VERY IMPORTANT POINT
In a criminal trial evidence of a foreign witness can be recorded by video-conferencing through a commission. It is covered by Sections 273 r/w 284, 285 of Cr.P.C. 1973 and Section 3 of Evidence Act, 1872.

Headnote:Criminal Procedure Code, 1973-Sections 273 r/w 284, 285-Evidence to be taken in the presence of accused by a Commission-Trial for offences under Sections 338 read with 109 and 114 of IPC-Case of death caused by medical negligence-One of the foreign doctors to be examined as evidence-Prosecution moving an application to examine him through video-conferencing-Trial Court allowing-High Court reversing the trial Court-Appeals to Supreme Court-Whether in a criminal trial, evidence can be recorded by video conferencing keeping in view Section 273 Cr.P.C. read with Sections 284, 285 and also Section 3 of Evidence Act, 1872? (Yes)-Appeal allowed.
       Held : The 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. (Para 12)
       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. For our purposes Sections 284 and 285 are relevant. (Para 20)
       Held thereafter : 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 concerned officer. 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 into 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 foreign witness has given evidence in a Court in India and that then gone away abroad. In all such cases 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 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 concerned officer 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 video conferencing. 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. 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 off the case as early as possible and in any case within one year from today. With these directions the Appeals stand disposed of. The Respondent shall pay to the State and the complainant the costs of these Appeals. (Paras 24 and 25)

JUDGMENT

Variava, J.-Leave granted.

2. Heard parties.

3. These Appeals are against a judgment of the Bombay High Court dated 23rd/24th April 2001. The question for consideration is whether in a criminal trial, evidence can be recorded by video conferencing. The High Court has held, on an interpretation of Section 273, Criminal Procedure Code, that it cannot be done. Criminal Appeal (arising out of SLP (Criminal) No. 6814 of 2001) is filed by the State of Maharashtra. Criminal Appeal (arising out of SLP (Criminal) No. 6815 of 2001) is filed by Mr. P.C. Singh, who was the complainant. As the question of law is common in both these Appeals, they are being disposed of by this common judgment. In this judgment parties will be referred to in their capacity in the Criminal Appeal (arising out of SLP (Criminal) No. 6814 of 2001). Mr. P.C. Singh will be referred to as the complainant.

4. Briefly stated the facts are as follows :

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 22nd December 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 3½ 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 the Bombay Hospital belied the Respondent case that the complainant s wife was not his patient. The bill sent by the 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 was dismissed by this Court on 8th July 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 29th June 1998 the prosecution made an application to examine Dr. Greenberg through video-conferencing. The trial Court allowed that application on 16th August 1999. The Respondent challenged that order in the High Court. The High Court has by the im

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2003 Supreme(SC) 384

VERY IMPORTANT POINTIn a criminal trial evidence of a foreign witness can be recorded by video-conferencing through a commission. It is covered by Sections 273 r/w 284, 285 of Cr.P.C. 1973 and Section 3 of Evidence Act, 1872.

Cases Referred (10)

VERY IMPORTANT POINT
In a criminal trial evidence of a foreign witness can be recorded by video-conferencing through a commission. It is covered by Sections 273 r/w 284, 285 of Cr.P.C. 1973 and Section 3 of Evidence Act, 1872.