P B DESAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE short but important question that arises in this petition is whether the evidence of a prosecution witness can be recorded on video conferencing and whether it is permissible in law in a criminal trial in the face of section 273 of the Code of Criminal Procedure.

(2.) THE said question arises in the matrix of following facts:

(3.) AS against that it is contended on behalf of the prosecution that Dr. Greenberg from U.S.A. has expressed his inability to attend the Court in Bombay to give evidence because of his old age and ill health and there is no provision under the Code of Criminal Procedure to enforce or compel the presence of this witness, who is an American Citizen, in Court in India. It is further submitted that the said witness is a key witness and the prosecuting agency cannot avoid his evidence. It is further submitted that the witness will be subject to cross-examination on behalf of the accused on video conferencing. Invoking section 3 of the Indian Evidence Act where the definition of the word "evidence" is given, it is contended on behalf of the prosecution that evidence includes all statements which the Court permits or requires to be made before it by witnesses and therefore, the evidence recorded on video conferencing also would amount to evidence within the meaning of section 3 of the Evidence Act. Reliance was placed on the order dated 8-11-1994 passed by Justice Variava presiding over the Special Court constituted under the provisions of the Special Court (Trial of Offences etc.) Act, 1992 whereby permission was given to record the evidence of a witness in U.S.A. in the Special Case pending before him on video conferencing, which has yet remained to be implemented.