JUDGMENT 1. - Since the petitioner is aggrieved by the judgment dated 23.6.2009 passed by the Additional Sessions Judge, District Banswara, whereby the learned Judge has remanded the case back to the trial Court, he has approached this Court. 2. The brief facts of the case are that on 3.2.1996, the Deputy District Education Officer had filed a report at Police Station, Banswara, wherein he had claimed that the petitioner was the cashier, store-keeper and the LDC in the Department. On 15.2.1995, he was required to hand over the charge of his office to one Mr. Lalbahadur Singh. According to the documents available with the Department, there should have been a cash of Rs. 25,415/- which was to be handed over to Mr. Lalbahadur Singh. However, the petitioner merely handed over a cash of Rs. 11,790/- and he did not hand aver the remaining amount of Rs. 13,625/-. Thus, according to the Department, he had embezzled the said amount. On the basis of the said report, a formal F.I.R., F.I.R. No. 73/1996, was chalked out for offences under Section 409 I.P.C. During the course of trial, the prosecution had examined six witnesses. After going through the oral and documentary evidence, the learned trial Court had acquitted the petitioner, vide judgment dated 10.11.2006. But, as the State was aggrieved by the said acquittal, it preferred an appeal before the learned Judge. Vide judgment dated 23.6.2009, the learned Judge had remanded the case back to the trial Court ostensibly on the ground that the testimonies of three witnesses namely, Dayanand Saini (PW-1), Kalpesh (PW-2) and Lalbahadur Singh (PW-4) were not considered by the learned trial Court on the ground that none of these witnesses could be cross-examined. In order to permit the learned trial Court to cross-examine these witnesses, the learned Judge has remanded the case back to the learned trial Court. Hence, this petition before this Court. 3. The learned counsel for the petitioner has contended that more than sufficient opportunities were given to the prosecution to ensure that Dayanand Sairti (PW-1), Kalpesh (PW-2) are produced by it so that they could be subjected to the cross-examine However, as the prosecution failed to produce their own witnesses, the learned trial Court was justified in closing the evidence of the prosecution. Since Dayanand Saini (PW-1), Kalpesh (PW-2) were not subjected to cross-examine, obviously their testimonies could not be taken as evidence. Since Dayanand Saini (PW-1), Kalpesh (PW-2) were not subjected to cross-examine, obviously their testimonies could not be taken as evidence. Hence, the learned trial Court was justified in ignoring their evidence. As far as the evidence of Lalbahadur Singh (PW-4) is concerned, the learned counsel has frankly conceded that his cross-examination was deferred due to prayer made by the defence counsel. However, subsequently even Lalbahadur Singh (PW-4) was never produced as a witness so that his cross-examination could be completed. Thus, the learned trial Court was justified in ignoring his examination-in-chief as well. 4. On the other hand, the learned Public Prosecutor has contended that it was the duty of the Court to ensure that the witnesses do appear before the Court. After all the Judge does not sit as a mute witness. During the trial, the learned trial Court had ample power to ensure that the prosecution witnesses were produced. But, it had failed to exercise the said power. Therefore, the learned Judge was certainly justified in remanding the case back to the learned trial Court. 5. Heard the learned counsel for the parties and perused the impugned judgment. 6. It is, indeed, trite to state that the Judges do not sit as a mute witness during the course of trial. In catena of cases, the Hon'ble Supreme Court has observed that the Judges have to play a pro-active role while conducting the trial. Since it is the duty of the Court to discover the truth in its entirety, it is the duty of the Court to invoke the powers given to it by the Criminal Procedure Code. Under Section 242 Cr.P.C., the learned trial Court had ample powers to issue bailable warrant or, if necessary, even non-bailable warrants against the witnesses. However, there is nothing to show on record that the learned trial Court had issued non-bailable warrants against the witnesses. Merely, by observing that it had given sufficient opportunities to the prosecution, the learned trial Court cannot absolve itself of its duty to ensure that the witnesses are produced. It is these very reasons given by the learned counsel by which he has justified the remanding of the case back to the learned trial Court. 7. Merely, by observing that it had given sufficient opportunities to the prosecution, the learned trial Court cannot absolve itself of its duty to ensure that the witnesses are produced. It is these very reasons given by the learned counsel by which he has justified the remanding of the case back to the learned trial Court. 7. Even according to this Court, the learned trial Court should have realised the extent of its power under Section 242 Cr.P.C. Moreover, once the cross-examination of Lalbahadur Singh (PW-4) was deferred at the request of the defence, the defence cannot be permitted to take advantage of its fault in not cross-examining him. Therefore, this Court does not find any illegality or perversity in the impugned order. 8. Hence, this petition is devoid of merit; it is, hereby, dismissed.Petition dismissed. *******