IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45862 of 2008 RAM SUBHAM PRASAD @ RAM SUBHAM MAHTO … … Petitioner Versus THE STATE OF BIHAR … … Opp. Party For the petitioner: Mrs. Anjana Prakash, Sr.Adv. For the State: Shri Dashrath Mehta,APP ----------- 4. 1.12.2008 Heard. This is the third prayer for bail on behalf of the petitioner. The merit of the matter has been discussed in the first rejection order passed in Cr. Misc. No. 8869 of 2007 and the Court is not inclined to review its earlier orders of rejection. However, a report has been received from the trial Judge which is appearing at Flag „A‟ to the present record and it is indicted by that report that in spite of the petitioner being in custody since 27.11.2006 the charge could be framed on 4.2.2008 and no witness has been produced by the prosecution during the last about ten months. The learned Judge appears knowing the implication of an accused being in custody and, as such, has attempted to pass on the responsibility to court lower to him inasmuch as he has written that “the accused is in custody from the lower court since 27.4.2006.” The accused 2 could be in custody by order of any court and the trial Judge has the responsibility to ensure that justice is handed out to him. It is not the court lower to the learned trial Judge who could be held responsible for confining the petitioner without trial. The learned trial Judge has informed that he had issued summons on 6.2.2008 and he has also directed the Officer-in-charge of the Police Station to produce the witnesses but he does not appear taking any meaningful steps towards getting the witnesses produced before him. He could be pointed out the provision of Section 309 Cr.P.C. which empowers the court of slapping a cost upon the party who seeks unnecessary adjournment and that provision is to be applied or utilized in a case in which the parties could be the persons other than the State. The Court would have appreciated the learned Judge only when he had slapped a cost under Section 309 of the Cr. P.C. upon the persons not producing the witnesses and had realized it either from of the Officer-in- charge of the concerned Police Station or from any Officer of the State including the 3 Additional Public Prosecutor for non- production of the witnesses to be realized from his fees. I believe that the learned Judge could direct the Officer-in-charge of the concerned Police Station by issuing a notice to him to remain physically present with all the witnesses on dates by fixing dates on day-to-day basis. The information to that effect could also be given to the Superintendent of Police, Gaya, and if no action is taken the court could act under Section 309 of the Code of the Cr. P.C. as also could make a report to his Court so that this Court could examine the non- production of witnesses from another angle. It is expected that the trial could be concluded within a period of one year from the date of receipt/production of a copy of the present order. This petition is dismissed with the above directions/observation. Kanth ( Dharnidhar Jha, J.)