Sir John Edge, C.J, Tyrrell, Knox, Blair, Burkitt and Aikman, JJ.:— The question which we have to consider is whether in atrial in a Court of Sessions or in the High Court on its Criminal Side, the Public Prosecutor is bound to call all the witnesses returned in the calendar as witnesses for the Crown, or to put such of those witnesses as he does not examine into the witness-box to be cross-examined by or on behalf of the accused in the trial.

The question arose in an appeal to this Court in a case tried by a Sessions Judge in which the Public Prosecutor, acting on his discretion, declined to put into the witness-box some witnesses returned in the calendar as witnesses for the Crown. The question was referred to the Full Bench, in order that the practice in these Provinces on the point might be settled definitely.

At the hearing, the Public Prosecutor drew our attention to the following authorities:—Queen-Empress v. Tulla(1), Queen-Empress v. Stanton(2), Empress of India v. Kaliprosono Das(3), The Empress v. Grish Chunder Talukdar, Queen-Empress v. Ram Sahai Lall, The Empress v. Dhunno Kazi, Beg v. Fattechand Vastachand(4), Beg v. Woodhead(5) and Reg v. [86] Cassidy(6). He also directed our attention to the texts in Russell on Crimes (5th ed., VIII, p. 562.)

We can find nothing in the Code of Criminal Procedure which imposes an obligation on a Public Prosecutor to call all the witnesses entered in the calendar as witnesses for the prosecution in a Sessions trial. The question of a private prosecutor does not arise with regard to a trial in a Court of Session, as by s. 270 of Act No. X of 1882, a Public Prosecutor is the person to represent the Crown in all such trials. We have come to the conclusion that it is entirely in the discretion of the Public Prosecutor conducting the case for the Crown to call or not to call any witness or witnesses at a Sessions trial appearing in the calendar as witnesses for the Crown. It appears obvious to us that it cannot be the duty of a Public Prosecutor acting on behalf of the Government and the country to call or put into the witness-box for cross-examination a witness whom he believes to be a false or an unnecessary witness. The rule in England is made perfectly plain from the decision of Alderson, B., in the case of Reg v. Woodhead. That learned Judge gave one very good reason why those representing the Crown cannot be compelled to call a witness who is likely to speak falsely. Referring to such witnesses he said for instance, if they were called by the prosecutor, it might be contended that he ought not to give evidence to show them unworthy of credit; however falsely the witness might have deposed.” That ruling of Alderson, B., who was a very great Judge, is supported by a ruling of Parke, B., in Reg v. Cassidy. Parke, B., there followed a ruling of Lord Campbell, C.J, after consultation with Cresswell, J. These Judges to whom we have referred were all eminent Judges of the English Bench.

It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that Justice is vindicated; and, in exercising his discretion as to the witnesses [87] whom he should be should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness-box, he is not bound, in our opinion, to call that witness or to tender him for cross-examination. In cases in which a prisoner is undefended in a Sessions trial, the presiding Judge should, in our opinion, look at the deposition of any witness appearing in the calendar as a witness for the Crown, and not called on behalf of the Crown or tendered for cross-examination, in order to ascertain whether he should not himself take action under s. 540 of the Code of Criminal Procedure, 1882. All witnesses returned in the calendar as witnesses for the Crown are, whether they are called or not by the Crown, bound to be in attendance until the conclusion of the trial, unless they are released from attendance by order of the Court; and before releasing them from attendance, the Court should satisfy itself that their evidence will not be required either by the prosecution or by the defence. We have used the term “Public Prosecutor” in the sense in which it is defined s. 4(m) of Act No. X of 1882. This is our answer to the reference.

The appeal being subsequently returned for disposal to the Bench concerned, the following order was passed:—

Sir John Edge, C.J and Burkitt, J.:— In this case, which was an appeal for a conviction under s. 302 of the Indian Penal Code and a sentence of transportation for life, we referred a question to the Full Bench. The answer of the Full Bench has relieved us of any difficulty in the case. On the evidence Durga was convicted, and, being convicted under s. 302, he could not have received a more favourable sentence than he did. The appeal is dismissed with costs.