MANJU DEVIversusSTATE OF RAJASTHAN & ANR.

68                       [2019]
              SUPREME COURT     6 S.C.R. 68
                             REPORTS                      [2019] 6 S.C.R.


A                              MANJU DEVI
                                      v.
                     STATE OF RAJASTHAN & ANR.
                      (Criminal Appeal No. 688 of 2019)
B                              APRIL 16, 2019
                   [ABHAY MANOHAR SAPRE AND
                      DINESH MAHESHWARI, JJ.]
            Code of Criminal Procedure, 1973: s. 311 – Power to summon
C    material witness, or examine person present – On facts, accused
     facing trial for offences u/ss. 302, 304B and 498A IPC due to death
     of his wife under unnatural circumstances in Nigeria – First post
     mortem of the victim carried out by the doctor in Nigeria –
     Application u/s. 311 by mother of the victim seeking summoning of
     the said doctor through High Commission of Nigeria or to record
D
     his evidence through video conferencing after issuing a commission
     for the purpose – Rejected by trial court as also High Court – On
     appeal, held: Testimony of the Nigerian doctor who conducted the
     first post-mortem in Nigeria is germane to the questions involved in
     this matter; and for a just decision of the case with adequate
E    opportunity to both the parties to put forward their case, the
     application u/s. 311 allowed – Length/duration of a case cannot
     displace the basic requirement of ensuring the just decision after
     taking all the necessary and material evidence on record – Trial
     court to take all the necessary measures for ensuring the examination
     of the witness concerned by issuing commission and/or recording
F
     his statement through video-conferencing.
           Allowing the appeal, the Court
           HELD: 1.1 The discretionary powers like those under
     Section 311 of the Code of Criminal Procedure, 1973 are
G    essentially intended to ensure that every necessary and
     appropriate measure is taken by the Court to keep the record
     straight and to clear any ambiguity in so far as the evidence is
     concerned as also to ensure that no prejudice is caused to anyone.
     [Para 9.1][76-F]

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                                      68
       MANJU DEVI v. STATE OF RAJASTHAN & ANR.                           69


       1.2 The copy of the post-mortem report prepared by the            A
doctor in Nigeria has, been placed on record wherein, the cause
of death is stated as “asphyxia secondary to strangulation”. Though
the dead-body of the daughter of appellant was brought to India
on 29.01.2010 and Medical Board was constituted for conducting
the post-mortem but then, the Board found that no definite opinion
                                                                         B
could be given regarding the time and cause of death. The
investigating agency, for the reasons best known to it, did not
cite the said doctor, who conducted the first post-mortem in
Nigeria as a witness. It is also not the case on behalf of the accused
that the copy of the post-mortem report dated 16.01.2010
prepared in Nigeria was not disputed and/or he would not be              C
seeking to cross-examine the said doctor, if he is examined as a
witness in this matter. In the given set of facts and circumstances,
it is evident that the testimony of the said doctor who conducted
the first post-mortem in Nigeria is germane to the questions
involved in this matter; and for a just decision of the case with
                                                                         D
adequate opportunity to both the parties to put forward their case,
the application under Section 311 CrPC ought to have been
allowed. [Para 10][76-E-H; 77-A]
      1.3 The peculiar facts and circumstances of the case have
either been ignored or have been cursorily dealt by the trial court
with the observations that the effect of non-availability of the         E
original post-mortem report would be considered at the time of
the final disposal of the matter. In fact, the principal reason
weighing with the trial court in declining the prayer for
examination of the said witness had been that the case was pending
since the year 2010. The High Court, on the other hand, chose            F
not to exercise its powers under Section 482 CrPC, with the only
observation that the discretion so exercised by the trial court
was not to be interfered with. [Para 11][77-B-C]
     1.4 Though it is expected that the trial of a sessions case
should proceed with reasonable expedition and pendency of such           G
a matter for about 8-9 years is not desirable but then, the length/
duration of a case cannot displace the basic requirement of
ensuring the just decision after taking all the necessary and
material evidence on record. In other words, the age of a case,

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70            SUPREME COURT REPORTS                      [2019] 6 S.C.R.


A    by itself, cannot be decisive of the matter when a prayer is made
     for examination of a material witness. [Para 12][77-D]
            1.5 In the given set of facts and circumstances, where the
     witness Dr. Y is residing in Nigeria, for the purpose of recording
     of his statement, the trial court could have unquestionably taken
B    recourse to the provisions of Sections 284 and 285 CrPC so as
     to avoid the delay in the matter and inconvenience to the parties
     and the witness. On the question of inconvenience likely to be
     caused in the event of summoning of the said witness from
     Nigeria, noticeable it is that the appellant made a prayer that the
     doctor concerned being not available in the country, the order
C    may be passed for taking his evidence by issuing commission
     under Sections 284 and 285 CrPC. In the instant case too, where
     the witness Dr. Y is residing in Nigeria, in order to avoid
     inconvenience to the witness as also to the parties, issuing of
     commission and recording his evidence through video-
D    conferencing appears to be a viable alternative; and the trial court
     need to take all the requisite steps so as to ensure that his
     evidence comes on record with least inconvenience and/or burden
     to the parties and the witness. [Paras 13, 13.1, 13.3][77-E-F;
     78-G-H; 79-A; 80-E-F]
E          State of Maharashtra v. Dr. Praful B. Desai (2003) 4
           SCC 601 : [2003] 3 SCR 244 – referred to.
            1.6 The trial court disposed of the application under Section
     311 CrPC on entirely irrelevant considerations and the High Court
     also failed to exercise its jurisdiction under Section 482 CrPC
F    while overlooking and ignoring the material and relevant aspects
     of the case. The impugned orders are set aside and the application
     moved in this matter under Section 311 CrPC is allowed. The
     trial court shall now take all the necessary measures for ensuring
     the examination of the witness concerned by issuing commission
     and/or recording his statement through video-conferencing and
G    shall also ensure expeditious proceedings so as to conclude the
     matter at the earliest. [Para 14, 16][80-F-H; 81-B]
           Mohanlal Shamji Soni v. Union of India 1991 Supp (1)
           SCC 271 : [1991] 1 SCR 712 ; Zahira Habibulla H.
           Sheikh v. State of Gujarat (2004) 4 SCC 158 : [2004] 3
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       MANJU DEVI v. STATE OF RAJASTHAN & ANR.                             71


      SCR 1050 ; Mina Lalita Baruwa v. State of Orissa and                 A
      Others (2013) 16 SCC 173 : [2013] 16 SCR 788 ;
      Rajaram Prasad Yadav v. State of Bihar and Ors 2013
      (14) SCC 461 : [2013] 7 SCR 420 ; Natasha Singh v.
      CBI (State) 2013 (5) SCC 741 : [2013] 5 SCR 539
      – referred to.
                                                                           B
                        Case Law Reference
[1991] 1 SCR 712                 referred to              Para 9.1
[2004] 3 SCR 1050                referred to              Para 9.1
[2013] 16 SCR 788                referred to              Para 9.1         C
[2013] 7 SCR 420                 referred to              Para 9.1
[2013] 5 SCR 539                 referred to              Para 9.1
[2003] 3 SCR 244                 referred to              Para 13.2
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                    D
No. 688 of 2019.
       From the Judgment and Order dated 02.08.2018 of the High Court
of Judicature for Rajasthan at Jodhpur Bench in S.B. Criminal Misc.
(Petition) No. 2282 of 2018.
      Rahul Mohod, Raju Sonkar, Arun Adlakha, Karunakar Mahalik,           E
Advs. for the Appellant.
     Anish Roy, Milind Kumar, T. Harish Kumar Advs. for the
Respondents.
      The Judgment of the Court was delivered by                           F
      DINESH MAHESHWARI, J.
      1. Leave granted.
      2. In Sessions Case No. 05 of 2015 in the Court of Additional
Sessions Judge Ratangarh, District Churu (Rajasthan), the accused-
respondent No. 2 is facing trial for offences under Sections 302, 304-B    G
and 498-A of the Indian Penal Code (‘IPC’) due to the death of his wife
under unnatural circumstances in Nigeria. The appellant, mother of the
deceased, moved an application under Section 311 of the Code of Criminal
Procedure (‘CrPC’) in the said case, seeking summoning of one Dr. I.
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72             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A    Yusuf (who had conducted first post-mortem of the dead-body of the
     appellant’s daughter in Nigeria) through High Commission of Nigeria or
     to record his evidence through video-conferencing, after issuing a
     commission for the purpose.
            2.1. By its order dated 31.05.2018, the Trial Court rejected the
B    application so moved by the appellant, essentially for reasons that the
     trial was pending for almost 8 years; and that it was not necessary to
     record the statement of Dr. I. Yusuf because a copy of the post-mortem
     report prepared by him had already been exhibited. The appellant
     attempted to question the order so passed by the Trial Court before the
     High Court of Judicature for Rajasthan at Jodhpur in Criminal
C    Miscellaneous Petition No. 2282 of 2018. However, the High Court
     dismissed the said petition by its impugned order dated 02.08.2018 with
     the observation that there was no reason to interfere in the exercise of
     discretion by the Trial Court. Aggrieved, the appellant has preferred this
     appeal by special leave.
D          3. The background aspects, so far relevant for the present purpose,
     could be noticed, in brief, as follows:
            3.1. The prosecution case is that the deceased daughter of the
     appellant was married to the accused-respondent No. 2 on 21.04.2008
     at Rajaldesar; she was residing in her matrimonial home alongwith father
E    and mother of her husband; and later on she had shifted to Bangalore
     and then to Nigeria with her husband but was regularly harassed with
     demand for dowry. It is alleged that on 14.01.2010, the appellant’s
     daughter, while living with her husband (the accused-respondent No. 2)
     in Nigeria, died under unnatural circumstances when she was found
F    hanging from the ceiling fan in her room. An FIR bearing No. 10 of 2010
     was lodged at Police Station Rajaldesar, District Churu by the husband
     of appellant (father of the deceased), alleging, inter alia, that his daughter
     was harassed with persistent demands for dowry and she was subjected
     to cruelty to the extent that it ultimately led to her death in Nigeria.

G           3.2. The first post-mortem of the dead-body of the appellant’s
     daughter was conducted by Dr. I.Yusuf in Aminu Kanu Teaching
     Hospital, Nigeria on 16.01.2010 who, upon examination, stated his opinion
     that the cause of death was “asphyxia secondary to strangulation”.
     Thereafter, the dead-body of the appellant’s daughter was brought to
     India where a Medical Board was constituted for further post-mortem
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        MANJU DEVI v. STATE OF RAJASTHAN & ANR.                                  73
               [DINESH MAHESHWARI, J.]

but the Medical Board stated that no definite opinion could be formed            A
regarding the time and cause of death of the daughter of the appellant.
After investigation, charge-sheet was filed against the respondent No. 2
for the offences under Sections 302, 304-B and 498-A IPC.
       3.3. In the trial, the prosecution led its evidence and various
witnesses were examined but as the members of the Board were unable              B
to give any definite opinion as to the cause of death, an application under
Section 311 CrPC was moved by the appellant, for issuance of summons
to the said Dr. I. Yusuf, Department of Pathology, Aminu Kanu Teaching
Hospital, Nigeria, who had first conducted the post-mortem of the dead-
body of the appellant’s daughter in Nigeria, so that he may be examined
as a medical witness. It was also submitted in the alternative that the          C
evidence of the said doctor may be recorded through video-conferencing.
       4. As noticed, in its impugned order dated 31.05.2018, the Trial
Court rejected the said application while observing that the matter was
pending since the year 2010 and, as the photocopy of the post-mortem
report prepared in Nigeria was available on record, it was not necessary         D
to record the statement of Dr. I. Yusuf. The Trial Court also observed
that the effect of want of original post-mortem report shall be examined
at the time of final decision of the matter.
       5. Against the order aforesaid, the appellant filed a criminal
miscellaneous petition under Section 482 CrPC before the High Court              E
of Judicature for Rajasthan at Jodhpur while contending, inter alia, that
Dr. I. Yusuf was a material witness in the case and the prosecution had
illegally omitted to cite him as a witness. However, the petition was
dismissed by the High Court by way of its impugned order dated
02.08.2018 while observing that in the overall facts and circumstances           F
of the case, the discretion exercised by the Trial Court called for no
interference.
       6. Assailing the order aforesaid, the learned counsel for the
appellant has strenuously argued that the Trial Court and the High Court
have failed to appreciate the relevance of the evidence of Dr. I Yusuf,          G
who conducted the first post-mortem of the dead-body of the daughter
of appellant; and his testimony is essential to arrive at the just decision in
this case. The learned counsel would submit that the order of the Trial
Court rejecting the application on the ground that the trial was pending
for last about 8 years is not of a judicious approach to the case; and that
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74              SUPREME COURT REPORTS                               [2019] 6 S.C.R.


A    the Trial Court should ensure that the material evidence comes on record
     so as to arrive at just conclusion.
           7. Per contra, learned counsel for the accused-respondent No. 2
     has duly supported the order impugned with the submissions that the
     appellant only seeks protraction of the trial with the baseless application
B    under Section 311 CrPC. According to the learned counsel, the Trial
     Court has consciously exercised its discretion in rejecting the application
     and the High Court has rightly declined to interfere.
             8. Having given thoughtful consideration to the rival submissions
     and having examined record with reference to the law applicable, we
C    find it difficult to approve the orders impugned; and it appears just and
     proper that the application moved in this matter under Section 311 CrPC
     be allowed with direction to the Trial Court to ensure that the testimony
     of the doctor conducting first post-mortem comes on record.
            9. Section 311 CrPC reads as under:-
D           “311. Power to summon material witness, or examine person
            present: Any Court may, at any stage of any inquiry, trial or
            other proceeding under this Code, summon any person as a
            witness, or examine any person in attendance, though not
            summoned as a witness, or recall and re-examine any person
            already examined; and the Court shall summon and examine
E
            or recall and re-examine any such person if his evidence
            appears to it to be essential to the just decision of the case”

            9.1. It needs hardly any emphasis that the discretionary powers
     like those under Section 311 CrPC are essentially intended to ensure
F    that every necessary and appropriate measure is taken by the Court to
     keep the record straight and to clear any ambiguity in so far as the
     evidence is concerned as also to ensure that no prejudice is caused to
     anyone. The principles underlying Section 311 CrPC and amplitude of
     the powers of the Court thereunder have been explained by this Court in
     several decisions1. In Natasha Singh v. CBI (State) : (2013) 5 SCC
G    741, though the application for examination of witnesses was filed by
     1
       Vide Mohanlal Shamji Soni v. Union of India: 1991 Supp (1) SCC 271, Zahira
     Habibulla H. Sheikh v. State of Gujarat: (2004) 4 SCC 158, Mina Lalita Baruwa v.
     State of Orissa and Others : (2013) 16 SCC 173 and Rajaram Prasad Yadav v. State of
     Bihar and Ors : 2013 (14) SCC 461 and Natasha Singh v. CBI (State) : 2013 (5)
H    SCC 741.
       MANJU DEVI v. STATE OF RAJASTHAN & ANR.                                 75
              [DINESH MAHESHWARI, J.]

the accused but, on the principles relating to the exercise of powers          A
under Section 311, this Court observed, inter alia, as under:-

      “ 8. Section 311 CrPC empowers the court to summon a
      material witness, or to examine a person present at “any stage”
      of “any enquiry”, or “trial”, or “any other proceedings”
                                                                               B
      under CrPC, or to summon any person as a witness, or to
      recall and re-examine any person who has already been
      examined if his evidence appears to it, to be essential to the arrival
      of a just decision of the case. Undoubtedly, the CrPC has
      conferred a very wide discretionary power upon the court in
      this respect, but such a discretion is to be exercised judiciously       C
      and not arbitrarily. The power of the court in this context is
      very wide, and in exercise of the same, it may summon any
      person as a witness at any stage of the trial, or other
      proceedings. The court is competent to exercise such power
      even suo motu if no such application has been filed by either
                                                                               D
      of the parties. However, the court must satisfy itself, that it
      was in fact essential to examine such a witness, or to recall
      him for further examination in order to arrive at a just decision
      of the case.
      ***                         ***                        **”
                                                                               E
      15. The scope and object of the provision is to enable the
      court to determine the truth and to render a just decision
      after discovering all relevant facts and obtaining proper proof
      of such facts, to arrive at a just decision of the case. Power
      must be exercised judiciously and not capriciously or
      arbitrarily, as any improper or capricious exercise of such              F
      power may lead to undesirable results. An application under
      Section 311 CrPC must not be allowed only to fill up a lacuna
      in the case of the prosecution, or of the defence, or to the
      disadvantage of the accused, or to cause serious prejudice
      to the defence of the accused, or to give an unfair advantage            G
      to the opposite party. Further, the additional evidence must not
      be received as a disguise for retrial, or to change the nature
      of the case against either of the parties. Such a power must
      be exercised, provided that the evidence that is likely to be

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76             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A          tendered by a witness, is germane to the issue involved. An
           opportunity of rebuttal however, must be given to the other
           party. The power conferred under Section 311 CrPC must
           therefore, be invoked by the court only in order to meet the
           ends of justice, for strong and valid reasons, and the same
           must be exercised with great caution and circumspection. The
B
           very use of words such as “any Court”, “at any stage”, or
           “or any enquiry, trial or other proceedings”, “any person”
           and “any such person” clearly spells out that the provisions
           of this section have been expressed in the widest possible
           terms, and do not limit the discretion of the Court in any way.
C          There is thus no escape if the fresh evidence to be obtained is
           essential to the just decision of the case. The determinative
           factor should therefore be, whether the summoning/recalling
           of the said witness is in fact, essential to the just decision of
           the case.”
D           10. The indisputable fact situation of the case remains that the
     daughter of the appellant died an unnatural death on 14.01.2010 in Nigeria,
     where she was living with her husband (the respondent No. 2), who is
     standing the trial for offences under Sections 302, 304-B and 498-A
     IPC. The first post-mortem of the dead-body of the daughter of appellant
     was carried out on 16.01.2010 in Aminu Kanu Teaching Hospital, Nigeria
E    by the said Dr. I. Yusuf. A copy of the post-mortem report prepared by
     the said doctor in Nigeria has, of course, been placed on record wherein,
     the cause of death is stated as “asphyxia secondary to strangulation”.
     Though the dead-body of the daughter of appellant was brought to India
     on 29.01.2010 and Medical Board was constituted for conducting the
F    post-mortem but then, the Board found that no definite opinion could be
     given regarding the time and cause of death. The investigating agency,
     for the reasons best known to it, did not cite the said doctor, who conducted
     the first post-mortem in Nigeria as a witness. It is also not the case on
     behalf of the accused that the copy of the post-mortem report dated
     16.01.2010 prepared in Nigeria was not disputed and/or he would not be
G    seeking to cross-examine the said doctor, if he is examined as a witness
     in this matter. In the given set of facts and circumstances, evident it is
     that the testimony of the said doctor who conducted the first post-mortem
     in Nigeria is germane to the questions involved in this matter; and for a

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        MANJU DEVI v. STATE OF RAJASTHAN & ANR.                                77
               [DINESH MAHESHWARI, J.]

just decision of the case with adequate opportunity to both the parties to     A
put forward their case, the application under Section 311 CrPC ought to
have been allowed.
       11. The peculiar facts and circumstances of the case have either
been ignored or have been cursorily dealt by the Trial Court with the
observations that the effect of non-availability of the original post-mortem   B
report would be considered at the time of the final disposal of the matter.
In fact, the principal reason weighing with the Trial Court in declining
the prayer for examination of the said witness had been that the case
was pending since the year 2010. The High Court, on the other hand,
chose not to exercise its powers under Section 482 CrPC, with the only
observation that the discretion so exercised by the Trial Court was not to     C
be interfered with.
      12. Though it is expected that the trial of a sessions case should
proceed with reasonable expedition and pendency of such a matter for
about 8-9 years is not desirable but then, the length/duration of a case
cannot displace the basic requirement of ensuring the just decision after      D
taking all the necessary and material evidence on record. In other words,
the age of a case, by itself, cannot be decisive of the matter when a
prayer is made for examination of a material witness.
       13. In the given set of facts and circumstances, where the witness
Dr. I. Yusuf is residing in Nigeria, for the purpose of recording of his       E
statement, the Trial Court could have unquestionably taken recourse to
the provisions of Sections 284 and 285 CrPC so as to avoid the delay in
the matter and inconvenience to the parties and the witness. Sections
284 and 285 CrPC read as under:-
      Section 284. When attendance of witness may be dispensed                 F
      with and commission issued. -
      (1) Whenever, in the course of any inquiry, trial or other
          proceeding under this Code, it appears to a Court of
          Magistrate that the examination of a witness is necessary
          for the ends of justice, and that the attendance of such             G
          witness cannot be procured without an amount of delay,
          expense or inconvenience which, under the
          circumstances of the case, would be unreasonable, the

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78            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A                Court or Magistrate may dispense with such attendance
                 and may issue a commission for the examination of the
                 witness in accordance with the provisions of this
                 Chapter;
                 Provided that where the examination of the President or
B                the Vice-President of India or the Governor of a State
                 or the Administrator of a Union territory as a witness is
                 necessary for the ends of justice, a commission shall be
                 issued for the examination of such a witness.
           (2)   The Court may, when issuing a commission for the
C                examination of a witness for the prosecution direct that
                 such amount as the Court considers reasonable to meet
                 the expenses of the accused, including the pleader’s fees,
                 be paid by the prosecution.
           Section 285. Commission to whom to be issued.-
D          (1) If the witness is within the territories to which this Code
               extends, the commission shall be directed to the Chief
               Metropolitan Magistrate or Chief Judicial Magistrate, as
               the case may be, within whose local jurisdiction the witness
               is to be found.
E          (2) If the witness is in India, but in a State or an area to
               which this Code does not extend, the commission shall be
               directed to such Court or officer as the Central
               Government may, by notification specify in this behalf.
           (3) If the witness is in a country or place outside India and
F               arrangements have been made by the Central
                Government with the Government of such country or place
                for taking the evidence of witnesses in relation to criminal
                matters, the commission shall be issued in such form,
                directed to such Court or officer, and sent to such authority
                for transmission as the Central Government may, by
G
                notification prescribe in this behalf
            13.1. On the question of inconvenience likely to be caused in the
     event of summoning of the said witness from Nigeria, noticeable it is
     that the appellant made a prayer that the doctor concerned being not
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        MANJU DEVI v. STATE OF RAJASTHAN & ANR.                               79
               [DINESH MAHESHWARI, J.]

available in the country, the order may be passed for taking his evidence     A
by issuing commission under Sections 284 and 285 CrPC. The appellant
stated in the application, inter alia, as under:-
      “That however witness is residing in foreign and post-mortem
      was conducted also there, hence witness should be summoned
      through High Commission of Nigeria or order may be passed               B
      of taking evidence record on commission after issuing
      commission U/s 284, 285 in CrPC through video conferencing
      in case of not coming from foreign.”
       13.2 The aforesaid relevant submissions of the appellant have
also been ignored by the Trial Court as also by the High Court. For the       C
purpose of dealing with such a prayer of the appellant the Trial Court
could have, rather ought to have, taken guidance from the decisions
of this Court including that in State of Maharashtra v. Dr. Praful B.
Desai : (2003) 4 SCC 601 where this Court approved of the process
of recording the evidence of a witness in the criminal trial through video-
conferencing when the witness was found residing/situate in the United        D
States of America but whose evidence was essential for the case set up
by the prosecution. This Court observed, inter alia, as under:-
      “20. Recording the evidence by video-conferencing also
      satisfies the object of providing, in Section 273, that evidence
      be recorded in the presence of the Accused. The Accused and             E
      his pleader can see the witness as clearly as if the witness
      was actually sitting before them. In fact the Accused may be
      able to see the witness better than he may have been able to if
      he was sitting in the dock in a crowded Court room. They can
      observe his or her demeanour. In fact the facility to play back         F
      would enable better observation of demeanour. They can 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 is as effective if not better. The
      facility of play back would give an added advantage whilst
      cross-examining the witness. The witness can be confronted              G
      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 is recorded by video-conferencing.
      Thus no prejudice, of whatsoever nature, is caused to the
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80             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A          Accused. Of course, as set out hereinafter, evidence by video-
           conferencing has to be on some conditions.”
           Thereafter, with reference to Sections 284 and 285 CrPC, this
     Court further observed that,-

B          “22. ….. Thus in cases where the witness is necessary for the
           ends of justice and the attendance of such witness cannot be
           procured without an amount of delay, expense or
           inconvenience which, under the circumstances of the case
           would be unreasonable, the Court may dispense with such
           attendance and issue a commission for examination of the
C          witness. …… Normally a commission would involve recording
           evidence at the place where the witness is. However
           advancement in science and technology has now made it
           possible to record such evidence by way of video-conferencing
           in the town/city where the Court is. Thus in case where the
D          attendance of a witness cannot be procured without an amount
           of delay, expense or inconvenience the Court could consider
           issuing a commission to record the evidence by way of video-
           conferencing.”
            13.3. In the present case too, where the witness Dr. I.Yusuf is
E    residing in Nigeria, in order to avoid inconvenience to the witness as also
     to the parties, issuing of commission and recording his evidence through
     video-conferencing appears to be a viable alternative; and the Trial
     Court need to take all the requisite steps so as to ensure that his evidence
     comes on record with least inconvenience and/or burden to the parties
     and the witness.
F
             14. In the given set of facts and circumstances, we are clearly of
     the view that the Trial Court disposed of the application under Section
     311 CrPC on entirely irrelevant considerations and the High Court also
     failed to exercise its jurisdiction under Section 482 CrPC while overlooking
     and ignoring the material and relevant aspects of the case. In our view,
G    the said application under Section 311 CrPC deserves to be allowed.
            15. It goes without saying that we have not made any comments
     on the merits of the case; and the Trial Court would be expected to deal
     with the matter in accordance with law after assessment of the evidence
     brought on record.
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         MANJU DEVI v. STATE OF RAJASTHAN & ANR.                            81
                [DINESH MAHESHWARI, J.]

       16. Accordingly, this appeal is allowed in the manner and to the     A
extent that the impugned orders dated 31.05.2018 and 02.08.2018 are
set aside and the application moved in this matter under Section 311
CrPC is allowed. The Trial Court shall now take all the necessary
measures for ensuring the examination of the witness concerned by
issuing commission and/or recording his statement through video-
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conferencing and shall also ensure expeditious proceedings so as to
conclude the matter at the earliest.


Nidhi Jain                                                Appeal allowed.

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