IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22042 of 2009 1. SASHI KANT TIWARY son of Late Madho Tiwary 2. Subhawati Devi, wife of Sri Sashi Kant Tiwary, both resident of village Dhomar, P.S. Ara Muffasil, District Bhojpur Ara Versus THE STATE OF BIHAR ----------- 02/ 25.07.2009 Heard learned counsel for the petitioners and the State. Under orders dated 20.4.2009, passed in Cr. Misc. No. 42999 of 2008, petitioners were allowed six weeks time to surrender and thereafter their bail plea was to be considered in the light of the statement of Dr. Arun Kumar, who, according to the petitioners, attended the deceased before her death. Counsel for the petitioners submits that in compliance of the aforesaid order dated 20.4.2009, petitioners surrendered in the court below, but their petition to surrender was not entertained and their request to examine the statement of Dr. Arun Kumar by calling for the case diary from the Investigating Officer was not allowed. In this connection, it is pointed out that in the original record, charge sheet was filed without examining Dr. Arun Kumar and thereafter such submission was made before this Court. During the hearing of the anticipatory bail application, this Court under orders dated 20.4.2009 directed the court below to consider the case of the petitioners in the light of the statement of Dr. Arun Kumar and until such consideration, 2 no coercive steps be taken against the petitioners, but when they surrendered, the court below under orders dated 22.5.2009 rejected the petition to call for the case diary, whereunder statement of Dr. Arun Kumar has been recorded, on the ground that the cognizance has been taken in the matter in the light of the charge sheet already submitted and no useful purpose will be served by calling for the case diary from the Investigating Officer. This Court under orders dated 20.4.2009 directed the court below to consider the bail plea of the petitioners in the light of the statement of Dr. Arun Kumar and if that was not available in the original record, then to examine the case of the petitioners in the light of the statement of Dr. Arun Kumar, the court below ought to have called for the supplementary case diary from the Investigating Officer and could not have rejected such plea on the ground that the case diary is available in the original record. Case diary may be available in the original record, but if the same does not contain the statement of Dr. Arun Kumar then the court below, as directed under order dated 20.4.2009, should have considered the matter in the light of the statement of Dr. Arun Kumar only by calling for the supplementary case diary from the Investigating Officer. It is a different matter whether subsequent statement of Dr. Arun Kumar recorded much after the filing of the charge sheet could be relied upon or not is the discretion of the court below, but the court below was obliged to consider the case of 3 the petitioner in the light of the statement of Dr. Arun Kumar, however, consideration does snot mean that it must accept the plea and having considered the statement of Dr. Arun Kumar, appropriate order as per its discretion ought to have been passed. In the circumstances, I grant one more opportunity to the court below to consider the matter in the light of the statement of Dr. Arun Kumar. Petitioners above named are directed to surrender in the court of Chief Judicial Magistrate, Bhojpur, Ara in connection with Ara Muffasil P.S. Case No. 93 of 2008 on or before 1.8.2009, whereafter supplementary case diary should be called for and until the consideration of the matter in the light of the statement of Dr. Arun Kumar, no coercive steps be taken against the petitioners. The modification application is, accordingly, disposed of. Let this order be communicated to the court below though fax on payment of usual charges by the petitioners. Arjun/ ( V.N. Sinha, J.)