Dr. Kasi Iyer vs State of Kerala

P. Govinda Menon, J.—This is an application made by the accused in Sessions Case 10 of 1966 challenging the correctness of the order passed by the Additional Sessions Judge, Trivandrum disallowing his prayer that the investigating officer who is a witness in the case, be not allowed to remain in Court when the other witnesses in the case arc being examined. It is represented by the learned State Prosecutor that the examination of eye witnesses arc now over and this petition has become infructuous. Learned counsel for the petitioner admits that the witnesses have all been examined, but as the question involved is important he invites a decision at least for future guidance.

The question that arises for decision is whether the Court has got power to order unexamined witnesses out of Court until their examination is taken up. It is true that neither the Evidence Act nor the Code of Criminal Procedure contain any specific provision for ordering witnesses out of Court although it is generally done by the Court as a matter of practice. In Halsbury''s Laws of England Vol. 10, at p. 470 il is stated that unexamined witnesses may be ordered out of Court at the request of either party. In Halsbury''s Laws of England Vol. 15, Lord Simond''s Edn., p. 439 the rule of practice is stated to be that, at any time during the course of a trial, and on the application of either parly, the Judge may order witnesses in the case to leave the Court until called for.

Nathusing v. The Crown, AIR 1925 Nag 296 is a case in point. There the question was whether a police officer whose presence was objected to could be excluded from Court it was held therein:

"Section 352, Cr. P. C. gives power to the Court of ordering that any particular person shall not remain in the room used by the Court. It makes no exception in the case of a police officer. When the accused person objects to the presence of a police officer or other person the Magistrate has to decide whether the accused''s fear of prejudice to his case is reasonable, considering the intelligence and susceptibilities of the class to which he belongs and not merely whether the presence is convenient or helpful to the Court or the prosecution".

A. Achyutana Pitchaiah Sarma Vs. Gorantla Chinna Veerayya and Others, is another case. It was a civil case and the question that arose for decision was regarding the power of the Court to exclude from the Court parties and their witnesses during the trial. The plaintiff and his witnesses were examined and the 4th defendant was throughout present in Court. After the plaintiff''s side was over the first witness for the defendant was put into the witness box. Then also the 4th defendant remained in Court. Counsel for the plaintiff objected to his presence in Court. The Court ordered the 4th defendant to leave the Court hall. The matter was taken up to the High Court questioning the power and jurisdiction of the Court to order the party to leave the Court when he was instructing his counsel. It was held:

"Since u/s 135 of the Evidence Act the Court has the power to prescribe the order in which witnesses are to be examined, where a party is also a witness, the Court can inquire him to give evidence before he examines his other witnesses. If he is not willing to do so, the Court can order him out of the Court hall when his other witnesses are giving evidence, This procedure ensures to the party his right to be present in Court when his suit is being tried."

I respectfully agree with the view expressed in these cases and hold that to ensure a fair trial even in the absence of any specific provision in any enactment the Court has inherent power to order that no witness who has to give evidence should be present when the deposition of the other witnesses arc being taken until he himself is examined as a witness.

In Lalmani Vs. Bejai Ram Chaudhari and Others, , Bennet, J., held that the universal practice in the Courts in India is that witnesses should be called in one by one and that no witness who is to give evidence should be present when the deposition of a previous witness is being taken and a breach of this rule may well be termed an abuse of the process of the Court and, therefore, u/s 151, C. p. C. the Court has inherent power to prevent that abuse and the Court can order that such witness should not be heard as a witness. In Subh Karan Singh and Others Vs. Kedar Nath Tewari and Others, , A Division Bench of the same High Court held that neither Section 135 of the Evidence Act nor Section 151, C. P. C. could justify the refusal to examine the witness even though it might affect the credibility of the witness.

In this case learned Judge has not considered these matters and the so called practice obtaining in the Trivandrum area can afford no justification. As staled in Halsbury''s Laws of England Vol. 15, p. 440, in criminal trials, a prosecutory is entitled to remain in Court only in his capacity as prosecutor and if he is witness also, he may be ordered to retire.

With these observations the petition is dismissed.