By Harpreet Kaur, Advocate

CASE NO.: Appeal (crl.)  476 of 2003, Appeal (crl.)  477 of 2003

CASE TITLE: The State of Maharashtra versus Dr. Praful B. Desai and another

DATE OF JUDGMENT: 01/04/2003

BENCH: Justice S.N. Variava & Justice B.N. Agrawal

 FACTS

The complainant’s wife was suffering from terminal cancer. Case of the prosecution is that the complainant’s wife was examined by Dr. Ernest Greenberg of Sloan Kettering Memorial Hospital, New York, USA, who opined that she was inoperable and should be treated only with medication. Thereafter the complainant and his wife consulted the Respondent, who is a consulting surgeon practising for the last 40 years. In spite of being made aware of Dr Greenberg’s opinion the Respondent suggested surgery to remove the uterus.

It is the case of the prosecution that the complainant and his wife agreed to the operation on the condition that it would be performed by the Respondent. On 22nd December 1987 one Dr. A. K. Mukherjee operated on the complainant’s wife. When the stomach was opened ascetic fluids oozed out of the abdomen. Dr. A. K. Mukherjee contacted the Respondent who advised closing up the stomach.    Dr. A. K. Mukherjee accordingly closed the stomach and this resulted in intestinal fistula. But whenever the complainant’s wife ate or drank, the same would come out of the wound.   Complainant’s wife required 20/25 dressings a day for more than 3 1/2 months in the hospital and thereafter till her death.

Complainant’s wife suffered terrible physical torture and mental agony. It is the case of the prosecution that the Respondent did not once examine the complainant’s wife after the operation. Respondent claimed that the complainant’s wife was not his patient.    However, bill sent by the Bombay Hospital showed the fees charged by the Respondent.

Also, Maharashtra Medical Council has, in an inquiry, held the Respondent guilty of negligence and strictly warned him. On a complaint by the complainant, a case under Section 338 read with Sections 109 and 114 of the Indian Penal Code was registered against the Respondent and Dr. A. K. Mukherjee. Process was issued by the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai.    The Respondent challenged the issue of process and carried the challenge right up to this Court.    The Special Leave Petitions filed by the Respondent was dismissed by Supreme Court on 8th July 1996.

During the trial, evidence of six witnesses including that of the complainant and the investigating officer, has been recorded. On 29th June 1998 the prosecution made an application to examine Dr. Greenberg through video-conferencing. The trial court allowed that application on 16th August 1999. The Respondent challenged that order in the High Court.    The High Court has by the impugned order allowed the Criminal Application filed by the Respondent.

These Appeals are against a Judgment of the Bombay High Court dated 23rd/24th April 2001.

ISSUE

The question for consideration is: whether in a criminal trial, evidence can be recorded by video conferencing?

ARGUMENTS

It was submitted on behalf of the Respondents, that the procedure governing a criminal trial is crucial to the basic right of the Accused under Articles 14 and 21 of the Constitution of India. It was submitted that the procedure for trial of a criminal case is expressly laid down, in India, in the Code of Criminal Procedure. It was submitted that the Legislature alone had the power to change the procedure by enacting a law amending it and that when the procedure was so changed that became “the procedure established by law”. It was submitted that any departure from the procedure laid down by law would be contrary to Article 21. In support of this submission reliance was placed on the cases of A. K. Gopalan versus State of Madras reported in AIR 1950 S. C. 27, Nazir Ahmed versus Emperor reported in AIR 1936 Privy Council 253 and Siva Kumar Chadda versus Municipal Corporation of Delhi reported in AIR 1975 S.C. 915.

It was submitted that Section 273 of Criminal Procedure Code does not provide for the taking of evidence by video conferencing. Emphasis was laid on the words “Except as otherwise provided” in Section 273 and it was submitted that unless there is an express provision to the contrary, the procedure laid down in Section 273 has to be followed as it is mandatory. It was submitted that Section 273 mandates that evidence “shall be taken in the presence of the accused”. It was submitted that the only exceptions, which come within the ambit of the words “except as otherwise provided” are Sections 284 to 290 (those dealing with issue of Commissions); Section 295 (affidavit in proof of conduct of public servant) and Section 296 (evidence of formal character on affidavit). It was submitted that the term “presence” in Section 273 must be interpreted to mean physical presence in flesh and blood in open Court. It was submitted that the only instances in which evidence may be taken in the absence of the Accused, under the Criminal Procedure Code are Sections 317 (provision for inquiries and trial being held in the absence of accused in certain cases) and 299 (record of evidence in the absence of the accused). It was submitted that as Section 273 is mandatory, the Section is required to be interpreted strictly.

OBSERVATIONS

Supreme Court observed that “The High Court has relied on judgments of various High Courts which have held that   Section 273 is mandatory and that evidence must be recorded in the presence of the accused. To this extant no fault can be found with the Judgment of the High Court. The High Court then based its decision on the meaning of the term “presence” in various dictionaries and held that the term “presence” in Section 273 means actual physical presence in Court. We are unable to agree with this.”

It further observed that “We have to consider whether evidence can be led by way of video-conferencing on the provisions of the Criminal Procedure Code and the Indian Evidence Act……..Considering the question on the basis of Criminal Procedure Code, we are of the view that the High Court has failed to read Section 273 properly. One does not have to consider dictionary meanings when a plain reading of the provision brings out what was intended. Section 273 reads as follows:

Section 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.
Explanation: In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

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. A plain reading of Section 273 does not support the restrictive meaning sought to be placed by the Respondent on the word “presence”.

One must also take note of the definition of the term ‘Evidence’ as defined in the Indian Evidence Act. Section 3 of the Indian Evidence Act reads as follows:
“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) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence”

Thus, evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video- conferencing.”

Then Supreme Court observed that “It must also be remembered that the Criminal Procedure Code is an ongoing statute…. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act’s passing, in law, in social conditions, technology, the meaning of words and other matters. That today’s construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction.”

It further observed that “At this stage the words of Justice Bhagwati in the case of National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, at page 256, need to be set out. They are: “We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind.”

In the case of  Basavaraj R. Patil v. State of Karnataka [(2000)8SCC740] the question was whether an Accused needs to be physically present in Court to answer the questions put to him by Court whilst recording his statement under Section 313. To be remembered, that under Section 313 the words are “for the purpose of enabling the accused personally to explain” (emphasis supplied). The term “personally” if given a strict and restrictive interpretation would mean that the Accused had to be physically present in Court. In fact the minority Judgment in this case so holds. It has however been held by the majority that   the Section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was held, by the majority, that it was not necessary that in all cases the Accused must answer by personally remaining present in Court.

DECISION

Supreme Court held that “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.”

Photo Credits: http://archives.dailynews.lk/2008/10/23/news22.asp

 

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