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State of Maharashtra v. Dr. Praful B. Desai

Supreme Court of India, 1 April 2003, 2 judges

Evidence in a criminal trial may be recorded by video conferencing; so long as the accused or his pleader is present, it is evidence taken in the presence of the accused under Section 273 CrPC.

Facts

The complainant's wife, who had terminal cancer, had been advised by a doctor in New York that she was inoperable. The prosecution case was that the respondent, a consulting surgeon, nevertheless advised surgery, which led to serious complications and suffering until her death. A case under Section 338 read with Sections 109 and 114 IPC was registered against the respondent. The prosecution applied to examine the New York doctor, who was willing to depose but refused to come to India, through video conferencing. The trial court allowed the application, but the Bombay High Court set the order aside, holding that 'presence' in Section 273 CrPC meant actual physical presence in court. The State and the complainant appealed.

Questions before the Court

  1. Can evidence in a criminal trial be recorded by video conferencing consistently with Section 273 CrPC?
  2. Can a commission be issued to record by video conferencing the evidence of a willing witness abroad, and on what safeguards?

What the Court held

  • Section 273 CrPC contemplates constructive presence, since evidence may be taken in the presence of the pleader when personal attendance is dispensed with. 'Presence' does not mean actual physical presence.
  • Evidence under Section 3 of the Evidence Act includes electronic records, and this includes video conferencing. The CrPC is an ongoing statute to be construed to take account of advances in technology.
  • So long as the accused or his pleader is present when evidence is recorded by video conferencing, it is recorded in the presence of the accused and meets Section 273 and the procedure established by law. The accused suffers no prejudice.
  • Where attendance cannot be procured without unreasonable delay, expense or inconvenience, the court may issue a commission under Sections 284 and 285 to record a willing witness's evidence by video conferencing, with an officer ensuring the accused's presence, cross-examination and no tutoring; the State bears the cost.
  • The High Court's order was set aside and the Magistrate directed to record the doctor's evidence by video conferencing.

Why it matters

The judgment holds that recording evidence by video conferencing satisfies the requirement in Section 273 CrPC that evidence be taken in the presence of the accused. It applies the principle of updating construction to the CrPC as an ongoing statute, reads 'evidence' to include electronic records, and lays down practical safeguards for recording a witness's evidence abroad on commission by video conferencing.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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.”
S.N. Variava, J.Page 4 of the judgment
“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".”
S.N. Variava, J.Page 6 of the judgment
“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.”
S.N. Variava, J.Page 8 of the judgment

Provisions interpreted

Case and bench

Parties
The State of Maharashtra v. Dr. Praful B. Desai
Case
Criminal Appeal Nos. 476 and 477 of 2003 (arising out of SLP (Crl.) Nos. 6814 and 6815 of 2001)
Decided
1 April 2003
Bench
S.N. Variava, B.N. Agrawal
Opinions
Unanimous. Judgment delivered by S.N. Variava, J.

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