JUDGMENT By Court The petitioner who was the first informant in Dhanarua P.S. Case No.7 (8) 73 has the order of the First Additional Sessions Judge, Patna, acquitting the accused (Opposite party Nos. 1 to 5) of the charges levelled against them in the following circumstances. 2. The petitioner lodged a first information report against the opposite party alleging that on the 17th of August 1973. at about 10 A.M. while the petitioner's father was watching his maize crop situated towards the east of the village a she buffalo of opposite party no. 3 began to graze his maize crop. He, however, drove out the she buffalo. The daughter of opposite party no. 3 was tending the she buffalo. She is said to have reported an exaggerated version that the petitioner's father had abused and assaulted her on above account. It is said that on this report all the five members of the opposite party rushed to the maize field, variously armed surrounded the petitioner's father and brutally assaulted him with lathis who fell down on account of the assault and became unconscious. The petitioner's father later succumbed to his injuries ill the evening in the hospital. 3. The police, after investigation sent up the members of the opposite party to stand their trial under sections 147, 149 and 302 of the Indian Penal Code. The prosecution has cited eleven witnesses in the charge sheet. The learned Sub-divisional Judicial Magistrate, Patna, on receipt of the charge sheet committed the members of the opposite party to stand their trial in the court of Session under Section 302 of the Indian Penal Code by his order dated the 20th September, 1974. This case was then transferred to the court of the First Additional Sessions, Judge, Patna for disposal. 4. The learned Additional Sessions Judge on the 19th August, 1976 framed charges against the opposite party and ordered for is sue of summons to the prosecution witnesses fixing different dates for their appearance, namely, 16th, 17th, 18th, and 20th September, 1976. It is contended by the petitioner that summonses were not served upon the prosecution witnesses, and therefore, they did not turn up on the dates fixed for their evidence. It is contended by the petitioner that summonses were not served upon the prosecution witnesses, and therefore, they did not turn up on the dates fixed for their evidence. On a perusal of the order sheet of the court below, it would appear that on the first date fixed for appearance of the prosecution witnesses, that is, 16th September 1976, out of the five accused only one was present. A petition was filed on behalf of the remaining four accused stating that train services were dislocated on account of heavy flood, and, therefore they could not attend the Court. Their prayer for representation through a lawyer was allowed on that date. The Additional Public Prosecutor also filed a petition for reissue of summons. No order was passed on this petition, and the matter was adjourned to the 17th September, 1976. On this adjourned date neither any of the prosecution witnesses nor any of the accused persons turned up and the plea advanced on their behalf for non appearance was again heavy flood. The case was then adjourned to the 20th September, 1976. On it is date again none of the accused persons turned up due to heavy floods and they were allowed to be represented through a lawyer. None of the prosecution witnesses also turned up. The application filed by the Additional Public Prosecutor on the 16th September, 1976, mentioned above for issue of fresh summons, was allowed this date, and summons were issued to the witnesses fixing 5th, 8th, 9th and 10th November, 1976 for appearance of the different witnesses. On the same date, on the request of the Additional Public Prosecutor, warrant of arrest was ordered to be issued against the non-official witnesses and summonses for the official witnesses. 5. On the 5th November, 1976 although the accused had appeared, none of the prosecution witnesses turned up, in spite of the fact that the Additional Public Prosecutor had taken steps in pursuance of the earlier order against the witnesses. The learned Additional Sessions Judge directed the Additional Public Prosecutor to produce his witnesses positively on the next date fixed failing which the case will be closed after awaiting for the dates already fixed as the necessary step has already been taken by the court. The Additional Public Prosecutor filed a fresh petition praying for issue of non-bailable warrant of arrest against all the local witnesses. The Additional Public Prosecutor filed a fresh petition praying for issue of non-bailable warrant of arrest against all the local witnesses. This prayer was refused by the court below on the ground that bailable warrants of arrest had already been issued. and, as such, there was no reason to issue non-bailable warrants of arrest and that it was the responsibility of the State to produce the witnesses in the Sessions trial. On the 8th and 9th November, 1976 also none of the prosecution witnesses turned up and, on the last date of hearing fixed by the learned Sessions Judge. that is 10th November, 1976, when again no prosecution witness turned up he rejected the petition which was filed on that date by the Additional Public Prosecutor praying to issue non bailable warrant of arrest against the witnesses and bailable warrant of arrest against official witnesses and give him a further reasonable time by way of last chance. The learned Additional Sessions Judge, however, rejected this prayer by the impugned order on the ground that he had already given sufficient opportunity to the State and that it was the duty of the prosecution to bring its witnesses as provided under section 231 of the Code of Criminal Procedure and that the court was not bound to issue processes against the witnesses over and over again. The Court below further observed that "the State with all its resources could have easily produced witnesses by getting the processes executed in time. If the State would have been bit careful......” and thereafter, he as already stated earlier, acquitted the accused of the charges leveled against then. The informant has, accordingly come to this court. 6. Learned counsel appearing for the petitioner on a reference to section 230 of the Code of Criminal Procedure which is a provision inserted in the new Code contends that the court was duty bound to issue the process on the application of the prosecution for compelling the attendance of the witnesses in question-and by rejection of this prayer as made in the petition filed by the Additional Public Prosecutor, a serious miscarriage of justice has resulted in the acquittal and discharge of the accused without being tried for the offence that they are said to have committed. 7. 7. It is, no doubt true that on the date fixed for hearing the prosecution has to produce all such evidence in support of its case, but the prosecution is also certainly entitled to seek the assistance of the court in securing the attendance of any witness or production of any document or other things. Even when this new Code was not in force, it was observed by a Bench of this court in Md. Yasin and others V. The State that where witnesses on being summoned did not turn up it was the bounden duty of a court to see that its orders were obeyed, and anyone guilty of disobedience or the orders of the court should be proceeded against according to law. It was further observed that the courts were not powerless or helpless in this matter and a court should take action where there was no reasonable explanation for obedience of its Orders of ignoring of its summonses. The Supreme Court also in the case of Jamatraj Kewalji Govani V. State of Maharastra, while dealing with section 540 of the old Code observed that this provision conferred a wide jurisdiction on a court to be exercised at any stage of the trial to summon witness or examine one person in Court or even recall a witness already examined. This was made rather a duty and obligation of the court provided the just decision of the case demanded it. This court was faced with a similar situation in the case of State Vs. Mangi Lal Ram & another again a case under the old Code. In that case in a warrant trial instituted on a police report some witnesses were not turning up and it was observed. by this court that the correct position of law in this regard was that in a warrant case instituted on police report, the primary duty was of the prosecution to produce witnesses, but since the prosecution which was the state or the public prosecutor had no power or machinery to compel attendance of the witnesses, it was fully justified in seeking the help of the court for their production. Help of the court may be asked for by praying to the court to issue summons to the prosecution witnesses. Help of the court may be asked for by praying to the court to issue summons to the prosecution witnesses. It was further observed that even if after service of summons a witness did not appear, the prosecution might ask the court to issue warrant of arrest, although in the absence of a prayer to this effect, the court was not obliged nor was its duty to issue any warrant of arrests. It was further observed that even If the prosecution did not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the court was not powerless to issue such a process under the general powers of the court. The position on coming into force of the new Code has improved in this regard and a provision has now been made in section 230 of the Code. specifically providing for on making of an application by the prosecution, issuing any process for compelling the attendance of any witness or the production of any document or other thing. 8. It appears to us that the learned Additional Sessions Judge has refused the prayer of the Additional Public Prosecutor and rejected his petition dated the 10th November 1976 in complete ignorance of this legal position and this new provision. It is no doubt true that on account of the non-production of the witnesses by the prosecution the accused is harassed, but at the same time the court must see that necessary assistance is given to the prosecution to secure the attendance of the witnesses. This case was not very old. The date for appearance of the witnesses was fixed for the first time by order dated the 19th August, 1976, as already stated earlier, and on those dates, the area in question was visited with flood so much so that the accused persons themselves did not turn up on any dates. The learned Additional Sessions Judge has not even waited to see as to whether the execution reports of the process issued by him were received back so that he could be satisfied that the witnesses were deliberately evading to appear in support of the prosecution case. 9. The learned Additional Sessions Judge has not even waited to see as to whether the execution reports of the process issued by him were received back so that he could be satisfied that the witnesses were deliberately evading to appear in support of the prosecution case. 9. We are, of course, aware that the condition prevailing in the subordinate courts regarding the production of witnesses is not very satisfactory, and inspite of repeated efforts by the courts below, the witnesses either non official or even official do not turn up for years together. In many cases, the investigating officers also do not turn up. But that does not mean that the accused persons should escape their trial so conveniently. In order to bring discipline in the matter of production of witnesses, in our opinion, the need of the hour is to deal with the offenders more firmly. The parliament has, therefore, now specifically provided for giving all possible assistance to the prosecution, and a duty is now cast on the courts of session under the statute itself to try their best to secure the attendance of the witnesses-and to issue appropriate processes for appearance of the witnesses. Of course, even after exhausting the processes and making the best efforts, they fail to secure the attendance of the witnesses the inevitable cannot be avoided and the cases are bound to suffer. But, the facts of this case, as stated by us, did not justify such an action namely the acquittal of the accused persons as neither the case was too old, nor any undue delay had occurred in this case, and the prosecution instead of showing any laches was taking all possible steps to secure the attendance of the witnesses. Acquittal in such circumstances would encourage undesireable elements to screen and withhold the witnesses. On the other hand if an impression is created that they will not be spared and the long arms of the Court will compel them to appear in the case, then the attitude of avoidance will change. The learned additional Sessions Judge, therefore, would have done better not to show such a haste which resulted in the miscarriage of justice and should not have hesitated in issuing non-bailable warrants of arrest as requested on behalf of the prosecution, particularly when the offence alleged to have been committed by the opposite party is one of murder. 10. The learned additional Sessions Judge, therefore, would have done better not to show such a haste which resulted in the miscarriage of justice and should not have hesitated in issuing non-bailable warrants of arrest as requested on behalf of the prosecution, particularly when the offence alleged to have been committed by the opposite party is one of murder. 10. We would, accordingly, allow this application, set aside the order in question and remit the case back to the court below with a direction to dispose of the sessions trial as expeditiously as possible on giving adequate opportunity to the prosecution to produce its witnesses. Application allowed