He pointed out that the objection is on the ground that when the evidence of the Petitioner appearing in person was recorded on 20th April, 2010, witness No. 6 - Mrs. Rekha I. Chhugani was present in the Court. He also pointed out that the 3rd witness - Mr. Mahendra Warbhuvan was admittedly present in the Court when the evidence of the Petitioner was recorded.
There is no specific provision either under the said Code or under the Rules of Procedure, which provides that when a deposition of a witness or a party is being recorded, other witnesses who are proposed to be examined by the party concerned should not remain present in the Court hall. However, Section 135 of the Indian Evidence Act, 1872 provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively. There is always a power vesting in the Court to direct the witnesses, who are present in the Court, to go out of the Court when the evidence of other witnesses is being recorded. The Courts have been consistently exercising such powers. The said power is exercised as a rule in criminal cases with a view to avoid prejudice to the accused and to ensure fairness of trial. In civil cases, the Court can exercise the power depending upon the facts of each case.
5. However, there is no power vesting with the Court even under the Code of Civil Procedure, 1908 or under the Indian Evidence Act, 1872 to decline permission to examine a witness on the ground that he was present in the Court while recording the evidence of the other witnesses was in progress. The Court is powerless to pass such an order even in a case where a witness continues to remain in the Court hall notwithstanding the direction of the Court to go out of the Court. In the present case, there was no such direction issued by this Court to the said two witnesses. Therefore, in any case, such a direction as prayed by the learned Counsel for the Respondent cannot be issued by this Court. Whether the evidentiary value of the evidence such witnesses is affected by the reason of the witnesses remaining present in the Court during the recording evidence of other witnesses, is a matter which will depend on the facts of the case. The Court can always examine this aspect while appreciating the evidence of such witnesses. In the case of Lloyd Sequeira Vaz (supra), this Court has taken the same view.
IN THE HIGH COURT OF BOMBAY
Election Petition No. 1 of 2009
Decided On: 14.01.2011
Indur Kartar Chhugani Vs. Priya Sunil Dutt
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka, J.
1. Heard the Petitioner appearing inperson and the learned Counsel appearing for the Respondent. This order disposes of the prayer made by the Petitioner for permission to examine two witnesses.
2. The Petitioner has already examined himself and the 2nd witness Dr. Mrs. Ashwini Joshi in the list of witnesses. The learned counsel appearing for the Respondent states that by filing an affidavit, the Respondent has raised an objection to examining the witness No. 3 - Mr. Mahendra Warbhuvan and the witness No. 6 - Mrs. Rekha I. Chhugani ( wife of the Petitioner). He has invited the attention of the Court to the 2 EP.1.09 affidavit dated 4th September, 2010. He pointed out that the objection is on the ground that when the evidence of the Petitioner appearing in person was recorded on 20th April, 2010, witness No. 6 - Mrs. Rekha I. Chhugani was present in the Court. He also pointed out that the 3rd witness - Mr. Mahendra Warbhuvan was admittedly present in the Court when the evidence of the Petitioner was recorded.
3. On the last date when the matter was argued, the learned Counsel appearing for the Respondent placed reliance on a decision of the learned Single Judge of the Allahabad High Court in the case of Lalmani v. Bejai Ram Chaudhari and Anr. (A.I.R. 1938 All 840). He submitted that as the witnesses were present when the evidence of the Petitioner was being recorded, this is the fit case where this Court should exercise powers under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") by not allowing the said witnesses to be examined. Today, the leaned counsel appearing for the Respondent pointed out that the decision of the learned Single Judge of the Allahabad High Court is no longer a good law in view of the decision of the Division Bench of the Allahabad High Court in the case of Subh Karan Singh and Ors. v. Kedar Nath Tewari and Ors. MANU/UP/0032/1941 : (A.I.R. 1941 All 314). He has also placed reliance on a decision of this Court in the case of Lloyd Sequeira Vaz and Anr. v. Inacio Albano Lourenco and others decided on 23 rd 3 EP.1.09 February, 2007 in Writ Petition No. 48 of 2007.
4. I have given careful consideration to the submissions. There is no specific provision either under the said Code or under the Rules of Procedure, which provides that when a deposition of a witness or a party is being recorded, other witnesses who are proposed to be examined by the party concerned should not remain present in the Court hall. However, Section 135 of the Indian Evidence Act, 1872 provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively. There is always a power vesting in the Court to direct the witnesses, who are present in the Court, to go out of the Court when the evidence of other witnesses is being recorded. The Courts have been consistently exercising such powers. The said power is exercised as a rule in criminal cases with a view to avoid prejudice to the accused and to ensure fairness of trial. In civil cases, the Court can exercise the power depending upon the facts of each case.
5. However, there is no power vesting with the Court even under the Code of Civil Procedure, 1908 or under the Indian Evidence Act, 1872 to decline permission to examine a witness on the ground that he was present in the Court while recording the evidence of the other witnesses was in progress. The Court is powerless to pass such an order even in a case where a witness continues to remain in the Court hall notwithstanding the direction of the Court to go out of the Court. In the present case, there was no such direction issued by this Court to the said two witnesses. Therefore, in any case, such a direction as prayed by the learned Counsel for the Respondent cannot be issued by this Court. Whether the evidentiary value of the evidence such witnesses is affected by the reason of the witnesses remaining present in the Court during the recording evidence of other witnesses, is a matter which will depend on the facts of the case. The Court can always examine this aspect while appreciating the evidence of such witnesses. In the case of Lloyd Sequeira Vaz (supra), this Court has taken the same view.
6. In the circumstances, the objection raised by the Respondent will have to be over ruled.
7. Issue witness summons to witness No. 3 - Mr. Mahendra Warbhuvan, returnable on 2nd February, 2011 at 01:00 p.m. Before the next date, the Petitioner will file an affidavit in lieu of examinationinchief of the witness No. 6 - Mrs. Rekha I. Chhugani and serve a copy to the advocate for the Respondent in advance. The witness No. 6 will also remain present in the Court on the next date.
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