Balancing the interests of the convict and the rights of the appellate court in allowing appearance through video conferencing under Section 437A of Cr.P.C.

JUDGMENT

1. The present writ petition came to be filed by the petitioner namely, Salman Khan seeking the following relief:

"(a) Declare Section 437A of Cr.P.C. as manifestly arbitrary, unreasonable, unfair unconstitutional and ultra vires on the vice of Article 14 and 21 of the Constitution of India, or to save it from unconstitutionality, to expound the scope thereof by construing the word "to appear" used therein with expansive meaning and also including "to appear through the medium of electronic video linkage/video conferencing ";

(b) Permit the petitioner to appear before the Ld. Sessions Judge, Jodhpur in Appeal Nos. 18/2018 and 22/2017 filed by the Petitioner and the State, by way of video conferencing as per the convenience of the said Court, by waiving only his physical presence in Court;

(c) Pass any other or further orders which this Hon'ble Court may deem fit and proper in the interest of justice."

2. The matter came up for admission on 04.02.2021. On that date, this Court was pleased to direct as follows:

"Issue notice in relation to prayer (b).

Learned counsel for the petitioner is directed to serve a copy of the petition a long with annexures upon Mr. Farzand All, learned Additional Advocate General in course of today.

Matter be listed tomorrow, i.e., 05.02.2021."

3. Shri Farzand AN, learned AAG appearing for the State has submitted that no lawful ground exists for granting relaxation under Section 437A of the Cr.P.C. since it reposed the authority in the appellate court to ensure the appearance of an accused convict in course of the appeal.

4. Learned counsel for the petitioner submits that he does not press the prayer TV of the present writ application and limits his prayer to prayer 'B' only and states that the term "to appear" as found from Section 437A of the Cr.P.C. has an expansive meaning and should also include the appearance through the medium of electronic video linkage/video conferencing.

5. Heard learned counsel for the respective parties.

6. After perusing Section 437A of the Cr.P.C, it is clear therefrom that before disposal of an appeal, the appellate court shall require the accused to execute bail bonds with sureties, to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and for such purpose bail bonds shall be in force for six months.

7. In the facts of the present case, it is clear therefrom that the petitioner was arraigned as an accused in three separate cases under the Wild Life (Protection) Act for three different incidents alleged to have occurred between a period of six days:

(a) FIR No.162/1998 dated 11.10.1998 registered at Police Station Mathania, Jodhpur for alleged incident dated 26.09.1998 of hunting a deer (Criminal Case no.207/1999);

(b) FIR No.163/1998 dated 11.10.1998 registered at Police Station Mathania, Jodhpur for alleged another incident dated 28.09.1998 of hunting a deer (Criminal Case No.206/1999); and

(c) FIR No.93(26)/1998 dated 02.10.1998 registered with the Forst Department for alleged incident of hunting, which alledgedly took place on the intervening night of 01.10.1998 and 02.10.1998 (Criminal Case no.66/2011).

8. In two FIRs i.e. FIR No.162/1998 and 163/1998 resulting in Criminal Cases No.207/1999 and No.206/1999 respectively, the petitioner has been acquitted by this Court vide two separate judgments and orders both dated 25.07.2016, in S.B. Criminal Appeal No.53/2012 and S.B. Criminal Revision Petition No.905/2007, by reversing the sentence and conviction order passed by the trial Court and the learned Sessions Judge respectively. The SLPs filed there against by the State of Rajasthan are pending before the Hon'ble Supreme Court.

9. For the purpose of the present case, it is material to note herein that in the FIR No.93(26)/1998 dated 02.10.1998 resulting in Criminal Case No.66/2011, the petitioner was convicted and sentenced to simple imprisonment for 5 years and fine of Rs.