Virendra Saran, J. - (1.) Heard Sri Dilip Kumar, learned counsel appearing on behalf of appellants, Sri Hemendra Kumar appearing on behalf of complainant and learned State Counsel.
(2.) This case shows lack of care on the part of learned II Addl. Sessions Judge, Bijnor. The prosecution withheld the Investigating Officer. In the entirety of the circumstances of the case his evidence was essential for the just decision of the case. An application was moved by the defence before the trial court that the Investigating Officer maybe examined as a court witness, but the learned Sessions Judge rejected this request on the ground that it is for the prosecution to choose his witnesses. It is no doubt true that the choice to produces the prosecution witnesses rests on the prosecution but at the same time a Judge is not a silent spectator to hide and seek game played by either party. The Judge does not act as a reference to see which of the two parties plays better. The Judge should see that the truth must prevail and no party wins a case by unfair means. In the present case the learned IInd Addl. Sessions Judge (Sri Pradumn Kumar) has played in the hands of prosecution by refusing to examine the Investigating Officer as a Court witness on the ground that it is open to defence to examine the Investigating Officer in defence. The Investigating Officer is interested in the success of the prosecution case and the defence cannot take the risk of examining the Investigating Officer as a defence witness and in all fairness the Investigating Officer should have been called as a court witness.
(3.) Without expressing any further opinion on merit of the case, it is directed that the appellant (Man Singh) be released on bail on each of their furnishing a personal bond for Rs. 10,000/- (Rupees Ten Thousand only) and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Bijnor.;