NAVIN KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD.

(2.) THIS is the fourth attempt on behalf of the petitioner to get an order of bail, having earlier failed in Cr. Misc. Petitions No. 7174 of 2007, 1052 of 2008 and 28925 of 2008, the later two orders not being passed exactly on the merits of the facts but on certain consideration of delay in disposal of the case and with directions to the court below for either expediting the trial or pointing to this court as to what impediments were being faced by it in disposal of the case. One impediment which appears from the order passed by the learned Special Judge (lXth Additional Sessions Judge -cum - Special Judge, Patna) in Special Case No. 62 of 2006 is the non -production of the witnesses, the teamed counsel appearing for the petitioner, though, mentions that three witnesses were examined on 26.9.2008 after passing of the present order. The steps which have been indicated by the learned Judge in his rejection order were writing a couple of letters each to the Senior Superintendent of Police and the Director, F.S.L., Patna for production of the witnesses as also for making available to him the report on an analysis of the seized substance respectively. I could not really come to terms with the steps taken by the learned Judge inasmuch a Judge who is sitting in court and conducting a proceeding is not supposed to write letters to any of the agencies of the State or its employees; he is simply supposed to draw an order about the circumstances which could be appearing from the record of the case and identifying their duties and thereafter calling upon them by a clear direction to comply with the part of the order by doing anything or producing a document or a witness. The reason is simple that when the Court writes a letter to the officer of the State, it cannot issue a notice for non -compliance/disobedience of his order. Moreover, a Judge is not anybodies friend, he is a Judge who is an Arbitrator and who is supposed to seek compliance of law by enforcing the provisions. The learned Judge must have very good intentions in writing letters, I do not have any doubt in it, but the learned Judge should refrain himself from entering into correspondence with any officers who are supposed to assist him in dispensation of justice, rather he should issue clear orders to him or them for compliance. Above all, the learned Judge before having decided to enter into correspondence ought to have consulted some provision like 170(2) Cr.P.C. The provision requires the officer -in -charge of a police station to obtain bonds from persons acquainted with facts and circumstances of a case to appear before a court so as to supporting the charges. The above could be the reason that the Supreme Court might have, without referring to the provision, directed issuing notice to the officer -in -charge of a police station by which the case had been investigated into, calling upon him to remain physically present with all witnesses in court on all dates of hearing. The learned Judge could find this law as laid down by the Apex Court in Shailendra Kumar V/s. State of Bihar, AIR 2002 SC 270. I could have required the learned Judge to draw an order and transmit the same to the concerned officers and issue a notice to the officer -in -charge of the police station which had investigated the case for production of the witnesses by appending thereto the details of witnesses whose names appear in the charge - sheet. If still the learned Judge does not get the witnesses who are really material for the prosecution to be examined, then he should issue notices by acting as per the provisions of Chapter 26 of the Cr.P.C., besides, making a reference to this court for contempt action. Learned counsel who appeared for the present petitioner was making a very pungent critic of the facts of the case and the situation under which the petitioner has been lodged in custody. Learned counsel was attacking the claim of the prosecution that it could be a substance which could be smack or which could be any of the derivatives of narcotic substance in absence of any authentic evidence in that behalf. Learned counsel was also bringing into the court 'snotice the situation in the life of the petitioner of being not booked earlier any offence whatsoever and that the finding of the narcotic drug could never be really assigned to the possession of the petitioner. It was contended that the petitioner is in custody since November, 2006 and the trial is not concluded even after reminders from this court to the learned trial Judge.

(3.) THE court finds it very difficult to enter into any finding as to the nature of substance seized unless F.S.L. report comes either to the trial court or to this court and the same considered in the light of the allegations. This has primarily to be accepted as a charge against the petitioner that he was in possession of some narcotic substance as alleged. Responsible officers of the State who are ordained to investigate cognizable offences are supposed to place facts correctly and unless the allegations are controverted by procedures laid down by law. I cannot not enter into factual disputes. I again dismiss the petition for bail of the petitioner and it could be expedient for the learned Judge that he could be able in concluding the trial in a period of six months from the date of the receipt/production of the copy of the present order. The court believes that the learned Judge acts as per directions contained herein.