Case Summary
| Citation | State of Maharashtra v. Praful B. Desai (Dr.) (2003) 4 SCC 601 |
| Keywords | sec 3 IEA, video conferencing, evidence |
| Facts | Wife of Mr. P. C. Singhi (Complainant) was suffering from cancer. Spouse consulted Dr. Greenberg in USA. He suggested that surgery of this was no solution and she should be treated only by medicine. They returned from the USA and consulted Dr. Praful B.Desai. He suggested that operation was the solution and he can cure. Mr. P. C. Singhi and his wife became ready for operation subject to the condition that the operation would be conducted only by Dr. Praful B. Desai. But operation was conducted by Dr. A. K. Mukherjee. There was negligence and wife of complainant died. FIR was registered against Dr. A. K. Mukherjee and Dr. Praful B. Desai. Trial was going on. The prosecution has made an application to examine Dr. Greenberg through video-conferencing who was ready to give evidence. The Metropolitan Magistrate observed that evidence can be recorded by video conferencing in a criminal trial. Decision of the Metropolitan Magistrate was challenged before the Bombay High Court by accused. Bombay High Court held that evidence could not be recorded by video conferencing in a criminal trial. It was challenged by State of Maharashtra and P. C. Singhi through SLP in the Supreme Court. |
| Issues | Whether taking evidence of Greenberg through video conferencing amounts to be in presence of an accused? Whether ‘Evidence’ includes video conferencing? Whether video conferencing is virtual reality? |
| Contentions | |
| Law Points | ➢ What view has been taken by Courts in other countries is irrelevant. ➢ Under section 273, evidence can be recorded in the presence of the pleader. The presence of the pleader is thus deemed to be the presence of the Accused. Thus, Section 273 contemplates constructive presence. ➢ This indicates that the term ‘presence’ as used in this Section, is not used in the sense of actual physical presence. ➢ Law cannot stand still; it must change with the changing social concepts and values. Law must constantly be on the move adapting itself to the fast-changing society and not lag behind. ➢ All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence. After the amendment in the definition of ‘Evidence’ in 2000 document includes electronic records. So, Evidence includes “Video Conferencing”. ➢ Video conferencing has nothing to do with virtual reality. It is an actual reality. Video- conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you, i.e., in your presence. ➢ So long as the accused and/or his pleader are present when evidence is recorded by video-conferencing that evidence is being recorded in the ―presence of the accused and would thus fully meet the requirements of Section 273 of the Criminal Procedure Code. Guidelines for recording of evidence through video conferencing: → Fixing of time by officer deputed to record evidence. → Fixing of time by an officer after consultation with VSNL. → He must be an expert. → Opposite Party and his advocate must be present. → The officer must have the authority to administer an oath. → In case of perjury (False evidence) Court can ignore evidence of such person. → Opposite party (In this case respondent) must be allowed with documents. → Video Conferencing should be conducted without adjournment. → An officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded. → The officer would remain present when the evidence is being recorded. → The officer will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. → That officer will ensure that the witness is not coached/tutored/prompted. |
| Judgement | The Court finally held that the evidence can be recorded through video conferencing and the presence under Section 273 Cr.P.C. does not only mean physical presence but also virtual presence, hence the Supreme Court set aside the judgment of the High Court. |
| Ratio Decidendi & Case Authority |
Full Case Details
S.N. VARIAVA, J. – The complainant’s wife was suffering from terminal cancer. It is the
case of the prosecution that the complainant’s wife was examined by Dr Ernest Greenberg of
Sloan Kettering Memorial Hospital, New York, USA, who opined that she was inoperable
and should be treated only with medication. Thereafter the complainant and his wife
consulted the respondent, who is a consulting surgeon practising for the last 40 years. In spite
of being made aware of Dr Greenberg’s opinion, the respondent suggested surgery to remove
the uterus. It is the case of the prosecution that the complainant and his wife agreed to the
operation on the condition that it would be performed by the respondent. It is the case of the
prosecution that on 22-12-1987 one Dr A.K. Mukherjee operated on the complainant’s wife.
It is the case of the prosecution that when the stomach was opened ascetic fluids oozed out of
the abdomen. It is the case of the prosecution that Dr A.K. Mukherjee contacted the
respondent who advised closing up the stomach. It is the case of the prosecution that Dr A.K.
Mukherjee accordingly closed the stomach and this resulted in intestinal fistula. It is the case
of the prosecution that whenever the complainant’s wife ate or drank the same would come
out of the wound. It is the case of the prosecution that the complainant’s wife required 20/25
dressings a day for more than 3 1/2 months in the hospital and thereafter till her death. It is the
case of the prosecution that the complainant’s wife suffered terrible physical torture and
mental agony. It is the case of the prosecution that the respondent did not once examine the
complainant’s wife after the operation. It is the case of the prosecution that the respondent
claimed that the complainant’s wife was not his patient. It is the case of the prosecution that
the bill sent by Bombay Hospital belied the respondent’s case that the complainant’s wife was
not his patient. The bill sent by Bombay Hospital showed the fees charged by the respondent.
It is the case of the prosecution that the Maharashtra Medical Council has, in an inquiry, held
the respondent guilty of negligence and strictly warned him.
5. On a complaint by the complainant a case under Section 338 read with Sections 109
and 114 of the Indian Penal Code was registered against the respondent and Dr A.K.
Mukherjee. Process was issued by the Metropolitan Magistrate, 23rd Court, Esplanade,
Mumbai. The respondent challenged the issue of process and carried the challenge right up to
this Court. The special leave petitions filed by the respondent were dismissed by this Court on
8-7-1996. This Court directed the respondent to face trial. We are told that evidence of six
witnesses, including that of the complainant and the investigating officer, has been recorded.
6. On 29-6-1998 the prosecution made an application to examine Dr Greenberg through
video-conferencing. The trial court allowed that application on 16-8-1999. The respondent
challenged that order in the High Court. The High Court has by the impugned order allowed
the criminal application filed by the respondent. Hence these two appeals.
7. At this stage it is appropriate to mention that Dr Greenberg has expressed his
willingness to give evidence, but has refused to come to India for that purpose. It is an
admitted position that, in the Criminal Procedure Code there is no provision by which Dr
Greenberg can be compelled to come to India to give evidence. Before us a passing statement
was made that the respondent did not admit that the evidence of Dr Greenberg was relevant or
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essential. However, on the abovementioned facts, it prima facie appears to us that the
evidence of Dr Greenberg would be relevant and essential to the case of the prosecution.
9. It was submitted on behalf of the respondents, that the procedure governing a criminal
trial is crucial to the basic right of the accused under Articles 14 and 21 of the Constitution of
India. It was submitted that the procedure for trial of a criminal case is expressly laid down, in
India, in the Code of Criminal Procedure. It was submitted that the Code of Criminal
Procedure lays down specific and express provisions governing the procedure to be followed
in a criminal trial. It was submitted that the procedure laid down in the Code of Criminal
Procedure was the “procedure established by law”. It was submitted that the legislature alone
had the power to change the procedure by enacting a law amending it, and that when the
procedure was so changed, that became “the procedure established by law”. It was submitted
that any departure from the procedure laid down by law would be contrary to Article 21.
There can be no dispute with these propositions. However, if the existing provisions of the
Criminal Procedure Code permit recording of evidence by video-conferencing then it could
not be said that “procedure established by law” has not been followed.
10. This Court was taken through various sections of the Criminal Procedure Code.
Emphasis was laid on Section 273 of the Criminal Procedure Code. It was submitted that
Section 273 of the Criminal Procedure Code does not provide for the taking of evidence by
video-conferencing. Emphasis was laid on the words “except as otherwise provided” in
Section 273 and it was submitted that unless there is an express provision to the contrary, the
procedure laid down in Section 273 has to be followed as it is mandatory. It was submitted
that Section 273 mandates that evidence “shall be taken in the presence of the accused”. It is
submitted that the only exceptions, which come within the ambit of the words “except as
otherwise provided” are Sections 284 to 290 (those dealing with issue of commissions),
Section 295 (affidavit in proof of conduct of public servant) and Section 296 (evidence of
formal character on affidavit). It is submitted that the term “presence” in Section 273 must be
interpreted to mean physical presence in flesh and blood in open court. It was submitted that
the only instances in which evidence may be taken in the absence of the accused, under the
Criminal Procedure Code are Section 317 (provision for inquiries and trial being held in the
absence of the accused in certain cases) and Section 299 (record of evidence in the absence of
the accused). It was submitted that as Section 273 is mandatory, the section is required to be
interpreted strictly. It was submitted that Section 273 must be given its contemporary
meaning. (Contemporanea expositio est optima et fortissima in lege – the contemporaneous
exposition is the best and the strongest in law.) It was submitted that video-conferencing was
not known and did not exist when the Criminal Procedure Code was enacted/amended. It was
submitted that presence on a screen and recording of evidence by video-conferencing was not
contemplated by Parliament at the time of drafting/amending the Criminal Procedure Code. It
was submitted that when the legislature intended to permit video-conferencing, it has
expressly provided for it, as is evident from the Ordinance passed by the State of Andhra
Pradesh in December 2000 permitting the use of video-conferencing under Section 167(2) of
the Criminal Procedure Code in remand applications. It is pointed out that a similar
amendment is being considered in Maharashtra. It is submitted that Section 273 is analogous
to the Confrontation Clause set out in the Sixth Amendment to the US Constitution. It is
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submitted that courts in USA have held that video-conferencing does not satisfy the
requirements of the Confrontation Clause.
11. This argument found favour with the High Court. The High Court has relied on
judgments of various High Courts which have held that Section 273 is mandatory and that
evidence must be recorded in the presence of the accused. To this extent no fault can be found
with the judgment of the High Court. The High Court has then considered what courts in
foreign countries, including courts in USA, have done. The High Court then based its decision
on the meaning of the term “presence” in various dictionaries and held that the term
“presence” in Section 273 means actual physical presence in court. We are unable to agree
with this. We have to consider whether evidence can be led by way of video-conferencing on
the provisions of the Criminal Procedure Code and the Indian Evidence Act. Therefore, what
view has been taken by courts in other countries is irrelevant. However, it may only be
mentioned that the Supreme Court of USA, in the case of Maryland v. Santra Aun Craig
[497 US 836 (1990)] has held that recording of evidence by video-conferencing was not a
violation of the Sixth Amendment (Confrontation Clause).
12. Considering the question on the basis of the Criminal Procedure Code, we are of the
view that the High Court has failed to read Section 273 properly. One does not have to
consider dictionary meanings when a plain reading of the provision brings out what was
intended. Section 273 reads as follows:
“273. Evidence to be taken in presence of accused. – Except as otherwise
expressly provided, all evidence taken in the course of the trial or other proceeding
shall be taken in the presence of the accused, or, when his personal attendance is
dispensed with, in the presence of his pleader.
Explanation – In this section, ‘accused’ includes a person in relation to whom any
proceeding under Chapter VIII has been commenced under this Code.”
Thus Section 273 provides for dispensation from personal attendance. In such cases
evidence can be recorded in the presence of the pleader. The presence of the pleader is thus
deemed to be presence of the accused. Thus Section 273 contemplates constructive presence.
This shows that actual physical presence is not a must. This indicates that the term
“presence”, as used in this section, is not used in the sense of actual physical presence. A
plain reading of Section 273 does not support the restrictive meaning sought to be placed by
the respondent on the word “presence”. One must also take note of the definition of the term
“evidence” as defined in the Indian Evidence Act.
Thus evidence can be both oral and documentary and electronic records can be produced
as evidence. This means that evidence, even in criminal matters, can also be by way of
electronic records. This would include video-conferencing.
13. One needs to set out the approach which a court must adopt in deciding such
questions. It must be remembered that the first duty of the court is to do justice. As has been
held by this Court in Nageshwar Shri Krishna Ghobe v. State of Maharashtra [(1973) 4
SCC 23], courts must endeavour to find the truth. It has been held that there would be failure
of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified
failure to produce available evidence. Of course the rights of the accused have to be kept in
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mind and safeguarded, but they should not be overemphasized to the extent of forgetting that
the victims also have rights.
15. At this stage the words of Justice Bhagwati in National Textile Workers’ Union v.
P.R. Ramakrishnan [(1983) 1 SCC 228, 255] need to be set out. They are:
“We cannot allow the dead hand of the past to stifle the growth of the living
present. Law cannot stand still; it must change with the changing social concepts and
values. If the bark that protects the tree fails to grow and expand along with the tree,
it will either choke the tree or if it is a living tree, it will shed that bark and grow a
new living bark for itself. Similarly, if the law fails to respond to the needs of
changing society, then either it will stifle the growth of the society and choke its
progress or if the society is vigorous enough, it will cast away the law which stands
in the way of its growth. Law must therefore constantly be on the move adapting
itself to the fast-changing society and not lag behind.”
16. This Court has approved the principle of updating construction, as enunciated by
Francis Bennion, in a number of decisions. These principles were quoted with approval in
CIT v. Podar Cement (P) Ltd [(1997) 5 SCC 482]. They were also cited with approval in
State v. S.J. Choudhary (1996) 2 SCC 428. In this case it was held that the Evidence Act was
an ongoing Act and the word “handwriting” in Section 45 of that Act was construed to
include “typewriting”. These principles were also applied in the case of SIL Import, USA v.
Exim Aides Silk Exporters [(1999) 4 SCC 567]. In this case the words “notice in writing”, in
Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. On
the same principle courts have interpreted, over a period of time, various terms and phrases.
To take only a few examples: “stage carriage” has been interpreted to include “electric
tramcar”; “steam tricycle” to include “locomotive”; “telegraph” to include “telephone”;
“banker’s books” to include “microfilm”; “to take note” to include “use of tape recorder”;
“documents” to include “computer databases”.
17. These principles have also been applied by this Court whilst considering an analogous
provision of the Criminal Procedure Code. In Basavaraj R. Patil v. State of Karnataka
[(2000) 8 SCC 740] the question was whether an accused needs to be physically present in
court to answer the questions put to him by court whilst recording his statement under Section
313. To be remembered that under Section 313 the words are “for the purpose of enabling the
accused personally to explain”. (emphasis supplied) The term “personally”, if given a strict
and restrictive interpretation would mean that the accused had to be physically present in
court. In fact the minority judgment in this case so holds. It has, however, been held by the
majority that the section had to be considered in the light of the revolutionary changes in
technology of communication and transmission and the marked improvement in facilities for
legal aid in the country. It was held, by the majority, that it was not necessary that in all cases
the accused must answer by personally remaining present in court.
19. At this stage we must deal with a submission made by Mr Sundaram. It was submitted
that video-conferencing could not be allowed as the rights of an accused, under Article 21 of
the Constitution of India, cannot be subjected to a procedure involving “virtual reality”. Such
an argument displays ignorance of the concept of virtual reality and also of video-
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conferencing. Virtual reality is a state where one is made to feel, hear or imagine what does
not really exist. In virtual reality, one can be made to feel cold when one is sitting in a hot
room, one can be made to hear the sound of the ocean when one is sitting in the mountains,
one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing
on one’s sofa etc. Video-conferencing has nothing to do with virtual reality. Advances in
science and technology have now, so to say, shrunk the world. They now enable one to see
and hear events, taking place far away, as they are actually taking place. To take an example,
today one does not need to go to South Africa to watch World Cup matches. One can watch
the game, live as it is going on, on one’s TV. If a person is sitting in the stadium and watching
the match, the match is being played in his sight/presence and he/she is in the presence of the
players. When a person is sitting in his drawing room and watching the match on TV, it
cannot be said that he is in the presence of the players but at the same time, in a broad sense,
it can be said that the match is being played in his presence. Both, the person sitting in the
stadium and the person in the drawing room, are watching what is actually happening as it is
happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing
what is happening. Video-conferencing is an advancement in science and technology which
permits one to see, hear and talk with someone far away, with the same facility and ease as if
he is present before you, i.e., in your presence. In fact he/she is present before you on a
screen. Except for touching, one can see, hear and observe as if the party is in the same room.
In video-conferencing both parties are in the presence of each other. The submissions of the
respondents’ counsel are akin to an argument that a person seeing through binoculars or
telescope is not actually seeing what is happening. It is akin to submitting that a person seen
through binoculars or telescope is not in the “presence” of the person observing. Thus it is
clear that so long as the accused and/or his pleader are present when evidence is recorded by
video-conferencing that evidence is being recorded in the “presence” of the accused and
would thus fully meet the requirements of Section 273 of the Criminal Procedure Code.
Recording of such evidence would be as per “procedure established by law”.
20. Recording of evidence by video-conferencing also satisfies the object of providing, in
Section 273, that evidence be recorded in the presence of the accused. The accused and his
pleader can see the witness as clearly as if the witness was actually sitting before them. In fact
the accused may be able to see the witness better than he may have been able to if he was
sitting in the dock in a crowded courtroom. They can observe his or her demeanour. In fact
the facility to playback would enable better observation of demeanour. They can hear and
rehear the deposition of the witness. The accused would be able to instruct his pleader
immediately and thus cross-examination of the witness is as effective, if not better. The
facility of playback would give an added advantage whilst cross-examining the witness. The
witness can be confronted with documents or other material or statement in the same manner
as if he/she was in court. All these objects would be fully met when evidence is recorded by
video-conferencing. Thus no prejudice, of whatsoever nature, is caused to the accused. Of
course, as set out hereinafter, evidence by video-conferencing has to be on some conditions.
21. Reliance was then placed on Sections 274 and 275 of the Criminal Procedure Code
which require that evidence be taken down in writing by the Magistrate himself or by his
dictation in open court. It was submitted that video-conferencing would have to take place in
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the studio of VSNL. It was submitted that this would violate the right of the accused to have
the evidence recorded by the Magistrate or under his dictation in open court. The
advancement of science and technology is such that now it is possible to set up videoconferencing equipment in the court itself. In that case evidence would be recorded by the
Magistrate or under his dictation in open court. If that is done then the requirements of these
sections would be fully met. To this method there is, however, a drawback. As the witness is
not in court there may be difficulties if he commits contempt of court or perjures himself and
it is immediately noticed that he has perjured himself. Therefore as a matter of prudence,
evidence by video-conferencing in open court should be only if the witness is in a country
which has an extradition treaty with India and under whose laws contempt of court and
perjury are also punishable.
22. However, even if the equipment cannot be set up in court, the Criminal Procedure
Code contains provisions for examination of witnesses on commissions. Sections 284 to 289
deal with examination of witnesses on commissions. Thus in cases where the witness is
necessary for the ends of justice and the attendance of such witness cannot be procured
without an amount of delay, expense or inconvenience which, under the circumstances of the
case would be unreasonable, the court may dispense with such attendance and issue a
commission for examination of the witness. As indicated earlier, Dr Greenberg has refused to
come to India to give evidence. His evidence appears to be necessary for the ends of justice.
Courts in India cannot procure his attendance. Even otherwise, to procure attendance of a
witness from a far-off country like USA would generally involve delay, expense and/or
inconvenience. In such cases commissions could be issued for recording evidence. Normally a
commission would involve recording evidence at the place where the witness is. However,
advancement in science and technology has now made it possible to record such evidence by
way of video-conferencing in the town/city where the court is. Thus in cases where the
attendance of a witness cannot be procured without an amount of delay, expense or
inconvenience, the court could consider issuing a commission to record the evidence by way
of video-conferencing.
23. It was, however, submitted that India has no arrangement with the Government of the
United States of America and therefore commission cannot be issued for recording evidence
of a witness who is in USA. Reliance was placed on Ratilal Bhanji Mithani v. State of
Maharashtra [(1972) 3 SCC 793]. In this case a commission was issued for examination of
witnesses in Germany. The time for recording evidence on commission had expired. An
application for extension of time was made. It was then noticed that India did not have any
arrangement with Germany for recording evidence on commission. At pp. 797-98 this Court
observed as follows:
“25. The provisions contained in Sections 504 and 508-A of the Code of
Criminal Procedure contain complimentary provisions for reciprocal arrangements
between the Government of our country and the Government of a foreign country for
commission from courts in India to specified courts in the foreign country for
examination of witnesses in the foreign country and similarly for commissions from
specified courts in the foreign country for examination of witnesses residing in our
country. Notifications Nos. SRO 2161, SRO 2162, SRO 2163 and SRO 2164 all,
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dated 18-11-1953, published in the Gazette of India, Part II, Section 3 on 28-11-1953,
illustrate the reciprocal arrangements between the Government of India and the
Government of the United Kingdom and the Government of Canada for examination
of witnesses in the United Kingdom, Canada and the examination of witnesses
residing in India.
26. In the present case, no notification under Section 508-A of the Code of
Criminal Procedure has been published specifying the courts in the Federal Republic
of West Germany by whom commissions for examination of witnesses residing in
India may be issued. The notification, dated 9-9-1969, in the present case under
Section 504 of the Code of Criminal Procedure is not based upon any existing
complete arrangement between the Government of India and the Government of the
Federal Republic of West Germany for examination of witnesses residing in West
Germany. The notification, dated 9-9-1969, is ineffective for two reasons. First, there
is no reciprocal arrangement between the Government of India and the Government
of the Federal Republic of West Germany as contemplated in Sections 504 and 508-
A of the Code of Criminal Procedure. Secondly, the notification under Section 504 is
nullified and repelled by the affidavit evidence adduced on behalf of the State that no
agreement between the two countries has yet been made.”
24. In this case we are not required to consider this aspect and therefore express no
opinion thereon. The question whether commission can be issued for recording evidence in a
country where there is no arrangement, is academic so far as this case is concerned. In this
case we are considering whether evidence can be recorded by video-conferencing. Normally,
when a commission is issued, the recording would have to be at the place where the witness
is. Thus Section 285 provides to whom the commission is to be directed. If the witness is
outside India, arrangements are required between India and that country because the services
of an official of the country (mostly a judicial officer) would be required to record the
evidence and to ensure/compel attendance. However, new advancement of science and
technology permit officials of the court, in the city where video- conferencing is to take place,
to record the evidence. Thus where a witness is willing to give evidence an official of the
court can be deputed to record evidence on commission by way of video-conferencing. The
evidence will be recorded in the studio/hall where the video-conferencing takes place. The
court in Mumbai would be issuing commission to record evidence by video-conferencing in
Mumbai. Therefore the commission would be addressed to the Chief Metropolitan Magistrate,
Mumbai who would depute a responsible officer (preferably a judicial officer) to proceed to
the office of VSNL and record the evidence of Dr Greenberg in the presence of the
respondent. The officer shall ensure that the respondent and his counsel are present when the
evidence is recorded and that they are able to observe the demeanour and hear the deposition
of Dr Greenberg. The officers shall also ensure that the respondent has full opportunity to
cross-examine Dr Greenberg. It must be clarified that adopting such a procedure may not be
possible if the witness is out of India and not willing to give evidence.
25. It was then submitted that there would be practical difficulties in recording evidence
by video-conferencing. It was submitted that there is a time difference between India and
USA. It was submitted that a question would arise as to how and who would administer the
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oath to Dr Greenberg. It was submitted that there could be a video image/audio interruptions/
distortions which might make the transmission inaudible/indecipherable. It was submitted that
there would be no way of ensuring that the witness is not being coached/tutored/prompted
whilst evidence was being recorded. It is submitted that the witness sitting in USA would not
be subject to any control of the court in India. It is submitted that the witness may commit
perjury with impunity and also insult the court without fear of punishment since he is not
amenable to the jurisdiction of the court. It is submitted that the witness may not remain
present and may also refuse to answer questions. It is submitted that commercial studios place
restrictions on the number of people who can remain present and may restrict the volume of
papers that may be brought into the studio. It was submitted that it would be difficult to place
textbooks and other materials to the witness for the purpose of cross-examining him. Lastly, it
was submitted that the cost of video-conferencing, if at all permitted, must be borne by the
State.
26. To be remembered that what is being considered is recording evidence on
commission. Fixing of time for recording evidence on commission is always the duty of the
officer who has been deputed to so record evidence. Thus the officer recording the evidence
would have the discretion to fix up the time in consultation with VSNL, who are experts in
the field and who will know which is the most convenient time for video-conferencing with a
person in USA. The respondent and his counsel will have to make it convenient to attend at
the time fixed by the officer concerned. If they do not remain present, the Magistrate will take
action, as provided in law, to compel attendance. We do not have the slightest doubt that the
officer who will be deputed would be one who has authority to administer oaths. That officer
will administer the oath. By now science and technology has progressed enough to not worry
about a video image/audio interruptions/distortions. Even if there are interruptions they would
be of temporary duration. Undoubtedly, an officer would have to be deputed, either from
India or from the Consulate/Embassy in the country where the evidence is being recorded
who would remain present when the evidence is being recorded and who will ensure that
there is no other person in the room where the witness is sitting whilst the evidence is being
recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would
be advisable, though not necessary, that the witness be asked to give evidence in a room in the
Consulate/Embassy. As the evidence is being recorded on commission that evidence will
subsequently be read in court. Thus no question arises of the witness insulting the court. If on
reading the evidence the court finds that the witness has perjured himself, just like in any
other evidence on commission, the court will ignore or disbelieve the evidence. It must be
remembered that there have been cases where evidence is recorded on commission and by the
time it is read in court the witness has left the country. There also have been cases where a
foreign witness has given evidence in a court in India and then gone away abroad. In all such
cases the court would not have been able to take any action in perjury as by the time the
evidence was considered, and it was ascertained that there was perjury, the witness was out of
the jurisdiction of the court. Even in those cases the court could only ignore or disbelieve the
evidence. The officer deputed will ensure that the respondent, his counsel and one assistant
are allowed in the studio when the evidence is being recorded. The officer will also ensure
that the respondent is not prevented from bringing into the studio the papers/ documents
which may be required by him or his counsel. We see no substance in this submission that it
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would be difficult to put documents or written material to the witness in cross-examination. It
is now possible, to show to a party, with whom video-conferencing is taking place, any
amount of written material. The officer concerned will ensure that once video-conferencing
commences, as far as possible, it is proceeded with without any adjournments. Further, if it is
found that Dr Greenberg is not attending at the time(s) fixed, without any sufficient cause,
then it would be open for the Magistrate to disallow recording of evidence by videoconferencing. If the officer finds that Dr Greenberg is not answering questions, the officer
will make a memo of the same. Finally, when the evidence is read in court, this is an aspect
which will be taken into consideration for testing the veracity of the evidence. Undoubtedly,
the costs of video-conferencing would have to be borne by the State.
27. Accordingly the impugned judgment is set aside. The Magistrate will now proceed to
have the evidence of Dr Greenberg recorded by way of video-conferencing. As the trial has
been pending for a long time, the trial court is requested to dispose of the case as early as
possible and in any case within one year from today. With these directions the appeals stand
disposed of.
