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