Heard the parties.

2. Earlier the prayer for bail of the petitioner had been rejected. It is undisputed that this case is being tried in the court of the Magistrate as the offence is under section 409 IPC. This time the prayer for bail has been filed under section 437(6) Cr.P.C. From the order of the Magistrate, it appears that the charge was framed in this case on 17.12.03 and the prayer for bail was rejected by the learned Magistrate on 18.3.2004. Obviously after expiry of the period of 60 days, the trial has not been concluded. It appears on perusal of the order of the learned Magistrate that till date he rejected the prayer for bail, not a single witness had been examined though summons etc. had been issued. Considering this aspect of the matter as also considering the fact that the prayer for bail has been rejected by this Court, the Magistrate did not invoke this provision to grant bail. The learned Sessions Judge, while refusing the prayer for bail, has also based on the aforesaid ground. If a person is in custody, obviously his prayer for bail has been rejected even by the High Court or he has not moved the prayer for bail. So the rejection of the bail by the High Court cannot be a ground for not invoking tile power as vested in section 437(6) Cr.P.C. aforesaid. The issuance of summons is not proper ground. The mandate is that if the trial is not concluded within sixty days then the Magistrate should grant bail. If the reason is that the trial is not being concluded because of some problems created by the petitioner himself, for example he is not being produced before the court, which resulted in non-examination of the witnesses; then it can be a ground for refusing the bail.

3. In the circumstances, the petitioner aforesaid is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Smt. Kusum Kumari, Judicial Magistrate, 1''' Class, Dhanbad, in Dhanbad P.S. Case No. 66/1997, G.R. Case No. 367/1997. He will attend the court regularly and will co-operate with the trial. If on any date he absents himself without proper explanation, his bail bond shall automatically stand cancelled.

The order of the Magistrate produced today before the Court is directed to be filed on affidavit and should be treated part of the record.