( 1 ) THIS application under Section 401 read with Section 482 of the Cr. P. C. registered as C. R. R. No. 1564 of 2003 at the instance of the defacto-complainant is directed against the judgment of acquittal passed by learned special Judge, Dakshin Dinajpur, in Special Case No. 5 of 2002 under Section 409, I. P. C. ( 2 ) THE prosecution case, in a nutshell, is that O. P. No. 2 - accused being Assistant to Section Officer, Sadar and Gangarampur, an employee of dakshin Dinajpur Zilla Parishad was entrusted by Zilla Parishad to collect Toll tax from trucks at Balupara Truck Terminus under Zilla Parishad. In spite of collection of huge amount as Toll Tax the O. P. No. 2 -accused did not deposit the said amount to the credit of Zilla Parishad and thereby he mis appropriated a sum of Rs. 4,43,437/ -. F. I. R was lodged and charge under Section 409, i. P. C was framed against the accused by the learned Judge, Special Court and learned Judge Special Court by the impugned order acquitted the accused. ( 3 ) BEING aggrieved by the said judgment of the learned Special Judge the defacto-complainant Zilla Parishad filed the instant application for quashing the order of acquittal. ( 4 ) DURING hearing it has been contended by the learned lawyer for the petitioner that the O. P. No. 2 - accused being an employee of Zilla Parishad was entrusted with the task of collecting Toll Tax at the balupara Truck Terminus on behalf of the Zilla Parishad and he did not deposit the said amount in favour of Zilla Parishad. On realization of Toll Tax the O. P. No. 5 -accused issued receipts and the said documents relating to collections of toll tax made by the o. P.- accused were seized by the police during investigation but those documents were not exhibited during trial. In order to prove that the accused realised toll tax on behalf of Zilla Parishad the said documents were required to be proved during trial but the learned prosecutor for the reasons best known to him did not make any attempt to prove the seized documents. He only proved the seizure list by which documents were seized. The stock register and other documents were seized under the seizure list out those documents also were not proved during trial. He only proved the seizure list by which documents were seized. The stock register and other documents were seized under the seizure list out those documents also were not proved during trial. For not proving those documents the best evidence to establish that the O. P. No. 2 collected toll tax and he did not deposit the same could not be made available to the Court and the Court acquitted the accused observing that no paper or document has been proved by the prosecution to establish that the accused collected Rs. 4,43,437/- as toll tax from the truck-men of Baiupara Truck Terminus being authorised by the Zilla Parishad, Dakshin Dinajpur as an employee of the said Parishad. Learned prosecutor instead of make any attempt to prove those documents declined to adduce any evidence and the prosecution case was closed and the accused was acquitted. ( 5 ) LEARNED Counsel for the petitioner has further contended that even under Section 311, Cr. P. C. Learned Special Judge should have taken step for admitting those documents into evidence but the most valuable provision under section 311, Cr. P. C for serving the cause of justice was not resorted to by the learned Special Judge. ( 6 ) LEARNED Counsel for the petitioner further contends that order of acquittal has resulted in miscarriage of justice and to prevent miscarriage of justice this Court may exercise the inherent power under Section 482, Cr. P. C. and in the facts and circumstances of this case the exercise of said power is required. ( 7 ) LEARNED Counsel has further contended that the learned Judge also did not consider the materials on record properly and took wrong approach in acquitting the accused. ( 8 ) IT has further been contended by the learned lawyer for the O. P. that the present contention of learned Counsel for the petitioner that the learned prosecutor did not prove the documents seized and he did not play the role of a prosecutor sincerely resulting in failure of justice was not taken in the instant application and the said point cannot be taken. He placed his reliance upon the ruling reported in (2005)2 Calcutta Criminal Law Reporter (Cal) at page 367 and also 2004 Calcutta Criminal Law Reporter (SC) at page 524. He placed his reliance upon the ruling reported in (2005)2 Calcutta Criminal Law Reporter (Cal) at page 367 and also 2004 Calcutta Criminal Law Reporter (SC) at page 524. ( 9 ) LEARNED Counsel for the O. P. No. 2 - accused has contended that the scope of revisional jurisdiction of the High Court in case of acquittal is very limited. Such jurisdiction cannot be exercised to re-appreciate the evidence. It can be exercised if the order of acquittal is grossly illegal. There is no illegality in the judgment of the learned Special Court and there is no scope for interfering in revision. ( 10 ) LEARNED Counsel for the O. P. No. 2 has further contended that there is no proof that the judgment of acquittal of the learned Special Judge suffers from any infirmity. The same is presentable and based on sound reasons and that cannot be interfered. ( 11 ) LEARNED Special Judge has rightly held that no paper/document has been produced to show that the accused was solely entrusted with the task of collecting toll tax from Baiupara Truck Terminus on behalf of Zilla parishad. No paper or document has been proved by the prosecution to establish that accused collected Rs. 4,43,437/- as toll tax from Baiupara Truck terminus being authorised by the Zilla Parishad. No account book or paper has been proved by the prosecution to show that accused defalcated the alleged amount of Government money of Rs. 4,43,437/ -. ( 12 ) LEARNED Counsel for theo. P. No. 2 has further contended that the case of entrustment has not been proved. The status of the O. P. No. 2 -accused has not been proved. It has not been proved that he is a public servant. To the contrary, it appears from the evidence that accused worked every day on contract basis and accused deposited the money collected by him. ( 13 ) LEARNED lawyer has further contended that after seizure of document the same was kept under the zimma of Zilla Parishad. The Secretary, of the Zilla Parishad has been examined as P. W. 10. So he could have produced those documents and those documents have not been produced and the same cannot be looked into now and order of acquittal cannot be set aside and order of retrial cannot be ordered to fill up the lacuna. The Secretary, of the Zilla Parishad has been examined as P. W. 10. So he could have produced those documents and those documents have not been produced and the same cannot be looked into now and order of acquittal cannot be set aside and order of retrial cannot be ordered to fill up the lacuna. ( 14 ) LEARNED Counsel for the O. P. No. 2 has placed his reliance upon the ruling reported in 2002 Calcutta Criminal Law Reporter (SC) 643, AIR 1983 Supreme Court at page 631, AIR 1970 Supreme Court at page 272, 2002 Supreme Court Cases (Cr) at page 1066. ( 15 ) IN the ruling reported in 2002 Calcutta Criminal Law Reporter (SC)at page 643 it has been held that the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal Courts a kind of paternal and supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If, however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the Court should interfere in the interests of justice. Where the Court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction. It was further held that in the case that power under Section 401, Cr. P. C is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of manifest illegality or prevention of a gross miscarriage of justice. It was further held that in the case that power under Section 401, Cr. P. C is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of manifest illegality or prevention of a gross miscarriage of justice. ( 16 ) IN the case reported in 2002 Supreme Court Cases (Cr) 1066 it has been held that though the High Court has revisional jurisdiction under section 401, Cr. P. C. and can exercise its discretionary jurisdiction to correct miscarriage of justice, but whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court under Section 401, cr. P. C. being discretionary, it is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically. ( 17 ) IN the case reported in AIR 1970 Supreme Court at page 272 it has been held that the revisional jurisdiction conferred on the High Court under section 439 is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under Section 417. This jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. ( 18 ) IN the case reported in AIR 1983 Supreme Court at page 631 it has been held that without proof of entrustment, there can be no question of the accused being found guilty of the offence under Section 409 of the Code. ( 19 ) IN the case reported in 2004 Calcutta Criminal Law Reporter (SC)at page 524 it was held that a criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of Court to elicit all necessary materials by playing an active role in the evidence-collecting process. ( 20 ) IN that case it was further observed by the Apex Court that if one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The Public Prosecutor appears to have acted more as a defence Counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State government also leaves much to be desired. One gets a feeling that there was really no seriousness in the States approach in assailing the trial Court's judgment. ( 21 ) IN the case reported in (2005)2 Calcutta Criminal Law Reporter (Cal) at page 367 it was held it is settled law that the powers conferred by section 311 of the Code and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice and recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such fact as are necessary to arrive at a just decision in a case. ( 22 ) WHEN the best available evidence is withheld, there is legal duty of the presiding officer of the Court of his own, independent of the parties, to take an active role in the proceedings to find out the truth and administer justice. In a situation like this it is the duty of the Court to discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice. It must be borne in mind that in order to enable the Court to find out the truth and arrive at a just decision the salutary provisions of Section 311 of the Code are enacted and if the judgment is rendered on incomplete and inconclusive presentation or facts, the ends of justice would be defeated. ( 23 ) THE Court has to take a participatory role in a trial and Section 311 of the Code and Section 165 of the Indian Evidence Act confer vast and wide powers on presiding officers of Court to elicit all necessary materials to playing an active role in the evidence collecting process. The purpose of the trial is to find out the truth and prevent miscarriage of justice. The Court cannot show indifference or adopt an adopt an attitude of total aloofness where there is serious dereliction of duty on the part of the prosecuting agency. So to prevent miscarriage of justice and find out the truth fair trial is essentially needed and for that the power conferred by Section 311 of the Code is to be exercised by the Court when the situation so demands. ( 24 ) THE High Court will interfere in revision in cases where the interest of public justice requires interference for the correction of a manifest illegality or prevention of gross miscarriage of justice. ( 25 ) IN the case reported in AIR 1975 Supreme Court at page 158 it has been held by the Apex Court that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, can be exercised only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. ( 26 ) IN order to prove the charge under Section 409, I. P. C. the prosecution is to prove that the accused was a public servant and he was entrusted with the matter of collection of toll tax for Zilla Parishad and that he committed criminal breach of trust with respect to toll tax collected by him. ( 27 ) IN order to prove the charge of collection of toll tax it was incumbent on the part of the prosecution to prove the documents relating to collection. In this case, the documents relating to collection by the accused were seized by the I. O. But unfortunately, for the prosecution and also for the justice learned prosecutor discharged his duty as prosecutor only by proving the seizure list minus documents. Even he did not make any attempt to produce the said documents in Court i. e. before the learned Special Judge. He did not examine witness in order to prove the said documents. He did not pray for an opportunity for examining any witness for proving those documents. He being satisfied with the proof of seizure lists declined to adduce any evidence on 27. 3. 03 paving the way of acquittal of the accused. When the documents, basis of the case were not proved by the prosecution and learned prosecutor declined to adduce any evidence, Learned Judge closed the prosecution case drawing curtain over the drama of justice. Learned Judge did not take a participatory rote in the trial and he did not take resort to his power conferred by Section 311 of the Criminal Procedure Code for unfolding the truth. When the learned prosecutor adopted an attitude of total aloofness or indifference to trial it was the duty of the Court to take an active role in the proceeding to find out the truth and to administer justice by exercising power under Section 311 of the cr. P. C. Consequently, the result is that the documents required for proving the prosecution case though seized were neither produced nor proved. The case was closed. The trial ended with the verdict of acquittal. There was definitely a miscarriage of justice. The power of revision can be exercised to prevent such miscarriage of justice. The inherent power of the Court under section 482 of the Cr. P. C. also provides a befitting response to the cry of justice. The case was closed. The trial ended with the verdict of acquittal. There was definitely a miscarriage of justice. The power of revision can be exercised to prevent such miscarriage of justice. The inherent power of the Court under section 482 of the Cr. P. C. also provides a befitting response to the cry of justice. In order to prevent the miscarriage of justice the order of acquittal should be interfered. ( 28 ) IT is true that in the instant petition under Section 401 read with section 482, Cr. P. C the petitioner has not taken the ground of inaction on the part of the learned prosecutor paving the way for acquittal of the accused. But the said fact does not stand on the way of considering the submission of the learned Counsel for the petitioner when the allegations are miscarriage of justice or failure of justice due to failure on the part of the learned prosecutor to play his role sincerely and effectively. ( 29 ) UNDER the circumstances, the instant application stands allowed. The judgment of acquittal passed by the learned Special Judge in case Special 5 of 2002 under Section 409, I. P. C. is hereby set aside. ( 30 ) THE matter is sent back to the learned Judge for retrial according to law after giving the prosecution an opportunity of adducing further oral and documentary evidence in support of the charge and also giving the accused an opportunity of adducing D. W. after his fresh examination under Section 313, Cr. P. C and to dispose of the case on the basis of evidence already collected and also on further evidence that may be had after remand. ( 31 ) LEARNED Judge is also directed to take participatory role in the trial and to take resort to the provision of Section 311 of the Code and Section 165 of the Evidence Act when the situation so demands in the case. ( 32 ) LEARNED Judge is directed to dispose of the case as expeditiously as possible preferably within three months from the date of receipt of record by him. ( 33 ) SEND back the copy of the order along with the Trial Court records to the learned Trial Court for his information and necessary action. .