Full Judgment Text
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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
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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,
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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
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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.
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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
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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.
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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
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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
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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
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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
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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]
JUDGMENT
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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
JUDGMENT
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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