N. H. BHATT, J. ( 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. 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. 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. ( 4 ) MR. Jethmalani had in this connection urged that if such a blanket power was reserved for the public prosecutor in charge of the States case an unscrupulous or a crafty prosecutor would 60 contrive as to compel the defence to examine some witness who is essentially a witness for the prosecution as a defence witness s and then avail himself of the opportunity of cross-examination of his which cross-examination he would not be able to do otherwise. Theoretically speaking Mr. Jeth- malanis apprehension can be said to be well-based. Theoretically speaking Mr. Jeth- malanis apprehension can be said to be well-based. However as he himself conceded the ultimate power and duty to do justice rests with the Court and whenever the Court finds that the public prosecutor acts unfairly it 9 would come down upon him with a heavy hand and set the things right. So such a hypothetical apprehension cannot be allowed to have its sway for laying down a broad proposition of law that whenever the witness is cited in the charge-sheet it is the duty of the public prosecutor to put him in the witness-box either for the purpose of regular exami- nation or at any rate for enabling the defence to cross-examine him-as has been said by the Supreme Court in the above-quoted case in such a case the witness can be produced for cross-examination to elicit the correct facts. In view of what has been stated in Halsburys Laws of England and in this judgment of the Supreme Court we concede that a situation might arise where there would be a duty on the prosecutor to tender the witness for prosecution for cross examination by the defence though he himself may not be inclined to place reliance on his examina- tion-in-chief and the statements expected to be made therein. ( 5 ) THE question however ultimately in the circumstances of the case is as to whether Mr. Thomas and Mr. Mehta had been dropped by the prosecution with any oblique motive of depriving the defence of an opportunity to meet his indictment reasonably or not. The cases of these persons deserve to be examined separately. ( 6 ) ON behalf of the accused it was very vehemently contended that such Government servants should not have been picked up as panchas because in such circumstances it would appear that the independent citizens of the locality who are required to be picked up were not picked up but some persons who were likely to dance in tune with the trapping agency were summoned It was also urged that the Supreme Court and more particularly this High Court had deplored in clear terms the practice of summoning the Government servants to witness such traps and raids Ultimately it was therefore urged that neither Mr. Vyas who was examined as a panch witness nor his colleague Mr. Vyas who was examined as a panch witness nor his colleague Mr. Juneja who was not examined can be said to be independent persons in whose presence the trap had been laid and the raid was effected. In this connection firstly our attention was invited to the judgment of the Supreme Court in the case of RAGHUBIR SINGH V. STATE OF HARYANA A. I. R. 1974 S. C. 1516. In that case an Executive Magistrate was invited to witness the operations intended to catch the criminal red- handed. Before the Supreme Court it was alleged that this was a very unfair practice and this went to the root of the whole matter. The Supreme Court in that case observed as follows :it is not necessary that Executive Magistrate should always be away from opera- tions intended to catch the criminal red-handed. He is not so strongly motivated to get a suspect somehow or other punished. To condemn roundly every public official or man of the people as a quasi-accomplice for participating in a raid is to harm the public cause. (emphasis supplied by us ). May be a judicial officer unlike an Execu- tive Magistrate should hesitate to get involved in police trap experiments and expose himself to charges of unveracity. Where no de novo temptation nor bribe money was offered by the police when the trap was arranged and the Executive Magistrate merely sought to do his public duty of intercepting a crime which was otherwise in the process of fulfilment the veracity of his testimony cannot be discredited. In fact in this very judgment Krishna Iyer J. speaking for the Bench has taken judicial notice of the apathy of good citizens that induces police officers to go after the lesser breed of search witnesses in the enforce- ment of Social Welfare statutes. This ruling as a matter of fact was pressed into service on behalf of the public prosecutor also and the underscored sentences above were strongly relied upon by him for driving home the point that being a public servant by itself is not the disqualification of a panch witness or any other witness and that the evidence of such witnesses is to be accepted or rejected on its intrinsic worth. The question therefore is whether in the present case summoning of Mr. Vyas and Mr. The question therefore is whether in the present case summoning of Mr. Vyas and Mr. Juneja is such an act on the part of the raiding officers as would make us doubt the very basis of their case. ( 7 ) A judgment of the Division Bench of this Court to which my brother D. P. Deasi J. was a party was also called in question by the defence. It is the judgment in the Criminal Appeal No. 201 of 1972 decided on 6th February 1973 in the case of MULJIBHAI TRIBHOVANBHAI PATEL V. THE STATE OF GUJARAT. There the Division Bench had made the following observations : no doubt we deprecate this practice of selecting Government servants only as Panchas. P. I. Mehta in his deposition has stated that he had instructions to take Government servants as Panchas. In our opinion it is not proper for the Central Excise Department to issue instructions for taking Government servants only as Panchas. Relying upon these observations of the Division Bench it was very strenuously contended before us that the very fact that two Government servants and that too in the employment of the Central Government whose employee the accused was should go to discredit the entire evidence consisting of laying of the trap and its execution. It is to be recalled to our mind here that in that case decided by the Division Bench of this Court the Division Bench ultimately did rely upon the testimony of those Government servants after taking into account the entire spectrum of facts and circumstances of the case The Division Bench itself observed : However merely because Government employees were taken as Panchas by him. it cannot be said that they were not independent persons or that they were in any way interested in the prosecution. Both the Panchas were examined in the Court. From their evidence. nothing has been brought out to show that the appellant was known to them or that they bore any grudge or enmity against him. In our opinion therefore in the instant case both the Panchas could safely be relied upon in support of the prosecution case. Both the Panchas were examined in the Court. From their evidence. nothing has been brought out to show that the appellant was known to them or that they bore any grudge or enmity against him. In our opinion therefore in the instant case both the Panchas could safely be relied upon in support of the prosecution case. THE ultimate outcome of the decision of the Division Bench was that ordinarily the Government servants should not be selected as Panchas because they might be under direct or indirect influence of the officers arranging the raid and if we can so legitimately suspect then justice at any rate cannot be said to have been done even if it is substantially done. This appears to be the ratio of the judgment of the Division Bench. ( 8 ) VIEWING all the observations of the Supreme Court and particu- larly the portion underscored by us in the quotation from the case of RAGHUBIR SINGH V. STATE OF HARYANA (SUPRA) and considering in its light the ratio of the decision of the Division Bench of this Court all we can at the most say is that ordinarily Government servants should not be selected as panchas in order to avoid possible aspersion on the independence of panch witnesses. but if on the close scrutiny of the evidence of the Panchas it is disclosed that they are in fact independent witnesses their evidence cannot per se be said to be tainted and therefore liable to be discarded. We have therefore to judge the credibility of otherwise of the evidence of the Panch Mr. Vyas in the light of its internal strength and attendant circumstances. .