State of Maharashtra v. Praful B. Desai (Dr.)
(2003) 4 SCC 601
The complainant’s wife was suffering from terminal cancer. 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 was 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.
The complainant and his wife agreed to the operation on the condition that it would be performed by the Respondent. On 22nd December 1987 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.
Whenever the complainant’s wife ate or drank the same would come out of the wound. As a result, the complainant’s wife required 20/25 dressings a day for more than 3 1/2 months in the hospital and thereafter till her death.
The complainant’s wife then suffered terrible physical torture and mental agony. The Respondent later claimed that the complainant’s wife was not his patient. However, the bill sent by the Bombay Hospital showed that the fees were charged by the Respondent. It was the case of the prosecution that the Maharashtra Medical Council had, in an inquiry, held the Respondent guilty of negligence and strictly warned him. The doctor in question, Mr. Ernest Greenberg, was unwell and not willing to come to India to testify before the Court.
He, however, showed his assent to testify through video conferencing. The prosecution applied to examine Dr. Greenberg through video-conferencing.
Whether or not in a criminal trial, evidence can be recorded by video conferencing?
Yes, recording of evidence by video conferencing also satisfied the object of providing in Section 273 of the Indian Criminal Procedure Code. Court held that, the Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. That in fact the Accused would be able to see the witness better than he would have been able to, if he was sitting in the dock in a crowded Court room since they would observe his or her demeanour.
More so that the facility to play back would enable better observation of demeanour. They would hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness would be as effective, if not better.
That the facility of play back would also give an added advantage whilst cross-examining the witness. The witness would be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence was to be recorded by video conferencing. Thus no prejudice, of whatsoever nature, would be caused to the Accused.
Court in this case also observed that the advancement of science and technology was such that it was possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. If that was done then the requirements of Section 273 of the Indian Criminal Procedure Code would be fully met.
And that further to this method, there was however a drawback. As the witness would be in Court there would be difficulties if he/she committed contempt of Court or perjured him/herself and it was immediately noticed that he/she had perjured him/herself. Therefore as a matter of prudence evidence by video-conferencing in open Court would be only if the witness was in a country which had an extradition treaty with India and under whose laws contempt of Court and perjury were also punishable.
However, that even if the equipment could not be set up in Court, the Indian Criminal Procedure Code contained provisions for examination of witnesses on commissions. Sections 284 to 289 dealt with examination of witnesses on commissions. For that purpose, Sections 284 and 285 were relevant.
Thus in cases where the witness was necessary for the ends of justice and the attendance of such witness could not be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court would dispense with such attendance and issue a commission for examination of the witness.
Earlier in this case, Dr. Greenberg had refused to come to India to give evidence. His evidence appeared to be necessary for the ends of Justice and Courts in India could not procure his attendance. Even otherwise to procure attendance of a witness from a far of country like USA would generally involve delay, expense and/or inconvenience. In such cases, commissions could be issued for recording evidence.
And that normally when a Commission is to be issued, the recording has to be at the place where the witness is. Thus Section 285 of the Criminal Procedure Code provided to whom the Commission was to be directed. If the witness was outside India, arrangements were 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/compel attendance.
However new advancement of science and technology permitted officials of the Court, in the city where video conferencing was to take place, to record the evidence. Thus where a witness was willing to give evidence, an official of the Court would be deported to record evidence on commission by way of video-conferencing. And the evidence would be recorded in the studio/hall where the video-conferencing would take place.
The Court in Mumbai would be issuing commission to record evidence by video conferencing in Mumbai. Therefore, the commission would be addressed to the Chief Metropolitan Magistrate, Mumbai who would depute a responsible officer (preferably a Judicial Officer) to proceed to the office of VSNL and record the evidence of Dr. Greenberg in the presence of the Respondent. The officer would ensure that both the Respondent and his counsel are present when the evidence is to be recorded and that they were able to observe the demeanour and hear the deposition of Dr. Greenberg. The officers would also ensure that the Respondent has full opportunity to cross-examine Dr. Greenberg.
The concerned officer would also ensure that once video conferencing commenced, as far as possible, it was proceeded with without any adjournments. Further if it could be found that Dr Greenberg was not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing. And if the officer found that Dr. Greenberg was not answering questions, the officer would make a memo of the same.
Finally, when the evidence had to be read in Court, this would be an aspect which would be taken into consideration for testing the veracity of the evidence. The Magistrate would then proceed to have the evidence of Dr. Greenberg recorded by way of video conferencing.