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2015 Supreme(Cal) 278
IN THE HIGH COURT OF CALCUTTA
R. K. Bag, J.
Sujay Mitra – Petitioners
Vs.
State of West Bengal – Respondent
CRR No.1285 of 2015
Decided On : 17.06.2015
Advocate Appeared:
For the Petitioner: Mr. Kushal Pal, Mr. B. Chakraborty.
For the State : Mr. Manjit Singh, Mr. Ayan Basu.
The existence of an extradition treaty between India and the country from where the evidence of the witness will be recorded on commission may be of some importance. If the witness commits contempt of court or perjures himself, the witness can be brought to book by taking recourse to the extradition treaty.
Headnote:
VIDEO CONFERENCE EVIDENCE - RAPE TRIAL - EXAMINATION OF VICTIM - GUIDELINES - NO EXTRADITION TREATY REQUIRED - IDENTITY OF VICTIM ESTABLISHED - NO PREJUDICE TO ACCUSED - REVISIONAL APPLICATION DISMISSED.
Fact of the Case:
The petitioner, accused of rape, challenged the trial court's order allowing the examination of the victim, residing in Ireland, through video conferencing. The victim could not appear on the scheduled date, but her partial examination was conducted on January 21, 2015, without objection from the petitioner. The petitioner then moved an application seeking adjournment, claiming that the trial court was not following the Supreme Court's guidelines for video conferencing and that the victim was not served with summons. The trial court rejected the application.
Finding of the Court:
The court held that the existence of an extradition treaty between India and Ireland is not a requirement for recording the victim's evidence through video conferencing when the court directly records the evidence. The guidelines laid down by the Supreme Court in 'Dr. Praful B. Desai' (AIR 2003 SC 2053) for recording evidence through video conferencing by issuing a commission do not apply in this case.
Issues: 1. Whether an extradition treaty is required for recording the victim's evidence through video conferencing when the court directly records the evidence? 2. Whether the trial court followed the Supreme Court's guidelines for recording evidence through video conferencing? 3. Whether the petitioner was prejudiced by the trial court's order?
Ratio Decidendi: 1. The court held that the guidelines laid down by the Supreme Court in 'Dr. Praful B. Desai' (AIR 2003 SC 2053) for recording evidence through video conferencing by issuing a commission do not apply when the court directly records the evidence. The existence of an extradition treaty between India and Ireland is not a requirement for recording the victim's evidence through video conferencing when the court directly records the evidence. 2. The court found that the trial court followed the Supreme Court's guidelines for recording evidence through video conferencing. The identity of the victim was established, and the court was satisfied that there was no other person in the Indian Embassy in Ireland at the time of recording her evidence. The court also noted that the petitioner did not object to the partial examination of the victim on January 21, 2015. 3. The court held that the petitioner was not prejudiced by the trial court's order. The court observed that the victim of a rape case cannot be compelled to look at the camera or the accused during the trial, as it may retraumatize her. The court also noted that the petitioner would have the opportunity to cross-examine the victim and elicit any information in favor of the defense.
Final Decision: The court dismissed the revisional application, upholding the trial court's order allowing the examination of the victim through video conferencing.
R. K. Bag, J.
The petitioner has challenged the order dated February 18, 2015 passed by Learned Additional Sessions Judge, 8th Court, Alipore in S.C. No.1(10) of 2013 corresponding to S.T. No.1(8) of 2014 by filing this revisional application under Section 482 of the Code of Criminal Procedure, 1973.
2. The petitioner is facing trial as an accused in S.T. No.1(8) of 2014 arising out of Kalighat Police Station Case No.164 of 2013 dated 1st June, 2013 under Section 376 of the Indian Penal Code. The de facto complainant of the criminal case is one Louise Florence who is currently residing in Dublin, Ireland. It appears from record that charge was framed against the present petitioner under Section 376 of the Indian Penal Code on August 6, 2014 and the evidence of four prosecution witnesses was recorded by the trial court. On September 17, 2014 the trial court passed the order for examination of the victim Louise Florence (here in after only victim) as P.W.5 through video conference on the basis of prayer of the prosecution. The trial court fixed the date for examination of the victim through video conference on January 6, 2015. The trial court made detailed discussion about the pros and cons of recording of evidence of the victim through video conference in the order dated September 17, 2014, which has not been challenged by the petitioner before any higher forum. The evidence of the victim was not recorded through video conference on January 6, 2015 as she did not appear in the Embassy of India for the purpose of video conference. On January 21, 2015 the victim was examined in part through video conference without any demur from the defence. The examination of the victim (P.W.5) was deferred till January 29, 2015 on prayer of the prosecution, but the Presiding Officer of the court was absent on January 29, 2015 and as such the next date for further examination of the victim (P.W.5) was fixed on February 18, 2015. On February 18, 2015 the petitioner moved an application before the trial court praying for adjournment of hearing on the ground that the petitioner would like to move before the High Court for recording of evidence of the victim (P.W.5) through video conference without following the guidelines laid down by the Supreme Court. The said application of the petitioner was rejected by the trial court by passing the impugned order which is under challenge in this revisional application.
3. The petitioner has also brought to the notice of this court the order dated March 9, 2015 by which the trial court deferred the schedule of examination of the prosecution witnesses from the month of March to 27.04.2015, 28.04.2015 and 29.04.2015.
4. With the above factual matrix, Mr. Kushal Pal, Learned Counsel appearing on behalf of the petitioner submits that Learned Judge of the trial court proceeded to record the evidence of the victim residing in Ireland through video conference, though there is no extradition treaty between India and Ireland. According to Mr. Pal, the evidence of the victim cannot be examined through video conference as there was no extradition treaty between India and Ireland. Mr. Pal further submits that Learned Judge did not record his satisfaction that there was no other person present in the Indian Embassy in Ireland at the time of recording of evidence of the victim (P.W.5) in the Embassy through video conference. Mr. Pal also contends that the trial court did not give any direction to the victim or the prosecution to file an affidavit disclosing the identity of the victim appearing in the Indian Embassy in Ireland for the purpose of recording of evidence through video conference. Mr. Pal argues that the trial court did not record his satisfaction about service of summons on the victim residing in Ireland for recording of evidence. Mr. Pal has strenuously argued that the petitioner is highly prejudiced as the victim was not looking at the camera at the time of giving evidence through video
