IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32287 of 2009 NEHRU KUMAR, SON OF SRI RAM NARESH SINGH, RESIDENT OF VILLAGE SAFAPUR, P.S. NAYAGAON, DISTRICT BEGUSARAI. ----- PETITIONER Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 2 21.1.2010 The petitioner who is the informant of this case is aggrieved by the order dated 8.9.2008 passed by the Additional Sessions Judge, 1st, Begusarai in Sessions Trial No. 17/2007 by which the Court has rejected the prayer of the petitioner for not examining certain witnesses. It has been argued on behalf of the defence that these witnesses are eye witnesses of the occurrence and they would indeed give a clear picture with respect to the manner of the occurrence. An application was filed on behalf of the informant that the witnesses namely Prahalad Kumar, Kundan Kumar, Anil Kumar, Arjun Singh and Jai Prakash Singh have been gained over by the defence and if they are examined, they would not give a true picture with respect to the occurrence. It is said that the accused persons have a criminal background and out of fear these witnesses would not speak the truth and as such the prosecution does not want to examine them as witnesses. Section 231 of the Code of Criminal Procedure envisages that “On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.” The prosecution is not bound to produce each and every person as a witness. It is prerogative of the prosecution to produce those witnesses which would support the prosecution case. In this case the petitioner has reason to believe that the witnesses who are co-villagers 2 of the accused persons would not support the prosecution case. In this case, four witnesses have already been examined and according to the petitioner they have supported the prosecution version and despite a lapse of almost one year, no further witnesses are coming forward to support the prosecution evidence. The defence would not be prejudiced by non examination of 4/5 witnesses mentioned in this order sheet as they can always take the stand that important witnesses who are allegedly eye witnesses to the occurrence have been withheld and as such an adverse inference should be drawn and the defence should get the benefit of non examination of vital witnesses. On the other hand it would be difficult for any Court to insist that the prosecution should examine these witnesses. It is always be open for the Court to examine any witness if the Court thinks essential for deciding the matter by calling them as Court witnesses but the Court cannot insist that the prosecution should produce witnesses who do not support the prosecution case. This has been the consistent view of the High Court as well as of the Supreme Court. Reference may be made to the case of Rajbir Vs. State of Haryana reported in (1996) 7 SCC 86. In the result, the order dated 8.9.2008 passed by the Additional Sessions Judge, 1st, Begusarai in Sessions Trial No. 17/2007 is quashed. This application is allowed to the extent mentioned aforesaid. Sanjay (Sheema Ali Khan, J.)