MADHAV NARHARI DESHMUKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) * * * *

(2.) Mr. Jethmalani the learned Counsel for the accused has urged at considerable emphasis that the learned public prosecutor in charge of the case had failed to discharge his quasi-judicial function in so far as he had declared without any reasonable inquiry that the witnesses were dropped and that he had only cursorily stated to the Court that the witness (Mr. Thomas) was won over. In this connection the learned Counsel Mr. Jethmalani had invited our attention to the position of law as traced by him from the judgment of the Calcutta High Court in I.L.R. 42 Calcutta page 422 (RAM RANJAN ROY V. EMPEROR) and quoted with approval in the subsequent two decisions of the Privy Council. He also took us through the basic law as propounded in Halbsurys Laws of England Third Edition Volume 10. In paragraph 764 the law as laid down is as follows : All the witnesses whose names are on the back of the indictment should be called by the prosecution except those who were conditionally bound over and upon whom notice to attend has not been served. The witnesses on the back of the indictment are those who gave evidence before the examining justices and whose evidence appears on the depositions including those conditionally bound over but not those whom it is proposed to call by way of additional evidence. Even if it is not pro posed to examine a witness whose name is on the back of the indictment counsel for the prosecution should unless there are exceptional reasons to the contrary place him in the witness-box so that the defendant may have an opportunity of cross-examining him. Mr. Jethmalani also invited our attention to the judgment in the case of R. V. OLIVA 1965 (3) ALL ENGLAND REPORTS PAGE 116 where the English law has been thoroughly reviewed and the position of law quoted from Hals- burys laws of England above is reiterated.

(3.) The Supreme Court had an occasion to view the judgment of the Calcutta High Court in the case of RAM RANJAN ROY V. EMPEROR I.L.R. 42 CALCUTTA PAGE 422 (EQUIVALENT TO A.I.R. 1915 CALCUTTA 345) and also the judgment of the Privy Council in the case of STEPHTEN V. THE KING A.I.R. 1936 P. C. 289. In that case of the STATE OF U. P. AND ANOTHER V. JAGGO ALIAS JAGDISH AND OTHERS A.I.R. 1971 SUPREME COURT. 1586 the Supreme Court has put the legal position in the following terms : It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witnesses whose evidence is essential to the unfolding of the narrative should be called. This salutary principle in criminal trials has been stressed by this Court in the case of HABEEB MOHAMMAD V. THE STATE OF HYDERABAD 1954 SCR 475 - (AIR 1954 S.C. 51) for eliciting the truth xxx xxx. Mr. Jethmalani in this connection submitted that the Supreme Court had before it a pertinent question whether witness Ramesh was or was not necessary for unfolding the basic case of the prosecution and that is why there is reference to unfolding of the case of the prosecution. But this was in the submission of Mr. Jethmalani only an illustration and not the whole background in which the witness could not be kept back by the public prosecutor in charge of the case. It is in this connection that Mr. Jethmalani had invited our pointed attention to the above- mentioned exposition of law from Halsburys Laws of England. However a string of authorities of the Supreme Court has made the legal position crystal clear. It has been time and again said that the prosecution is not bound to examine all the witnesses simply because of their mention in the charge-sheet. If there are more than one witness on a particular point it is perfectly open to the prosecution to avoid unnecessary duplication subject to the paramount condition that this step is not actuated by any oblique motive. We are therefore not required to go beyond the cases of the Supreme Court to trace the genesis of law. Suffice it to say that the public prosecutor being not the agent of police but being the agent of the State holding evenly the scales between its administration on one hand and the accused presumed to be innocent on the other hand and he being charged with such an important public duty the power to drop witnesses assuming that he has any such power should be exercised by him in a just and fair manner. Mr. Jethmalani said that this was his quasi-judicial function and that it was his duty to place before the Court his unbiased and disinte- rested opinion formulated by him after weighing the pros and cons of the situation in a quasi-judicial fashion. We do not think that any mincing of words about quasi-judicial character of his duties is necessary on this score because there cannot be any quarrel over the basic proposition that a public prosecutor is not the agent of police but he is a man associated with the holy mission of assisting the Court in arriving at the correct decision and that because of this it is his bounden duty to act fairly.