@JUDGMENTTAG-ORDER
K. Padmanabhan Nair, J.@mdashThe accused in C.C.No. 2 of 2001 on the file of Judicial First Class Magistrate III; Thiruvananthapuram is the petitioner in this Criminal Miscellaneous Case. This Criminal Miscellaneous Case is filed challenging an order passed by the learned Magistrate by which the revision petitioner was directed to deposit an amount of Rs. 1,20,000/- approximately, to meet the expense of a Commission appointed for the purpose of examination of Sri. Sheik Ahmmed, who was the Additional Private Secretary to the petitioner as a defence witness.
2. The short facts necessary for the disposal of this case is as follows: The petitioner is facing trial of an offence punishable u/s 354 of Indian Penal Code. The allegation against the petitioner, who was the Minister for Transport, Devaswom and Forest is that at or about 1.40 PM on 22.12.1999 he outraged the modesty of the de facto complainant, who was his Secretary at the relevant time. It is alleged that the incident occurred when the de facto complainant came to the Chamber of the petitioner to discuss official matters. The prosecution evidence was over. When the matter was posted for defence evidence, the petitioner filed a list of witnesses. The learned Magistrate allowed the petitioner to examine some of them and issued summons to those witnesses. The summons issued to witness No. 4 Sri. Sheik A hammed returned unserved with an endorsement that the witness is not in India. He is stated to be working in Sultanate of Oman. The petitioner furnished the present address of the witness and prayed that summons may be issued to the witness through post. The learned Magistrate found that "there is no guidelines to serve the summons to a witness who is abroad to be served by registered post". It was also found that to serve summons through Indian Embassy and its return will take some time. The learned counsel appearing for the accused submitted that examination of witness is very vital to the accused. The learned Special Prosecutor suggested that either the summons may be issued by courier on the accused depositing the travelling expenses of the witness or a Commission may be issued u/s 290 of the Code of Criminal Procedure to record the evidence of the witness. The learned Magistrate found that a commission can be issued for the examination of the witness in accordance with the provisions of Section 290(b) of the Code of Criminal Procedure. The petitioner was directed to deposit reasonable expense of the prosecution to go abroad and to examine the witness on Commission. Subsequently, the accused was directed to deposit approximately an amount of Rs. 1,20,000/- as the expenses for the Commission. Challenging those orders this Criminal Miscellaneous Case is filed.
3. Sri. S. Vijayakumar, learned counsel appearing for the petitioner submits that an order appointing a Commissioner to go to a foreign country and record evidence can be passed only if a notification has been issued by the Central Government. He invited my attention to Sections 284 and 285 of the Code of Criminal Procedure, which deals with appointment of a Commission. Section 285 reads as follows:-
"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."
In view of the provisions contained in Sub-section(3) of Section 285, a Court in India can issue a commission to examine a witness in a foreign country only if arrangements have been made by the Central Government with the Government of such country and a notification has been issued. It is admitted by the Director General of Prosecutions that no such notification has been issued by the Central Government in respect of Oman.
4. In
"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".
5. Sri. Vijayakumar, learned counsel appearing for the petitioner submits that either fresh summons has to be issued to the witness to appear and give evidence or if the witness is unable to come to India and give evidence within a reasonable period but willing to testify, a Video Conference may be arranged as held by the Supreme Court in Dr. Praful B. Desai''s case.
6. In Dr. Praful B.Desai''s case (supra) the Apex Court has considered the provisions of Sections 273, 284 and 295 of the Code of Criminal Procedure and found that evidence can be recorded on Commission by way of Video Conference. It was held as follows:-
"Recording of evidence by video-conferencing also satisfies the object of 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 courtroom. They can observe his or her 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 document or other material or statement in the same manner as if he/she was in Court. Thus no prejudice, of whatsoever nature, is likely to be caused to the accused".
The Supreme Court has laid down the procedure to be followed while arranging Video Conference. It was held as follows:--
"Further, 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 officer concerned. If they do not remain present, the Magistrate will take action as provided in law, to compel attendance. The officer who will be deputed would be one who has authority to administer oaths. That officer will administer the oath. By now science and technology has progressed enough to not worry about a video image/audio interruption/ 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 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. 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. It is possible to put documents or written material to the witness in cross-examination. One can show to a party, with whom video-conferencing is taking place, any amount of written material. The officer concerned will ensure that once video-conferencing commences, as far as possible, it is proceeded without any adjournments. Further, if it is found that G 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 G is not answering the 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".
It was also held as follows :--
"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 extradiction treaty with India and under whose laws contempt of Court and perjury are also punishable.
That apart, 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. In the present case G has refused to come to India to give evidence. His evidence appears to be necessary for the ends of justice".
7. The prosecution has no case that any arrangements are in existence between Union of India and Sultanate of Oman. It is admitted that no notification has been issued by the Central Government so far. So the order passed by the learned Magistrate issuing a commission to examine the witness who is now residing at Sultanate of Oman is illegal and liable to be set aside. But, in order to avoid further delay, I am of the view that it is only just and proper to issue a direction to the learned Magistrate and also the Chief Judicial Magistrate, Thiruvananthapuram to issue a commission to record the evidence of the witnesses in case a Commission is to be recorded by way of Video Conferencing. But before issuing a Commission to record evidence by way of Video Conference one attempt shall be made to examine the witness in Court. The learned Magistrate shall issue a summons to the witness requiring him to appear before the Court and give evidence within a reasonable period. If the witness is unable to come to India and is willing to give evidence by Video Conference, necessary Commission has to be issued by the Chief Judicial Magistrate, Thiruvananthapuram, to a Judicial Officer, to go to the office of the V.S.N.L. and arrange for a Video Conference as held in Dr. Praful B. Desai''s case.
In the result, this Criminal Miscellaneous Case is disposed of in the following manner. The orders under challenge passed by the learned Magistrate on 1.12.2004 and 3.12.2004 are hereby set aside. The learned Magistrate is directed to issue summons to Sri .Sheik Ahammed, witness No. 4 in the list of witnesses furnished by the accused through courier and also through Embassy of Oman. If the prosecution or the petitioner is able to give the necessary details of the witness, the learned Magistrate shall issue summons through Fax also in addition to the two modes stated above. In the summons to be issued, the learned Magistrate shall also direct the witness to specify whether he is willing to come India and give evidence in the Court within one month from the date of receipt of the summons. In case the witness is willing to give evidence, but unable to come to India within one month, the witness shall specify whether he is willing to give evidence by arranging a Video Conference. He shall also be required to state the date on which he will be arriving in India. That reply shall be sent to the Court below so as to reach in the Court within two weeks from the date of receipt of the summons by the witness. If the witness is willing to give evidence, but not willing or unable to come to India, the learned Magistrate shall intimate that fact to the learned Chief Judicial Magistrate, Thiruvananthapuram, who shall issue a commission, to a judicial officer, to go to the office of the V.S.N.L. and arrange for a Video Conference. Necessary expenses for arranging Video Conference shall be met by the accused. In case the witness does not give any reply so as to reach the Court below within two weeks from the date of service of the summons or if he is unwilling to give evidence either by coming to India or by Video Conference, the Court below can dispense with the examination of the witness and proceed with the trial of the case.
