The main legal point established in the judgment is the competence of the trial court to use video conferencing to record the evidence of a witness residing outside India, emphasizing the right of the accused.

JUDGMENT :

M.M. Sundresh, J.

Prayer: Reference made by the learned Sessions Judge, Mahila Court, Chennai vide his letter in Dis.No.6015/201 dated 27.03.2018 under Section 395 (2) of Cr.P.C. seeking answer as to the competence of jurisdiction of the trial court in recording the evidence of a witness, residing outside India, through video conference.

1. This matter stands posted pursuant to the communication sent by the Sessions Judge, Mahila Court, Chennai, to the Office of the Registrar General, High Court of Madras in D.No.6015 / 2018 dated 27.03.2018.

2. Heard both sides.

3. The learned counsel for the accused has got no objection to order for recording evidence of the victim (L.W.1) through video conferencing.

4. The reference has been sought for by the learned trial Judge by extensively quoting a decision of the High Court of Calcutta in Sujay Mitra v. State of West Bengal, reported in while seeking appropriate appropriate direction as to whether the de-facto complainant (L.W.1) can be permitted to depose through video conferencing from Germany.

5. In this connection, we would like to place on record a recent pronouncement of the Hon’ble Apex Court dealing with the similar issue. While taking note of Sections 273, 284 and 285 of Cr.P.C., the Hon’ble Apex Court in Manju Devi v. State of Rajasthan, (2019) 6 SCC 203 was pleased to hold as follows:-

14. In the given set of facts and circumstances, where the witness Dr I. Yusuf is residing in Nigeria, for the purpose of recording of his statement, the trial court could have unquestionably taken recourse to the provisions of Sections 284 and 285 CrPC so as to avoid the delay in the matter and inconvenience to the parties and the witness. Sections 284 and 285 CrPC read as under:

“284. When attendance of witness may be dispensed with and commission issued.—(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that 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 or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter;

Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.

(2) The Court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader’s fees, be paid by the prosecution.

285. Commission to whom to be issued.—(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.

(2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission shall be directed to such Court or officer as the Central Government may, by notification specify in this behalf.

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission as the Central Government may, by notification prescribe in this behalf.”

14.1. On the question of inconvenience likely to be caused in the event of summoning of the said witness from Nigeria, noticeable it is that the appellant made a prayer t