPUR. ----- OPPOSITE PARTIES ----------- 3 11.8.2009 This application has been filed challenging the order dated 15/9/2008 by which the Court has considered the application filed on behalf of the prosecution and the defence relating to examination of certain witnesses. The prosecution has stated that they do not want to examine Gopal Choudhary, Santosh Kumar Singh, Mahesh Rai, Nathuni Mahto, Bablu Sah and Shatrughan Kumar Triyar as they apprehended that these witnesses have turned hostile. It has been stated in the petition that Santosh Kumar who was pillion rider along with the deceased Deokant Arya has become traceless whereas the others who have been made charge sheet witnesses in order to distort the prosecution case. On behalf of the defence, an application was filed that the aforesaid named 2 persons should be examined as Court witnesses as they are charge sheet witnesses and they would disclose the correct version of the occurrence. It is submitted that in fact all these witnesses are close to the prosecution party and influenced by political leaders but the prosecution apprehends that they would not be able to stand the test of cross examination and as such has deliberately kept them away from the witness box. The Court has allowed the application filed on behalf of the informant to exempt the aforesaid charge sheet witnesses for examination and had rejected the application filed on behalf of the defence to examine the charge sheet witnesses as Court witnesses. It is true that the prosecution/informant in this case cannot be forced to examine a particular witness as the principle is that prosecution is at liberty to examine witnesses in order to prove its case. However, it would always be open to the Court under Section 311 of the Code of Criminal Procedure “to summon any person as a witness, or examine any person in attendance, though not 3 summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case”. The prayer of the petitioner to summon the charge sheet witnesses as Court witnesses will depend entirely upon the Court. If the Court thinks any time during the trial that they are essential for coming to the truth of the matter or reaching a just decision it would always be open to the Court to examine such persons by issuing notices to them to appear in Court. However, the accused petitioners cannot ask the Court to examine these chargesheet witnesses unless the conscious of the Court is satisfied that they are essential for a just decision of the case. With these observations this application is dismissed. Sanjay (Sheema Ali Khan, J.)