Sujoy Mitra vs State Of West Bengal

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1620 OF 2015 (Arising from SLP(Criminal) No.8157/2015)

Sujoy Mitra ..Appellant

versus

State of West Bengal ..Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

Leave granted.

2. The appellant before this Court is an accused, who is facing

trial in ST No. 1(8) of 2014 arising out of Kalighat police

station Case No. 164/2013 dated 1.6.2013, inter alia, under Section

376 of the Indian Penal Code. The complainant in the above case is

a citizen of Ireland, resident in Dublin. Four witnesses were

examined by the trial Court before examining the prosecutrix-PW5.

The trial Court accepted to record the testimony of the

prosecutrix, through video conference.

3. The appellant before this Court raised a challenge to the

procedure adopted by the trial Court, while recording the statement

of PW5 on various grounds, by filing a petition under Section 482 Signature Not Verified Digitally signed by Parveen Kumar Chawla Date: 2015.12.12

of the Code of Criminal Procedure. The learned Single Judge of the 13:57:33 IST Reason:

High Court of Calcutta, disposed of Criminal Revision No. 1285 of

2015, by passing the impugned order dated 16.06.2015. Alleging, 2

that the postulated procedure was not fair to the appellant, the

appellant has approached this Court.

4. We have heard learned counsel for the rival parties at some

length, and are satisfied, that the following procedure should be

adopted, in addition to the steps and safeguards provided in the

impugned order, while recording the statement of PW5:

I) The State of West Bengal shall make provision for recording

the testimony of PW5 in the trial Court by seeking the services of

the National Informatic Centre (NIC) for installing the appropriate

equipment for video conferencing, by using “VC Solution” software,

to facilitate video conferencing in the case. This provision shall

be made by the State of West Bengal in a room to be identified by

the concerned Sessions Judge, within four weeks from today. The

NIC will ensure, that the equipment installed in the premises of

the trial Court, is compatible with the video conferencing

facilities at the Indian Embassy in Ireland at Dublin.

II) Before recording the statement of the prosecutrix-PW5, the

Embassy shall nominate a responsible officer, in whose presence the

statement is to be recorded. The said officer shall remain present

at all times from the beginning to the end of each session, of

recording of the said testimony.

III) The officer deputed to have the statement recorded shall also

ensure, that there is no other person besides the concerned

witness, in the room, in which the testimony of PW5 is to be

recorded. In case, the witness is in possession of any material or

documents, the same shall be taken over by the officer concerned in

his personal custody.

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IV) The statement of witness will then be recorded. The witness

shall be permitted to rely upon the material and documents in the

custody of the officer concerned, or to tender the same in

evidence, only with the express permission of the trial Court.

V) The officer concerned will affirm to the trial Court, before

the commencement of the recording of the statement, the fact, that

no other person is present in the room where evidence is recorded,

and further, that all material and documents in possession of the

prosecutrix-PW5 (if any) were taken by him in his custody before

the statement was recorded. He shall further affirm to the trial

Court, at the culmination of the testimony, that no other person

had entered the room, during the course of recording of the

statement of the witness, till the conclusion thereof. The learned

counsel for the accused shall assist the trial Court,to ensure,

that the above procedure is adopted, by placing reliance on the

instant order.

VI) The statement of the witness shall be recorded by the trial

Court, in consonance with the provisions of Section 278 of the Code

of Criminal Procedure. At the culmination of the recording of the

statement, the same shall be read out to the witness in the

presence of the accused (if in attendance,or to his pleader). If

the witness denies the correctness of any part of the evidence,

when the same is read over to her, the trial Court may make the

necessary correction, or alternatively, may record a memorandum

thereon, to the objection made to the recorded statement by the

witness, and in addition thereto, record his own remarks, if

necessary.

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VII) The transcript of the statement of the witness recorded

through video conferencing(as corrected, if necessary), in

consonance with the provisions of Section 278 of the Code of

Criminal Procedure, shall be scanned and dispatched through email

to the embassy. At the embassy, the witness will authenticate the

same in consonance with law. The aforesaid authenticated statement

shall be endorsed by the officer deputed by the embassy. It shall

be scanned and returned to the trial Court through email. The

statement signed by the witness at the embassy, shall be retained

in its custody in a sealed cover.

VIII) The statement received by the trial Court through email shall

be re-endorsed by the trial Judge. The instant statement endorsed

by the trial Judge, shall constitute the testimony of the

prosecutrix-PW5, for all intents and purposes.

5. We are satisfied, that the aforesaid parameters will meet

the ends of justice, and that no further inputs are required.

Needless to mention, that the procedure for recording the statement

of PW5, as noticed above, was finalised with the invaluable

assistance of the learned counsel for the rival parties.

6. In recording our conclusions in regulating the above

procedure, the learned senior counsel for the appellant emphasised,

that recording of the video-graphic testimony of the witness should

be furnished to the appellant, and it is only thereupon, that the

direction contained in the judgment rendered by this Court in State

of Maharashtra vs. Dr. Praful B. Desai (2003) 4 SCC 601, can be

deemed to have been fully complied with. The instant contention of

the learned senior counsel for the appellant is based on a variety 5

of reasons including the fact, that the statement may be recorded

in a language which is not known, and/or is not properly

understandable to the accused. And even if the statement of the

witness is recorded in English, because of different accents of

English (based on the countries of their origin), it may not be

possible to fully understand the testimony of the concerned

witness.

7. Having given our thoughtful consideration to the instant

contention advanced at the hands of the learned senior counsel for

the appellant, we find no reason whatsoever to agree with the same.

In case of there being any difficulty in recording the testimony of

the concerned witness, it is always open to the trial Court to seek

appropriate assistance (based on, or independently of such plea

raised by a party to the proceeding), as may be required by the

trial Court, for a truthful recording of the testimony of the

concerned witness. We are of the view, that furnishing recorded

video-graphic testimony to an accused may eventually turn out to be

a cumbersome process, if the same has to be replicated in all

cases. Specially because this procedure is increasingly being

adopted, by allowing the accused to participate in their trials,

from jail premises also (at certain stages of the trial). And

further more, it is likely to lead more record, which will also

have to be maintained for its safe custody. What has been allowed

to the accused herein, is what an ordinary accused would be

entitled to, had the statement been recorded by the trial Court

itself.

8. The instant appeal is accordingly disposed of. The trial 6

Court shall fix the date of hearing, as and when the

video-conferencing facilities have been provided for in the

premises of the trial Court, and after the same have been

synchronized with the facilities available at the Indian Embassy in

Ireland at Dublin.

9. The trial Court shall forward the instant order through

the Sessions Judge, 24 Parganas, Alipore to the Ambassador of the

Indian Embassy in Ireland at Dublin for compliance.

10. The instant parameters have to be adopted to record the

testimony of the prosecutrix-PW5, in addition to the procedure and

safeguards provided for in the impugned order. Accordingly, it

will be imperative to record her testimony afresh.

…....................J. [JAGDISH SINGH KHEHAR]

NEW DELHI; …....................J. DECEMBER 02, 2015. [R. BANUMATHI] 7

ITEM NO.4 COURT NO.3 SECTION IIB

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 8157/2015

(Arising out of impugned final judgment and order dated 17/06/2015 in CRR No. 1285/2015 passed by the High Court Of Calcutta)

SUJOY MITRA Petitioner(s)

VERSUS

STATE OF WEST BENGAL Respondent(s) (with appln. (s) for permission to file addl. documents)

Date : 02/12/2015 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MRS. JUSTICE R. BANUMATHI

For Petitioner(s) Mr. Basant R, Sr. Adv.

Mr. Manoj V. George, Adv.

Mr. Francis Samson Correa, Adv.

Mr. Arvind Kumar Singh, Adv.

Mr. Siju Thomas, Adv.

Mr. Rohit Adlakha, Adv.

for Mr. Zulfiker Ali P. S,AOR

For Respondent(s) Mr. Joydeep Mazumdar, Adv.

Mr. Rohit Dutta, Adv.

Mr. Parijat Sinha,Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal stands disposed of in terms of the reportable judgment, which is placed on the file.

(Tapan Kr. Chakraborty) (Parveen Kr. Chawla) Court Master AR-cum-PS