IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32309 of 2008 VIJAY KUMAR SHUKLA @ MUNNA SHUKLA, son of Late Ramdas Shukla, village Khanjaha Chak, PS Lalganj, Dist. Vaishal. Versus THE STATE OF BIHAR THRU. CBI. ----------- For the petitioner : Mr. Ajay Kumar Thakur, Sr. Advocate & Mr. Amir Alam and Mr. Pawan Kumar No. I, Advocates. For the C. B. I. : Mr. Bipin Kumar Sinha, Standing Counsel, C. B. I. … 2 7.8.2009 Heard learned counsel for the petitioner and the counsel representing the C. B. I. This application has been filed against the order, dated 23.7.2008 passed by the Addl. Sessions Judge III, Patna in S. T. No. 613/2002 whereby and whereunder the application filed by the petitioner on 14.7.2008 to call for the evidence of Bhirgunath Thakur and Sugriv Singh rendered in an enquiry held with respect to murder of one Brij Bihari Prasad before the Enquiry Commission in which one of the retired Hon’ble Judge of this court was appointed Chairman be brought on record in the present case has been rejected. The case of the accused-defence is that Bhirgunath Thakur and Sugriv Singh were both body guards of late Brij Bihari Prasad and the first version of the occurrence was rendered by them in the said judicial enquiry and as such their evidence before the judicial enquiry would be important to show the discrepancies in the prosecution case. It is a fact that Bhirgunath Thakur and Sugriv Singh were examined during the trial as P.Ws. 38 and 40. During the trial it appears that these two witnesses have been declared hostile by the prosecution. 2 Learned counsel for the petitioner submits that the court below has erred in rejecting the petitioner’s application on the ground that the same was made after a delay. It is submitted that in fact the prosecution examined its last witnesses on 17.8.2008 and on 25.8.2008 the defence began to examine their witnesses. This particular petitioner started his defence on 4.7.2008 and as such the application has been filed in time i.e. on 14.7.2008. Therefore, the observation of the court is without merit. It is further submitted that the petitioner did not have the opportunity to file any application for production of a document / evidence recorded in the Judicial Enquiry of Bhirgunath Thakur and Sugriv Singh earlier in the trial, as the appropriate stage for making an application would be when the petitioner had entered upon his defence. Referring to section 233(3) of the Cr.P.C. it has been submitted that it refers to the right of the accused to enter his defence and in this context if the accused applies for issuance of any process for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It is submitted that neither of the three grounds have been mentioned by the court below in its order, dated 23.7.2008. Counsel for the C. B. I., on the other hand, submits that the court below has not only taken into consideration the delay but also passed orders on merit of the case. It is apparent that PWs 38 and 3 40 have been declared hostile by the prosecution and, therefore, the court has considered this aspect and come to a conclusion that in fact the evidence of these two witnesses led before the judicial enquiry commission would not really be helpful to the defence or the prosecution as the witnesses have been declared hostile. There is another aspect of the matter. The prosecution closed its witnesses on 17.8.2007. The accused were examined under section 313 of the Cr.P.C. on 28.8.2007. The defence began leading their witnesses on 5.9.2008 which continued up to 11.9.2008. The defence began its argument on 11.9.2008 and closed it on 12.9.2008 whereas the prosecution closed its argument on 29.7.2009. The prosecution gave its reply during the trial on 31.7.09 and the case was fixed for production of the accused, that is to say, that the trial is near conclusion and perhaps is awaiting judgment of the trial court. This court on considering the entire gamut of facts placed by the counsel for the petitioner and the C.B.I. finds that no useful purpose would be served if the prayer of the petitioner is allowed. Undoubtedly it is the duty of the court to decipher the truth in a criminal trial given the particular circumstances of a case. However, the court is also bound to consider whether it is in the interest of justice to entertain and allow applications filed by one or the other party regarding an interlocutory matter. In this particular case the application filed on behalf of the petitioner was to call for the affidavits / evidence filed on behalf of PWs 38 and 40. In the opinion of this court the prayer was made at a belated stage of the trial. The 4 defence was quite aware of the fact that PWs 38 and 40 after their examination were declared hostile. In the opinion of this court it would have been proper for the petitioner who has filed the application in the month of January 2008 itself not to wait for his turn to examine the witnesses before making such an application which would lead to nothing but delay in the proceeding. Besides this, the affidavits filed in a judicial enquiry can hardly be considered viz-a-viz the evidence given in a trial. The nature of the affidavits / evidence rendered in a judicial enquiry would even if produced, not serve any purpose as in any event P.W. 38 and P.W. 40 have not supported the prosecution version. In the circumstances aforesaid I find no ground to interfere with the order, dated 23.7.2008. This application is accordingly dismissed. A.F.R./haque (Sheema Ali Khan, J.)