State of MH V Dr. Praful B. Desai PDF

11/09/2020 Delivery | Westlaw India
Westlaw India Delivery Summary
Request made by : IP USER

Request made on: Friday, 11 September, 2020 at 16:27 IST
Client ID: inapu-1

Content Type: Cases
Search : (Citation("2003 4 SCC 601"))
Delivery selection: Selected Documents
Number of documents delivered: 2
© 2020 Thomson Reuters South Asia Private Limited

11/09/2020 Delivery | Westlaw India Page 2
State of Maharashtra with P.C. Singh v Dr. Praful B. Desai and another
Supreme Court of India
01 April 2003
Case Analysis
Bench S.N. Variava, B.N. Agrawal
Where Reported 2003 Indlaw SC 320; (2003) 4 SCC 601; (2003) SCC (Cr) 815; AIR 2003
SC 2053; 2003 (51) ALR 436; 2003 (2) CCR 28; 2003 (2) CGLJ 86; 2003
(2) Crimes 237; 2003 (5) CRJ 176; 2003 CRLJ 2033; 2003 (1) JCC 551; JT
2003 (3) SC 382; 2003 (2) MahLJ 868; 2003 (2) MPLJ 434; 2003 (2)
RCR(Criminal) 770; 2003 (95) RD 158; 2003(3) SCALE 554; [2003] 3
S.C.R. 244; 2003 (2) SLT 824; 2003 (3) Supreme 19; 2003 (2) UC 1011
Case Digest Subject: Criminal
Keywords: Criminal Procedure Code, 1963
Summary: Cr.P.C. - S. 273 - whether in a criminal trial, evidence can be

recorded by video conferencing - Held, evidence can be both oral and
documentary and electronic records can be produced as evidence, which
would include video-conferencing - So long as the Accused and/ or his
pleader are present when evidence is recorded by video conferencing, that
evidence is being recorded in the 'presence' of the accused and would thus
fully meet the requirements of Section 273, Cr. P.C. - where a witness is
willing to give evidence an official of the Court can be deported to record
evidence on commission by way of video-conferencing. The concerned
officer will ensure that once video conferencing commences, as far as
possible, it is proceeded with without any adjournments. - The Magistrate to
have the evidence of Dr. Greenberg in USA recorded by way of video
conferencing.
All Cases Cited Referred
Basavaraj R. Patil And Others v State Of Karnataka And Others2000 Indlaw

SC 2653, (2000) 8 SCC 740, (2001) SCC (Cr) 87, AIR 2000 SC 3214, AIR
2000 SCW 3692, 2001 (1) CGLJ 53, 2000 CRLJ 4604, JT 2000 (Supp1) SC
422, 2000 (4) RCR(Criminal) 542B, 2000(6) SCALE 697, [2000] Supp3
S.C.R. 658, 2001 (1) UC 79
Sil Import, Usa v Exim Aides Silk Exporters, Bangalore1999 Indlaw SC

1405, (1999) 4 SCC 567, (1999) SCC (Cr) 600, AIR 1999 SC 1609, AIR
1999 SCW 1218, 1999 (36) ALR 300, 2000 (1) BC 668, [1999] 97 Comp
Cas 575, 1999 CRLJ 2276, 1999 (79) DLT 414, JT 1999 (3) SC 325,
2000(1) M.P.H.T. 576, [1999] 2 S.C.R. 958
Commissioner of Income Tax v Podar Cement (P) Ltd.1997 Indlaw SC

2014, (1997) 5 SCC 482, AIR 1997 SC 2523, 1997 (141) CTR 67, [1997]
226 ITR 625, JT 1997 (5) SC 529, 1997(4) SCALE 271, [1997] Supp1
S.C.R. 394, 1997 (5) Supreme 259, [1997] 92 TAXMAN 541, 1997 (2) TLR
690
National Textile Workers' Union v P.R. Ramkrishnan and Others1982

Indlaw SC 185
Ramchandra Keshav Adke and Others v Govind Joti Chavare and Others
1975 Indlaw SC 414
Nageshwar Sh. Krishna Ghobe v State of Maharashtra1972 Indlaw SC 684
Ratilal Bhanji Mithani v State of Maharashtra and Others1972 Indlaw SC

216
A.K. Gopalan v The State Of Madras.Union Of India: Intervener.1950 Indlaw

SC 42
Nazir Ahmed vs. Emperor1936 AIR(PC) 253
Maryland vs. Santra Aun Craig"(497) US 836
State vs. S.J. Chowdhury1996 (2) SCC 424
Cases Citing this Case Shilpa Chaudhary v Principal Judge and another
2016 Indlaw ALL 339
International Planned Parenthood federation v Madhu Bala Nath

2016 Indlaw DEL 1129
Sujoy Mitra v State of West Bengal

2015 Indlaw SC 846
Jagar Nath Singh v State of Uttar Pradesh and others

2015 Indlaw ALL 1706
Biswanath Sasamal v State of Orissa

2015 Indlaw ORI 511
Rama Pandey v Union of India and others

Sujay Mitra v State of West Bengal

2015 Indlaw CAL 255
Arvinder Singh and another v Lal Pathlabs Private Limited and others
Sajani Devi Bhartia deceased Jagmohan Kejriwal and others v Ashrant

Bhartia and another
2014 Indlaw CAL 1064
Suvarna Rahul Musale v Rahul Prabhakar Musale

2014 Indlaw MUM 1106
Rohinton Panthkay and others v Armin R. Panthaky

2014 Indlaw MUM 220
State Through Reference and others v Ram Singh and another

2014 Indlaw DEL 819
Tamil Nadu Organic Private Limited and others v State Bank of India
Stressed Assets Management Branch Represented by its Assistant General
Manager and Authorised Officer, Chennai
2014 Indlaw MAD 374
Sucha Singh Sodhi (Deceased) Through Lrs v Baldev Raj Walia and
another
2014 Indlaw DEL 564
Haseen Siddiqui @ Jahangir v State of Uttar Pradesh Thru. Prin. Secy. Law
and others
2013 Indlaw ALL 2744
Soma Rama Chandram S/o Late Venkatachalam and others v State of

Andhra Pradesh, Represented by its Public Prosecutor, Andhra Pradesh
High Court, Hyderabad and others
2012 Indlaw AP 864
Rohit Shekhar v Narayan Dutt Tiwari and another

Wireless TT. Info Services Limited and another v State of Haryana and
others
2011 Indlaw PNH 1277
Milano Impex Private Limited v Egle Footwear Private Limited and others
Cellular Operators Association of India and others v Municipal Corporation

of Delhi and another
State of Maharashtra and another v Mohammed Ajmal Mohammad Amir

Kasab and others
2011 Indlaw MUM 91
Tuncay Alankus v Central Bureau of Investigation

Bheeshma Sharma v Sahab Singh Chauhan and Others

2010 Indlaw DEL 944
Sayar Kumari v State and Others

Virender v State of NCT of Delhi

(1) Moninder Singh Pandher; (2) Surendra Koli v State of Uttar Pradesh
2009 Indlaw ALL 237
(1) Sanjeev Nanda; (2) Rajiv Gupta; (3) Bhola Nath and Another v State
2009 Indlaw DEL 935
Court On Its Own Motion v State and Others

2008 Indlaw DEL 793
Nemichand Jain Alias Chandra Swami v Enforcement Directorate

2008 Indlaw DEL 40
Suresh Jindal v Bses Rajdhani Power Limited and Others

2007 Indlaw SC 1436
(1) Abdul Karim Telgi @ Lala @ Karim Lala; (2) Abdul Wahid; (3) Jacob
Chackoo @ Thomas v State
2007 Indlaw MAD 1240
N. A. Britto v Usha Chawan and Others

2006 Indlaw MUM 376
State of Punjab and Others v Messrs Amritsar Beverages Limited and

Others
2006 Indlaw SC 391
Liverpool and London Steamship Protection and Indemnity Association

Limited v m.v. "Sea Success I" and Another
2005 Indlaw MUM 69
Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Another

2005 Indlaw SC 93, (2005) 3 SCC 284, (2005) SCC (Cr) 705, AIR 2005 SC
972, 2005 CRLJ 1441, JT 2005 (2) SC 450, 2005 (1) RCR(Criminal) 988,
2005(2) SCALE 122
Sheeba Abidi v State and Another

Sakshi v Union Of India

2004 Indlaw SC 466, (2004) 5 SCC 518, (2004) SCC (Cr) 1645, AIR 2004
SC 3566, 2004 (98) CutLT 491, 2004 (112) DLT 457, JT 2004 (Supp2) SC
405, 2004 (3) RCR(Criminal) 702, 2004(6) SCALE 15, [2004] Supp2 S.C.R.
723
Span Diagnostics Private Limited v State of Maharashtra

2004 Indlaw MUM 29
Amitabh Bagchi v Ena Bagchi

2004 Indlaw CAL 229
Kapila Hingorani v State Of Bihar

2003 Indlaw SC 483, (2003) 6 SCC 1, 2003 (3) AWC 2344, [2003] 116
Comp Cas 133, 2003 (5) ESC 203, 2003 (98) FLR 329, 2003 (3) JhrCR(SC)
127, JT 2003 (5) SC 1, 2003 (3) LLJ 31, 2003 (3) MLJ(SC) 1, 2003(4)
SCALE 712, 2003 (4) SLR 541, 2003 (3) SLT 673, [2003] Supp1 S.C.R.
175, 2003 (4) Supreme 1
Legislation Cited Code of Criminal Procedure, 1973
Constitution of India, 1950
Constitution of India, 1950 art. 14
Constitution of India, 1950 art. 21
Criminal Procedure Code, 1963
Criminal Procedure Code, 1963 167(2)
Criminal Procedure Code, 1963 273

Criminal Procedure Code, 1963 508-A
Indian Evidence Act, 1872
Indian Evidence Act, 1872 3
Indian Evidence Act, 1872 45
Indian Penal Code, 1860
Indian Penal Code, 1860 109
Negotiable Instruments Act, 1881
Negotiable Instruments Act, 1881 138
This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy of the judgment,
Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or suitability of the content.
Supreme Court of India
1 April 2003
State of Maharashtra with P.C. Singh

v
Dr. Praful B. Desai and another
Case No : Appeal (Crl.) 476 of 2003, Appeal (Crl.) 477 of 2003, (Arising out of SLP (Crl.) No. 6814 of 2001)
(Arising out of SLP (Crl.) No. 6815 of 2001)
Bench : S.N. Variava, B.N. Agrawal
Citation : 2003 Indlaw SC 320, (2003) 4 SCC 601, (2003) SCC (Cr) 815, AIR 2003 SC 2053, 2003 (51) ALR
436, 2003 (2) CCR 28, 2003 (2) CGLJ 86, 2003 (2) Crimes 237, 2003 (5) CRJ 176, 2003 CRLJ 2033, 2003 (1)
JCC 551, JT 2003 (3) SC 382, 2003 (2) MahLJ 868, 2003 (2) MPLJ 434, 2003 (2) RCR(Criminal) 770, 2003 (95)
RD 158, 2003(3) SCALE 554, [2003] 3 S.C.R. 244, 2003 (2) SLT 824, 2003 (3) Supreme 19, 2003 (2) UC 1011
Summary : Cr.P.C. - S. 273 - whether in a criminal trial, evidence can be recorded by video conferencing - Held,
evidence can be both oral and documentary and electronic records can be produced as evidence, which would
include video-conferencing - So long as the Accused and/ or his pleader are present when evidence is recorded
by video conferencing, that evidence is being recorded in the 'presence' of the accused and would thus fully meet
the requirements of Section 273, Cr. P.C. - where a witness is willing to give evidence an official of the Court can
be deported to record evidence on commission by way of video-conferencing. The concerned officer will ensure
that once video conferencing commences, as far as possible, it is proceeded with without any adjournments. -
The Magistrate to have the evidence of Dr. Greenberg in USA recorded by way of video conferencing.
The Judgment was delivered by : S. N. Variava, J.
1. 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. Singhi, 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. Singhi will be referred to as the complainant.
4. Briefly stated the facts are as follows:
1. 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.
2. 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 3 1/2 months in the hospital and thereafter till her death.
5. 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.
6. 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.
7. 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 impugned order allowed the Criminal
Application filed by the Respondent. Hence these two Appeals.
8. At this stage it is appropriate to mention that Dr. Greenberg has expressed his willingness to give
evidence, but has refused to come to India for that purpose. It is an admitted position that, in the Criminal
Procedure Code there is no provision by which Dr. Greenberg can be compelled to come to India to give
evidence. Before us a passing statement was made that the Respondent did not admit that the evidence of
Dr. Greenberg was relevant or essential. However, on above-mentioned facts, it prima-facie appears to us
that the evidence of Dr. Greenberg would be relevant and essential to the case of the prosecution.
9. Ms. Jaisingh, senior counsel argued for the State of Maharashtra. The complainant, except for pointing
out a few facts, adopted her arguments. On behalf of the Respondent submissions were made by Senior
Counsels Mr Sundaram and Mr Ashok Desai.
10. It was submitted on behalf of the Respondents, that the procedure governing a criminal trial is crucial to
the basic right of the Accused under Articles 14 and 21 of the Constitution of India. It was submitted that the
procedure for trial of a criminal case is expressly laid down, in India, in the Code of Criminal Procedure. It
was submitted that the Code of Criminal Procedure lays down specific and express provisions governing the
procedure to be followed in a criminal trial. It was submitted that the procedure laid down in the Code of
Criminal Procedure was the "procedure established by law". It was submitted that the Legislature alone had
the power to change the procedure by enacting a law amending it, and that when the procedure was so
changed, that became "the procedure established by law". It was submitted that any departure from the
procedure laid down by law would be contrary to Article 21. In support of this submission reliance was
placed on the cases of A. K. Gopalan versus State of Madras reported in AIR 1950 S. C. 27 1950 Indlaw SC
42, Nazir Ahmed versus Emperor reported in AIR 1936 Privy Council 253 and Siva Kumar Chadda versus
Municipal Corporation of Delhi reported in AIR 1975 S.C. 915 1975 Indlaw SC 414. There can be no dispute
with these propositions. However if the existing provisions of the Criminal Procedure Code permit recording
of evidence by video conferencing then it could not be said that "procedure established by law" has not been
followed.
11. This Court was taken through various sections of the Criminal Procedure Code. Emphasis was laid on
Section 273, Criminal Procedure Code. It was submitted that Section 273, Criminal Procedure Code does
not provide for the taking of evidence by video conferencing. Emphasis was laid on the words "Except as
otherwise provided" in Section 273 and it was submitted that unless there is an express provision to the
contrary, the procedure laid down in Section 273 has to be followed as it is mandatory. It was submitted that
Section 273 mandates that evidence "shall be taken in the presence of the accused". It is submitted that the
only exceptions, which come within the ambit of the words "except as otherwise provided" are Sections 284
to 290 (those dealing with issue of Commissions); Section 295 (affidavit in proof of conduct of public servant)
and Section 296 (evidence of formal character on affidavit). It is submitted that the term "presence" in
Section 273 must be interpreted to mean physical presence in flesh and blood in open Court.
12. It was submitted that the only instances in which evidence may be taken in the absence of the Accused,
under the Criminal Procedure Code are Sections 317 (provision for inquiries and trial being held in the
absence of accused in certain cases) and 299 (record of evidence in the absence of the accused). It was
submitted that as Section 273 is mandatory, the Section is required to be interpreted strictly. It was
submitted that Section 273 must be given its contemporary meaning (Contemporanea exposition est optima
et fortissimm - The contemporaneous exposition is the best and the strongest in law). It was submitted that
video conferencing was not known and did not exist when the Criminal Procedure Code was
enacted/amended. It was submitted that presence on a screen and recording of evidence by video
conferencing was not contemplated by the Parliament at the time of drafting/amending the Criminal
Procedure Code.
13. It was submitted that when the Legislature intended to permit video conferencing, it has expressly
provided for it, as is evident from the Ordinance passed by the State of Andhra Pradesh in December 2000
permitting the use of video conferencing under Sec. 167(2) Criminal Procedure Code in remand applications.
It is pointed out that a similar amendment is being considered in Maharashtra. It is submitted that Section
273 is analogous to the Confrontation Clause set out in the VIth Amendment to the US Constitution. It is
submitted that Courts in USA have held that video conferencing does not satisfy the requirements of the
Confrontation Clause.
14. This argument found favour with the High Court. The High Court has relied on judgments of various High
Courts which have held that Section 273 is mandatory and that evidence must be recorded in the presence
of the accused. To this extant no fault can be found with the Judgment of the High Court. The High Court
has then considered what Courts in foreign countries, including Courts in USA, have done. The High Court
then based its decision on the meaning of the term "presence" in various dictionaries and held that the term
"presence" in Section 273 means actual physical presence in Court. We are unable to agree with this. We
have to consider whether evidence can be led by way of video-conferencing on the provisions of the
Criminal Procedure Code and the Indian Evidence Act. Therefore, what view has been taken by Courts in
other countries is irrelevant. However, it may only be mentioned that the Supreme Court of USA, in the case
of Maryland vs. Santra Aun Craig [497 US 836], has held that recording of evidence by video-conferencing
was not a violation of the Sixth Amendment (Confrontation Clause).
15. Considering the question on the basis of Criminal Procedure Code, we are of the view that the High
Court has failed to read Section 273 properly. One does not have to consider dictionary meanings when a
plain reading of the provision brings out what was intended. Section 273 reads as follows:
16. Section 273: Evidence to be taken in presence of accused. Except as otherwise expressly provided, all
evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused,
or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation : In this
section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been
commenced under this Code. Thus Section 273 provides for dispensation from personal attendance. In such
cases evidence can be recorded in the presence of the pleader. The presence of the pleader is thus deemed
to be presence of the Accused. Thus Section 273 contemplates constructive presence. This shows that
actual physical presence is not a must. This indicates that the term "presence", as used in this Section, is not
used in the sense of actual physical presence. A plain reading of Section 273 does not support the restrictive
meaning sought to be placed by the Respondent on the word "presence". One must also take note of the
definition of the term 'Evidence' as defined in the Indian Evidence Act. Section 3 of the Indian Evidence Act
reads as follows:
"Evidence----Evidence means and includes------
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral evidence
(2) all documents including electronic records produced for the inspection of the Court; such documents are
called documentary evidence"
Thus 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."
17. One needs to set out the approach which a Court must adopt in deciding such questions. It must be
remembered that the first duty of the Court is to do justice. As has been held by this Court in the case of Sri
Krishna Gobe versus State of Maharashtra [(1973) 4 SCC 23 1972 Indlaw SC 684] Courts must endeavour
to find the truth. It has been held that there would be failure of justice not only by an unjust conviction but
also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the
Accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of
forgetting that the victims also have rights.
18. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of
interpreting an ongoing statute have been very succinctly set out by the leading jurist Francis Bennion in his
commentaries titled "Statutory Interpretation", 2nd Edition page 617:
"It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously
updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be
treated as always speaking. This means that in its application on any day, the language of the Act though
necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it
as a current law. ..........
In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at
any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make
allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions,
technology, the meaning of words and other matters.. That today's construction involves the supposition that
Parliament was catering long ago for a state of affairs that did not then exist is no argument against that
construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments.
The drafter will foresee the future and allow for it in the wording. .
An enactment of former days is thus to be read today, in the light of dynamic processing received over the
years, with such modification of the current meaning of its language as will now give effect to the original
legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is
constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials.
"
19. At this stage the words of Justice Bhagwati in the case of National Textile Workers' Union v. P.R.
Ramakrishnan, (1983) 1 SCC 228 1982 Indlaw SC 185, at page 256, need to be set out. They are:
"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it
must change with the changing social concepts and values. If the bark that protects the tree fails to grow and
expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a
new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it
will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast
away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting
itself to the fast changing society and not lag behind."
20. This Court has approved the principle of updating construction, as enunciated by Francis Bennion, in a
number of decisions. These principles were quoted with approval in the case of Commissioner of Income
Tax, Bombay versus M/s Podar Cement Pvt. Ltd. [(1997) 5 SCC 482 1997 Indlaw SC 2014]. They were also
cited with approval in the case of State versus S. J. Chowdhury [(1996) 2 SCC 428 1996 Indlaw SC 224]. In
this case it was held that the Evidence Act was an ongoing Act and the word "handwriting" in Section 45 of
that Act was construed to include "typewriting". These principles were also applied in the case of SIL Import
USA versus Exim Aides Silk Exporters [(1999) 4 SCC 567 1999 Indlaw SC 1405]. In this case the words
"notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by
fax. On the same principle Courts have interpreted, over a period of time, various terms and phrases. To
take only a few examples:- "stage carriage" has been interpreted to include "electric tramcar"; "steam
tricycle" to include "locomotive"; "telegraph" to include "telephone"; "bankers books" to include "microfilm";
"to take note" to include "use of tape recorder"; "documents" to include "computer database's".
21. These principles have also been applied by this Court whilst considering an analogous provision of the
Criminal Procedure Code. In the case of Basavaraj R. Patil v. State of Karnataka [(2000) 8 SCC 740 2000
Indlaw SC 2653] the question was whether an Accused needs to be physically present in Court to answer
the questions put to him by Court whilst recording his statement under Section 313. To be remembered that
under Section 313 the words are "for the purpose of enabling the accused personally to explain". The term
"personally" if given a strict and restrictive interpretation would mean that the Accused had to be physically
present in Court. In fact the minority Judgment in this case so holds. It has however been held by the
majority that the Section had to be considered in the light of the revolutionary changes in technology of
communication and transmission and the marked improvement in facilities for legal aid in the country. It was
held, by the majority, that it was not necessary that in all cases the Accused must answer by personally
remaining present in Court.
22. Thus the law is well settled. The doctrine "Contemporanea exposition est optima et fortissimm" has no
application when interpreting a provision of an on-going statute/act like the Criminal Procedure Code.
23. At this stage we must deal with a submission made by Mr Sundaram. It was submitted that
video-conferencing could not be allowed as the rights of an accused, under Article 21 of the Constitution of
India, cannot be subjected to a procedure involving "virtual reality". Such an argument displays ignorance of
the concept of virtual reality and also of video conferencing. Virtual reality is a state where one is made to
feel, hear or imagine what does not really exists. In virtual reality one can be made to feel cold when one is
sitting in a hot room, one can be made to hear the sound of ocean when one is sitting in the mountains, one
can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one sofa etc.
Video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so
to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are
actually taking place. To take an example today one does not need to go to South Africa to watch World Cup
matches. One can watch the game, live as it is going on, on one's TV.
24. If a person is sitting in the stadium and watching the match, the match is being played in his
sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing-room
and watching the match on TV, it cannot be said that he is in presence of the players but at the same time,
in a broad sense, it can be said that the match is being played in his presence. Both, the person sitting in the
stadium and the person in the drawing-room, are watching what is actually happening as it is happening.
This is not virtual reality, it is actual reality.
25. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science
and technology which permits one to see, hear and talk with someone far away, with the same facility and
ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen.
Except for touching, one can see, hear and observe as if the party is in the same room. In video
conferencing both parties are in presence of each other. The submissions of Respondents counsel are akin
to an argument that a person seeing through binoculars or telescope is not actually seeing what is
happening. It is akin to submitting that a person seen through binoculars or telescope is not in the
"presence" of the person observing. Thus it is clear that so long as the Accused and/or his pleader are
present when evidence is recorded by video conferencing that evidence is being recorded in the "presence"
of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code.
Recording of such evidence would be as per "procedure established by law".
26. Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as
clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness
better than he may have been able to if he was sitting in the dock in a crowded Court room. They can
observe his or her demeanour. In fact the facility to play back would enable better observation of
demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct
his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of
play back would give an added advantage whilst cross-examining the witness. The witness can be
confronted with documents or other material or statement in the same manner as if he/she was in Court. All
these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of
whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video
conferencing has to be on some conditions.
27. Reliance was then placed on Sections 274 and 275 of the Criminal Procedure Code which require that
evidence be taken down in writing by the Magistrate himself or by his dictation in open Court. It was
submitted that video conferencing would have to take place in the studio of VSNL. It was submitted that that
this would violate the right of the Accused to have the evidence recorded by the Magistrate or under his
dictation in open Court. The advancement of science and technology is such that now it is possible to set up
video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate
or under his dictation in open Court. If that is done then the requirements of these Sections would be fully
met. To this method there is however a draw back. As the witness is now in Court there may be difficulties if
he commits contempt of Court or perjures himself and it is immediately noticed that he has perjured himself.
Therefore as a matter of prudence evidence by video-conferencing in open Court should be only if the
witness is in a country which has an extradition treaty with India and under whose laws contempt of Court
and perjury are also punishable.
28. 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. They 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 he 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. "
29. Thus in cases where the witness is necessary for the ends of justice and 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 may dispense with such attendance and issue a commission
for examination of the witness. As indicated earlier Dr. Greenberg has refused to come to India to give
evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his
attendance. Even otherwise to procure attendance of a witness from a far of country like USA would
generally involve delay, expense and/or inconvenience. In such cases commissions could be issued for
recording evidence. Normally a commission would involve recording evidence at the place where the witness
is. However advancement in science and technology has now made it possible to record such evidence by
way of video conferencing in the town/city where the Court is. Thus in cases where the attendance of a
witness cannot be procured without an amount of delay, expense or inconvenience the Court could consider
issuing a commission to record the evidence by way of video conferencing.
30. It was however submitted that India has no arrangement with the Government of United States of
America and therefore commission cannot be issued for recording evidence of a witness who is in USA.
Reliance was placed on the case of Ratilal Bhanji Mithani v. State of Maharashtra [(1972) 3 SCC 793 1972
Indlaw SC 216]. In this case a commission was issued for examination of witnesses in Germany. The time
for recording evidence on commission had expired. An application for extension of time was made. It was
then noticed that India did not have any arrangement with Germany for recording evidence on commission.
At page 798 this Court observed as follows:
"25. The provisions contained in Sections 504 and 508-A of the Code of Criminal Procedure contain
complimentary provisions for reciprocal arrangements between the Government of our country and the
Government of a foreign country for Commission from Courts in India to specified courts in the foreign
country for examination of witnesses in the foreign country and similarly for Commissions from specified
courts in the foreign country for examination of witnesses residing in our country. Notifications Nos. SRO
2161, SRO 2162, SRO 2163 and SRO 2164 all, dated November 18, 1953, published in the Gazette of India
Part II, Section 3 on November 28, 1953, illustrate the reciprocal arrangements between the Government of
India and the Government of the United Kingdom and the Government of Canada for examination of
witnesses in the United Kingdom, Canada and the examination of witnesses residing in India.
26. In the present case, no notification under Section 508-A of the Code of Criminal Procedure has been
published specifying the courts in the Federal Republic of West Germany by whom commissions for
examination of witnesses residing in India may be issued. The notification, dated September 9, 1969, in the
present case under Section 504 of the Code of Criminal Procedure is not based upon any existing complete
arrangement between the Government of India and the Government of the Federal Republic of West
Germany for examination of witnesses residing in West Germany. The notification, dated September 9,
1969, is ineffective for two reasons. First, there is no reciprocal arrangement between the Government of
India and the Government of the Federal Republic of West Germany as contemplated in Sections 504 and
508-A of the Code of Criminal Procedure. Secondly, the notification under Section 504 is nullified and
repelled by the affidavit evidence adduced on behalf of the State that no agreement between the two
countries has yet been made.
27. In the present case, extension of time was granted in the past to enable the State for examination of
witnesses in West Germany and return of the commission to this country. The State could not obtain the
return of the commission. Now, a question has arisen as to whether any extension of time should be made
when it appears that reciprocal arrangements within the contemplation of Sections 504 and 508-A of the
Code of Criminal Procedure are not made. The courts do not make orders in vain. When this Court finds that
there are no arrangements in existence within the meaning of Sections 504 and 508-A of the Code of
Criminal Procedure this Court is not inclined to make any order."
31. This authority, which is of a Constitution Bench of this Court, does suggest that no commission can be
issued if there is no arrangement between the Government of India and the country where the commission is
proposed to be issued. This authority would have been binding on this Court if the facts were identical. Ms.
Jaising had submitted that notwithstanding this authority a difference would have to be drawn in cases where
a witness was not willing to give evidence and in cases where the witness was willing to give evidence. She
submitted that in the second class of cases commissions could be issued for recording evidence even in a
country where there is no arrangement between the Government of India and that country.
32. In this case we are not required to consider this aspect and therefore express no opinion thereon. The
question whether commission can be issued for recording evidence in a country where there is no
arrangement, is academic so far as this case is concerned. In this case we are considering whether
evidence can be recorded by video-conferencing. Normally when a Commission is issued, the recording
would have to be at the place where the witness is. Thus Section 285 provides to whom the Commission is
to be directed. If the witness is outside India, arrangements are required between India and that country
because the services of an official of the country (mostly a Judicial Officer) would be required to record the
evidence and to ensure/compel attendance. However new advancement of science and technology permit
officials of the Court, in the city where video conferencing is to take place, to record the evidence. Thus
where a witness is willing to give evidence an official of the Court can be deported to record evidence on
commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the
video-conferencing takes place.
33. The Court in Mumbai would be issuing commission to record evidence by video conferencing in Mumbai.
Therefore the commission would be addressed to the Chief Metropolitan Magistrate, Mumbai who would
depute a responsible officer (preferably a Judicial Officer) to proceed to the office of VSNL and record the
evidence of Dr. Greenberg in the presence of the Respondent. The officer shall ensure that the Respondent
and his counsel are present when the evidence is recorded and that they are able to observe the demeanour
and hear the deposition of Dr. Greenberg. The officers shall also ensure that the Respondent has full
opportunity to cross-examine Dr. Greenberg. It must be clarified that adopting such a procedure may not be
possible if the witness is out of India and not willing to give evidence.
34. It was then submitted that there would be practical difficulties in recording evidence by video
conferencing. It was submitted that there is a time difference between India and USA. It was submitted that a
question would arise as to how and who would administer the oath to Dr. Greenberg. It was submitted that
there could be a video image/audio interruptions/distortions which might make the transmission
inaudible/indecipherable. It was submitted that there would be no way of ensuring that the witnesses is not
being coached/tutored/prompted whilst evidence was being recorded. It is submitted that the witness sitting
in USA would not be subject to any control of the Court in India. It is submitted that the witness may commit
perjury with impunity and also insult the Court without fear of punishment since he is not amenable to the
jurisdiction of the Court. It is submitted that the witness may not remain present and may also refuse to
answer questions.
35. It is submitted that commercial studios place restrictions on the number of people who can remain
present and may restrict the volume of papers that may be brought into the studio. It was submitted that it
would be difficult to place textbooks and other materials to the witness for the purpose of cross-examining
him. Lastly, it was submitted that the cost of video conferencing, if at all permitted, must be borne by the
State.
36. 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.
37. 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.
38. 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.
39. Undoubtedly the costs of video conferencing would have to be borne by the State.
40. 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.
Appeals disposed of
This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy of the judgment,
Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or suitability of the content.

State of MH V Dr. Praful B. Desai PDF

Uploaded by

Copyright:

Available Formats

State of MH V Dr. Praful B. Desai PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

State of MH V Dr. Praful B. Desai PDF

Uploaded by

Copyright:

Available Formats

11/09/2020 Delivery | Westlaw India

Westlaw India Delivery Summary

Request made by : IP USER

Client ID: inapu-1

© 2020 Thomson Reuters South Asia Private Limited

Supreme Court of India

Bench S.N. Variava, B.N. Agrawal

Case Digest Subject: Criminal

Keywords: Criminal Procedure Code, 1963

Summary: Cr.P.C. - S. 273 - whether in a criminal trial, evidence can be

All Cases Cited Referred

Basavaraj R. Patil And Others v State Of Karnataka And Others2000 Indlaw

Sil Import, Usa v Exim Aides Silk Exporters, Bangalore1999 Indlaw SC

Commissioner of Income Tax v Podar Cement (P) Ltd.1997 Indlaw SC

National Textile Workers' Union v P.R. Ramkrishnan and Others1982

Nageshwar Sh. Krishna Ghobe v State of Maharashtra1972 Indlaw SC 684

Ratilal Bhanji Mithani v State of Maharashtra and Others1972 Indlaw SC

A.K. Gopalan v The State Of Madras.Union Of India: Intervener.1950 Indlaw

Nazir Ahmed vs. Emperor1936 AIR(PC) 253

Maryland vs. Santra Aun Craig"(497) US 836

State vs. S.J. Chowdhury1996 (2) SCC 424

International Planned Parenthood federation v Madhu Bala Nath

Sujoy Mitra v State of West Bengal

Jagar Nath Singh v State of Uttar Pradesh and others

Biswanath Sasamal v State of Orissa

Rama Pandey v Union of India and others

Sujay Mitra v State of West Bengal

Sajani Devi Bhartia deceased Jagmohan Kejriwal and others v Ashrant

Suvarna Rahul Musale v Rahul Prabhakar Musale

Rohinton Panthkay and others v Armin R. Panthaky

State Through Reference and others v Ram Singh and another

2014 Indlaw DEL 564

Soma Rama Chandram S/o Late Venkatachalam and others v State of

Rohit Shekhar v Narayan Dutt Tiwari and another

Cellular Operators Association of India and others v Municipal Corporation

State of Maharashtra and another v Mohammed Ajmal Mohammad Amir

Tuncay Alankus v Central Bureau of Investigation

Bheeshma Sharma v Sahab Singh Chauhan and Others

Sayar Kumari v State and Others

Virender v State of NCT of Delhi

Court On Its Own Motion v State and Others

Nemichand Jain Alias Chandra Swami v Enforcement Directorate

Suresh Jindal v Bses Rajdhani Power Limited and Others

N. A. Britto v Usha Chawan and Others

2006 Indlaw MUM 376

State of Punjab and Others v Messrs Amritsar Beverages Limited and

Liverpool and London Steamship Protection and Indemnity Association

Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Another

Sheeba Abidi v State and Another

Sakshi v Union Of India

Span Diagnostics Private Limited v State of Maharashtra

Amitabh Bagchi v Ena Bagchi

Kapila Hingorani v State Of Bihar

Legislation Cited Code of Criminal Procedure, 1973

Constitution of India, 1950

Constitution of India, 1950 art. 14

Constitution of India, 1950 art. 21

Criminal Procedure Code, 1963

Criminal Procedure Code, 1963 167(2)