KASI IYER Vs. STATE OF KERALA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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".