K. J. VAIDYA, J. ( 1 ) THIS appeal by the State of Gujarat is directed against the impugned judgment and order, dated 16-11-1989, rendered in Criminal Case No. 788 of 1985, by mr. N. L. Patel, the learned Chief Judicial Magistrate, Nadiad, wherein the two respondents, viz. , Mohanbhai M. Chavda and Rameshbhai Hatibhai Patel, who came to be prosecuted for the alleged offences punishable under Section 408,420,467,468, 471,477-A and 34 of the Indian Penal Code, were ordered to be acquitted on the short ground of prosecution failing to examine the witnesses. ( 2 ) ACCORDING to the prosecution, respondent No. 1 was Accountant- cum-Cashier, while the respondent No. 2 was the Assistant Manager of Anand Taluka Kharid vechan Sangh who are alleged to have misappropriated the amount of Rs. 2,75,018/- (Permanent misappropriation) and Rs. 2,55,448. 56 ps. (temporary misappropriation) during the period 1964-1976 by tampering and falsely fabricating the record of Sangh, etc. On the basis of these facts, one Chandulal Ambalal Patel filed complaint before the Anand Town Police Station against both the respondents wherein after the investigation was over, the respondents came to be charge-sheeted on 24-2-82 for the alleged offences under Sections 408,420,467,. 468,471,477 read with Section 34 of the IPC. to stand trial before the learned Magistrate at Anand. Thereafter the case was transferred to the Court of the learned Chief Judicial Magistrate, Nadiad. It also further appears that on the charge [exh. 6] being framed, the respondents pleaded not guilty and claimed to be tried. Thereafter for whatever reasons, the prosecution did not examine any witnesses and as a result, the learned Magistrate for want of evidence, acquitted the accused, as stated above in para-1 of the judgment, giving rise to the present appeal. ( 3 ) MR. K. P. Raval, learned APP while challenging the impugned order of acquittal submitted that the same was patently illegal and erroneous in as much as this being a warrant triable case because once the charge was framed and accused pleaded not guilty, it was not open to the learned Magistrate to acquit the accused and thereby lightly dispose of the matter, as has been done in the instant case. Mr. Raval further submitted that the offence alleged against both the respondents were quite grave and serious wherein huge amount of Anand Taluka Kharid Vechan Sangh came to be misappropriated. Mr. Mr. Raval further submitted that the offence alleged against both the respondents were quite grave and serious wherein huge amount of Anand Taluka Kharid Vechan Sangh came to be misappropriated. Mr. Raval further submitted that it is quite true that the prosecution should have taken enough care to examine the witnesses and to that extent, the prosecution agency can certainly be blamed, but that does not mean that in such a grave and serious case, the learned Magistrate should also have abondoned his duty by not securing the presence of the witnesses by issuing warrants, and if necessary non-bailable warrants. Mr. Raval submitted that this could and ought to have been done by the learned Magistrate and still surprisingly, finding fault with the prosecution agency, the learned Magistrate also did not discharge his duty. This indeed was both illegal and unfortunate and has resulted into the serious miscarriage of justice. Mr. Raval in support of this submission has relied upon the following four decisions of this court. They are: in State of Gujarat vs. Nagin Amara Vasava [supra], this Court in para-5 has observed as under :- (1) State of Gujarat vs. Nagin Amara Vasava and others. 1982 (l)GLR, page 661. (2) State of Gujarat vs. Butasingh 1990 (l)GLR, Page 26. (3) State of Gujarat vs. Gulamnabi Alias Fakir Mohmad and Ann, 1990 (l)GLR page 60. (4) State of Gujarat vs. Sypoi Alambhai Jamalbhai, 1990 (l)GLR page 122. "the Judicial Officer, therefore, in such circumstances need not feel himself helpless, but he must see to it that the coercive machinery is availed of to secure the presence of a recalcitrant complainant or such witnesses. If this is not done, the Judicial Officer incharge of the matter would be failing in the discharge of his duties. The imparting of justice is always a matter of conscience and mere termination of a matter by itself means nothing. A trial Magistrate must indeed feel hurt by such a recalcutrant complainant and such witnessess, if they do not come forth to help the cause of justice and he must then make every permissible endeavour to see that a case is not frustrated or miscarried merely because those who have set the criminal law in motion later on change their minds and seek by their absence to get away from it. In State of Gujarat vs. Butasing Indrasing [supra], this Court in para-12, 13 and 15 has observed as under :-"12. Of course, primarily, it is the paramount duty of the prosecution to take utmost care to see that the proper and sufficient evidence is led before the Court on the basis of which the trial court can reach just decision in the matter. But that does not mean that if the prosecution fumbles or fails to perform its part of the duty for whatsoever reason then the trial court should also react by feeling shy and reluctant withdrawing from performing its pan of the duty. . . . . . ""13. The aforesaid observation of this Court regarding the necessity and advisability of the positive participation of courts in trial proceeding finds due support from the legislative wisdom as reflected in (i) Sec. 311 of the code of Criminal Procedure, 1973, which pertains to power to summon material witnesses or to examine person present, (ii) Sec. 350 of Criminal procedure Code which pertains to summary procedure for punishment for non-attendance by a witness in obedience to summons to attend the Court, and (iii) Sec. 174 of the Indian Penal Code pertains to non-attendance in obedience to an order from public servant. The obvious object of Sec. 311 is to enable the Court to summon and examine any person at any stage in order to arrive at the just decision of the case. Similarly, Sec. 350 of the code of Criminal Procedure enable the Criminal Court to summarily try and punish the witnesses for dis-obeying its summons. . . ""15. Result of the aforesaid analysis is that whenever any application for witness-summons is made for examining any witnesses and/or any other recalcitrant witness, then the court must give its careful and anxious consideration to it and ponder over the seriousness of the offence as to whether the witness to be examined is a material witness; what will be the impact on result of the case; and what will be the consequences of acquittal on the society as result of non-examination of the said witness. If this care- is not taken care of by the Court, then it has no right whatsoever to subsequently blame the prosecution for its own wrong. . . . . If this care- is not taken care of by the Court, then it has no right whatsoever to subsequently blame the prosecution for its own wrong. . . . . "in State of Gujarat vs. Gulamnabi Alias Fakir Mohmad [supra], this Court in para-9 has observed as under :-"once the court takes cognizance of the offence and on perusal of the record it appears that the allegations made in the complaint are genuine and of a serious nature, then as far as possible, the Court which is expected to do justice by redressing the wrong must examine the witnesses and documents in support of the allegations made in the complaint and then only on merit record acquittal or conviction. It is very easy to find fault with the prosecution, but the Court has got to exercise proper and sound judicial discretion while deciding the cases. The difference between the trial and mock trial must be present to the mind of the trial court. The courts should not be obvious to the fact that beyond the Court room and its compound, a calculated and ingenious game to defeat the justice is going on. It is but natural that accused who has been rightly or wrongly framed up in a criminal case makes desperate and frantic efforts to wriggle out from the clutches of law by fair or foul means. The legal battles are entrusted to the learned advocates who are engaged to defend them in the Court, but there are cases and cases where accused himself or through his friends, relatives and associates carry out extra judicial methods to salvage the situation whereby he can remain out of the reaches of the law and Courts. Efforts are made to protract the proceeding before the Court, to win over and suborn the prosecution witness by coaxing, cajoling and browbeating prosecution witnesses, or the process serving agency. Graver the offence, the greater the struggle of the accused, and therefore, equally greater the aforesaid possibilities. The Court of low doing justice cannot afford to have a child like ignorance. Justice has to be done only merely with the aid of law books, witnesses and arguments, but the same is to be done with a human heart, concern for the society, and watchful eyes full of wordly pragmatism. The Court of low doing justice cannot afford to have a child like ignorance. Justice has to be done only merely with the aid of law books, witnesses and arguments, but the same is to be done with a human heart, concern for the society, and watchful eyes full of wordly pragmatism. "in State of Gujarat vs. Sypoi Alambhai Jaalbhai [supra], this Court in para-7 has observed as under :-"on going through the Rojkam proceedings, Court do not feel any difficulty in accepting the submissions made by the learned Addl. PP. Having regard to the fact that the offence was of the year 1977, trial court ought to have given top most priority to this case in the interest of prosecution, accused and for ultimate ends of justice. Even charge could have been framed much earlier had the Court taken little bit initiative and insisted upon for the expeditious proceeding. Such calous delayed and dozing proceedings in the criminal trial to say the least, is nothing but wandering away from the path of justice. Such tardy trial proceeding corrodes the cry, faith and foundation of justice. It is true that neither law provides for any time bound trial schedule; nor it is practicable to fix time-bound trial, as it depend upon the very many factors, particularly criminal courts in the metropolitan cities like Ahmedabad, Vadodara, rajkot, Surat, etc. and in many other headquarters towns of the district having regard to the number of criminal cases and inadequate number of magistrates and its ministerial staff, there is a tremendous work load procedure on trial Courts and therefore to the said extent the unavoidable delays in the course of proceedings are sometimes understandable. But that does not mean that the trial court should allow itself to be bogged down under the pressure of work, losing the interest, initiative arid control over the Court proceedings. It should not be forgotten that primarily it is the duty and responsibility of the court to do justice and with the said object in mind, if the trial court feels that the prosecuting agency is not discharging its duty in the desired way, then it should not feel helpless and reluctant in straightening up the matter by bringing to the notice of either the District superintendent of Police and/or the District Magistrate, under whom the prosecuting agency of the Taluka and/or District is functioning. Unless there is some sort of awareness at the administrative level of the court as well as that of the office of the District Superintendent of Police and district Magistrate, it is not possible to control the plight of the lethargic and irresponsible prosecuting agencies. Neither the prosecuting agency nor the police agency entrusted with the service of the process can ever be permitted to have an illegal upper hand over the powers and duties of the trial court. If the trial court neglects and fails to tackle the defaulting and erring agencies, not that particular case would suffer but these agencies will get out of the control and would be tempted to play foul and cool in other cases as well, ultimately defeating the cause of justice, affecting the loss of the faith of people clamouring and urging for the justice as their desire for justice will simply remain a cry in the wilderness. Judicial prudence warratns that for doing ultimate justice, keeping the prosecution witnesses before that Court for the purpose of examination, is an absolute necessity and for that, both the Court and prosecuting agency, has got to share the responsibility. " ( 4 ) NOW having heard the learned APP at length, it must be stated that the submissions made by him has a considerable force and indeed merit acceptance. There is no doubt in the mind of this Court, that the learned Magistrate has failed to discharge his duty by not issuing the warrants, if need be non-bailable warrants, in order to secure the presence of the witnesses. This is not the only incident wherein on the ground of non-examination of witnesses, the accused are acquitted. In fact, these. days this Court is coming across number of such cases wherein it has become so to say a common feature for which both the trial Courts as well as the Prosecuting Agency can be blamed. So far as the trial court is concerned, all such matters are required to be brought to the notice of the District Judges who maintain the confidential records of the learned Magistrates, but so far as prosecuting agencies are concerned, it appears that there is no close watch, else such mistake would not get repeated. It appears that learned PPs are as if not answerable. It appears that learned PPs are as if not answerable. It is high time that for non-examination of the witnesses in the Court, more particularly in grave and serious offences like the instant one, the Public Prosecutor incharge of the case, the investigating officer and the process serving agency must be held accountable and after due inquiry, if they are found to be guilty of any lapse or default on their part, the proper course of action deserves to be taken against mem If this part of the duty of the concerned authorities of the State Government is not strictly performed and observed, the gate indirectly kept open by the prosecution itself to allow the accused to go scot-free, defeating the ends of justice. It is high time that this prosecution carelessness and the resultant leakage is sealed sooner the better. Unless the auditing of the public duty of the concerned PPs, Investigating Agency, Process Serving Agency, etc. , is made, calling for the explanation; and in a case some Courts also, all of us will have to blame ourselves for bringing about the total bankruptcy in not making justice available to the people. ( 5 ) IN the result, this appeal is allowed. The impugned judgment and order of default acquittal is hereby ordered to be quashed and set-aside. The case is remanded to the trial court to be disposed of on merit according to the law. The learned APP, mr. Raval shall inform the learned PP to appear before the learned Magistrate in between 15-4-1993 and 22-4-1993 and to take date for further trial. 5. 1 Office registry is directed to forward a copy of this judgment to the secretary, Legal Department and the Secretary, Home Department; both at gandhinagar, for necessary action. .