ATUL BORA Vs. AKAN BORA

JUDGEMENT

(1.) By making this miscellaneous application, the election petitioner has sought for necessary permission, under Section 154 of the Evidence Act, to put such question(s) to the witness No. 2 for the election petitioner, namely, the Returning Officer, which might be put to the witness, in cross-examination, by the adverse party, the case of the election petitioner, for seeking, such a permission, being, in brief, thus. In his examination-in-chief, the Returning Officer has deposed that without identity card being displayed, nobody was allowed to enter the place of counting, the engineers did not open the upper portion of the controlling units and that the engineers had opened only the lower portion of the controlling units. In his examination-in-chief, this witness has given evidence to the effect that when the engineers took up examination of the controlling unit of polling station No. 164, he had not made any announcement that the engineer would be opening the controlling unit of polling station No. 164 and that even when the engineers took up examination of the controlling unit of polling station No. 196, they had not made any announcement in this regard. It is in the evidence of this witness that there was only one camera in the hall, where the said examination took place, and that they had not permitted any other camera inside the counting hall nor had they allowed mobile phones inside the counting halls or at the place of examination of the said controlling units. It is also in the evidence of this witness that even at the time, when the EVMs were examined, no mobile phones were permitted inside the counting hall. Notwithstanding these assertions of this witness, the video recording of the counting process, which is under challenge in the present election petition, shows that

(2.) Opposing the above application made by the election petitioner seeking to invoke this Court's power under Section 154 of the Evidence Act, the respondent has filed an objection, his objection being, in brief, thus. In a proceeding, arising out of an election petition, the election petitioner cannot be allowed to cross-examine his own witness. The stage for applying the provisions of Section 154 has not yet been reached and that without having, first, resorted to the provisions of Sections 144 and 145 of the Evidence Act, the prayer for cross-examining the witness, under Section 154, cannot be allowed. In a trial of an election petition, the provisions of Section 154 are not attracted inasmuch as the Code of Civil Procedure, which applies to the election proceedings, does not permit the election petitioner to cross-examine his own witness. The witness, in question, has not exhibited any hostility towards the petitioner and merely because of the fact that the witness is not giving evidence, which the election petitioner expected him to give, the witness cannot be allowed to be cross-examined by taking resort to Section 154.

(3.) I have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf of the election petitioner, and Mr. A. M. Mazumdar, learned Senior counsel, appearing on behalf of the respondent.