BODH NARAYAN THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The four petitioners along with other figured as an accused in Session Trial No. 160/87 which is pending in the court of 7th Additional Sessions Judge, Purnea. This application has been filed against the order dated 16-8-1989 whereby learned. Additional Sessions Judge, Purnea, has rejected the prayer for further adjournment of the trial for securing the attedance of the Investigating Officer and Chakbandi Officer (Consolidation Officer) .for being examined as prosecution witnesses.

(2.) As regards the Consolidation Officer, the court below has stated that the Consolidation Officer does not figure as a prosecution witness in the chargesheet. He, therefore, rejected the prayer or the defence that he should be summoned as prosecution witness. The petitioners have not been able to show that the prosecution had at any time wanted the Consolidation Officer to be examined as prosecution witness. Obviously, the defence has no right to compel the prosecution to examine any witness, more so a witness indicated by the defence, as a witness from the side of the prosecution. The learned Additional Sessions Judge, has right by rejected the prayer of the petitioner for calling upon the prosecution to examine the Chakbandi Officer as a prosecution witness and has rightly observed that if the defence so desires he may be examined as defence witness.

(3.) As regards examination of the Investigating Officer, the impugned order shows that sufficient time and opportunity was given to the prosecution to secure the attendance of the Investigating Officer and examine him. Inspite of summones issued to him, his attendance was not secured by the prosecution. On the prayer of the Additional P.P., warrant of arrest was also issued by the Trial Court and the same was made over to the Additional P.P. for getting it executed. Even then, the, prosecution machinery failed to get the warrant executed and secure the attendance of the Investigating Officer. Under these circumstances, the court below had no option but to close the prosecution case and it fixed next date for statement of the accused persons under section 313 of the Code of Criminal Procedure. The propriety and correctness of the order in the court below cannot be assailed. Mrs. Mishra arguing on behalf of the petitioners submitted that the petitioners are likely to be prejudiced due to non examination of the Investigating Officer. If the prosecution machinery fails to produce its witnesses even after necessary processes arc issued by the court, then obviously the court cannot go on showing indulgence and adjourning the case for a longer period. This is not only case of its kind. It very often happen that in spite of necessary effort made by the court the attendance of a particular witness, who may even be the Investigating Officer may not be secured. Under such circumstances, the necessary legal consequences will follow. The petitioners will be fully at liberty to raise such contention in this regard as will be permissible under law in support of their defence.