SUJOYMITRAversusSTATE OF WEST BENGAL

                        [2015] 14 S.C.R. 920


A                          SUJOYMITRA
                                  v.
                    STATE OF WEST BENGAL
                (Criminal Appeal No. 1620 of 2015)
B
                       DECEMBER 02, 2015
     [JAGDISH SINGH KHEHAR AND R. BANUMATHI, JJ.]
          Code of Criminal Procedure, 1973 - s.278 - Rape
    case - Recording of testimony of prosecutrix through video
C   conferencing - Complainant prosecutrix-PW5 a citizen of
    Ireland filed a complaint against appellant alleging rape -
    Four witnesses examined before examining PW5- Trial court
    accepted prayer to record testimony of PW5 through video
    conference - Appellant challenged the procedure adopted
D   by trial court, while recording the statement of PW5 through
    video conferencing by filing petition u/s.482 Cr.PC. - High
    Court laid down procedure for recording such statement- In
    the instant appeal, appellant alleged that the procedure
    postulated by High Court was not fair to him- Held: In addition
E   to the steps and safeguards provided in the impugned order,
    following procedure should be adopted, while recording the
    statement of PW5- State of West Bengal to make provision
    for recording the testimony of PW5 in trial Court by seeking
    the services of the NIC for installing the appropriate
F   equipment for video conferencing - Before recording her
    statement, the Embassy to nominate a responsible officer,
    in whose presence the statement would be recorded - The
    officer so deputed shall ensure and affirm to the trial court
    that there is no other person besides the concerned witness,
G   in the room, in which the testimony of PW5 is 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 - The statement of the
    witness shall be recorded in consonance with the provisions
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                                 920
       SUJOY MITRA v. STATE OF WEST BENGAL                     921


of s. 278-At the culmination of the recording of the statement, A
the same shall be read out to the witness in the presence of
the accused- The transcript of the statement of the witness
recorded through video conferencing shall be scanned and
dispatched through email to the Embassy-At the embassy,
the witness will authenticate the same in consonance with B
law - The said 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 - The statement received by C
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 PW5, for all intents and
purposes - Appellant's plea that recording of the video-
graphic testimony of the witness should be furnished to the o
appellant is rejected- These parameters have to be adopted
to record the testimony of PW5, in addition to the procedure
and safeguards provided for in the impugned order.
     State of Maharashtra vs. Dr. Praful B. Desai (2003)
     4 SCC 601 - referred to.                                  E
                     Case Law Reference
     (2003) 4 SCC 601       referred to. Para 6
    CRIMINAL APPELLATE JUSRISDICTION: Criminal
Appeal No. 1620 of 2015. ·                                     F

     From the Judgment and Order dated 17.06.2015 of the
High Court at Calcutta in CRR No. 1285 of 2015.
      Basant R., Sr. Adv., Manoj V. George, Francis Samson
Correa, Arvind Kumar Singh, Siju Thomas, RohitAdlakha (For     G
Zulfiker Ali P. S. ), Advs. for the Appellant.
     Joydeep Mazumdar, Rohit Dutta, Parijat Sinha, Advs. for
the Respondent.

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922         SUPREME COURT REPORTS                    [2015] 14 S.C.R.


A           The Judgment of the Court was delivered by
            JAGDISH SINGH KHEHAR, J. 1. 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
B     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
C     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 of the Code of Criminal Procedure. The learned
D Single Judge of the High Court of Calcutta, disposed of
  Criminal Revision No. 1285 of 2015, by passing the impugned
  order dated 16.06.2015. Alleging, that the postulated
  procedure was not fair to the appellant, the appellant has
  approached this Court.
E          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:
 F
          !)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 lnformatic Centre (NIC) for installing
  · the appropriate equipment for video conferencing, by using
 G "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
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        SUJOY MITRA v. STATE OF WEST BENGAL                        923
            [JAGDISH SINGH KHEHAR, J.]

compatible with the video conferencing facilities at the Indian    A
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    B
of each session, of recording of the said testimony.
       111) 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      c
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.
       IV) The statement of witness will then be recorded. The
witness shall be permitted to rely upon the material and D
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, E
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 F
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.             G
       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      H
924         SUPREME COURT REPORTS                    [2015] 14 S.C.R.


A     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
B     the recorded statement by the witness, and in addition thereto,
      record his own remarks, if necessary.
        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
C 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
D 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
 E    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.
 F    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
 G 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
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        SUJOY MITRA v. STATE OF WEST BENGAL                      925
            [JAGDISH SINGH KHEHAR, J.]

fully complied with. The instant contention of the learned senior A
counsel for the appellant is based on a variety 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 B
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 C
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 coRcerned 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), D
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 furnishi!1g 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 E
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 custodj What has been allowed to the accused herein, F
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 Court shall fix the date of hearing, as and when the video-
conferencing facilities have been provided for in the premises G
of the trial Court, and after the same have been synchronized
with the facilities available at the Indian Embassy in Ireland at
Dublin.

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926          SUPREME COURT REPORTS                   [2015] 14 S.C.R.


A           9. The tri<!I 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
8     procedure and safeguards provided for in the impugned order.
      Accordingly, it will be imperative to record her testimony afresh.


      Devika Gujra/                                   Appeal disposed of.