State of Maharashtra and P.C. Singh vs Dr. Praful B. Desai and Anr.

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BRIEF FACTS OF THE CASE:

The summary of the facts is that 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 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 prosecution submitted a request to examine Dr. Greenberg via videoconferencing on June 29, 1998. On August 16, 1999, that application was granted by the trial court. 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.

LEGAL ISSUE:

The legal issue involved in this case is whether evidence can be recorded in a criminal trial through video conferencing.

ARGUMENT OF THE PETITIONER:

A procedure that uses “virtual reality” is against the law in India, according to Article 21 of the Constitution. This argument demonstrates a lack of understanding of video conferencing and virtual reality. A state in which one is made to feel, hear, or imagine something that does not really exist is known as virtual reality. In virtual reality, one can feel cold in a hot room, hear the ocean in the mountains, and even participate in a Grand Prix race while lying on a sofa. Video conferencing doesn’t have anything to do with computer generated reality. The world has effectively shrunk as a result of scientific and technological advancements. They now make it possible to see and hear events that are taking place far away as they actually are.

Video conferencing evidence recording also satisfies Section 273’s requirement that evidence be recorded in the accused’s presence. The accused and his pleading attorney are able to see the witness with the same clarity as if the witness were sitting in front of them. In point of fact, the accused may be able to see the witness more clearly than he would have been able to in a crowded courtroom sitting in the dock. They can observe how he or she acts. In fact, having the ability to replay would make it easier to observe people’s demeanors. They are able to hear and practice the witness’s deposition.

ARGUMENT OF THE RESPONDENT:

On behalf of the respondents, it was argued that a criminal trial’s procedure is crucial to the accused’s fundamental rights under Articles 14 and 21 of the Indian Constitution. It was argued that India’s Code of Criminal Procedure specifies the procedure for a criminal case’s trial. It was argued that the procedure to be followed during a criminal trial is specified and explicit in the Code of Criminal Procedure. It was presented that the method set down in the Code of Criminal Strategy was the “system laid out by regulation”. It was argued that the Legislature was the only one with the authority to modify the procedure by enacting a new law, and that once the procedure was modified, it became “the procedure established by law.” It was argued that violating Article 21 would require a deviation from the legal procedure. On the side of this accommodation, dependence was put on the instances of A. K. Gopalan versus the Province of Madras announced in AIR 1950 S. C. 27, Nazir Ahmed versus the Head announced in AIR 1936 Privy Board 253, and Siva Kumar Chadda versus the Metropolitan Company of Delhi detailed in AIR 1975 S. C. 915. There can be no debate with these suggestions. However, it cannot be claimed that “procedure established by law” has not been followed if the Criminal Procedure Code’s current provisions permit the recording of evidence via video conference.

This court was guided through various Criminal Procedure Code sections. Accentuation was laid on Segment 273, Criminal Strategy Code. It was argued that videoconferencing cannot be used to collect evidence under Section 273 of the Criminal Procedure Code. Accentuation was laid on the words “besides as in any case gave” in Segment 273 and it was presented that except if there is an express arrangement running against the norm, the system set down in Area 273 must be followed as it is compulsory. It was argued that evidence “shall be taken in the presence of the accused” is required by Section 273.

Video conferencing evidence recording also satisfies Section 273’s requirement that evidence be recorded in the accused’s presence. The accused and his pleading attorney are able to see the witness with the same clarity as if the witness were sitting in front of them. In point of fact, the accused may be able to see the witness more clearly than he would have been able to in a crowded courtroom sitting in the dock. They can observe how he or she acts. In fact, having the ability to replay would make it easier to observe people’s demeanors. They are able to hear and practice the witness’s deposition.

JUDGMENT:

The deputed officer is always responsible for setting the time for recording evidence on commission. As a result, the officer recording the evidence would be free to choose the time after consulting with VSNL, which is an expert in the field who will know the best time to video conference with someone in the United States. The respondent and his attorney will need to arrange to show up at the appointed time set by the concerned officer. The magistrate will take legal action to compel attendance if they do not remain present. We don’t have the smallest uncertainty that the official who will be deputed will be one who has the position to oversee vows. The oath will be taken by that officer. Science and technology have advanced to the point where you no longer need to be concerned about audio or video distortions or interruptions. Even if there are pauses, they will only last for a short time. Without a doubt, an official would need to be deputed, either from India or from the Department or Consulate in the nation where the proof is being recorded, who might stay present when the proof is being recorded and who might guarantee that there could be no one else in the room where the observer is sitting while the proof is being recorded. The witness will not be coached, tutored, or prompted by that officer. It would be fitting, however excessive, that the observer be approached to give proof in a room in the office or consulate. As the proof is being recorded on commission, that proof will accordingly be added something extra to court. Hence, no inquiry emerges about the observer offending the court. Similar to any other case of evidence on commission, the court will disregard or deny the evidence if, after reading the evidence, it concludes that the witness has lied.

As a result, the challenged verdict is overturned. The Judge will presently continue to have the proof of Dr. Greenberg recorded via video conferencing. Since the trial has been ongoing for a considerable amount of time, the trial court is urged to resolve the matter as soon as possible, preferably within the past year. The appeals remain unresolved in light of these directives.

written by Tarun Verma, Rajiv Gandhi National University of Law, Punjab

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