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2003 State of Maharashtra v. Praful B. Desai s.c.

2053

"The Court/Tribunal should not Ole- shall file oIiginals of the documents on \vhich
chanically set aside the order of punishment reliance \vas placed. if not already done. If
on the ground t hat the report was not fur- the Governnlent ~xpert is of the ;rte\v that
nished as is regrettably being done at doculuents produced by the employee are
present. The Courts should avoid resorting
forged/fabricated or not authentic the or-
der of dismissal shall stand. If. ho\vever. the
to short cuts." report of the expert is that the docunlents
26. Strong re l1ance \vas produced by the employee are genuine. the
placed by learned counsel for the order of dismissal has to be vacated. In case
em lovee on a three-Judge the originals. as directed above. are not filed
Betch -of this Court in Punjab by the employee or the Bank. then the High
SC 2713 : National Bank and others v. KunJ Court shall pass necessary orders. uphold-
(1998 AIR l3ehan Misra (1998 (7) SCC 84). ing the order of dismissal or setting aside
sew 2762 'Ole said decision has no appU- the order of dismissal. as the case may be.
: 1998 Lab is factually dlstin-
Ie 3012 : cation a nd hat was a case were h No other point shall be considered by the
1998 All W guis Ila ble . T i dif High, Court. The matter shall be heard bv
2009) tI Disciplinary Author ty - the Division Bench by restoration of the \vrlt ,
le 01 the views of the In-
appeal.
fered fro I that context it
uiry Officer. n 30. The appeal is allowed to the extent
q ld that denial of opportu-
was he f hearing was per se indicated.
n i ty 0 f the principles of natu- Order accordingly.
violative 0 The case at hand is
ral Justdice. totally different fac- AIR 2003 SUPREME COURT 2053
founde on
tual backdrop. (From : Bombay)·
d that at no stage the
27. It is to be note dice Both learned S. N. VARIAVA AND B. N. AGRAWAL. JJ.
employee pleaded prej~ivisi~n Bench pro- Criminal Appeal No. 476 of 2003 (arising
Single Judge and the t there was no com- out of S. L. P. (Crt.) No~ .6814 of 2001) with
ceeded on the basiS tha ent of Regulation Cri. Appeal No. 477 of 2003 (arising out of
pliance of the requirem udice was caused. S. L. P. (Cri.) No. 6815, ,of 2001). D/- 1-4-
6( 18) and. therefore. P~~corded supra that 2003. ' ;'
In view of the finding t been correctly in- State of Maharash~ra. Appellant v. Dr.
Regulation 6(18) h~~::~ns regarding preju- Praful B. Desai. Respondent. ;
terpreted. the conc WITH
dice are indefensible. oted that case of P. C. Singh. Appellant v. Dr. Praful B.
28. It is further !o!~ ~ot considered by Desai and another. Respondent.
the parties on merit r the Division Bench. (A) Criminal P.C. (2 of 1974), S. 273-
learned single Judge ~act that there was no Taking evidence in presence of accused
Notwithstanding thehe respective cas~s. _ Term 'presence' in S. 273 - Does not
consideration of t directed examination mean actual physical presence in Court.
Learned single Ju d gethe expert. CrI. A. No. 3193 of 1999, D/- 23 and
of the documents by , It is that thejudg- 24..4-2001 (Bombay), Reversed.
29. The inevitable r:~~h confirming that Interpretation of Statutes - Diction-
ment of the D~~5~~~e JUdg~:ea:u~~tI~~ ary meaning.
of the learn it relates to 1 jUstice. The term 'presence' in S. 273 does not
quashed so far a~ les of natura There mean actual physical presence in Court. One
of violation of P~~c~~d of the lIla~~!. of the does not have to consider dictionary mean-
But that is not t t'o n of the me in the fit- ings when a plain reading of the provision
Was no considera 1 It would be . n of the brings out what was intended.
bove. inatIo
case as note d a irect exarn of learned (Paras 11. 12)
ness of things to d xper t in terrns e shall file
documents by th e e The ernployehich he re- .Cri. A. No. 3193 of 1999. D/ - 23 and 24-4-
.
SIngle Ju dge' S ord err rnents on W laced be- 2001 (Bombay).
originals of the dO~Ucopies were 11ant-Bank DU/DU/SI00202/2003/VNP/RTT/6041/2003
lies upon. of whic t The appe
fore the High co ur .
T _2

2054 S.C. State of Maharashtra v. Praful B. Desai A. I. R.


Section 273 provides for dispensationis in the same room. In vldeQ conferenclng
from personal attendance. In such cases both parties are in presence of each other.
evidence can be recorded in the presence. of
Thus it is clear that so long as the accused
the pleader. The presence of the pleader is
and/or his pleader are present when evi-
thus deemed to be presence of the accused.
dence is recorded by video conferencing that
Thus S. 273 contemplates constructive pres-
evidence is being recorded in the 'presence'
ence. This shows that actual physical pres-
of the accused and would thus fully nleet
ence is not a must. This indicates that the
the reqUirements of S. 273. Recording of
term 'presence' as used in this section is
such evidence would be as per 'procedure
not used in the sense of actual physical pres-
established by law.'
ence.
(Para 19)
Crl. A. No. 3193 of 1999, D/- 23 and· 24-
Recording of eVidence by video
4-2001 (Bombay), Reversed. conferencing also satisfies the object of pro-
(Para 12)
viding. in S. 273. that evidence be recorded
(D) Evidence Act (1 of. 1872), S. 3 -
in the presence of the accused. The accused
Evidence - Can be both oral and docu- and his pleader can see the witness as
mentary and electronic records can be clearly as if the witness was actually sitting
produced as evidence -:- Evidence, evenbefore them. In fact the accused may be able
in criminal matters, can also be by way to see the Witness better than he may have
of electronic records - This would in- been able to if he was sitting in the dock in
clude video conferencing. a crowded Court room. They can observe his
(Para 12)
or her demeanour. In fact the facility to play
. (C)· Criminal P.C. (2 of 1974), Pre. -back would enable better observation of de-
meanour. They can hear and rehear the
Provision of on going statute like Crimi-
nal P.C. - Interpretation - Doctrine deposition of the Witness. The accused would
'contemporanea exposition est optima et be able to instruct his pleader immediately
fortissimm' has no application - Doc- and thus cross-examination of the Witness
trines - 'Contemporanea exposition est is as effective. if not better. The facility of
optima· et fortissimm'. play back would give an added advantage
whilst cross-examining the witness. The
(Para 18)
witness can be confronted with documents
(D) Criminal POC. (2 of 1974), S. 273 -
or other material or statement in the same
Evidence - Recording of. by video manner as if hel she was in Court. All these
conferencing - Permissible - Evidence objects would be fully met when evidence is
so recorded is being recorded in 'presence'
recorded by video conferencing. Thus no
of accused would fully meet requirements prejudice. of whatsoever nature. is caused
of S. 273 '- Thus record~g of such evi- to the accused. Of course. evidence by Video
dence would be as per 'procedure estab- conferencing has to be on some conditions.
lished bylaw.'
Crl. A. No. 3193 of 1999.0/- 23 and 24-
CrI. A. No. 3193 of 1999. D/- 23 and 4-2001 (Bombay). Reversed.
24-4-2001 (Bombay), Reversed.
Constitution of India. Art. 21. (Para 19)
(E) Criminal P.C. (2 of 1974), Ss. 274,
Video conferencing has nothing to do with 275 - Evidence - Recording by video
virtual reality. Advances in science and tech- conferencing - Should be only if witness
nology have now. so to say. shrunk the is in a country which has extradition
world. They now enable one to see and hear treaty with India and under whose laws
events. taking place far away. as they are contempt of Court and perjury are also
actually talking place. Video conferencing is punishable. .
an advancement in SCience and technology The advancement of SCience and technol-
I which permits one to see, hear and talk with ogy is such that now it is Possible to set up
i someone far away. with the same facility and
\ video conferencing equipment in the Court
ease as if he is present before you I.e. in itself for recording the eVidence through
1 your presence. In fact he/she is present video conferencing. In that case evidence
before you on a screen. Except for touching would be recorded by the Magistrate or un-
one can see, hear and observe as if the party der his dictation in open Court. If that is
2003 State of l\faharashtra v. Praful B. Desai s.C. 2055

done then the requlnonlents of Ss. :274 and dence on commission by way of video
275 would be fullv nlet. To this tncthod there conferenclng - Evidence can be recorded
is however a dr~~\v hack. As (he \I,,'ilnt'ss is in studio /hall where video conferencing
nO\\I In Court there nlav be difficulties if he takes place - Court in MumbaJ would be
Commits contempt of Court or perjures hlIn- issuing commission to record such evi-
self and it Is inllllcdiatcl\' noticed that he dence - Thus commission would be ad-
has perjured hhnsclf. Tht:reforc as a nlatter dressed to Chief MetropoUtan Magistrate.
of prudence evldenc{' bv video conferencing Mumbai - Compliances to be made by
In open Court should IJC only if the \\ritncss officer deputed for the purpose. stated.
fs in a country \vhtch has an extradttlon Normany \vhen a Commission is issued.
treaty \vlth India and under \vhosc laws con- the recording \votlld have to be at the place
tenlpt of Court and perjury arc also punish- \vhere the witness is. Thus S. 285 provides
able. to \vhorn the Comnlission is to be directed.
(Para 19) If the \vitness ,is outside India. arrangenlents
(F) Criminal P.C. (2 of 1974). S. 284 - are required behveen India and that coun-
Issuance of commission - To record evi- try because the services of an official of the
dence by way of video conferencing - country (mostly a Judicial officer) \vould be
required to record the evidence and to en-
Permissible where attendance of witness sure/compel attendance. However. newad-
cannot be procured without an amount vancement of sCience and technology per-
of delay. expense or i~convenience. mit officials of the Court. in the city \vhere
itness is necessary
In cases where t h e W d f video conferencing is to take place. to record
for the ends ofJustice and the auedn wiaItlhc~~t the evidence. Thus \vhere a witness is \viII-
t be procure Ing to give evidence an official of the Court
such witness canno . nse or inconven-
an amount of delay. expe mstances of the can be deported the record evidence on Com-
fence which. under the Ci~lu the Court may mission by way of video conferencing. The
case would be unreas ona d:~ce and issue a evidence will be recorded in the studio/hall
dispense with such atten 10n of the witness. where the video conferencing takes place.
The Court in Mumb~i would issuing Com-
Commission for exaI11in~itness in USA has mission to record eVidence by Video
In the instant case th e to give evidence. conferencing in Mumbai. Therefore. the
dia
refused to come to In to be necessary for Commission would be addressed to the Chief
His evidence was foun~rts In India cannot Metropolitan MagIstrate. Mumbai who would
the ends of jUstice. Co Even otherwise to depute a responsible officer (preferably a
p~ocure his attenda~~~ witness from a far judicial officer) to proceed to the office of
procure attendance ld generally involve VSNL and record the evidence of in the pres-
of country like USA wou inconvenience. In ence of the respondent-accused. The officer
delay expense and/or uld be issued for shall ensure that the respondent and his
, i ions co i
such cases corn IU 55 lly a commiss on counsel are present when the 'evidence is
recording evidence. Norma I
'den ce at the pace recorded and that they are able to observe
would Involve recording eVl ver advancement the demeanour and hear the deposition of
where the witnesS is. Howe has nOW made it the witness. The officers shall also ensure
in science and techool~~ldence by way of that the 'respondent has full opportunity to
possible to record sUC the toW11/ city where cross-examine said witness. It must be clari-
Video conferencfng tn seS where the at- fied that adopting such a procedure may not
the Court is. ThUS to ca n ot be procured be possible if the witness is out of India and
es S can or in- not willing to give evidence.
ten dance of a \Vitn delay, expense .
Without an amount of ld consider ISSU- (Para 22)
rt cou d by
ConvenIence the Cou o rd the evi ence FiXing of time for recording evidence on
i i sion to rec Commission is always the duty of the of-
ng a comm s nferencing. (Para 20)
Way of video co 285 ficerwho has been deputed to so record evi-
2 of 1974 ). SSbe di: dence. Thus the officer recording the evi-
(G) Criminal P.C.Jl ( to ..".dbodl ign to dence would have the discretion to fix up
i coun- the time in consultation with VSNL. who are
273 _ COJlldl iSS 0 USA, fore Official
rected _ WitnesS 1Jl e~deJ1ce - ord evi- experts in the field and who. will know which
try _ Willing to gi"e llted to reo
of Court can be dep
2056 S.C. State of Maharashtra v. Praful B. Desai A. I. R.
Is the most convenient time for video cult to put documents or \vritten luaterial .
conferenclng with a person is USA. The re- to the Witness in cross-examination. It is now
spondent and his counsel will have LO make possible, to show to a party. \ViUl \vhom video
it convenient to attend at the time fixed by
conferencing is taking place. any amount of
the concerned officer. If they do not remain written material. The concerned officer will
present the Magistrate will take action, as ensure that once Video conferencing C0I11-
provided in law, to compel attendance. Of- mences. as far as possible, it is proceeded
ficer who will be deputed would be one Who
has authority to administer oaths. That of- with without any adjournments. Further if
it Is found that the Witness Is not attending
ficer will administer the oath ..By now sci-
ence and technology has progressed enough at the time is fixed. Without any suffiCient
cause, then It would be open for the Magis-
to not worry about a video image/audio In- trate to disallow recording of eVidence by
terruptions/distortions. Even if there are video conferencing. If the officer finds that
interruptions they would be of temporary the Witness Is not answering questions. the
duration. Undoubtedly an officer would have officer Will make a memo of the same. Fi-
to be deputed, either from India or from the nally when the evidence is read in Court.
Consulate/Embassy in the country where this is an aspect which will be taken in to
the evidence is being recorded who would consideration for testing the veracity of the
remain present when the evidence Is being eVidence. Undoubtedly the costs of Video
recorded and who will ensure that there is conferencing would have to be borne by the
no other person in the room where the wit- State. . .
ness is sitting whilst the evidence is being
recorded. That officer .will ensure that the (Para 24)
witness is not coached/tut9red/prompted. Cases Referred: ChronologiCal Paras
It would be advisable. though not necessary. BasavaraJ R. PatH v. State of Karnataka, AIR
that the witness be asked to give evidence 2000 SC 3214 : 2000 AIR sew 3692 : 2000
in a room in the Consultate/Embassy. As Crt W 4604 : (2000) 8 SCC 740 17
. the evidence is being recorded on Commis- SIL Import USA v. Exim Aides Silk Export-
sion that evidenc~ .will subsequently be read ers, AIR 1999 SC 1609 : 1999 AIR SCW
into Court. Thus. ~o question arises of the 1218 : 1999 Crt W 2276 : (999) 4 SCC
witness insulting tl].e Court. If on reading 567 16
the evj'flen~e the Court finds that the wit- Commr. of Income-tax. Bombay v. Mis.
ness ha~ peIjured himself. Just like in any Podar Cement Pvt. Ltd., AIR 1997 SC
other;evtd.ence on Commission the Court will 2523 : 1997 AIR SCW 2466 : 1997 Tax LR
690 : (1997) 5 SCC 482 16
ignore or ~isbelieve t~e evid~nce. It must be
remembered that there have been cases State v. S. J. Chaudhary, AIR 1996 SC
where evidence is recorded on Commission 1491 : 1996 AIR SCW 1128 : 1996 Cri W
1713 : (1996) 2 SCC 428 16
and by tbe:time it is read in Court the wit-
ness has left the country. There also have National Textile Workers Union v. P. R.
been cases where foreign witness has given Ramakrishnan. AIR 1983 SC 75 : 1983 Tax
evidence in a Court in India and that then LR 2407 : (1983) 1 SCC 228 15
gone away abroad. In all such cases Court Nageshwar Shri Krishna Ghobe v. State of
would not have been able to take any action Maharashtra, AIR 1973 SC 165 : 1973 Cri
in perjury as by the time the evidence was LJ 235 : (1973) 4 SCC 23 13
conSidered, and it was ascertained that there Ratilal Bhanji Mithani v. State of
was perjury. the witness w~s out of the JU- Maharashtra. AIR 1972 SC 1567 : 1972
risdiction of the Court. Even in those cases Cri W 1055 : (1972) 3 SCC 793 21
the Court could only ignore or disbelieve the A. K. Gopalan v. State of Madras. AIR 1950
evidence. The officer deputed will ensure SC 27 : (1950) 61 Cri W 1383 9
that the respondent. his counsel and one Nazir Ahmed v. Emperor, AIR 1936 PC 253
assistant are allowed in the studio when the (2) : (1936) 37 Cri W 897 9
evidence is being recorded. The officer will MaITland v. S. A. Craig, 497 US 836 11
alsO ensure that the respondent is not pre- Mrs. I~ldira Jaisingh. Sr. Advocate, V. B.
vented from bringing into the studio the pa- Joshi. S. S. Shinde and V. N. Raghupathy.
ers/documents which may be required by Advocates with her. for Appellant: P. C.
him or his counsel. That it would be diffi- Singhi-in-person. for Appellant: Ashok H.
2003 State of Maharashtra v. Praflll B. Desai s.c. 2057
Desai, Sr. Advocate. Shrldhar Y. ChHaIe. tvts. lion that \vhenever the conlplalnant's-\vife
f~lshnll I). Chandrachlld. T\-ls. Mcenakshl ate or drank the same \\'ould come out of
j'Ja g and AbhlJar P. 1\'edh. Advocates. \\'ith the \vound. It Is the case of the prosecution
1Jn1. for J~esp;)lldellts. that the complalnant's-\\1fe required 20/25
VARlAVA. J. : - L(!(l\'C granted. dressing a day for Illore than 3 1 '2 months in
the hospital and thereafter till her death. It
2. Heard parties. is the case of the prosecution that the conl-
3. "I11csc appeals are against a Judgnlcnt plainant's-w1fe suffered terrfble phvsical tor-
of the BOIllOUV High Court'dated 23rd/24th ture and mental agony. It is the case of the
April. 200 I. The quest Ion for consideration prosecution that the respondent did not once
is Whether in a crhllinal t rial. evidence can examine the conlplatnanfs-\vife after the
be recorded bv video confcrencint!. TIle Hlt!h operation. It is the case of the prosecution
COurt has hc·ld. on an interpretation of S. that the respondent dainled that the com-
273. Criminal Procedure Code. that it can- plafnant's-wtfe \vas not his patient. It is the
not be done. Crinl1nal Appeal (arising out of case of prosecution that the bill sent bv the
S. L. P. (Crlnlinal) No. 6814 of 200 I) is filed BOInbay Hospital belied the responden( case
by the State of Maharashtra. Criminal Ap- that the complainant's-Wife was not his pa-
peal (arising ou t of S. L. P. (Criminal) No. tient. The bill sent by the Bonlbay Hospital
6815 of 2001) is filed by Mr. P. C. Singhi. showed the fees charged by the respondent.
Who was the conlplainant. As the question It is the case of the prosecution that the
of law is comnlon in both 'these appeals. they Maharashtra Medical Council has. in an
are being disposed of by this comnl0n Judg- inquiry. held the respondent guilty of negli-
ment. In this Judgment parties will be rei gence and strictly warned him.
ferred to in their capacity in the Cr~j~~ 5. On a complaint by the complainant a
Appeal (arising out of S. L. p. (~~I~~r b! re: case under S. 338 read with SSt 109 and
6814 of 2001), Mr. P. C. Sing 114 of the Indian Penal Code was registered
ferred to as the complainant. . against the respondent and Dr. A. K.
e as follows. MukheIjee. Process \vas issued by·the Met-
4. Briefly stated the facts ar
s suffering Jrom ropolitan Magistrate. 23rd Court. Espla-
t',

The complainants wife wa f the pros- nade. Mumbai. The respondent challenged
terminal cancer. It is the ca~e ~fe was ex- the issue of process and carried the chal-
ecution that the complainant ~erg of Sloan lenge right up to this Court. The Special
alllined by Dr. Earnest Gree~ew York. USA. Leave Petition filed by the respOndent was
Kettering Memorial HospitaI. iOO erable and dismissed by this Court on 8th July. 1996.
who opined that she was Uh ~edicaUon. This Court directed the respondent to face
should be treated only w d his wife con- trial. We are told that evidence of six wit-
Thereafter the complainan~ a~s a consulting and nesses. including that of the complainant
the Investigating Officer. has been re-
SUIted the respondent. W ~ t 40 years. In
. Surgeon practising for the f~r Greenberg's corded. .
sPite of being made aware 0 gge~ted surgery 6. On 29th June, 1998 the prosecution
made an application to examine Dr.
OPinion the respondent SU the case of the
. Greenberg through video conferencing. The
to remove the uterus. It is Iainan t and his trial Court allowed that application on 16th
. Prosecution that the comP n the condi- August, 1999. The respondent challenged
Wife agreed to the operation ~d by the re- that order in the High Court. The High Court
Ho n that it would be perf7~~e prosecution has by the impugned order allowed the

, sPondent. It is the case 0 987 one Dr. A. f<-. criminal application filed by the respond-
that on 22nd December, 1 oI11plainant s-
1\6
'V{UkheIjee operate 0
When the stomach was op
d n the c
rosecution
\Vife. It Is the case of the ~ned ascetic flu-
that ent. Hence these two appeals.

It is the case tion


7. At this stage it is appropriate to 1l!en-
that Dr. Greenberg has expressed his
ids oozed out of the abdornaAn·K. Mukherjee willingness to give evidence, but has refused
Of the prosecu tion t h a t D. rbO ' advise d clo s - to come to India for that purpose. It is an
~ontacted the responde~:case oftheJ:~C;;; cor
admitted position that. in this Criminal Pro-
ng up the stomach. It is kberjee ac in In- cedure Code there is no provision by which
efUtion that Dr. A. K. M~ thiS resulted secU- Dr. Greenberg can be compelled to come to
~ oSed the stomach an se of the pro
eSUnal fistula. It is the ca
2058 S.C. State of Maharashtra v. Praful B. Desai A. I. R.
India to give evidence. Before us a passing the existing provisions of the Criminal Pro-
statement was made that the respondent did cedure Code permit recording of evidence
not admit that the evidence of Dr. Greenberg by video conferencing then it could not be
was relevant or essential. However. on said that "procedure established by law" has
abovementioned facts. it prima facie appears not been followed.
to us that the evidence of Dr. Greenberg 10. This Court was taken through vari-
would be relevant and essential to the case ous sections of the Criminal Procedure Code.
of the prosecution. Emphasis was laid down on Section 273.
S. Ms. Jaisingh. senior counsel argued Criminal Procedure Code. It was submitted
for the State of Maharashtra. The complain- that Section 273. Criminal Procedure Code
ant. except for pointing out a few facts. does not provide for the taking of eVidence
adopted for arguments. On behalf of the re- by video conferencing. Emphasis was laid
spondent submissions were made by senior on the words "Except as otherwise provided"
counsel. Mr. Sundaram and Mr. Ashok in Section 273 and it was submitted that
Desai. unless there is an express prOviSion to the
9. It was submitted on behalf contrary. the procedure laid down in Sec-
of the respondents. that the pro- tion 273 has to be followed as it is manda-
cedure governing a criminal trial tory. It was submitted that Section 273
is crucial to the basic right of the mandates that evidence "shall be taken in
accused under Arts. 14 and 21 the presence of the accused". It is submit-
of the Constitution of India. It ted that the only exceptions, which come
was submitted that the proce- within the ambit of the words "except as oth-
dure for trial of a criminal case erwise provided" are Sections 284 to 290
is expressly laid down in India. (those dealing with issue of CommisSions).
in the Code of Criminal Proce- Section 295 (affidavit in proof of conduct of
dure. It was submitted that the public servant) and Section 296 (evidence
Code of Criminal Procedure lays of formal character on affidaVit). It is sub-
down specific and express provi- mitted that the term "presence" in Sections
sions governing the procedure to 273 must be interpreted to mean physical
be followed in a criminal trial. It presence in flesh and blood in open Court.
was submitted that the proce- It was submitted that the only instances in
dure laid down. in the Code of which evidence may be taken in the absence
Criminal Procedure was the "pro- of the Accused. under the Criminal Proce-
cedure established by law." It dure Code are Sections 317 (provision for
was submitted that the Legisla- inquiries and trial being held in the absence
ture alone had the power to of accused in certain cases) and 299 (record
change the procedure by enact- of evidence in the absence of the accused).
ing a law amending it, and that It was submitted that as Section 273 is
hen the procedure was so mandatory, the Section is required to be
:hanged, that became "the ~.r0- Interpreted strictly. It was submitted that
cedure established by law. It Sec. 273 must be given its contemporary
Ii was submitted that any depar- meaning (Contemporanea exposit to est op-
tima et fortis sima - The contemporaneous
I
I
ture from the procedure laid
down by law would be contrary
to Art. 21. In support of this sub-
exposition is the best and the strongest in
law). It was submitted that video
mission reliance was placed on conferencing was not known and did not
the cases of A. K. Gopalan v. exist when the Criminal Procedure Code was
(1950 (51) State of Madras, reported in AIR enacted/amended. It was submitted that
Crt LJ 1950 SC 27: Nazir Ahmed v. Em- presence on a screen and recording of evi-
1383) peror. reported in AIR 1936 PC dence by video conferencing was not ('on-
253 and Siva Kumar Chadda v. templated by the Parliament at the t· of
(1936 (37) Municipal Corporation of Delhi. drafting/ amending the Criminal Pro:~~re
~;~) LJ reported in AIR 1975 SC 915. Code. It wa.s submitted that when the Le~­
'------ There can be n.o dispute with islature Intended to permit video
these propositions. However. if conferenclng. It has expressly provided for
it, as 1s eVident from the 0 di ssed
r nance pa
-----~----------

Statc of Maharashtra v. Praful B. Desai S.C. 2059


~ the State of Andhra Pradcsh In DC(,Clll- fncludt's a person III relation to wholn any
c er, 2000 permit ling the use of vJdeo procC'cdin.L! under Chapter VIII has been
n~~ferenclng under Section 167(2). Crhnf- COll1l11CIH'C,'d under this Code'.
It J Procedure Code in remand applications. Thus Sec(iotl 27~i provides for dispensa-
f ~ POinted out that a sinli1ar amendment lioll froll) pcrsollc.1i attendance. III such cases
SS elng conSidcred In Maharashtra. It is eVidence ('all be rt.'cordcd In the presencc of
J:b~Hted that Section 273 is analogous to the pleader. The presence of the pleader is
~ onfrontatfon Clause set out In the Vlth thus declned to be presence of the accused.
s bendment to the US Constitution. It is Thus Section 273 contclnplates construe-
v~ mUted that Courts in USA have held that live presence. This shows that actual physi-
qUi~O confercncfng does not satls~y the rc- cal preseucc is not a rnusL This indicates
ements of the Confrontatfon Clause. that the terIll "presence", as llsed in this
HJ ~1. This argument found favour with the Section, Is not l1~cd in the sense of aClual
JuJ COurt. The High Court has relied on physicaJ presence. A plain reading of Sec-
h 1gInents of various High Courts which has Uon 273 docs not support the restrictive
e e d that Section 273 is mandatory and that meaning sought to be placed by the respond-
~ldence must be recorded in the presence ent on the \vord "presence". One Inust also
~ the accused. To this extant no fault can take note of the deflnition of the ternl 'Evi-
e fOUnd with the Judgment of the High dence' as defined in the Indian Evidence Act.
Court. The High Court has then conSidered Section 3 of the Indian Evidence Act reads
~hat Courts in foreign countries. including as follows:
OUrts in USA, have done. The High Court "Evidence - Evidence 111eans and in-
then based its decision on the meaning of cludes-
the term "presence" in various dfc.~ionaries (1) all statenlents which the Court per-
and held that the term "presence in Sec- mits or reqUires to be made before it by \vit-
Han 273 means actual physical presence in nesses. in relation to matters of fact under
COUrt. We are unable to agree with this. We inquiry:
have to consider whether evidence can be such statements are called oral evidence
led by way ofvideo-conferencing on the pro- (2) all documents including electronic
ViSions of the Crimina) Procedure Code and
the Indian Evidence Act, Therefore. what records produced for the inspection of the
View has been taken by Court in other coun - Court,
tries is irrelevant. However, it may 0Firs~o evi~~~~e~ocuments are called documentary
~entioned that the su
prem
n the case of Maryland v. ; , . c;ugr~y (497
d ce
Thus evidence can be both oral and dOCU-1
lJS 836), has held that recorditnagyj°fOelavitioennof mentary and electronic records can be pro-
t6
b
e Sixth Amendment
D duced as evidence. This means that evi-
video-conferencing was (confron ta tion dence. even in criminal matters. can also
be by way of electronic records. This would
Clause)
· stion on the ba - include video-con erencing,
Ii
I 12. ' Considering the que de we are of 13. One needs to set out the
sis of Criminal Procedure c:: h~s failed to approach which a Court must
the View that the High Cou One does not adopt in deciding such questions.
read Section 273 properlY~eanings when It must be remembered that the
have to'consider dictionary brings out first duty of the Court is to do
a PaInI . reading 0 f t h e provision
. 273 reads as Justice. As has been held by t h is
;Vhat Was intended. Section Court in the case of Sri Krishna - - - -
loll h (Nageshwar
OWs : t be taken in Gobe v. State of Maharas tra S h r i
"Section 273 : Evidence toas otherwise (19734 SCC 23) Courts must en- K r ish n a
Presence of accused. Excep e taken in the deavour to find the truth. It has G hobe v.
e}(pressly provided. aU ev1den~ceeding shall been held that there would be =~1~
course of the trial or otherf~~e accused. or, failure of Justice not only by an (AIR 1973 •
be taken in the presence 0 e is dispensed unjust conviction but also byac- SC 165 :
\\rhen his personal attendan~eader. qufttal of the guilty for unjusU- 1973 Cri
\\rtth in the presence of his P "accused" fled failure to produce reliable LJ 2~35)
section.
Explanation : In thiS
2 0 6 0 S.C. S tate of Maharasht ra v. Prafu l B. Desai A. I. R.
evid en ce. O f course th e rights of the accused Bh agwau In t he case o f Na tiona l (AIR 1983
h ave to b e ke p t in mind a n d safegu a rded . Textile Worke rs' Uni on v. P. R. SC 75
bu t they s h ould n ot be over emp hasized to Ra m a kri s hn a n . (1 983 ) 1 SCC 1983 T n.-':
the exten t of forgetting that t he victims a lso 228. at page 256. need to be sel LR 2·10 7 1
h a ve rights. (Pa.ra 9 )
out. Th ey a r e :
14. It must a lso be rem embered that the "We cannot a llow the dead h a nd of t he
Criminal Proced u re Cod e is a n ongoing stat- past to s tifle the grow th of tile living presen t.
u te . The p rinciples of interp reting an ongo- Law cannot s ta nd sU ll; it mu s t chan ge with
ing s tatute have been very s u ccin c tly set ou t th e ch a nging SOCia l concep ts a nd values. If
by the lea ding juris t Fra n cis Be nnion in his th e ba rk tha t protec ts t he free fa ils to gr ow
commentaries titled "S tatu tory Interpr eta- and e>"p a nd a long wit h th e tree. it will ei-
tion ", 2 nd Edi tion page 6 17 : ther choke th e tree or if it is a living t ree . it
. "It is presumed th e Parliament intends will s h ed that ba nk a nd grow a n ew livi ng
th e Cou rt to a pply to a n ongoing Act a con - bark for itself. Simila rly. if th e law fa il s ( 0
struction t h at co n tinu ou s ly u pdates its respond to the need of cha nging SOCiety. then
wordings to allow for ch a nges since the Act eithe r it will s tifle th e growth of t he SOC iety
was initia lly framed . While it rema ins law. a nd c hoke its progress or if the SOC ie ty is
it h a s to be treated as a lways s peaking. Thi s vigo rou s enough . it will cast away th e law
m ean s tha t in its a pplication on a ny day. wh ich s ta nd s in the way of its growth . Law
th e la ngu age of th e Act th ough necessarily mu st th erefor e consta ntly be on th e m ove
embedded in its own time , is never th eless ad ap ting itself to the fast ch a n ging SOCiety
to be con strued in accorda n ce with the n eed a nd not lag behind."
to t r eat it as a c urren t law. 16. This Court has approved
th e prin ciple of upd ating co n -
In construing a n ongoing Act, t he inter - s tru c tion as e nun c ia t e d by
pre ter is to presume t h at Pa rlia m e n t in - FranCis Bennion , in a number of
tended the Ac t to be a pplied a t a ny fu t ure deCiSion s . These principles were
time in s u ch a way as to give effect to th e qu oted with a pproval in the cas e
A IR 1997
origina l inten tion . Accordingly . th e inter - of Commissioner of Incom e- tax . SC 2523 :
preter is to m a ke a llowa n ces for any relevant Bombay v . Mi s. Pod a r Cem en t (1 997 AIR
Ch a nges tha t h ave occurred s ince th e Act's Pvt. Ltd. ((199 7) 5 SCC 482). They scw 2466
pa ssing, in la w, in socia l conditions. tech- were a lso cited with a pproval in :LR1997 690)
Tax

n ology. th e m ea ning of word s a nd o th e r th e case of S ta te v . S. J.


m a tters . . . ... . . Tha t today's co nstru ction Choudha ry , ((1 996) 2 SCC 4 28) . A IR 1996
se 149 1
in volves the s upposition that Pa rliamen t was In this case it was held that the (1 996 A IR
ca tering long ago for a s tate of affa irs th a t Evid ence Act was a n ongOing Act sew 1128
did not . t h ~ n exis t in no a rg ume n t agains t a nd th e word "ha ndwriting" in :W1996 e rl
17 13 )
that cons truc tion . Parliam en t. in the word- Section 45 of tha t Ac t was co n -
ing of an en actm ent is expected to a n tici - s trued to include "typewriting".
pate tempora l d evelopments . The dra fter will Th ese principles we re a ls o a p -
foresee th e future a nd a llow for it in the plied in the case of SIL Import A(R 1999
wording. USA v. Exim Aides Silk Ex port - se 1609 :
e rs ((1 999) 4 SCC 567). In this 11 999 AIR
J case the words "n otice in wri ting". sew 1218
An e nactm e nt of forme r days in thu s to in Sec tion 138 of the Negotiable I.J1999 22761
e ri
be r ea d to d ay. in t h e lig h t o f d y n a mi c In strume n ts Act. were co n stru ed
processing over t h e years , with s u ch m odi - to includ e a notice by fax. On th e
fi cation for th e curre nt m ea ning of its la n - sa me principle Courts have inte r -
guage as will n ow g ive effect to th e orig in a l preted , over a peri od of lime. va ri -
legis la tive in tenti on . Th e rea li ty a nd effec t
ou s terms a nd phrases. To ta ke
of dyn a mic processing provid es t he g rad u a l
on ly a few exa mpl es :- "stage
atdjus tmen t. It is con s titu ted by j ud icia l in -
erpr etation . carriage" h as b een inte r p r eted to
compr ise year 111 a nd yea r ou l. It a lso
15 s proCessing by execu live offi cia ls ." in cl ude "electric tram ca r": "stea m
. At this stage the words of ,]ustiCf' tri cycle" to in clud e "lOCom otive:
"Ie leg r a ph" t o in c l Ud e "te l -
,/

s.c. 2061
State of !Vlaharashtra \'. Praful B. Desai
2003
In virt ual reality one can be I11ade to feel
fIl "." . -t·
ephonc"' Mil k C"rs books .. to include "micro· colcl when OIlt" is sil ttng in a hot rOOI11. one
m. to take llote- to Include -lise of tal)t.' can be Illadc ,to. hear the sound of ocean
d
trecorder'" ,oClunents" to Include -C0J11PU- when aile is sitting in thp Inollnta' < Ins. one
-d
er atabase's". can 1~e nladc to inla~ine that he is t-aking L

1 7. 'I1H~SC principles have also part tIl a Grand PrLx race whilst onc is re _

. been applied by this Court whllst laxln~ on one sofa etc . Video c onlerencln~
t'· L

c()nslderln~ an analo~()US provi- has nothing to do with virtual realit . Ad


~., Ilave
_

sion of the Crln11nal Procedure v. ances in science and techI1010d'\1 y no\v.


Code. In the case of BasavaraJ R. so to say, shrunk the \vorld. They no\V en-
AfT{ 2000 able one to see and hear events. taking place
SC 3214 . PaUl v. State of Karnataka ((2000)
8 sec 740) the question was far away. as they are actually taking I-
(2000 Afl{ '{' t k pace.
Sew whether an accused needs to be o a e an exanlple today one does not need
3692 .
physically present in Court to to go to Sou th Africa to \va tch \Vorld eu
2000 cri
LJ 4604) answer the question put to hin1 matches. One can watch the game. Jive as it
by Court whilst recording his Is going on. on one's lV. If a person is sit-
stateI11ent under Section 313. To ting i~ the ~tadiunl and watching the match.
be remembered that under Sec- the Inatch is being played in his sight pres-
tion 3 13 the words are "for the e~ce and he / she is in the presence of the
purpose of enabling the accused players. When a person is sitting in his draw-
personally to explain" (Emphasis ing-roonl and watching the match on 1V it
supplied). The term "personally" cannot be said that he is in presence of the
if given a strict and restrictive in- players but at the same time. in a broad
sense. it can be said that the match is being
terpretation would mean that the
played in his presence. Both the persons
accused had to be physiCally
sitting in the stadium and the person in the
present in Court. In fact the mi-
drawing-roonl, are watching what is actu-
nority judgment in thiS case so
ally happening as it is happening. This is
holds. It has however been held not virtual reality, it is actual reality. One is
by the majority that the Section actually seeing and hearing what is happen-
had to be considered in the ug?t ing. Video conferencing is an advancement
of the revo lu tionary changes. 111 in science and technology which permits one
technology of communicatiOn to see. hear and talk with someone far away.
and transmiSsion and the with the same facility and ease as if he is
marked improvement in facilities present before you I.e. in your presence. In
for legal aid in the country. It was fact hel she is present before you ·on a
h Id by the majority. that it was screen. Except for touching one can see.
n~t ~ecessary that in all cases hear and observe as if the party is in the
the accused must answer by per- same room. In video conferencing both par-
sonaIly remaining present in ties are in presence of each other. The sub-
missions of respondents counsel are akin
s~tt1ed. ~e ~~~
Court. to an argument that a person seeing through
18. Thus the laW is well
trine "Contemporanea exposit to e~h~n
in-
binoculars or telescope is not actually see-
ing what is happening. It is akin to submit-
et fortissimm" haS no applicatiOng ing stat~ ting that a person seen through binoculars
terpreting a provision of an on- 0 C de or telescope is not in the "presence" of the
ute act like the Criminal procedure o. · a
t deal WIth person observing. Thus it Is clear that so
s long as the accused and/or his pleader are
19. At this stage we I11und araJ1l· It was
Submission made by Mr. su . could not present when evidence is recorded by Video
SUbmitted that video_conferencmg conferencing that evidence is being recorded
b f n accuse d · un- in the "presence" of the accused and would
Constituti~~re
e allowed as the rights 0 a of India thuS fully meet the requirements of Section
der Article 21 of the involv:
~annot be subjected to a proc~ ument dis-
273. Criminal Procedure Code. Recording of
ng "Virtual reality". such an
ncep
~ ~f
virtual re-
such evidence would be as per "procedure
Plays ignorance of the co ·ng Virtual established by law",
~llt~ and also of videq confe~:n~ad~
to feel. Recording of evidence by video conferenc-
heahty is a state where one t reaIly exists.
ear or imagine what does no
. State of Maharashtra v. Praful B. Desai A I. R.
2062 S.C.
ing also satisfies the object of providing in 20. However even if the equipnlcnt can-
Section 273. that eVldence be recorded in not be set up in Court the Criminal Proce-
the presence of the accused. The accused dure Code contains provisions for examina-
and his pleader can see the witness as tion of witnesses on commissions. Sections
clearly as if the witness was actually sitting 284 to 289 deal with examination of \vit-
before them. In fact the accused may be able nesses on commissions. For our purposes
to see the witness better than he may have Sections 284 and 285 are relevant Thev
been able to if he was sitting In the dock in read as under : . -
a crowded Court room. They can observe his "284 WHEN ATTENDANCE OF WITNESS
or her demeanour. In fact the facility to play MAY BE DISPENSED WITH AND COMMIS-
back would enable better observation of de- SION ISSUED.
meanour. They can hear and rehear the (1) Whenever. in the course of any inquiry.
deposition of the witness. The accused would trial or other proceeding under this Code. it
be able to instruct his pleader immediately appears to a Court or Magistrate that the
and .thus cross-examination of the witness examination of a witness is necessary for
is as effective, if not beUer. The facility of the ends of justice, and that the attendance
play back would give an added advantage of such witness. cannot be procured with-
whilst cross-examining the witness. The out an amount of delay. expense or incon-
witness can be confronted With documents venience which. under the Circumstances of
or other material or statement in. the same the case. would be unreasonable. the Court
manner as if hel she was in Court. All these or Magistrate may dispense with such at-
objects would be fully met when eVidence is tendance and may issue a commission for
recorded by video conferencing. Thus no the examination of the witness in accord-
prejudiCe, of whatsoever nature, is caused ance with the provisions of this Chapter.
to the accused. Of course, as set out here-
inafter evidence by Video Conferencing has Provided that where the examination of
to be' on some conditions. the President or the Vice-President of India
or the Governor of a State or the Adminis-
Reliance was then placed on Sections 274
and 275 of the Criminal I?rocedure Code trator of a Union Territory as 'a witness is
necessary for the ends ofjustlce, a commis-
which require that evidence be taken down
In writing by the Magistrate himself or by Sion shall be issued for the examination of
such a witness.
his dictation in open Court. It was submit-
ted that video conferencing would have to (2) The Court may, when issuing a com-
take place in the stu dIp ofVSNL. It was sub- mission for the examination of a Witness for
mitted that this would violate the right of the prosecution. direct that such amount
the accused to have the evidence recorded as the Court considers reasonable to meet
by the Mag1strate or under his dictation in the expenses of the accused, including the
open Court. The advancement of science'and pleader's fees, be paid by the prosecution.
technology Is such that now it Is possible 285 COMMISSION TO WHOM TO BE IS-
to set up video conferenclng eqUipment in SUED. .
the Court itself. In that case evidence would (1) If the witness is within the territories
be recorded by the Magistrate or under his to which this Code extends, the commission
dictation in open Court. If that is done then shall be directed to the Chief Metropolitan
he requirements of these Sections would be Magistrate or Chief Judicial Magistrate, as
fully met. To this method there is however a the case may be, within whose local juris-
draw back. As the witness is now in Court diction the witness is to, be found.
there may be difficulties ifhe commits Con- (2) If the witness is in India, but in a State
tempt of Court or perjures himself and it is or an area to which this Code does not ex-
immediately noticed that he has peIjured tend, the commiSSion shall be directed to
himself. Therefore as a matter of prudence such Court or officer as the Central Gov-
evidence by video-conferencing in open ernment may. by notification. specify in this
Court should be only if the witness is in a behalf.
country which has an extradition treaty with (3) If the Witness is in a country or place
India and under whose laws Contempt of outside India and arrangements have beell
Court and perjury are also punishable. made by the Central Government with the
2003 Slate of Maharashtra v. Praful 13. Desai s.c. 2063
Governnlcnt of such ('ountry or place for not have any arrangclllcnt \vith
taking the eVidence of \vitness('s in relation Gernlany for recording c\'idencc -(.-ll--p-p-.
to criminal lnatters. the conunissfon shall on commission. At page 798 this 1570-71 of
qc Issued in such' fornl. directed to such Court observed as follows: "'-A_IR_)_---J
Court or officer. and sent to such authority "25. The provisions contained in Sections
for transmission. as the Central Governlnent 504 and 508-A of the Code of CriIninal Pro-
may. by notificatfon. prescribed in this be- cedure contain compl1tnentary pro\isions for
half. ..
reciprocal artan~ements bet\vecn the Gov-
Th us In cases \vherc the \vit ness is nec- ernment of our country and the Governnlent
essary for the ends of just fcc and the at- of a foreign country for Conunission fronl
tendance of such witness cannot be pro- Courts in India to specified Courts in the
cured without an amount of deJay, expense foreign count!)' for examination bf\vitnesses
or inconvenience which. under the circum- in the foreign country and slnlilarly for C0I11-
stances of the case would be unreasonable. nlission frolll specified Courts in the foreign
the Court may dispense with such attend- country for examination of \vitnesses resid-
ance and issue a comlnission for exalnina- ing In our country. Notifications Nos. SRO
tion of the witness. As indicate earlier Dr. 2161. SRO 2162. SRO 2163 and SRO 2164.
Greenberg has refused to come to India to all dated November 18. 1953. published in
give evidence. His evidence appears to be the Gazette of India Part II. Section 3 on
necessary for the ends of Justice. Courts in November 28. 1953, illustrate the recipro-
India cannot procure his attendance. Even cal arrangements behveen the Governnlent
otherwise to procure attendance of a wit- of India and the Government of the United
ness from a far of country like USA would Kingdom and the Government of Canada for
generally involve delay. expense and/or In- examination of witnesses in the United King-
convenience. In such cases cOInmission dom. Canada and the examination of wit-
could be issued for recording evidence. Nor- nesses residing in India.
mally a commission would involve record- 26. In the present case. no notification
ing evidence at the place where the witness under Section 508-A of the Code of Crinli-
Is. However advancement in science and nal Procedure has been published specify-
technology has noW made it possible to ing the Courts in the Federal Republic of
record such evidence by way of video West Germany by whom commissions for
conferenctng in the town/city where the examination of witnesses residing in India
Court is. Thus in cases where the attend- may be issued. The notification, dated Sep-
ance of a witness cannot be procured with- tember 9, 1969. in the present case, under
out an amount of delay. expense or incon- Section 504 of the Code of Criminal Proce-
venience the Court could consider issuing a dure Is not based upon any existing com-
commission to record the evidence by way plete arrangement between the Government
of video conferencing. of India and the Government of the Federal
21. It was however submit- Republic of West Germany for examination
ed that India has no arrange- of witnesses residing in West Germany. The
t t with the Government of notification, dated September 9. 1969. is
me~ d States of America and ineffective for two reasons. First, there is no
UnIte commission cannot be reciprocal arrangement between the Govern-
therefore ding evidence of ment of India and the Government of the
issued fo~;~~: in USA. Reliance Federal Republic of West Germany as con-
a witness d the case of Ratilal templated in Sections 504 and 508-A of the
was pI.ace i~~ani v. State of Code of Criminal Procedure. Secondly. the
(AIR 1972 BhanJi M ((1972) 3 SCC 793). notification under Section 504 is nullified
SC 1567: Maharashtra commission was and repelled by the affidavit evidence ad-
1972 Crt In this case a minati on of wit- duced on behalf of the State that no agree-
W 1055) issued for exa ny The time for ment between the two countries has yet been
a made.
ness es 1·n Germ . ce . on commi s-
e
n!cording evid ; An application 27. In the present case, extension ofUme
I
o ston had exptrer time was made. was granted in the past to enable the State
J' for extension ~ced that India did for examination of witnesses in West Ger-
l It was then not
2064 S.C. State of Maharashtra v. Praful B. Desai A.I. R.
many and return of the comnlission to this
country. The State could not obtain the re- an ofdfictal of the Court can be deported to
recor eVidence 0 n commisSion bv \va V 01.
turn of the commission. Now. a question has v id eo-conferencl g Th ..J
arisen as to whether any extension of time corded i th n. e eVidence \vill be re-
should be made when it appears t~at reCip- confere~cin e studio/hall where the video-
rocal arrangement within the contemplation Mumbai WO~l~a~es place. The Court in
of Sections 504 and 508-A of the Code of record eVidence ~ iSsuing commission to
Criminal Procedure are not made. The Mumbat. Therefor! video conferencing tn
Courts do not make orders in vain. When be addressed to the ~~e commisSion would
this Court finds that there are no arrange- istrate. Mumbai Who w~efMetroPolitan Mag·
ments in existence within the meaning of sible officer (preferabl uld depute a respon-
Sections 504 and 508-A of the Code of Crimi- proceed to the office or~ Judicial Officer) to
nal Procedure this Court is not inclined to evidence of Dr Gr b SNL and record the
make any order." . een erg in th
of the respondent. The offi e presence
This authority. which is of a Constitution that the respondent and ~er shall ensure
Ben~h of this Court. does suggest that no present when the evtde is counsel are
commIssion can be issued if there is no ar- that they are able to o~ce is recorded and
rangement between the Government of In- our and hear the d serve the demean-
dia and the country where the commission Greenberg. The officerse ~~ s i ti 0 n 0 f Dr.
is proposed to be issued. This authority that the respondent has fUllan ~lso ensure
would have been binding on this Court if cross-examine Dr. GreenberoPPortunity to
the facts were identical. Ms. Jaising had clarified that adopting such g. It must be
submitted that notwithstanding this author,. not be possible if the Witne a ~rocedure may
ity a difference would have to be drawn in and not willing to give evtd!~c~.out of India
cases where a witness was not willlng to give 23. It was then Submitted
evidence and in cases where the witness was would be practical difficUltie i that there
willing to give evidence. She submitted that evidence by video conferenci:g ~t recording
in the second class of cases commissions mUted that there is a time differe' wbas sub-
could be issued for recording evidence even ·
In d la d USA nce etween
an . . . It was submitted that a
in a country where there is no arrangement question would arise as to how an·wo d h
between the Government of India and that ldd '
wou a minister the oath to Dr. Greenberg.
country.,.
~
. .
..
It was submitted that there could be a video
22. . Ip. this case we are not required to image / audio in terru ptions / distortions
cons.W¢~l.t~is aspect and therefore express which Inight make the transmiSSion inau-
no opiniop. thereon. The question whether dible/indecipherable. It was submitted that
commis~lp,n can be issued for recording evi- there would be no way of ensuring that the
dence iI1;.a country where there is no ar- witnesses is not being coached/tutored/
range mqrH, is academic so far as this case prompted whilst evidence was being re-
is concerned. In this case we are consider- corded. It is submitted that the Witness sit-
1ng whetHer evidence can be recorded by ting in USA would not be subject to any con-
Vfdeo-Cohferencing. Normally when a Com- trol of the Court in India. It is submitted
mission is issued, the recording would have that the witness may commit perjury with
to be at the place where the Witness is. Thus impunity and also insult the Court without
Section 285 provides to whom the Commis- fear of punishment since he is not amena-
Sion is to be directed. If the witness is out- ble to the jurisdiction of the Court. It is sub-
side India. arrangements are required be- mitted that the witness may not remain
present and may also refuse to answer ques-
tween India and that country because the
tions. It is submitted that commerCial stu-
services of an offiCial of the country (mostly
dios place restrictions on the number of
a J udicialOfficer) would be required to people who can remain present and may
record the evidence and to ensure/compel restrict the volume of papers that may he
attendance. However new advancement of brought into the studio. It was sublnitted
sccience and technology pennit officials of the that it would be difficult to place textbooks
Ourt, in th ft
1s to take 1 e c Y where video conferencing and other rnaterlals to the Witness for the
Where a wt P tace , to record the evidence. Thus
ness is Willi ng to give evidence purpose of cross-examining him. Lastly.
it was submitted that the cost of videO
2003
I T. ('onHnr .. lncfon' \', .\1 Is. P(lnatn .. Ch('n1icals \\'()rl\~
('(JIlt'
S.C.206f1
(·n'llC·hH.!. H ;If ,Ill ptTIllilr('d, IHust be
bo fn (· b~' t hc' St a [('. (.'~~ ~oLJn (:~uJd o,l}ly i~Jlore or disbeJit'\'(,' (he
24 T l \ Jdc net'. I he ol1icer defJlHt·<f will enSlJre
if ' . " b(' f<'ltJ('rlJ')('n~d thar \\'har is b(" .[I~~~~ _t.he rc~polldt.·lll, his couIlsel and Dill'
H~ c-~ ,nsjdc'fed Is n TOfdfng cvfdeIlC'c 011 ('orJl- d~~lst ..llll clle allowed in the studio when th .
nll~Sl()ll.
(1) c( I
FiXing of (illU' for ','('cordillfJ c\'jdel1l'{,
j . ,~ l'\'l<it'IlCt' is being rt'curded. Thl' officer \\'i1~
f } lJrll SSJOlJ is aJv;avs the dutv of tl1<' 01'- also cn~ure that lile respondent is nol prl'- j
ker \\.'ho has h(~t."11 deJJlllcd (0 so j'l'('ord eVJ- \'t.:ll~t'd h·.u!JJ brillgill~ into the st udio the pa-
d ('lJ (', 'I 'I ,. ,
( . HIS th(' olth'cr rc('onJirH.,! rhe {'Vi- P( rs/do( U111Cl1(S Whl<.'h Illay be reqUired b\' j
cj (" n (.,(. \1'( I J I I
... J J ( II1V(' r 1}(' ( f Iseret
. .
lOll' 10 IJx
'. up
hi?l or his counsel. \Ve see no substance iil
~~e ~J,lJle' in ('Oll,suJtaUon \vHh VSNL. \vho arc llllS subn1issioll that it would be diffIcult to
j
is p( II,S in r h(' IJdd alld \vho, \viJJ l"~()\\' which P~H dUl'lllllt'llts or \vriltcll Ill(llcriaJ to the j
. tUost convenient Iln1(" tor Video
IJI( \\~ltncss in ('ross-ex~lInination. It is now pos-
U)lJt(Tt·tH·illc,z \\'irlJ a person in US,\. The rt'- SIble:. to sho\v to a party, \vit h \\"hOIn \'ideo j
SPfJlJ(jc'nr tlnd his ('oIJJlsel \vfJJ hen'!' fft lllal((' cor.1lpren r ing is faking pJac{', an" Hlnounf of
:L("O~l\'('ni(,ll( (0 ~~tt(,Jld ,at thl' tinl{, fix{'d h.\' wn(t(~n rnateriaJ. The concerned officer \\"ill j
C ( f)ll('erned 011 iccr, II (hev do nor n'111ain enSlln" thal .onc(' Video confprencing ('0111-
pn'S('IH rhp Ma~isrr;tfe \vfJ(tak,. ClC(ioll, as j
In.eIH'('~, as Jar as possible, it is proceeded
pro\'idc'd i 11 'el\V, to ('OIl) pcl a tf C'lIdaIJ(,(,. \V(, "'1l1I ,wlthollt llll)'.adjollrlllllt'nts. Further if j
(~(J nor h~l\'(' r he sligh t ('st dOli bt t ba t t he of ~( is 10und (hat Dr. G-recnberg is Ilot attend-
:J~'(~f \vllo \'/JJI be deputed \vould be one \vho Ing at the lhlle/s fixed, \\'ithout an\, Sl1fH. j
!dS authoritv to achninister oaths. That 01'- cient cause. then it \voulcl bp open,oror the
freer WiJJ adrilinister the oath, By no\v sci- Magistrate to disallo\v recording of evidence j
ence and t(>chnuJouv
(0 ~
has progl-C'sscd cnougJJ
. by Video confcrencing. Ifthc officer finds that j
llot worry about a video irna.L!e/audio in- Dr. G~·eenberg is not answering questions.
~erru ptions/ distortions. Even if there are the olficer \vill nlake a memo of the san1C. j
JIHcr~Upti(Jll they \vould be of tenlporar,v F'i nally when the evidence is read in Court.
dUratlOll. Undoubtedly an officer \vould have this is an aspect which \vill be taken into j
t? be deputed. either froIn Illdia ur fran) the conSideration for testing the veracity of the
j
Consulate/Embassy in the country where evidence. Undoubtedlv the costs of video
the. eVidence Is being recorded who \votI1d conferencing would have to be borne by the j
remain present when the evidence is being State.
recorded and who wHI ensure that there is 25. Accordingly the iInpugned judgnlcnt j
no other person in the room where the wit- is set aside. The Magistrate ,viII now pro-
I ness is sitting whilst the evidence is being ceed to have the evidence of Dr, Greenberg j

I recorded. Thnt officer \vill ensure that the recorded by way of video conferencing, As
witness is not coached/tutored/prompted.
It would be advisable. though not necessary.
the trial has been pending for a long time
the trial Court is requested to dispose off j
j

that the witness be asked to give evidence the case as early as possible and in any case
in a room in the Consulate/Embassy. As the \vithin one year froln today. With these di- j
eVidence is ,being recorded on commission rections the Appeals stand disposed of. The
that eVidence wiI1 subsequently be .read into respondent shaH pay to the State and the j
Court. 'rhus no question arises 01 t~e wit- complainant the costs of these Appeals.
j
ness insulting the Court. If on read1I?g the Order accordingly.
eVidence the -Court finds that the WItness j
has perjured himself, just like in any ?t~er
eVidence on conunission. the Court will Ibg- AIR 2003 SUPREME COURT 2065 j
nore or disbelieve the eVidence, 1t nlust e (From : Madhya Pradesh)
- h have beel J ,cases j
1 eIl1enlbered that t ere f B. N. KIRPAL AND Mrs. RUMA PAL. JJ.
Where evidence is recorde~ on cO~~~~f~ Civil Appeals Nos. 5077 with 5078 of 2000 j
and by the tinlc it is read 111 Caur 1 I
. T'l ere a so lave (arising out of SLP (C) Nos, 3421 of 2000 j
ness has lcft the country, , 1 's has given with 15183 of 2000 (CC3889JJ. D/- 15-9-
been cases \vhere foreign ~ltI1esd th~t then 2000.
eVidence in a Court in IndIa an ~ Court j
g 11 such case~ Commissioner of Incollle-tax. Indore.
one a\vay abroad. In a k ny action in Appellant v, Mis. Panama Chemicals Works. j
WO~11d have been able to tavi~:~ce ~as con- Respondent.
~,erJury as by rhe time the ~ ined that there j
sldered. and it was ascer.a ut of the ju-
~as perjury. f he witness wasi~ those cases LS/LS/2000/300692/WG/CSL/22146/200 I j
rlsdi~tion ofthe Court. Even
j
200:J'S, c, (SUppl.)/130
j