IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54156 of 2007 Bijay Kant Singh, Son of late Priyabat Narain Singh, Resident of Village Dayalpur, Police station Antichak (Kahalgaon), District Bhagalpur. ------ Petitioner Versus 1. The State of Bihar. 2. Baidhnath Keshri, S/o of late Jaggu Keshri, Resident of Village Dayalpur, P.S. Antichak (Kahalgaon), Dist. Bhagalpur. -------- Opposite Parties ----------- 6 13.8.2009 Heard learned counsel for the petitioner and counsel for the State. The notices on opposite party no.2, the informant has since been returned unserved by recording that he has already died. This Court would find that in a sessions trial of the year 1996, P.W.5, an Investigating Officer, namely, Kumar Janardan Singh was examined after a gap of eight years of the examination of last witness, P.W.4 sometime in the year 1999. Obviously, on that day, if the defence could not cross-examine the Investigating Officer, P.W.5 and after eight years, if the defence lawyer was not prepared or was not available, no undue adverse inference could have been drawn for the first default. As a matter of fact, the application filed on 7.9.2007 by the defence for recalling of P.W.5 for his cross-examination would only go to 2 show that there was some sort of communication gap which led to non-appearance of the counsel of the defence. In such a situation, this Court cannot appreciate as to why a traveling cost of Rs. 5,000/- would be imposed on the accused persons even if it is accepted that for seeking appearance of the witness P.W.5 the Investigating Officer, the State will have to incur additional expenditure by way of paying the T.A. Bill of P.W.5. No person however is going to be paid Rs. 5,000/- for traveling to Bhagalpur from any corner of this State. This being a criminal prosecution, the Court also cannot cause embarrassment or impediment to the accused specially when there is no material in the impugned order to show that earlier also the petitioner or the accused persons have been found to be indulging in delaying or dilatory tactics. Be that as it may, in the given circumstances, the cost of Rs. 5,000/- under the impugned order being wholly excessive is hereby set aside. The petitioner will however be liable to pay the actual traveling 3 allowance which would be payable to P.W. 5, Investigating Officer for his appearance in the court for his further cross-examination and whatever amount is assessed by the trial court on this head of traveling allowance, must be deposited by the petitioner in the court within twenty four hours of appearance and completion of recording evidence of P.W.5. With the aforementioned observations and direction, this application is allowed. Rsh (Mihir Kumar Jha, J.)