IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2804 of 2011 NAND KUMAR TIWARY Versus THE STATE OF BIHAR ----------- 2. 28.01.2011. Heard Sri Akhileshwar Prasad Singh, learned senior counsel for the petitioner and the learned A.P.P. for the State. The learned senior counsel appearing for the petitioner, an accused under trial in Sessions Trial No.155 of 1990, being tried by Additional Sessions Judge-cum-Fast Track Court-II, Buxar submitted that Dr. S.K.Singh and other witnesses were not summoned by the court below for being examined in defence of the petitioner. The court below appears disposing of many petitions by the impugned order, some of which were requiring the court to issue summons for production of certain documents from the custody of a particular government servant. As regards the summoning of Dr. S.K.Singh and Brahma Sankar Tiwary, there is no dispute in the fact that the defence of petitioner was that he was in Ranchi, Dr. S.K.Singh had medically examined him in his private capacity and had issued certain 2 prescriptions/certificates. The petitioner wants to bring on record those documents as also the evidence of Dr. Singh in support of that part of his defence. The court below was holding that because Dr. Singh was not examining the petitioner in any government hospital or dispensary, it was not incumbent upon him to issue summons for his appearance so as to recording his evidence. Similar was the reason as regards the none- summoning of Brahma Sankar Tiwary who could be produced by the petitioner himself and it was not incumbent upon him to issue a summons for his appearance also. The learned senior counsel appearing in the present petition was submitting that it was incumbent upon the court below to issue summons for enforcing the attendance of defence witnesses and it was contended that it was a matter of law that he ought to have done it. If one considers the provisions of Section 233(3)Cr.P.C. one may come to a conclusion that it was within the discretion of the judge trying a Sessions case to issue or not to issue a summons for reasons to be recorded by him, even if there was an 3 application made in that behalf before him and, specially, if he felt that the whole exercise was in order to deflating the ends of justice or was vexatious. The learned Judge has not stated directly that the attempt was vexatious but has clearly mentioned that the exercise appeared to dilate the proceedings further. This court upholds the findings recorded by the learned trial Judge that when he was observing that Dr. S.K.Singh has never examined the present petitioner in any government hospital or institution and had rather examined the petitioner in his private capacity and, as such, it was at all not incumbent upon the court to issue a summons for his appearance. It was also rightly pointed out that Brahma Sankar Tiwari was the full brother of the present petitioner and it could simply be a mockery in my opinion also, if the court was called upon to issue a summons for producing for such a witness of the class who was a family member of an accused to give evidence in defence. The court below appears balancing his acts of disposing of multiple petitions with exact 4 and proper exercise of his discretionary powers when he was allowing the part of the petition and rejecting the other with some reasons as assigned by him. The court appears generously considering the prayer of the petitioner also when it was giving four dates to the petitioner for bringing on his evidence by examining defence witnesses. The impugned order was passed on 8.12.2010. This petition is being disposed of today. May be nothing has happened in between those four dates which were allotted to the present petitioner. As such those four dates shall remain allotted to him if the trial stands at the same point. But the petitioner has to abide by the orders of the court on production of witness. The four dates shall be counted from the day, the petitioner files a petition within a week from today before the court below annexing therewith the copy of the present order and the court below shall accommodate the prayer of the petitioner in such a way, that he does not feel pressured and harassed. But, at any rate, the petitioner must produce all his witnesses and evidence of witness in a span 5 of 30 working days. The learned counsel appearing for the petitioner was making prayer that this order be communicated through fax to the court below at the cost of the petitioner. If the petitioner deposits the cost, the order may be communicated to the court below through fax. B.Kr. ( Dharnidhar Jha,J.)