IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.247 of 2008 RUSTAM KHAN Versus THE UNION OF INDIA & ORS For the petitioner:- Mr. N. K. Agrawal, Sr. Advocate. For the State :- Mr. Ram Bilas Mahto,A.A.G.VIII. For the C.B.I.:- Mr. Bipin Kumar Sinha, S.C.,C.B.I. ------------------- 6. 09.09.08. In the instant writ application, the petitioner prays for issuing an appropriate order or direction commanding the respondents namely, respondent Nos. 2 to 11,to produce the petitioner in the court of learned Additional Sessions Judge XI, Patna, in Sessions Trial No. 948/2001, in view of repeated production warrants issued for his production since 4. 10.07. It would be necessary to notice the facts of case in brief. One Siwan (Town) P.S. Case No. 54/1997 dated 31.3.97, under Sections 302, 307, 120B I.P.C.was instituted on Fard Beyan of one Ramesh Singh Kushwaha in which petitioner was also named as an accused.The investigation of the case was subsequently handed over to the C.B.I., by Government of Bihar. The C.B.I. after investigation, submitted charge sheet against the petitioner and other co-accused persons. The case was transferred to the court of learned Special Judge, C.B.I., North-cum-Additional Sessions Judge XI, Patna, and the petitioner was remanded in this case on 7.12.2001. Charges were framed against the petitioner and other accused persons. Learned counsel for the petitioner submits that many of the witnesses have turned hostile and have not supported the prosecution case. The petitioner submits that on account of grave threat to his life, he fled to Kolkata and as such could not appear in the case pending before the C.B.I. Court. His bail bond was cancelled, and non-bailable warrant of arrest was issued against him. 2 The petitioner was arrested on 14. 7. 06, in connection with another case and was remanded to Alipore Jail. The C.B.I. filed a petition in the court of learned Special Judge, C.B.I., Patna, for his production. The Special Judge, C.B.I.,Patna, passed an order for his production in the instant case i.e. Sessions Trial No.; 948/2001 from the Alipore Jail, Kolkata (West Bengal). On 30.9. 06, the petitioner was transferred to Siwan Jail from Alipore Jail, Kolkata, from where he was shifted to Gopalganj jail, for sometime, and ultimately, to Siwan Jail. The petitioner submits that despite repeated issuance of production warrant by Special Judge, C.B.I., Patna, he is not being produced before the court at Patna. Learned counsel for the petitioner further submitted that denial of his production before the Patna court would amount to both denial of his rights to seek bail under Sections 437, 439 and 440 Cr.P.C. as well as to reap benefit of provision of Section 428 of Cr.P.C. also. Learned counsel for the petitioner submits that after his production at Patna Court , it would be open to authorities to take him back to Siwan Jail for his production in cases in which he is involved or is being tried. Learned Additional Advocate General No.VII-cum- Spl. P.P. Mr.R.B.Mahto submits that presence of petitioner is necessary at Siwan as he is required for trial in various cases there, along with one Md. Shahabuddin. The aforesaid trial is going on almost on day to day basis, pursuant to the order of this Court. He submits that shifting him to Patna jail from Siwan, would hamper day to day trial of the cases, in which the petitioner is co-accused with Md. Shahabuddin. 3 Learned counsel for the C.B.I. states that non-production of the petitioner before Additional Sessions Judge IX, Patna, is hampering the trial of the case therein. Heard the learned counsel for the parties and perused the materials on record It is the case of respondent State that there is difficulty in producing the petitioner in Patna court as his presence is required for trial at Siwan, in various cases, which are pending there along with Mr. Shahabuddin. This Court thereafter, directed the learned counsel for the State Government to file affidavit giving details of the dates in which the petitioner is required for trial or inquiry in Siwan courts. Pursuant to the aforesaid direction, the counsel for the State has filed a counter affidavit annexing a detailed chart (Annexure A) giving the details of dates in which petitioner is required in Siwan courts.. The chart contained in Annexure-A of Counter Affidavit shows that no date is fixed for 12th September, 2008, in respect of any of the cases, in which the petitioner figures as an accused. It further appears from the chart, that the days following e.g.13. 9. 08, is a Second Saturday and holiday . 14. 9. 08 is Sunday. The petitioner as such could be produced before C.B.I. Court at Patna on 12.9.08 for the purpose of his production under Section 267 Cr.P.C.and consequent remand . The authorities can take him back to Siwan Jail soon thereafter as he would be next required in cases there, only on 15.9.08. On query from learned Addl. Advocate General-cum-Spl.P.P. 4 whether it would be possible to bring him from Siwan Jail in the evening of 11.9.08 or in the early morning on 12. 9.08. he gave his nod for any of the two alternatives provided if the petitioner cooperates and does not flee away once again. In order to effect a balance and to ensure the presence of petitioner both at Patna court,.pursuant to issuance of production warrants and also to ensure non-delay of his speedy trial at Siwan, a via media has to be found in order to give effects to various provisions of the Code including Sections, 267, 269(2), 437, 439, 440, 428 Cr.P.C. and above all Article 21 of Constitution of India. In the aforesaid circumstances, this Court directes the State Government as well as District Administration of Siwan as also the Administration of Patna to ensure the production of the petitioner Rustam Khan before C.B.I. Court at Patna on 12. 9. 08 and thereafter, they would be at liberty to take him back to Siwan Jail, so that his trials at Siwan which is progressing almost day to day basis with that of Md. Shahabuddin, do not get hampered. The authorities would be at liberty to take adequate security measures for ensuring his smooth production at Patna court. The authorities can also resort to mild persuasive force if at all necessary for ensuring his timely production in courts both at Patna and Siwan. All respondents including the Jail Authorities would ensure the compliance of this order. This Court in the end, would like to record its satisfaction for the efforts put in by Additional Advocate General VIII., Mr. R. B. Mahato and his 5 office in preparing a detail chart of dates in which petitioner is wanted at Siwan in different cases. This Court also appreciates the fair stand taken by the learned Addl. Advocate General VIII to ensure production of the petitioner at Patna also, where he is required in a C.B.I. case, at the same time without causing any delay in respect of cases at Siwan court also. With the aforesaid directions, this Criminal Writ application is allowed to the extent mentioned above. Let a copy of this order be handed over to the Advocate General VIII, Mr. R. B. Mahato and a copy of this order be also transmitted through Fax to the court of Additional Sessions Judge XI, Patna, where Sessions Trial No. 948/2001 is pending as well as to the Standing Counsel of the C.B.I. Let this order be communicated through FAX to the court concerned as well as D.M., Siwan, D.M.Patna as well as Jail Superintendent, Siwan, District Jail at the cost of petitioner. m.p. (Samarendra Pratap Singh,J.)