Case Study: State of Maharashtra vs B Praful Desai | Evidence | Video Conferencing | 273 Crpc

Judges : S.N. Variava . J

 Case Code (2003) 4 SCC 601

Facts of the case:

1. Complainant's wife was suffering from terminal cancer and it was suggested by Dr. Greenberg of USA that she was in operable and should only be treated with medication.

2. Complainant and his wife consulted the respondent who was also a practicing surgeon in India who said that it was operatable. Also, complainant and his wife made respondent aware of the opinion of Dr. Greenburg and agreed for operation on the condition that respondent would do the operation.

3. However, Dr. AK Mukherjee did the operation for removal of uterus. When he opened her stomach, fluid oozed out of the abdomen. Dr. Mukherjee contacted respondent on whose advice he closed the stomach which resulted in intestinalis fistula. She remained ill for 3(1/2) months during which she has to suffer terrible physical torture as well as mental agony and finally shed died.

4. The Respondent later claimed that the complainant’s wife was not his patient. However, the bill sent by the Bombay Hospital showed that the fees were charged by the Respondent. Case of the prosecution was taken to Maharashtra Medical Council and on inquiry it was held that Respondent was held guilty of negligence and strictly warned him.

 Trial Court allowed the application while on appeal by respondents in HC it was rejected. The main contention on behalf of respondents was that as per Section 273 Code of Criminal Procedure, 1973, evidence on Video Conferencing was not admissible.

 Legal Issue: The main legal issue in the case was whether the evidence of Dr. Greenfield (USA) was admissible via Video conferencing in India.

 Legal Sections:

Code of Criminal Procedure, 1973

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: 1 [Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.] Explanation. —In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

 

Definition of evidence as per section 3 of Indian Evidence Act:

 “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) 4 [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.

 

Supreme Court's observation on Section 273 and decision of HC:

 High Court relied on various earlier judgements where it was held that Section 273 is to be followed mandatorily. High court based his decision on the meaning of term 'presence' in various dictionaried which referred to as actual physical presence in the court. Supreme Court rejected this contention and stated that " we have to consider whether the evidence can be led by way of video conferencing on provisions of Code of Criminal Procedure and Indian Evidence Act?"

Court held that recording of evidence by video conferencing satisfies the object of providing in Section 273 of the Criminal Procedure Code. Court held that, the Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. That in fact the Accused would be able to see the witness better than he would have been able to, if he was sitting in the dock in a crowded Court room since they would observe his or her demeanour.

Court also held that facility to play back would enable better observation of demeanour. by which they can hear and rehear the deposition of the witness. The Accused could instruct his pleader immediately and thus cross- examination of the witness would be as effective, if not better.

 Court in this case also observed that the advancement of science and technology was such that it was 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 was done then the requirements of Section 273 of the Criminal Procedure Code would be fully met.

 Another contention raised was that there would be difficulties if he/she committed contempt of Court or perjured him/herself and it was immediately noticed that he/she had perjured him/herself. Therefore, as a matter of prudence evidence by video-conferencing in open Court would be only if the witness was in a country which had an extradition treaty with India and under whose laws contempt of Court and perjury were also punishable.

 However, that even if the equipment could not be set up in Court, the Indian Criminal Procedure Code contained provisions for examination of witnesses on commissions. Sections 284 to 289 dealt with examination of witnesses on commissions. For that purpose, Sections 284 and 285 were relevant.

 Thus, in cases where the witness was necessary for the ends of justice and the attendance of such witness could not be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court would dispense with such attendance and issue a commission for examination of the witness.

 Earlier in this case, Dr. Greenberg had refused to come to India to give evidence. His evidence appeared to be necessary for the ends of Justice and Courts in India could not 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

And that normally when a Commission is to be issued, the recording has to be at the place where the witness is. Thus Section 285 of the Criminal Procedure Code provided to whom the Commission was to be directed. If the witness was outside India, arrangements were 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 permitted officials of the Court, in the city where video conferencing was to take place, to record the evidence. Thus, where a witness was willing to give evidence, an official of the Court would be deported to record evidence on commission by way of video-conferencing. And the evidence would be recorded in the studio/hall where the video-conferencing would take place.

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 would ensure that both the Respondent and his counsel are present when the evidence is to be recorded and that they were able to observe the demeanour and hear the deposition of Dr. Greenberg. The officers would also ensure that the Respondent has full opportunity to cross-examine Dr. Greenberg.

 The concerned officer would also ensure that once video conferencing commenced, as far as possible, it was proceeded with without any adjournments. Further if it could be found that Dr Greenberg was 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. And if the officer found that Dr. Greenberg was not answering questions, the officer would make a memo of the same.

Finally, when the evidence had to be read in Court, this would be an aspect which would be taken into consideration for testing the veracity of the evidence. The Magistrate would then proceed to have the evidence of Dr. Greenberg recorded by way of video conferencing.

Final Judgement: 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.

Rationale: Court held that documentary evidence even in criminal matters could be by electronic records (i.e video conferencing).

Summary of Case: Case is regarding the admissibility of an witness via video conferencing. Appellant here is husband of the patient and respondent is practicing doctor in India. Witness was a doctor from USA who can't come to India for giving witness. However, he is willing to give his statement via Video Conferencing. Lot of contentions were raised from respondent side against the admissibility of witness via video conferencing such as violation of Section 273 Cr.P.C , there should be extradition treaty between India and USA for allowing the witness, etc. Court rejected the contentions raised by respondents and thereby allowed the appeal of appealants.

-Summary by Tushar Bawa