CAV Order Aditya Kr. Trivedi, J. The appellant has challenged order dated 24.9.2012 passed by Second Additional Sessions Judge, Hilsa, Nalanda in Sessions Trial No. 500 of 2002 in terms of Section 232 of the Cr.P.C. acquitting respondent nos. 2 to 4. 2. Laxmi Chaudhary, son of late Fagu Chaudhary gave his fardbeyan on 20.6.2001 alleging inter alia that on the same day at about 9.30 PM his wife Naulasha Devi and daughter Jaishree @ Guriya had gone to the telephone booth by his side of their house to ring someone at Giridih. At that very moment he heard sound of firing over which he came out from his house and saw his wife hastening back towards house. 3. At that time he also saw 2-3 persons brandishing revolver coming out from booth and going towards northern direction. At that very time also they were making indiscriminate firing. He had also seen Mantu @ Manish owner of booth coming out from telephone booth shouting that he has been shot at. And to carry him to hospital. He was immediately taken to hospital. During midst thereof the police also arrived and went inside the telephone booth and found his daughter Jaishree @ Guriya aged about 18 years dead. The informant expressed his ignorance about the reasons for her murdered and her assailants. 4. On the basis of the aforesaid fardbeyan, Hilsa P.S. Case No. 215 of 2001 was registered and during course of investigation four persons were identified as a culprits against whom charge-sheet was submitted and on the basis thereof, case was committed to the court of session where from ultimately they got acquitted by the judgment and order appealed against. 5. It has been submitted on behalf of appellant that the learned lower court has acquitted the respondents under Section 232 of the Cr.P.C. on account of finding the case as a case of no evidence on account of non-examination of any of the prosecution witnesses. It has also been submitted that there are reasonable grounds emerging from the order sheet itself showing non-service of summon against the witnesses, non-execution of so-called warrant of arrest, bailable, as well as on account of lapses on the part of the court concerned, for setting aside the judgment of acquittal. 6. It has also been submitted that there are reasonable grounds emerging from the order sheet itself showing non-service of summon against the witnesses, non-execution of so-called warrant of arrest, bailable, as well as on account of lapses on the part of the court concerned, for setting aside the judgment of acquittal. 6. It has also been submitted that appellant happens to be one of the charge-sheet eye witness as well as father of deceased Jaishree, and as such covered under the definition of victim appearing in sub-section (wa) of Section 2 of the Code of Criminal Procedure, 1973 (as amended upto date) and therefore is competent to file an appeal in terms of Section 372 thereof. 7. At the other hand, the learned lawyer for the respondent nos. 2 to 4 submitted that speedy trial is the mandate of law. The occurrence is of the year 2001, charge was framed on 8.7.2004 and appellant having appeared in the case by filing Vakalatnama on 7.10.2004 is indicative of the fact that he was well aware of the proceeding and in that event should not have waited for execution of processes for his attendance and attendance of the witnesses for recording their evidence. As such, there happens to be negligence on the part of the appellant which falsifies his stand in the appeal and demerits his prayer before this Court. 8. The learned Additional Public Prosecutor endorsed the argument raised on behalf of appellant. 9. From perusal of the record, it is apparent that during investigation of Hilsa P.S. Case No. 215 of 2001 four persons were identified as culprit. However, charge-sheet against respondent Ravindra Chaudhary and Chutur Gope was submitted at first instance thereafter respondent Baleshwar Gape was charge-sheeted while the case of respondent Rajeev Chaudhary remained under investigation. Consequent thereupon the case was committed relating to aforesaid three accused namely Ravindra, Chutur and Baleshwar whereupon Sessions Trial No. 500 of 2002 was registered which was transferred to the Court of Additional Sessions Judge, IIIrd, Hilsa vide order dated 14.8.2003. Presence of accused was ensured before the court, after several dates, on 1.5.2004 and charge was framed on 8.7.2004. From the record it is also evident that the court had directed to issue summons which was completed on 10.7.2004. Presence of accused was ensured before the court, after several dates, on 1.5.2004 and charge was framed on 8.7.2004. From the record it is also evident that the court had directed to issue summons which was completed on 10.7.2004. It is also evident that the service report of summons had been received by the court with report that witness Laxmi Chaudhary had refused to receive his summon remaining witnesses were not present at the house. It is also evident therefrom that it was issued only against four witnesses (Laxmi Chaudhary, Rashmi @ Dolly, Sanjeev Kumar and Naulesh Devi), and other charge-sheet witnesses were not summoned. From the record it is also evident that appellant filed his Vakalatnama on 7.10.2004. It is also evident from the record that P.O. had retired and lastly his successor proceeded with the trial on 2.9.2006. It is also evident that the then P.O. got transferred and lastly the case was transferred to the Court of Additional Sessions Judge, IInd where it was received on 12.6.2007. Unfortunately again the then ADJ, IInd got transferred and successor in office joined and the case proceeded as is evident from order dated 18.1.2008/21.1.2008. Meanwhile, as is evident, charge-sheet against remaining accused Rajeev Kumar was submitted whose case was committed and on the basis thereof Sessions Trial No. 700 of 2007 was registered wherein aforesaid Rajeev was charged on 26.2.2008 on which record of both the Sessions Trial got amalgamated and Sessions Trial No. 500 of 2002 the present one was allowed to proceed. The successive orders in the order sheet shows that there has not been any sincere effort to get the summon served against the witnesses although the direction was already there. Vide order dated 5.8.2011 it is apparent that bailable warrant was directed to be issued against the witnesses and the same was issued on 12.8.2011 but just after changing the page, the aforesaid bailable warrant was transposed as nonbailable warrant and for that a D.O. letter was issued to the S.P. on 9.5.2012, the order sheet also shows that on so many successive dates the P.O. was on leave. On 29.8.2012 while the case was fixed for statement, a prayer was made to expunge the name of one of the accused Ramuchit Kumar @ Chutta Gope on account of his death which was allowed and then thereafter after recording orders on three dates, fixing the case for defence and argument, vide order impugned, order of acquittal was record. 10. This Court is of the view that, on account of long absence of P.O. subsequently, filing of Vakalatnama by the appellant at the initial stage becomes redundant. It is also apparent from the record that after amalgamation of both the trial, after having the charge framed against accused Rajeev Chaudhary, no summon was ever issued against the witnesses. The court did not feel the necessity for calling for execution report of bailable warrant. The court had failed to issue non-bailable warrant for procurement of attendance of witnesses. Side by side, it is also apparent from the order sheet that no notice was ever issued against the doctor and the investigating officer. 11. The witnesses are eye and ear of the court and on account thereof, to ensure their appearance in the trial, there happens to be certain provisions incorporated in the Criminal Procedure Code, which can be taken aid of by the court to facilitate their appearance. But the presence of witnesses had not been procured in this case due to apparent lack of sincere effort on its part. The court is not accepted to be a silent spectator and to pass orders in routine manner being oblivious of its duties to render justice to the parties before it. 12. The justice should not be made astray due the slackness of the court. It will be unjust to convict an accused without any evidence; simultaneously it will be unfair to acquit the accused to cover up its own lapses. The court should not patronized unjust acquittal simply on the ground of gelay. 13. In Ramranjan R vs. Inspector (reported in AIR 1915 Cal. It will be unjust to convict an accused without any evidence; simultaneously it will be unfair to acquit the accused to cover up its own lapses. The court should not patronized unjust acquittal simply on the ground of gelay. 13. In Ramranjan R vs. Inspector (reported in AIR 1915 Cal. 545) approved in Habeeb Mohammad vs. State of Hyderabad, (reported in AIR 1954 SC 51 ), it has been held that "the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent not the police but the Crown, and this duty should be discharged fairly and fearlessly with a full sense of the responsibility attaching to his position and that he should in a capital case place before the court the testimony of all the available eye-witnesses". 14. In Zahira Habibulla's case (reported in AIR 2004 SC 3114 ), it has been held:- "The Courts have to take a participatory role in a trial. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness". 15. In Shailendra Kumar vs. State of Bihar, [reported in (2002)1 SCC 655 ], the observations of the Apex Court in para-9 are thus:- "9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded with by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded with by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants, as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch." 16. In respect of failure of justice, the Apex Court, in Darbara Singh vs. State of Punjab [reported in (2012)10 SCC 476 ], has held thus:- 21. "Failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that sub passed the victims also have rights." Taking into account totality of the events as well as giving our anxious consideration to the facts emerging from the records, as noticed above, we find the impugned order of acquittal passed by the trial court unsustainable in law. As a result, the same is set aside and this appeal is allowed. As a result, the same is set aside and this appeal is allowed. The matter is remitted back to the learned lower court to proceed with the trial afresh in accordance with law from the stage of framing of charge and conclude the same at an early date. The appellant is also directed to cooperate in the trial to enable the trial court to proceed expeditiously and dispose it of as early as possible. Jayanandan Singh, J.-I agree.