SUJOY MITRA Vs. STATE OF WEST BENGAL
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 482 - Saving of inherent powers of High Court
Section 278 - Procedure in regard to such evidence when completed
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1620 of 2015, Judgment Date: Dec 02, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1620 OF 2015
(Arising from SLP(Criminal) No.8157/2015)
Sujoy Mitra ..Appellant
versus
State of West Bengal ..Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
Leave granted.
2. The appellant before this Court is an accused, who is facing trial in
ST No. 1(8) of 2014 arising out of Kalighat police station Case No.
164/2013 dated 1.6.2013, inter alia, under Section 376 of the Indian Penal
Code. The complainant in the above case is a citizen of Ireland, resident
in Dublin. Four witnesses were examined by the trial Court before
examining the prosecutrix-PW5. The trial Court accepted to record the
testimony of the prosecutrix, through video conference.
3. The appellant before this Court raised a challenge to the procedure
adopted by the trial Court, while recording the statement of PW5 on various
grounds, by filing a petition under Section 482 of the Code of Criminal
Procedure. The learned Single Judge of the High Court of Calcutta,
disposed of Criminal Revision No. 1285 of 2015, by passing the impugned
order dated 16.06.2015. Alleging, that the postulated procedure was not
fair to the appellant, the appellant has approached this Court.
4. We have heard learned counsel for the rival parties at some length,
and are satisfied, that the following procedure should be adopted, in
addition to the steps and safeguards provided in the impugned order, while
recording the statement of PW5:
I) The State of West Bengal shall make provision for recording the
testimony of PW5 in the trial Court by seeking the services of the National
Informatic Centre (NIC) for installing the appropriate equipment for video
conferencing, by using “VC Solution” software, to facilitate video
conferencing in the case. This provision shall be made by the State of
West Bengal in a room to be identified by the concerned Sessions Judge,
within four weeks from today. The NIC will ensure, that the equipment
installed in the premises of the trial Court, is compatible with the video
conferencing facilities at the Indian Embassy in Ireland at Dublin.
II) Before recording the statement of the prosecutrix-PW5, the Embassy
shall nominate a responsible officer, in whose presence the statement is to
be recorded. The said officer shall remain present at all times from the
beginning to the end of each session, of recording of the said testimony.
III) The officer deputed to have the statement recorded shall also ensure,
that there is no other person besides the concerned witness, in the room,
in which the testimony of PW5 is to be recorded. In case, the witness is
in possession of any material or documents, the same shall be taken over by
the officer concerned in his personal custody.
IV) The statement of witness will then be recorded. The witness shall
be permitted to rely upon the material and documents in the custody of the
officer concerned, or to tender the same in evidence, only with the express
permission of the trial Court.
V) The officer concerned will affirm to the trial Court, before the
commencement of the recording of the statement, the fact, that no other
person is present in the room where evidence is recorded, and further, that
all material and documents in possession of the prosecutrix-PW5 (if any)
were taken by him in his custody before the statement was recorded. He
shall further affirm to the trial Court, at the culmination of the
testimony, that no other person had entered the room, during the course of
recording of the statement of the witness, till the conclusion thereof.
The learned counsel for the accused shall assist the trial Court,to ensure,
that the above procedure is adopted, by placing reliance on the instant
order.
VI) The statement of the witness shall be recorded by the trial Court, in
consonance with the provisions of Section 278 of the Code of Criminal
Procedure. At the culmination of the recording of the statement, the same
shall be read out to the witness in the presence of the accused (if in
attendance,or to his pleader). If the witness denies the correctness of
any part of the evidence, when the same is read over to her, the trial
Court may make the necessary correction, or alternatively, may record a
memorandum thereon, to the objection made to the recorded statement by the
witness, and in addition thereto, record his own remarks, if necessary.
VII) The transcript of the statement of the witness recorded through video
conferencing(as corrected, if necessary), in consonance with the provisions
of Section 278 of the Code of Criminal Procedure, shall be scanned and
dispatched through email to the embassy. At the embassy, the witness will
authenticate the same in consonance with law. The aforesaid authenticated
statement shall be endorsed by the officer deputed by the embassy. It
shall be scanned and returned to the trial Court through email. The
statement signed by the witness at the embassy, shall be retained in its
custody in a sealed cover.
VIII) The statement received by the trial Court through email shall be re-
endorsed by the trial Judge. The instant statement endorsed by the trial
Judge, shall constitute the testimony of the prosecutrix-PW5, for all
intents and purposes.
5. We are satisfied, that the aforesaid parameters will meet the
ends of justice, and that no further inputs are required. Needless to
mention, that the procedure for recording the statement of PW5, as noticed
above, was finalised with the invaluable assistance of the learned counsel
for the rival parties.
6. In recording our conclusions in regulating the above procedure,
the learned senior counsel for the appellant emphasised, that recording of
the video-graphic testimony of the witness should be furnished to the
appellant, and it is only thereupon, that the direction contained in the
judgment rendered by this Court in State of Maharashtra vs. Dr. Praful B.
Desai (2003) 4 SCC 601, can be deemed to have been fully complied with.
The instant contention of the learned senior counsel for the appellant is
based on a variety of reasons including the fact, that the statement may be
recorded in a language which is not known, and/or is not properly
understandable to the accused. And even if the statement of the witness is
recorded in English, because of different accents of English (based on the
countries of their origin), it may not be possible to fully understand the
testimony of the concerned witness.
7. Having given our thoughtful consideration to the instant
contention advanced at the hands of the learned senior counsel for the
appellant, we find no reason whatsoever to agree with the same. In case of
there being any difficulty in recording the testimony of the concerned
witness, it is always open to the trial Court to seek appropriate
assistance (based on, or independently of such plea raised by a party to
the proceeding), as may be required by the trial Court, for a truthful
recording of the testimony of the concerned witness. We are of the view,
that furnishing recorded video-graphic testimony to an accused may
eventually turn out to be a cumbersome process, if the same has to be
replicated in all cases. Specially because this procedure is increasingly
being adopted, by allowing the accused to participate in their trials, from
jail premises also (at certain stages of the trial). And further more, it
is likely to lead more record, which will also have to be maintained for
its safe custody. What has been allowed to the accused herein, is what an
ordinary accused would be entitled to, had the statement been recorded by
the trial Court itself.
8. The instant appeal is accordingly disposed of. The trial Court
shall fix the date of hearing, as and when the video-conferencing
facilities have been provided for in the premises of the trial Court, and
after the same have been synchronized with the facilities available at the
Indian Embassy in Ireland at Dublin.
9. The trial Court shall forward the instant order through the
Sessions Judge, 24 Parganas, Alipore to the Ambassador of the Indian
Embassy in Ireland at Dublin for compliance.
10. The instant parameters have to be adopted to record the
testimony of the prosecutrix-PW5, in addition to the procedure and
safeguards provided for in the impugned order. Accordingly, it will be
imperative to record her testimony afresh.
…....................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; …....................J.
DECEMBER 02, 2015. [R. BANUMATHI]
ITEM NO.4 COURT NO.3 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8157/2015
(Arising out of impugned final judgment and order dated 17/06/2015 in CRR
No. 1285/2015 passed by the High Court Of Calcutta)
SUJOY MITRA Petitioner(s)
VERSUS
STATE OF WEST BENGAL Respondent(s)
(with appln. (s) for permission to file addl. documents)
Date : 02/12/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MRS. JUSTICE R. BANUMATHI
For Petitioner(s) Mr. Basant R, Sr. Adv.
Mr. Manoj V. George, Adv.
Mr. Francis Samson Correa, Adv.
Mr. Arvind Kumar Singh, Adv.
Mr. Siju Thomas, Adv.
Mr. Rohit Adlakha, Adv.
for Mr. Zulfiker Ali P. S,AOR
For Respondent(s) Mr. Joydeep Mazumdar, Adv.
Mr. Rohit Dutta, Adv.
Mr. Parijat Sinha,Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal stands disposed of in terms of the reportable
judgment, which is placed on the file.
(Tapan Kr. Chakraborty) (Parveen Kr. Chawla)
Court Master AR-cum-PS
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