Whether court has no power to decline permission to examine witness?

 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 4 EP.1.09 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. 

Bombay High Court

Indur Kartar Chhugani vs Ms. Priya Sunil Dutt on 14 January, 2011

Bench: A.S. Oka

Citation: 2011(4) AIR BOM R 272 

Print Page

Whether court has power to direct witness to go out of court when evidence of other witness is recorded?

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.

Bombay High Court

Indur Kartar Chhugani vs Ms. Priya Sunil Dutt on 14 January, 2011

Bench: A.S. Oka

Citation: 2011(4) AIR BOM R 272

Print Page