Documente Academic
Documente Profesional
Documente Cultură
2053
"The Court/Tribunal should not Ole- shall file oIiginals of the documents on \vhich
chanically set aside the order of punishment reliance \vas placed. if not already done. If
on the ground t hat the report was not fur- the Governnlent ~xpert is of the ;rte\v that
nished as is regrettably being done at doculuents produced by the employee are
present. The Courts should avoid resorting
forged/fabricated or not authentic the or-
der of dismissal shall stand. If. ho\vever. the
to short cuts." report of the expert is that the docunlents
26. Strong re l1ance \vas produced by the employee are genuine. the
placed by learned counsel for the order of dismissal has to be vacated. In case
em lovee on a three-Judge the originals. as directed above. are not filed
Betch -of this Court in Punjab by the employee or the Bank. then the High
SC 2713 : National Bank and others v. KunJ Court shall pass necessary orders. uphold-
(1998 AIR l3ehan Misra (1998 (7) SCC 84). ing the order of dismissal or setting aside
sew 2762 'Ole said decision has no appU- the order of dismissal. as the case may be.
: 1998 Lab is factually dlstin-
Ie 3012 : cation a nd hat was a case were h No other point shall be considered by the
1998 All W guis Ila ble . T i dif High, Court. The matter shall be heard bv
2009) tI Disciplinary Author ty - the Division Bench by restoration of the \vrlt ,
le 01 the views of the In-
appeal.
fered fro I that context it
uiry Officer. n 30. The appeal is allowed to the extent
q ld that denial of opportu-
was he f hearing was per se indicated.
n i ty 0 f the principles of natu- Order accordingly.
violative 0 The case at hand is
ral Justdice. totally different fac- AIR 2003 SUPREME COURT 2053
founde on
tual backdrop. (From : Bombay)·
d that at no stage the
27. It is to be note dice Both learned S. N. VARIAVA AND B. N. AGRAWAL. JJ.
employee pleaded prej~ivisi~n Bench pro- Criminal Appeal No. 476 of 2003 (arising
Single Judge and the t there was no com- out of S. L. P. (Crt.) No~ .6814 of 2001) with
ceeded on the basiS tha ent of Regulation Cri. Appeal No. 477 of 2003 (arising out of
pliance of the requirem udice was caused. S. L. P. (Cri.) No. 6815, ,of 2001). D/- 1-4-
6( 18) and. therefore. P~~corded supra that 2003. ' ;'
In view of the finding t been correctly in- State of Maharash~ra. Appellant v. Dr.
Regulation 6(18) h~~::~ns regarding preju- Praful B. Desai. Respondent. ;
terpreted. the conc WITH
dice are indefensible. oted that case of P. C. Singh. Appellant v. Dr. Praful B.
28. It is further !o!~ ~ot considered by Desai and another. Respondent.
the parties on merit r the Division Bench. (A) Criminal P.C. (2 of 1974), S. 273-
learned single Judge ~act that there was no Taking evidence in presence of accused
Notwithstanding thehe respective cas~s. _ Term 'presence' in S. 273 - Does not
consideration of t directed examination mean actual physical presence in Court.
Learned single Ju d gethe expert. CrI. A. No. 3193 of 1999, D/- 23 and
of the documents by , It is that thejudg- 24..4-2001 (Bombay), Reversed.
29. The inevitable r:~~h confirming that Interpretation of Statutes - Diction-
ment of the D~~5~~~e JUdg~:ea:u~~tI~~ ary meaning.
of the learn it relates to 1 jUstice. The term 'presence' in S. 273 does not
quashed so far a~ les of natura There mean actual physical presence in Court. One
of violation of P~~c~~d of the lIla~~!. of the does not have to consider dictionary mean-
But that is not t t'o n of the me in the fit- ings when a plain reading of the provision
Was no considera 1 It would be . n of the brings out what was intended.
bove. inatIo
case as note d a irect exarn of learned (Paras 11. 12)
ness of things to d xper t in terrns e shall file
documents by th e e The ernployehich he re- .Cri. A. No. 3193 of 1999. D/ - 23 and 24-4-
.
SIngle Ju dge' S ord err rnents on W laced be- 2001 (Bombay).
originals of the dO~Ucopies were 11ant-Bank DU/DU/SI00202/2003/VNP/RTT/6041/2003
lies upon. of whic t The appe
fore the High co ur .
T _2
done then the requlnonlents of Ss. :274 and dence on commission by way of video
275 would be fullv nlet. To this tncthod there conferenclng - Evidence can be recorded
is however a dr~~\v hack. As (he \I,,'ilnt'ss is in studio /hall where video conferencing
nO\\I In Court there nlav be difficulties if he takes place - Court in MumbaJ would be
Commits contempt of Court or perjures hlIn- issuing commission to record such evi-
self and it Is inllllcdiatcl\' noticed that he dence - Thus commission would be ad-
has perjured hhnsclf. Tht:reforc as a nlatter dressed to Chief MetropoUtan Magistrate.
of prudence evldenc{' bv video conferencing Mumbai - Compliances to be made by
In open Court should IJC only if the \\ritncss officer deputed for the purpose. stated.
fs in a country \vhtch has an extradttlon Normany \vhen a Commission is issued.
treaty \vlth India and under \vhosc laws con- the recording \votlld have to be at the place
tenlpt of Court and perjury arc also punish- \vhere the witness is. Thus S. 285 provides
able. to \vhorn the Comnlission is to be directed.
(Para 19) If the \vitness ,is outside India. arrangenlents
(F) Criminal P.C. (2 of 1974). S. 284 - are required behveen India and that coun-
Issuance of commission - To record evi- try because the services of an official of the
dence by way of video conferencing - country (mostly a Judicial officer) \vould be
required to record the evidence and to en-
Permissible where attendance of witness sure/compel attendance. However. newad-
cannot be procured without an amount vancement of sCience and technology per-
of delay. expense or i~convenience. mit officials of the Court. in the city \vhere
itness is necessary
In cases where t h e W d f video conferencing is to take place. to record
for the ends ofJustice and the auedn wiaItlhc~~t the evidence. Thus \vhere a witness is \viII-
t be procure Ing to give evidence an official of the Court
such witness canno . nse or inconven-
an amount of delay. expe mstances of the can be deported the record evidence on Com-
fence which. under the Ci~lu the Court may mission by way of video conferencing. The
case would be unreas ona d:~ce and issue a evidence will be recorded in the studio/hall
dispense with such atten 10n of the witness. where the video conferencing takes place.
The Court in Mumb~i would issuing Com-
Commission for exaI11in~itness in USA has mission to record eVidence by Video
In the instant case th e to give evidence. conferencing in Mumbai. Therefore. the
dia
refused to come to In to be necessary for Commission would be addressed to the Chief
His evidence was foun~rts In India cannot Metropolitan MagIstrate. Mumbai who would
the ends of jUstice. Co Even otherwise to depute a responsible officer (preferably a
p~ocure his attenda~~~ witness from a far judicial officer) to proceed to the office of
procure attendance ld generally involve VSNL and record the evidence of in the pres-
of country like USA wou inconvenience. In ence of the respondent-accused. The officer
delay expense and/or uld be issued for shall ensure that the respondent and his
, i ions co i
such cases corn IU 55 lly a commiss on counsel are present when the 'evidence is
recording evidence. Norma I
'den ce at the pace recorded and that they are able to observe
would Involve recording eVl ver advancement the demeanour and hear the deposition of
where the witnesS is. Howe has nOW made it the witness. The officers shall also ensure
in science and techool~~ldence by way of that the 'respondent has full opportunity to
possible to record sUC the toW11/ city where cross-examine said witness. It must be clari-
Video conferencfng tn seS where the at- fied that adopting such a procedure may not
the Court is. ThUS to ca n ot be procured be possible if the witness is out of India and
es S can or in- not willing to give evidence.
ten dance of a \Vitn delay, expense .
Without an amount of ld consider ISSU- (Para 22)
rt cou d by
ConvenIence the Cou o rd the evi ence FiXing of time for recording evidence on
i i sion to rec Commission is always the duty of the of-
ng a comm s nferencing. (Para 20)
Way of video co 285 ficerwho has been deputed to so record evi-
2 of 1974 ). SSbe di: dence. Thus the officer recording the evi-
(G) Criminal P.C.Jl ( to ..".dbodl ign to dence would have the discretion to fix up
i coun- the time in consultation with VSNL. who are
273 _ COJlldl iSS 0 USA, fore Official
rected _ WitnesS 1Jl e~deJ1ce - ord evi- experts in the field and who. will know which
try _ Willing to gi"e llted to reo
of Court can be dep
2056 S.C. State of Maharashtra v. Praful B. Desai A. I. R.
Is the most convenient time for video cult to put documents or \vritten luaterial .
conferenclng with a person is USA. The re- to the Witness in cross-examination. It is now
spondent and his counsel will have LO make possible, to show to a party. \ViUl \vhom video
it convenient to attend at the time fixed by
conferencing is taking place. any amount of
the concerned officer. If they do not remain written material. The concerned officer will
present the Magistrate will take action, as ensure that once Video conferencing C0I11-
provided in law, to compel attendance. Of- mences. as far as possible, it is proceeded
ficer who will be deputed would be one Who
has authority to administer oaths. That of- with without any adjournments. Further if
it Is found that the Witness Is not attending
ficer will administer the oath ..By now sci-
ence and technology has progressed enough at the time is fixed. Without any suffiCient
cause, then It would be open for the Magis-
to not worry about a video image/audio In- trate to disallow recording of eVidence by
terruptions/distortions. Even if there are video conferencing. If the officer finds that
interruptions they would be of temporary the Witness Is not answering questions. the
duration. Undoubtedly an officer would have officer Will make a memo of the same. Fi-
to be deputed, either from India or from the nally when the evidence is read in Court.
Consulate/Embassy in the country where this is an aspect which will be taken in to
the evidence is being recorded who would consideration for testing the veracity of the
remain present when the evidence Is being eVidence. Undoubtedly the costs of Video
recorded and who will ensure that there is conferencing would have to be borne by the
no other person in the room where the wit- State. . .
ness is sitting whilst the evidence is being
recorded. That officer .will ensure that the (Para 24)
witness is not coached/tut9red/prompted. Cases Referred: ChronologiCal Paras
It would be advisable. though not necessary. BasavaraJ R. PatH v. State of Karnataka, AIR
that the witness be asked to give evidence 2000 SC 3214 : 2000 AIR sew 3692 : 2000
in a room in the Consultate/Embassy. As Crt W 4604 : (2000) 8 SCC 740 17
. the evidence is being recorded on Commis- SIL Import USA v. Exim Aides Silk Export-
sion that evidenc~ .will subsequently be read ers, AIR 1999 SC 1609 : 1999 AIR SCW
into Court. Thus. ~o question arises of the 1218 : 1999 Crt W 2276 : (999) 4 SCC
witness insulting tl].e Court. If on reading 567 16
the evj'flen~e the Court finds that the wit- Commr. of Income-tax. Bombay v. Mis.
ness ha~ peIjured himself. Just like in any Podar Cement Pvt. Ltd., AIR 1997 SC
other;evtd.ence on Commission the Court will 2523 : 1997 AIR SCW 2466 : 1997 Tax LR
690 : (1997) 5 SCC 482 16
ignore or ~isbelieve t~e evid~nce. It must be
remembered that there have been cases State v. S. J. Chaudhary, AIR 1996 SC
where evidence is recorded on Commission 1491 : 1996 AIR SCW 1128 : 1996 Cri W
1713 : (1996) 2 SCC 428 16
and by tbe:time it is read in Court the wit-
ness has left the country. There also have National Textile Workers Union v. P. R.
been cases where foreign witness has given Ramakrishnan. AIR 1983 SC 75 : 1983 Tax
evidence in a Court in India and that then LR 2407 : (1983) 1 SCC 228 15
gone away abroad. In all such cases Court Nageshwar Shri Krishna Ghobe v. State of
would not have been able to take any action Maharashtra, AIR 1973 SC 165 : 1973 Cri
in perjury as by the time the evidence was LJ 235 : (1973) 4 SCC 23 13
conSidered, and it was ascertained that there Ratilal Bhanji Mithani v. State of
was perjury. the witness w~s out of the JU- Maharashtra. AIR 1972 SC 1567 : 1972
risdiction of the Court. Even in those cases Cri W 1055 : (1972) 3 SCC 793 21
the Court could only ignore or disbelieve the A. K. Gopalan v. State of Madras. AIR 1950
evidence. The officer deputed will ensure SC 27 : (1950) 61 Cri W 1383 9
that the respondent. his counsel and one Nazir Ahmed v. Emperor, AIR 1936 PC 253
assistant are allowed in the studio when the (2) : (1936) 37 Cri W 897 9
evidence is being recorded. The officer will MaITland v. S. A. Craig, 497 US 836 11
alsO ensure that the respondent is not pre- Mrs. I~ldira Jaisingh. Sr. Advocate, V. B.
vented from bringing into the studio the pa- Joshi. S. S. Shinde and V. N. Raghupathy.
ers/documents which may be required by Advocates with her. for Appellant: P. C.
him or his counsel. That it would be diffi- Singhi-in-person. for Appellant: Ashok H.
2003 State of Maharashtra v. Praflll B. Desai s.c. 2057
Desai, Sr. Advocate. Shrldhar Y. ChHaIe. tvts. lion that \vhenever the conlplalnant's-\vife
f~lshnll I). Chandrachlld. T\-ls. Mcenakshl ate or drank the same \\'ould come out of
j'Ja g and AbhlJar P. 1\'edh. Advocates. \\'ith the \vound. It Is the case of the prosecution
1Jn1. for J~esp;)lldellts. that the complalnant's-\\1fe required 20/25
VARlAVA. J. : - L(!(l\'C granted. dressing a day for Illore than 3 1 '2 months in
the hospital and thereafter till her death. It
2. Heard parties. is the case of the prosecution that the conl-
3. "I11csc appeals are against a Judgnlcnt plainant's-w1fe suffered terrfble phvsical tor-
of the BOIllOUV High Court'dated 23rd/24th ture and mental agony. It is the case of the
April. 200 I. The quest Ion for consideration prosecution that the respondent did not once
is Whether in a crhllinal t rial. evidence can examine the conlplatnanfs-\vife after the
be recorded bv video confcrencint!. TIle Hlt!h operation. It is the case of the prosecution
COurt has hc·ld. on an interpretation of S. that the respondent dainled that the com-
273. Criminal Procedure Code. that it can- plafnant's-wtfe \vas not his patient. It is the
not be done. Crinl1nal Appeal (arising out of case of prosecution that the bill sent bv the
S. L. P. (Crlnlinal) No. 6814 of 200 I) is filed BOInbay Hospital belied the responden( case
by the State of Maharashtra. Criminal Ap- that the complainant's-Wife was not his pa-
peal (arising ou t of S. L. P. (Criminal) No. tient. The bill sent by the Bonlbay Hospital
6815 of 2001) is filed by Mr. P. C. Singhi. showed the fees charged by the respondent.
Who was the conlplainant. As the question It is the case of the prosecution that the
of law is comnlon in both 'these appeals. they Maharashtra Medical Council has. in an
are being disposed of by this comnl0n Judg- inquiry. held the respondent guilty of negli-
ment. In this Judgment parties will be rei gence and strictly warned him.
ferred to in their capacity in the Cr~j~~ 5. On a complaint by the complainant a
Appeal (arising out of S. L. p. (~~I~~r b! re: case under S. 338 read with SSt 109 and
6814 of 2001), Mr. P. C. Sing 114 of the Indian Penal Code was registered
ferred to as the complainant. . against the respondent and Dr. A. K.
e as follows. MukheIjee. Process \vas issued by·the Met-
4. Briefly stated the facts ar
s suffering Jrom ropolitan Magistrate. 23rd Court. Espla-
t',
The complainants wife wa f the pros- nade. Mumbai. The respondent challenged
terminal cancer. It is the ca~e ~fe was ex- the issue of process and carried the chal-
ecution that the complainant ~erg of Sloan lenge right up to this Court. The Special
alllined by Dr. Earnest Gree~ew York. USA. Leave Petition filed by the respOndent was
Kettering Memorial HospitaI. iOO erable and dismissed by this Court on 8th July. 1996.
who opined that she was Uh ~edicaUon. This Court directed the respondent to face
should be treated only w d his wife con- trial. We are told that evidence of six wit-
Thereafter the complainan~ a~s a consulting and nesses. including that of the complainant
the Investigating Officer. has been re-
SUIted the respondent. W ~ t 40 years. In
. Surgeon practising for the f~r Greenberg's corded. .
sPite of being made aware 0 gge~ted surgery 6. On 29th June, 1998 the prosecution
made an application to examine Dr.
OPinion the respondent SU the case of the
. Greenberg through video conferencing. The
to remove the uterus. It is Iainan t and his trial Court allowed that application on 16th
. Prosecution that the comP n the condi- August, 1999. The respondent challenged
Wife agreed to the operation ~d by the re- that order in the High Court. The High Court
Ho n that it would be perf7~~e prosecution has by the impugned order allowed the
, sPondent. It is the case 0 987 one Dr. A. f<-. criminal application filed by the respond-
that on 22nd December, 1 oI11plainant s-
1\6
'V{UkheIjee operate 0
When the stomach was op
d n the c
rosecution
\Vife. It Is the case of the ~ned ascetic flu-
that ent. Hence these two appeals.
s.c. 2061
State of !Vlaharashtra \'. Praful B. Desai
2003
In virt ual reality one can be I11ade to feel
fIl "." . -t·
ephonc"' Mil k C"rs books .. to include "micro· colcl when OIlt" is sil ttng in a hot rOOI11. one
m. to take llote- to Include -lise of tal)t.' can be Illadc ,to. hear the sound of ocean
d
trecorder'" ,oClunents" to Include -C0J11PU- when aile is sitting in thp Inollnta' < Ins. one
-d
er atabase's". can 1~e nladc to inla~ine that he is t-aking L
1 7. 'I1H~SC principles have also part tIl a Grand PrLx race whilst onc is re _
. been applied by this Court whllst laxln~ on one sofa etc . Video c onlerencln~
t'· L
I recorded. Thnt officer \vill ensure that the recorded by way of video conferencing, As
witness is not coached/tutored/prompted.
It would be advisable. though not necessary.
the trial has been pending for a long time
the trial Court is requested to dispose off j
j
that the witness be asked to give evidence the case as early as possible and in any case
in a room in the Consulate/Embassy. As the \vithin one year froln today. With these di- j
eVidence is ,being recorded on commission rections the Appeals stand disposed of. The
that eVidence wiI1 subsequently be .read into respondent shaH pay to the State and the j
Court. 'rhus no question arises 01 t~e wit- complainant the costs of these Appeals.
j
ness insulting the Court. If on read1I?g the Order accordingly.
eVidence the -Court finds that the WItness j
has perjured himself, just like in any ?t~er
eVidence on conunission. the Court will Ibg- AIR 2003 SUPREME COURT 2065 j
nore or disbelieve the eVidence, 1t nlust e (From : Madhya Pradesh)
- h have beel J ,cases j
1 eIl1enlbered that t ere f B. N. KIRPAL AND Mrs. RUMA PAL. JJ.
Where evidence is recorde~ on cO~~~~f~ Civil Appeals Nos. 5077 with 5078 of 2000 j
and by the tinlc it is read 111 Caur 1 I
. T'l ere a so lave (arising out of SLP (C) Nos, 3421 of 2000 j
ness has lcft the country, , 1 's has given with 15183 of 2000 (CC3889JJ. D/- 15-9-
been cases \vhere foreign ~ltI1esd th~t then 2000.
eVidence in a Court in IndIa an ~ Court j
g 11 such case~ Commissioner of Incollle-tax. Indore.
one a\vay abroad. In a k ny action in Appellant v, Mis. Panama Chemicals Works. j
WO~11d have been able to tavi~:~ce ~as con- Respondent.
~,erJury as by rhe time the ~ ined that there j
sldered. and it was ascer.a ut of the ju-
~as perjury. f he witness wasi~ those cases LS/LS/2000/300692/WG/CSL/22146/200 I j
rlsdi~tion ofthe Court. Even
j
200:J'S, c, (SUppl.)/130
j