St. of Maharashtra and P.C. Singh vs. Dr. Praful B. Desai and Anr., 2003

• The complainant’s wife was suffering from terminal cancer. The complainant’s wife was examined by a doctor in New York, USA; he advised that she is inoperable and should be treated only through medication. Thereafter the complainant contacted Dr. Praful B. Desai, the Respondent in the case.
• The Respondent advised surgery for the removal of the uterus; and the couple agreed to it, but only on the condition that the operation or surgery will be performed by the Respondent. However, contrary to the condition, the complainant’s wife was operated by Dr. A.K. Mukherjee.
• Dr. A.K. Mukherjee was not able to perform the surgery well and due to such incompetence in the performing of the surgery the complainant’s wife had to suffer physical pain and mental agony; and after she died.
• On a grievance by the complainant, a case under Section 338 read with section 109 and 114 of the Indian Penal Code was enrolled against the respondent and Dr. A. K. Mukherjee. The Metropolitan Magistrate of the 23rd Court, Esplanade, Mumbai, issued a process.
• The Maharashtra Medical Council made an enquiry and held the respondent guilty.
• The prosecution requested to Dr. Greenberg for given his opinion and he was ready to give evidence, but he refused to come India and was ready for the video conferencing.
• The trial court allowed video conferencing, but the High Court said evidence must be recorded in the presence of the accused.
• The respondent tested the issue of interaction and conveyed the test straight up to this court. On July 8, 1996, this Court disregarded the Respondent’s Special Leave Petitions. The respondent was ordered to stand trial by this court. We are informed that the complainant’s and the investigating officer’s testimony from six witnesses has been recorded.
• The respondent challenged that request in the High Court. The High Court has, by the impugned order, permitted the criminal application documented by the respondent. Subsequently these two requests.

• Whether the evidence recorded through video conference can be admissible?
• Whether the term under Section 273 Code of Criminal Procedure, 1972 ‘physical presence’ means only actual presence in the Court?

The Court held that evidence can be recorded by way of video conferencing relying on Section 273 with a different view, stating that where a witness is willing to give evidence an official of the Court can be deported to record evidence on commission by way of video conferencing.

If the witness is outside India, arrangements are required between India and that country because the services of an official of the country (mostly a Judicial Officer) would be required to record the evidence and to ensure attendance. 

• The Supreme Court observed that the High Court did not read Section 273 Cr.P.C. properly.
• Section 273 Cr.P.C. contemplates the constructive presence, and this shows actual physical presence is not a must.
• The evidence can be both oral and documentary and electronic recording which includes video conferencing.
• The first duty of the Court is to do justice and there would be failure of justice not only by unjust conviction but also by acquittal of guilty for unjustified failure to produced evidence.
• The law must adapt to the change in society and should accept the new technology.
• The Court further observed as far as the video conferencing concerned the essentials of Section 273 of Cr.P.C. can be met through video conferencing also.
• Recording of evidence through Video conferencing can also satisfy the object of Section 273 of Cr.P.C.
• If the witness is comfortable giving the evidence through video conferencing, then the officer will ensure that respondent and his counsel must be present in video conferencing.
• The court said the evidence which was given by Dr. Greenberg appears to be necessary to meet the ends of justice.
• The Magistrate has to take care that the witness answers properly and starts proceeding as far as possible.

The Indian legal system has recognized and embraced video conferencing as an extremely effective instrument to collect evidence as it aids in avoiding unnecessary adjournments of cases and also saves the parties from costs borne on transportation and other inconveniences that may arise.

Section 273, Code of Criminal Procedure, 1973:- 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.