IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 20..08..2019

CORAM

The Honourable Mr Justice M.M.SUNDRESH

and

The Honourable Mr Justice M.NIRMAL KUMAR

Criminal Original Petition No.22795 of 2019

In RE

Sessions Judge,

Mahalir Neethimandram,

Chennai

... Petitioner

Reference made by the learned Sessions Judge, Mahila Court,

Chennai vide his letter in Dis.No.6015/2018 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

For State

: Mrs.L.Srilekha,

Public Prosecutor

(Mahila Court, Chennai)

For Accused

: Mr.B.Dhamodaran

For De Facto

Complainant/Victim

Mr.G.Kalyan Jhabakah

for M/s.Surana & Surana

ORDER

[Order of the court was made by Justice M.M.SUNDRESH]

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 CDJ

2015 Cal HC 429 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 directe