Holding

Section 273 CrPC permits evidence to be recorded by video‑conferencing as constructive presence, and electronic records are admissible, provided procedural safeguards are met.

Summary

The State of Maharashtra filed a criminal complaint under IPC sections 338, 109 and 114 alleging medical negligence by Dr. Praful B. Desai and Dr. A.K. Mukherjee, leading to the death of the complainant's wife. The trial court permitted the testimony of a US doctor, Dr. Greenberg, via video‑conferencing; the High Court set aside that order, holding that Section 273 of the CrPC required the accused’s physical presence. On appeal, the Supreme Court examined whether evidence could be recorded by video‑conferencing under Section 273, the Indian Evidence Act, and Article 21 of the Constitution. It held that Section 273 allows constructive presence through the accused’s pleader, that electronic records are admissible, and that video‑conferencing satisfies the statutory requirement of presence, provided procedural safeguards are observed. The Court also discussed the need for reciprocal arrangements for commissions and the applicability of the ‘ongoing statute’ principle. Consequently, the High Court’s order was set aside and the trial court was directed to record Dr. Greenberg’s evidence by video‑conferencing, with costs awarded to the State and complainant.

Issues considered

Whether evidence may be recorded by video‑conferencing in a criminal trial under Section 273 of the Criminal Procedure Code.
Whether the requirement of the accused’s presence in Section 273 can be satisfied by constructive presence through the pleader.
Whether electronic records, including video‑conferencing, are admissible under the Indian Evidence Act.
Whether allowing video‑conferencing violates the accused’s right to a fair trial under Article 21 of the Constitution.
Whether a commission for recording evidence can be issued without a reciprocal arrangement with the foreign country.

Legislation cited

Code of Criminal Procedure, 1973s. 273, s. 274, s. 275, s. 284, s. 285
Constitution of Indias. 21
Indian Evidence Act, 1872s. 3
Indian Penal Code, 1860s. 109, s. 114, s. 338

Subjects

video conferencingelectronic evidencecriminal trialSection 273 CrPCconstructive presenceArticle 21statutory interpretationcommission of evidenceextradition treatyongoing statute

Judgment

A THE STATE OF MAHARASHTRA
v.
DR. PRAFUL B. DESAI AND ANR.

APRIL I, 2003

B [S.N. VARIA VA AND B.N. AGRA WAL, JJ.]

Code of Criminal Procedure, 1973; Sections 273, 274, 275 and 284 lo
289/Penal Code, 1860; Sections 338 r/w Sec/ions 109 and 114:

c Criminal Trial:

Video Conferencing-Recording of evidence of witnesdwilnesses-
Ad1~1issibili1y of-Held: electronic records includes records by video
conferencing-A II requisites of recording of evidence would be ful~l' met with
D by s11ch recording ofevidence-Hence, evidence recorded by video conferencing
is admissible in ci·idence.

Recording of evidence by video conferencing-Absence of accused-
Ejfect of-Held. ii-hen prol'ision of law for recording of ei·idence allows
recording of ei·idence in the presence of !'leader. it does no/ affect the
-
E admissibility of evidence so recorded

Recording of ei•idence by video confem1cing-Conditions of-Held: The
coun/J)' in Hhich el'idence of witness would be recorded should have extradition
treaty with India and in that countrv conlempl of court and pe1jury are
punishable-Evidence Act~)ection J-Constitution of India, 1950; Article
F 21.

Video conferencing-Exam inat ion of witnesses-Procedure-Disrnssed

Interpretation of Statutes:

G Examination of witnesses· on commission vis-a-vis Examination of
witnesses hy video conferencing in foreign coun//y-Analogy hetween-
Discussed.

Doctrines:

Doctrine "Co11te111pora11ea exposition es/ optima e1ji1rtissmm ''·-Afea11ing
H 244
STATEOFMAHARASHTRA v.DR.PRAFULB.DESAI 245
. and applicability of in the context of Criminal Procedure Code, I 973. A
Words & phrases.

l 'virtual reality', 'ongoing statute' and 'presence '-Meaning of in the context
of Section 273 of Criminal Procedure Code, 1973.
} B
I
I According to the prosecution, the deceased, wife of the complainant
' was suffering from terminal cancer. She was exam'ined by the doctor of a
hospital in USA who opined that she was inoperable and should be treated
only with medication. Complainant-husband sought second opinion from
the respondent, a Surgeon in India. lnspite of knowledge regarding the
opinion of th~ doctor in USA he had suggested for operation. As per advice, C
another doctor had performed operation on the complainant's wife. The
operation was not so successful and she died after some time. Husband of
the deceased filed a complaint against the respondent and another doctor.
Trial Court issued the process which was challenged by the respondents
up to the Apex Court. On dismissal of challenge, respondents faced trial. D
At the time of recording of evidence, Prosecution filed an application
seeking permission of the Court to examine the Doctor in USA by video
conferencing, which was allowed by the Trial Court. However, criminal
application was filed by the aggrieved respondents challenging the
recording of evidence of the Doctor in foreign country by video
conferencing and it was allowed by the High Court. Hence the present E
appeals by the State and the Comp!ainant.

It was contended for the respondents that since the Code of Criminal
- Procedure has laid down a specific procedure for criminal trial and

-
legislature could only change the procedure by amendment, any departure F
therefrom would be con1rary to Article 21; that since the procedure laid
down in Section 273 of Criminal Procedure Code is mandatory and it does
not provide for recording of evidence by video conferencing, it must be
given its contemporary meaning; that Section 273 is analogous to the
confrontation clause in the US Constitution. However, Courts in USA have
held that video conferencing docs not satisfy the requirements of the G
confrontation clause; and that since the procedure of recording of evidence
by video conferencing involves 'virtual reality', it does violate the rights
of the respondents under Article 21.

Disposing of the appeals, the Court
246 SUPREME COURT REPORTS (2003] 3 S. C.R.

A HELD: I.I. High Court has rightly held that Section 273 Cr.P.C. is
mandatory and that evidence must be recorded in the presence of the
accused. However, the High Court has failed. to read Section 273 properly.
One does not have to consider dictionary meanings when a plain reading
of the provision brings out what was intended. It provides for dispensation
B from personal attendance. In such cases evidence can be recorded in the
pre$ence of the pleader. The presence of the pleader is thus deemed to be
presence of the accused. Thus Section 273 contemplates constructive
pre$ence. This shows that actual physical presence is not a must. This
indi~ates that the term "presence", as used in the Section, is not used in
the ~ense of actual physical presence. 1253-E; 254-A; DI
c Maryland v. Santra Aun Craig, 1497 US 8361, referred to.

1.2. The term 'Evidence' as defined in the Indian Evidence Act states
that evidence can br. both oral and documentary and electronic records
can be produced as evidence. This means that evidence, even in criminal
D matters can also be by way of electronic records. This would include video-
conterencing. (254-E; G-Hl

1.3. It must be remembered that the first duty of the Court is to do
justice. Courts mu~t endeavour to find the truth and that there would be
failure of justice not only by an unjust conviction but also by acquittal of
E the guilty for unjustified failure to produce available evidence. Of course
the rights of the accused have to be kept in mind and safeguarded, but
they should not be over emphasized to the extent of forgetting that the
victims also have rights. 1255-A, Bl

Sri Krishna Gabe v. State of Maharashtra, 1197314 SCC 23, relied on.
F
· 1.4. It must also be remembered that the Criminal Procedure Code
is an ongoing statute. The principles of interpreting an ongoing statute
have· been very succinctly set out by the jurists and referred by Courts in
number of cases, Tlie apex Court has approved the principle of updating
G construction as eimnciated by Francis Bennion, in a number of decisions.
However, it i~ well settled law that the doctrine "Contemporanea
exposition est optima et fortissimm" has no application when interpreting
a provision of an ongoing statute. 1255-C; 256-E; 257-DI

National Textile Workers' Union v. PR. Ramakrishnan, [ 19831 I SCC
H 228; Commissioner of Income Tax, Bombay v. Mis. Podar Cement Pvt. ltd,
Sr ATE OF MAHARASHTRA v. DR. PR A,fUL B. DESAI 247
[1997] 5 SCC 482; State v. S.J. Chowdhwy, [1996] 2 SCC 428; SIL Import A
USA v. Exim Aides Silk Exporters, [1999] 4 SCC 567 and Basavaraj R. Patil
v. State of Karnataka, [2000] 8 SCC 740, relied on.

Statutory Interpretation by Francis Bennion 2nd Edition, Page 617 -
referred to.
B
1.5. Virtual reality is a state where one is made to feel, hear or
imagine what does not really exist. Video conferencing has nothing to do
with virtual reality. Video conferencing is an advancement in science and
technology which permits one to see, hear and talk with someone far away,
with the same facility and ease as if he is personally present. In fact he/ C
she is present on a screen. Except for touching one can see, hear and
observe as if the party is in the same room. Thus, so long as the accused
and/or his pleader are present when evidence is recorded by video
conferencing that evidence is being recorded in the "presence" of the
accused and would thus fully meet the requirements of Section 273 Cr.P.C.
Recording of such evidence would be as per "procedure established by D
law". [257-E; 258-A, B, C]

1.6. Recording of 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 his pleader can see the witness
as clearly as if the witness was actually sitting before them. In fact the E
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. ln fact the facility to play back 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 F
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 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 G
accused. It is also 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. [258-D, E, F; 259-A]

1. 7. To this method there may arise some difficulties if the witness
commits Contempt of Court or perjures himself and it is immediately H
248 SUPREME COURT REPORTS [2003] 3 S.C.R.

A noticed that he has perjured himself. Therefore, as a matter of prudence
evidence by video-conferencing in open Court should be only if the witness
is in ia country which has an extradition treaty wi.th India and under whose
laws Contempt of Court and perjury are also punishable. 1259-BI

2.1. In cases where the witness is necessary for the end:; of justice
B 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 witness. In the instant case,
the concerned doctor had refused to come to India to give evidence. His
C evidence appears to be necessary for the ends of Justice. Courts in India
cannot procure his attendance. In such case commission could be issued
for tecording evidence. 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 evidence of
witness by way of video conferencing in the !own/city where the Court is.
D Thus in such matters, the Court could cpnsider issuing a commission to
reco.rd the evidence by way of video-conferencing. However, commission
camjot be issued if there is no arrangement between the Government of
lndi!t and the country where the commission is proposed to be issued
because the services of an official of the country (mostly a .Judicial Officer)
E would be required to record such evidence and to ensure attendance. When
a witness is willing to give evidence an official of the Court can be deputed
to record evidence on commission by way of video-conferencing. The
evidence will be recorded in the studio/hall where the video-conferencing
takes place. It must be clarified that adopting such a procedure may not
be possible if the witness is out of India and not willing to give evidence.
F 1260-D-F; 262-B, q

Ratilal Bhanji Mithani v. State of Maharashtra, 11972] 3 SCC 793,
followed.

2.2. Time for recording evidence on commission is always fixed by
G the officer who has been deputed to so record evidence. The officer would
have the discretion to fix up the time in consultation with VSNL, who are
expert:; in the field. Respondent and his counsel will have to make it
con11enient to attend at the time fixed by the concerned officer. If they do
not remai.n present the Magistrate will take action, as provided in law, to
H compel attendance. However, the officer deputed would be one who has
I
r
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI 249
authority to administer oaths and he will administer the oath. Undoubtedly A
an officer would have to be deputed, either from Iiidia or from the
Consulate/Embassy in the country where the evidence is being recorded
who would remain present when the evidence is being recorded and who
will ensure that there is no other person in the room where the witness is
~itting whilst the evidence is bei11g recorded. That officer will ensure that B
the witness is not coached/tutored/prompted. It would be advisable, though
not necessary, that the witness be asked to give evidence in a room in the
Consulate/Embassy. As the evidence is being recorded on commission that
evidence will subsequently be read into Court. Thus no question arises of
the witness insulting the Court. If on reading the evidence the Court finds
that the witness has perjured himself, just like in any other evidence on C
commission, the Court will ignore or disbelieve such evidence.
1263-F, G; 264-A-Cj

2.3. In the instant case, the concerned officer will ensure that once
video conferencing commences, as far as possible, it is proceeded with,
without any adjournments. Further it if is found that the doctor in USA D
is 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. If the Officer finds that the said doctor is not
answering questions, the officer will make a memo of the same. Finally,
when the evidence is read in Court, this is an aspect which will be taken E
into consideration for testing the veracity of the evidence. Undoubtedly
the costs of video conferencing would have to be borne by the State.
Following these directions the Magistrate will proceed to have the evidence
of the concerned Doctor in USA recorded by. way of video conferencing.
1264-F-G-HI
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
476 of 2003.

From the Judgment and Order dated 23/24.4.2001 of the Mumbai High
Coui1 in Crl. A. No. 3193 of 1999.
G
WITH

Crl. A. No. 477 of 2003.

Mrs. Indira Jaisingh, V.B. Joshi, S.S. Shinde and V.N. Raghupathy for
the Appellants. H
250 SUPREME COURT REPORTS (2003] 3 S.C.R.

A P.C. Singhi-in-person for the Appellant.

Ashok H. Desai, Shridhar Y. Chitale, Ms. Rashmi D. Chandrachud,
Ms. Meenakshi Nag and Abhijat P. Medh for the Respondents.

B
The Judgment of the Court was delivered by -
I-

VARIAVA, J.

I. Leave granted

2. Heard parties
c 3. These Appeals are against a Judgment of the Bombay High Court
dated 23rd/24th April 200 I. The question for consideration is whether in a
criminal trial, evidence can be _recorded by video conferencing. The High
Court has held, on an interpretation of Section 273, Criminal Procedure Code,
that it cannot be done. Criminal Appeal (arising out of SLP (Criminal) No
D 6814 of2001) is filed by the State of Maharashtra. Criminal Appeal (arising
out of SLP (Criminal) No 6815 of 2001) is filed by Mr. P. C. Singhi, who .
was the complainant. As the question qf law is common in both these Appeals,
they are being disposed of by this conimon Judgment. In this Judgment
parties will be referred to in their capacity in the Criminal Appeal (arising out
E ofSLP (Criminal) No 6814 of2001). Mr. P. C. Singhi will be referred to as
the complainant.

4. Briefly stated the facts are as follows:

The complainant's wife was suffering from terminal cancer. It is the
F case of the prosecution that the complainant's wife was examined by Dr.
Ern~st 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 is a consulting surgeon practising for the last 40 years. In spite of being
made aware of Dr Greenberg's opinion the Re>pondent suggested surgery to
G remove the uterus. It is the case of the prosecution that the complainant and
his wife agreed to the operation on the condition that it would be perfom1ed
by the Respondent. It is the case of the prosecution that on 22nd December
1987 one Dr. A. K. Mukherjee operated on the complainant's wife. It is the
case of the prosecution that when the stomach was opened ascetic fluids
oozed out of the abdomen. It is the case of the prosecution that Dr. A. K.
H Mukherjee contacted the Respondent "tho advised closing up the stomach. It
STATE OF MAHARASHTRA i·. DR. PRAFUL B. DESAI [S.N. VARIAVA,J] 251

is the case of the prosecution that Dr. A. K. Mukherjee accordingly closed A
the stomach and this resulted in intestinal fistula. It is the case of the
prosecution that whenever the complainant's wife ate or drank the same
would come out of the wound. It is the case of the prosecution that the
complainant's wife required 20/25 dressings a day for more than 3 l/2 month~.
in the hospital and thereafter till her death. It is the case of the prosecution
that the complainant's wife suffered terrible physical torture and mental agony. B
It is the case of the prosecution that the Respondent did not once examine the
complainant's wife after the operation. It is the case of the prosecution that
the Respondent claimed that the complainant's wife was not his patient. It is
the case of the prosecution that the bill sent by the Bombay Hospital belied
the Respondent case that the complainant's wife was not his patient. The bill C
sent by the Bombay Hospital showed the fees charged by the Respondent. It
is the case of the prosecution that the Maharashtra Medical Council has, in
an inquiry, held the Respondent guilty of negligence and strictly warned him.

5. On a complaint by the .complainant a case under Section 338 read
with Sections 109 and 114 of the Indian Penal Code was registered against D
the Respondent and Dr. A. K. Mukherjee. Process was issued by the
Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai. The Respondent
challenged the issue of process and carried the challenge right up to this
Court. The Special Leave Petitions filed by the Respondent was dismissed by
this Court on 8th July, 1996. This Court directed the Respondent to face trial. E
We are told that evidence of six witnesses, including that of the complainant
and the investigating officer, has been recorded .
..
6. On 29th June, 1998 the prosecution made an application to examine
Dr. Greenberg through video-conferencing. The trial court allowed that
application on 16th August, 1999. The Respondent challenged that order in p
the High Court. The High Court has by the impugned order allowed the
Criminal Application filed by the Respondent. Hence these two Appeals.

7. At this stage it is appropriate to mention that Dr. Greenberg has
expressed his willingness to give evidence, but has refused to come to India
for that purpose. It is an admitted position that, in the Criminal Procedure G
Code there is no provision by which Dr. Greenberg can be compelled to
come to India to give evidence. Before us a passing statement was made that
the Respondent did not admit that the evidence of Dr. Greenberg was relevant
or essential. However, on above-mentioned facts, it prima-facie appears to us
that the evidence of Dr. Greenberg wou Id be relevant and essential to the H
252 SUPREME COURT REPORTS [2003] 3 S.C.R.

A case of the prosecution.

8. Ms. Jaisingh, senior counsel argued for the State of Maharashtra.
The complainant, except for pointing out a few facts, adopted her arguments.
On behalf of the Respondent submissions were made by Senior Counsels Mr.
Sundaram and Mr Ashok Desai.
B
9. It was submitted on behalf of the Respondents, that the procedure
governing a criminal trial is crucial to the basic right of the Accused under
Articles 14 and 21 of the Constitution of India. lt was submitted that the
procedure for trial of a criminal case is expressly laid down, in India, in the
Code of Criminal Procedure. It was submitted that the Code of Criminal
c Procedure lays down specific and express provisions governing the procedure
to be followed in a criminal trial. It was submitted that the procedure laid
down in the Code of Criminal Procedure was the "procedure established by
law". It was submitted that the Legislature alone had the power to change the
procedure by enacting a law amending it, and that when the procedure was
D so changed, that became "the procedure established by law". It was submitted
that any departure from the procedure laid down by law would be contrary
to Article 21. In support of this submission reliance was placed on the cases
of A.K. Gopalan v. Stale of Madras, reported in AlR (1950) S.C. 27, Nazir
Ahmed v. Emperor reported in AIR (1936) Privy Council 253 and Siva Kumar
Chadda versus Municipal Corporation of Delhi reported in AIR ( 1975) S.C. ·
E 915. There can be no dispute with these propositions. However if the existing
provisions of the Criminal Procedure Code permit recording of evidence by
video conferencing then it could not be said that "procedure established by
lqw" has not been followed.

l 0. This Court was taken through various sections of the Criminal
F
Procedure Code. Emphasis was laid on Section 273, Criminal Procedure
,.
Code. It was submitted that Section 273, Criminal Procedure Code does not
provide for the taking of evidence by video conferencing. Emphasis was laid
on the words "Except as otherwise provided" in Section 273 and it was
submitted that unless there is an express provision to the contrary, the
G procedure laid down in Section 273 has to be followed as it is mandatory. It
was submitted that Section 273 mandates that evidence "shall be taken in the
presence of the accused". It is submitted that the only exceptions, which
come within the ambit of the words "except as otherwise provided" are
Sections 284 to 290 (those dealing with issue of Commissions); Section 295
H (affidavit in proof of conduct of public servant) and Section 296 (evidence
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI [S.N. VARIAVA,J.] 253
of formal character on affidavit). It is submitted that the term "presence" in A
Section 273 must be interpreted to mean physical presence in flesh and blood
in open Court. It was submitted that the only instances in which evidence
may be taken in the absence of the Accused, under the Criminal Procedure
Code are Sections 3 17 (provision for inquiries and trial being held in the
absence of accused in certain cases) and 299 (record of evidence in the
absence of the accused). It was submitted that as Section 273 is mandatory, B

-- the Section is required to be interpreted strictly. It was submitted that Section
273 must be given its contemporary meaning (Contemporanea exposition es/
optima et forlissimm - The contemporaneous exposition is the best and the
strongest in law). It was submitted that video conferencing was not known
and did not exist when the Criminal Procedure Code was enacted/amended. C
It was submitted that presence on a screen and recording of evidence by
video conferencing was not contemplated by the Parliament at the time of
drafting/amending the Criminal Procedure Code. It was submitted that when
the Legislature intended to permit video conferencing, it has expressly provided
for it, as is evident from the Ordinance passed by the State of Andhra Pradesh
in December 2000 permitting the use of video conferencing under Sec. 167(2) D
Criminal Procedure Code in remand applications. It is pointed out that a
similar amendment is being considered in Maharashtra. It is submitted that
Section 273 is analogous to the Confrontation Clause set out in the Vlth
Amendment to the US Constitution. It is submitted that Courts in USA have
held that video conferencing does not satisfy the requirements of the E
Confrontation Clause.

11. This argument found favour with the High Court. The High Court
has relied on judgments of various High Courts which have held that Section
273 is mandatory and that evidence inust be recorded in the presence of the
accused. To this extant no fault can be found with the Judgment of the High F
Court. The High Court has then considered what Courts in foreign countries,
including Courts in USA, have done. The High Court then based its decision
on the meaning of the term "presence" in various dictionaries and held that
the term "presence" in Section 273 means actual physical presence in Court.
We are unable to agree with this. We have to consider whether evidence can G
be led by way of video-conferencing on the provisions of the Criminal
Procedure Code and the Indian Evidence Act. Therefore, what view has been
taken by Courts in other countries is irrelevant. However, it may only be
mentioned that the Supreme Court of USA, in the case of Maryland v. Santra
Aun Craig, [497 US 836], has held that recording of evidence by video-
conferencing was not a violation of the Sixth Amendment (Confrontation H
254 SUPREME COURT REPORTS (2003] 3 S.C.R.

A Clause).
12. Considering the question on the basis of Criminal Procedure Code,
we are of the view that the High Court has failed to read Section 273 properly.
One does not have to consider dictionary meanings when a plain reading of
the provision brings out what was intended. Section 273 reads as follows:
B
"Section 273: Evidence to be taken in presence of accused.

Except as otherwise expressly provided, all evidence taken in the
course of the trial or other proceeding· shall be taken in the presence
of the accused, or, when his personal attendance is dispensed with, in
C the presence of his pleader.

Explanation : In this section, "accused" includes a person in relation
to whom any proceeding under Chapter VI II has been commenced
under this Code.

D Thus Section 273 provides for dispensation from personal attendance. In
such cases evidence can be recorded in the presence of the pleader. The
presence of the pleader is thus deemed to be presence of the Accused. Thus
Section 273 contemplates constructive presence. This shows that actual
physical presence is not a must. This indicates that the term "presence". as
used in this Section, is not used in the sense of actual physical presence. A
E plain reading of Section 273 does not support the restrictive meaning sought
to be placed by the Respondent on the word "presence". One must also take
note of the definition of the term 'Evidence' as defined in the Indian Evidence
Act. Section 3 of the Indian Evidence Act reads as follows:

'' Evidence ....... Evidence means and includes ...... .
F
(I) all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence
(2) all documents including electronic records produced for the
G inspection of the Court;
such documents are called documentary evidence"

Thus evidence can be both oral and documentary and electronic records can
be produced as evidence. This means that evidence, even in criminal matters,
H can also be by way of electronic records. This would include video-
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI [S.N. VARIAVA,J] 255
conferencing. A
13. One needs to set out the approach which a Court must adopt in
deciding such questions. It must be remembered that the first duty of the
Court is to do justice. As has been held by this Court in the case of Sri
Krishna Gabe v. State of Maharashtra, (1973] 4 SCC 23 Courts must
endeavour to find the truth. It has been held that there would be failure of B
justice not only by an unjust conviction but also by acquittal of the guilty for
unjustified failure to produce available evidence. Of course the rights of the
Accused have to be kept in mind and safeguarded, but they should not be
over emphasized to the extent of forgetting that the victims also have rights.

14. It must also be remembered that the Criminal Procedure Code is an C
ongoing statute. The principles of interpreting an ongoing statute have been
very succinctly set out by the le~ding jurist Francis Bennion in his
commentaries titled "Statutory Interpretation'', 2nd Edition page 617:

"It is presumed the Parliament intends the Court to apply to an ongoing D
Act a construction that continuously updates its wordings to allow for
changes since the Act was initially framed. While it remains law, it
has to be treated as always speaking. This means that in its application
on any day, the language of the Act though necessarily embedded in
its own time, is nevertheless to be construed in accordance with the
need to treat it as a current law. E

In construing an ongoing Act, the interpreter is to presume that
Parliament intended the Act to be applied at any future time in such
a way as to give effect to the original intention. Accordingly, the F
interpreter is to make allowances for any relevant changes that have
occurred since the Act's .passing, in law, in social conditions,
technology, the meaning of words and other matter ......... That today's
- construction involves the supposition that Parliament was catering
long ago for a state of affairs that did not then exist is no argument
against that construction. Parliament, in the wording of an enactment. G
is expected to anticipate temporal developments. The drafter will
foresee the future and allow for it in the wording.

An enactment of former days is thus to be read today, in the light of H
256 SUPREME COURT REPORTS [2003] 3 S.C.R.

A dynamic processing 1eceived over the years, with such modification
of the current meaning of its language as will now give effect to the
original legislative intention. The reality and effect of dynamic
processing provides the gradual adjustment. It is constituted by judicial
interpretation, year in and year out. It also comprises processing by
executive officials."
B
15. At this stage the words of Justice Bhagwati in the case of Natione.
,a-
Textile Workers' Union v. P.R. Ramakrishnan, [1983] I SCC 228, at page
256, need to be set out. They are:

"We cannot allow the dead hand of the past to stifle the growth of the
c living present. Law cannot stand still; it must change with the changing
social concepts and values. If the bark that protects the tree fails to
grow and expand along with the tree, it will either choke the tree or
if it is a living tree, it will shed that bark and grow a new living bark
for itself. Similarly, if the law fails to respond to the needs of changing
D society, then either it wi II stifle the growth of the society and choke
its progress or if the society is vigorous enough, it will cast away the
law which stands in the way of its growth. Law must therefore
constantly be on the move adapting itself to the fast changing society
and not lag behind."

E 16. This Court has approved the principle. of updating construction, as
enunciated by Francis Bennion, in a number of decisions. These principles
were quoted with approval in the case of Commissioner of Income Tax,
Bombay v. Mis Podar Cement Pvt. Ltd [1997] 5 SCC 482. They were also
cited with approval in the case of Stale v. S. J. ChowdhWJ', [ 1996] 2 SCC
428. In this case it was held that the Evidence Act was an ongoing Act and
F the word "handwriting" in Section 45 of that Act was construed to include
"typewriting". These principles were also applied in the case ()f Sil Import
USA v. Exim Aides Silk Exporters, [ 1999) 4 SCC 567. In this case the words

G
"notice in writing'', in Section 138 of the Negotiable Instruments Act, were
construed to include a notice by fax. On the same principle Courts have
interpreted, over a period of time, various terms and phrases. To take only
-
a few examples:- "stage carriage" has been interpreted to include "electric
tramcar"; "steam tricycle" to include "locomotive": "telegraph" to include
"telephone"; "bankers books" to include ''microfilm": "to take note" to inciude
"use of tape recorder"; "documents" to include "computer database's''.

H 17. These principles have also been applied by this Court whilst
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI (S.N. VARIAVA,J] 257
considering an analogous provision of the Criminal Procedure Code. In the A
case of Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740 the
question was whether an Accused needs to be physically present in Court to
answer the questions put to him by Court whilst recording his statement
under Section 313. To be remembered that under Section 313 the words are
"for the purpose of enabling the accused personally to explain" (emphasis B
supplied). The term "personally" if given a strict and restrictive interpretation
would mean that the Accused had to be physically present in Court. In fact
the minority Judgment in this case so holds. It has however been held by the
majority that the Section had to be considered in the light of the revolutionary
changes in technology of communication and transmission and the marked
improvement in facilities for legal aid in the country. It was held, by the C
majority, that it was not necessary that in all cases the Accused must answer
by personally remaining present in Court.

18. Thus the law is well settled. The doctrine "Contempora.nea exposition
est optima et fortissimm" has no application when interpreting a provision of
an on-going statute/act like the Criminal Procedure Code. D
19. At this stage we must deal with a submission made by Mr. Sundaram.
It was submitted that video-conferencing could not be allowed as ·the rights
of an accused, under Article 21 of the Constitution of India, cannot be subjected
to a procedure involving "virtual reality". Such an argument displays ignorance
of the concept of virtual reality and also of video conferencing. Virtual reality E
is a state where one is made to feel, hear or imagine what does not really
exists. In virtual reality one can be made to feel cold when one is sitting in
a hot room, one can be made to hear the sound of ocean when one is sitting
in the mountains, one can be made to imagine that he is taking part in a
Grand Prix race whilst one is relaxing on one sofa etc. Video conferencing F
has nothing to do with virtual reality. Advances in science and technology
have now, so to say, shrunk the world. They now enable one to see and hear
events. taking place far away, as they are actually taking place. To take an
example today one does not need to go to South Africa to watch World Cup
matches. One can watch the game, live as it is going on, on one's TV. If a
person is sitting in the stadium and watching the match, the match is being G
played in his sight/presence and he/she is in the presence of the players.
When a person is sitting in his drawing-room and watching the match on TV,
it cannot be said that he is in presence of the players but at the same time,
in a broad sense, it can be said that the match is being played in his presence.
Both, the person sitting in the stadium and the person in the drawing-room, H
258 SUPREME COURT REPORTS [2003] 3 S.C.R.

A are watching what is actually happening as it is happening. This is not virtual
reality, it is actual reality. One is actually seeing and hearing what is happening.
Video conferencing is an advancement in science and technology which
permits one to see, hear and talk with someone far away, with the same
facility and ease as if he is present before you i.e. in your presence. In fact
B he/she is present before you on a screen. Except for touching, one can see,
hear and observe as if the party is in the same room. In video conferencing
both parties are in presence of each other. The submissions of Respondents
counsel are akin to an argument that a person seeing through binoculars or
telescope is not actually seeing what is happening. It is akin to submitting
that a person seen through binocu Jars or telescope is not in the "presence" of
C the person observing. Thus it is clear that so long as the Accused and/or his
pleader are present when evidence is recorded by video conferencing that
evidence is being recorded in the "presence" of the accused and would thus
fully meet the requirements of Section 273, Criminal Procedure Code.
Recording of such evidence would be as per "procedure established by law".

D Recording of 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 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
E dock in a crowded Court room. They can observe his or her demeanour. In
fact the facility to play back 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
F 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
is recorded by video conferencing. Thus no prejudice, of whatsoever nature,
is ¢aused to the Accused. Of course, as set out hereinafter, evidence by video
conferencing has to be on some conditions.

G Reliance was then placed on Sections 274 and 275 of the Criminal
Procedure Code which require that evidence be taken down in writing by the
Magistrate himself or by his dictation in open Court. It was submitted that
video conferencing would have to take place in the studio of VSNL. It was
submitted that that this would violate the right of the Accused to have the
H evidence recorded by the Magistrate or under his dictation in open Court.
\
>·
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI [S.N. VARIAVA,J.] 259

The advancement of science and technology is such that now it is possible A
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 is done then the requirements of these Sections would be fully met. To
th is method there is however a draw back. As the witness is now in Court
there may be difficulties if he commits contempt of Court or perjures himself B
and it is immediately noticed that he has perjured himself. Therefore as a
matter of prudence evidence by video-conferencing in open Court should be
only if the witness is in a country which has an extradition treaty with India
and under whose laws contempt of Court and perjury are also punishable.

20. However even if the equipment cannot be set up in Court the C
Criminal Procedure Code contains provisions for examination of witnesses
on commissions. Sections 284 to 289 deal with examination of witnesses on
commissions. For our purposes Sections 284 and 285 are relevant. They read
as under:

"284 WHEN ATTENDANCE OF WITNESS MAY BE DISPENSED D
WITH AND COMMISSION ISSUED.

(I) Whenever, in the course of any inquiry, trial or other proceeding
under this Code, it appears to a Court or Magistrate that the
examination of a witness is necessary for the ends of justice, and that
the attendance of such witness cannot he procured without an amount E
of delay, expense or inconvenience which, under the circumstances
of the case, would be unreasonable, the 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 :
F
Provided that where the examination of the President or the Yice-
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 examination G
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.

285 COMMISSION TO WHOM TO BE ISSUED.
H
260 SUPREME COURT REPORTS (2003] 3 S.C.R.

A (I) 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.

(2) If the witness is in India, but in a State or an area to which this
B 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
arrangements have been made by the Central Government with the
C 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 Coult or officer, and sent to
such authority for transmission, as the Central Government may, by
notification, prescribe in this behalf."

D 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 Coult may dispense with such attendance and issue a
commission for examination of the witness. As indicated earlier Dr. Greenberg
E has refused to come to India to give evidence. His evidence appears 'to be
necessary for the ends of Justice. Courts in India cannot 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. Normally a
commission would involve recording evidence ai the place wh.ere the witness
F 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 Coult is. Thus in cases where the attendance of a witness cannot be
procured without an amount of delay, expense or inconvenience the Coult
could consider issuing a commission to record the evidence by way of video
G conferencing.

21. It was however submitted that India has no arrangement with the
Government of United States of America and therefore commission cannot
be issued for recording evidence of a witness who is in USA. Reliance was
placed on the case of Ratilal Bhanji Mithani v. State of Maharashtra, [1972]
H 3 SCC 793. In this case a commission was issued for examination of witnesses
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI[S.N. VARIAVA,J.] 26]

in Germany. The time for recording evidence on commission had expired. A
An application for extension of time was made. It was then noticed that India
did not have any arrangement with Germany for recording evidence on
commission. At page 798 this Court observed as follows:

"25. The provisions contained in Sections 504 and 508-A of the Code
of Criminal Procedure contain complimentary provisions for reciprocal B
arrangements between the Government of our country. and the
Government of a foreign country for Commission from Courts in
India to specified courts in the foreign country for examination of
witnesses in the foreign country and similarly for Commissions from
specified courts in the foreign country for examination of witnesses C
residing in our country. Notifications Nos. SRO 2161, SRO 2162,
SRO 2163 and SRO 2164 all, dated November 18, 1953, published
in the Gazette of India P;irt II, Section 3 on November 28, 1953,
illustrnte the reciprocal arrangements between the Government of
India and the Government of the United Kingdom and the Government
of Canada for examination of witnesses in the United Kingdom, D
Canada and the examination of witnesses residing in India.

26. In the present case, no notification under Section 508-A of the
Code of Criminal Procedure has been published specifying the courts
in the Federal Republic of West Germany by whom commissions for
examination of witnesses residing in India may be issued. The E
notification, dated September 9, 1969, in the present case under Section
504 of the Code of Criminal Procedure is not based upon any existing
complete arrangement between the Government of India and the
Government of the Federai"Republic of West Germany for examination
\ of witnesses residing in West Germany. The notification, dated F
September 9, 1969, is ineffective for two reasons. First, there is no
reciprocal arrangement between the Government of India and the
Government of the Federal Republic of West Germany as contemplated
in Sections 504 and 508-A of the Code of Criminal Procedure.
Secondly, the notification under Section 504 is nullified and repelled
by the affidavit evidence adduced on behalf of the State that no G
agre~ment between the two countries has yet been made.

27. In the present case, extension of time was granted in the past to
enable the State for examination of witnesses in West Germany and
return of the commission to this country. The State could not obtain
the return of the commission. Now, a question has arisen as to whether H
262 SUPREME COURT REPORTS [2003) 3 S.C.R.

A any extension of time should be made when it appears that reciprocal
arrangements within the contemplation of Sections 504 and 508-A of
the Code of Criminal Procedure are not made. The courts do not
make orders in vain. When this Court finds that there are no
arrangements in existence within the meaning of Sections 504 and
508-A of the Code of Criminal Procedure this Court is not inclined
B to make any order."

This authority, which is of a Constitution Bench of this Court, does suggest
that no commission can be issued if there is no arrangerr.ent between the
Government of India and the country where the commission is proposed to
C be issued. This authority would have been binding on this Court if the facts
were identical. Ms. Jaising had submitted that notwithstanding this authority
a difference would have to be drawn in cases where a witness was not willing
to give evidence and in cases where the witness was willing to give evidence.
She submitted that in the second class of cases commissions could be issued
for recording evidence even in a country where there is no arrangement
D between the Government of India and that country.

22. In this case we are not required to consider this aspect and therefore
express no opinion thereon. The question whether commission can be issued
for recording evidence in a country where there is no arrangement, is academic
so far as this case is concerned. In this case we are considering whether
E evidence can be recorded by video-conferencing. Normally when a
Commission is issued, the recording would have to be at the place where the
witness is. Thus Section 285 provides to whom the Commission is to be
directed. If the witness is outside India, arrangements are required between
India and that country because the services of an official of the country
F (mostly a Judicial Officer) would be required to record the evidence and to
ensure/compel attendance. However new advancement of science and
technology permit officials of the Court, in the ~ity where video conferencing
is to take place, to record the evidence: Thus where a witness is willing to
give evidence an official of the Court can be deported to record evidence on
commission by way of video-conferencing. The evidence will be recorded in
G the studio/h?.11 where the video-conferencing takes 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
H the evidence of Dr. Greenberg in the presence of the Respondent. The officer
STATE OF MAHARASHTRA''· DR PRAFUL B. DESAI [S.N. VARIAVA,J.) 263

..,..:._ shall ensure that the Respondent and his counsel are present when the evidence A
is recorded and that they are able to observe the demeanour and hear the
deposition of Dr. Greenberg. The officer::. ::.hall also ensure that the Respondent
has full opportunity to cross-examine Dr. Greenberg. It must be clarified that
adopting such a procedure may not be possible if the witness is out of India
and not willing to give evidence.
B
23. It was then submitted that there would be practical difficulties in
recording evidence by video conferencing. It was submitted that there is a
time difference between India and USA. It was submitted that a question
would arise as to how and who would administer the oath to Dr. Greenberg.
It was submitted that there could be a video image/audio interruptions/
distortions which might make the transmission inaudible/indecipherable. It
c
was submitted that there would be no way of ensuring that the witnesses is
not being coached/tutored/prompted whilst evidence was being recorded. It
is submitted that the witness sitting in USA would not be subject to any
control of the Court in India. It is submitted that the witness may commit
perjury with impunity and also insult the Court without fear of punishment D
since he is not amenable to the jurisdiction of the Court. It is submitted that
,. the witness may not remain present and may also refuse to answer questions.
It is submitted that commercial studios place restrictions on the number of
people who can remain present and may restrict the volume of papers that
may be brought into the studio. It was submitted that it would be difficult to
place textbooks and other materials to the witness for the purpose of cross-
E
examining him. Lastly, it was submitted that the cost of video conferencing,
if at all permitted, must be borne by the State.

24. To be remembered that what is being considered is recording
evidence on commission. Fixing of time for recording evidence on commission F
is always the duty of the officer who has been deputed to so record evidence.
Thus the officer recording the evidence would have the discretion to fix up
the time in consultation with VSNL, who are experts in the field and who ,
will know which is the most convenient time for video conferencing with a
person in USA. The Respondent and his counsel will have to make it
convenient to attend at the time fixed by the concerned officer. If they do not G
remain present the Magistrate will take action, as provided in law, to compel
attendance. We do not have the slightest doubt that the officer who will be
deputed would be one who has authority to administer oaths. That officer
will administer the oath. By now science and technology has progressed

- enough to not worry about a video image/audio interruptions/distortions. Even H
•
264 SUPREME COURT REPORTS [2003) 3 S.C.R.
•
A if there are interruptions they would be of temporary duration. Undoubtedly
an officer would have to be deputed, either from India or from the Consulate/ i
Embassy in the country where the evidence is being recorded who would
remain present. when the evidence is being recorded and who will ensure that
there is no other person in the room where the witness is sitting whilst the
B evidence is being recorded. That officer will ensure that the witness is not
coached/tutored/prompted. It would be advisable, though not necessary, that
the witness be asked to give evidence in a room in tht Consulate/Embassy.
As the evidence is being recorded on commission that evidence will
subsequently be read into Court. Thus no question arises of the witness
insulting the Court. If on reading the evidence the Court finds that the witness
C has perjured himself, just like in any other evidence on commission, the
Court will ignore or disbelieve the evidence. It must be remembered that
there have been cases where evidence is recorded on commission and by the
time it is read in Court the witness has left the country. There also have been
cases where foreign witness has given evidence in a Court in India and that
then gone away abroad. In all such cases Court would not have been able to
D take any action in perjury as by the time the evidence was considered, and
it was ascertained that there was perjury, the witness was out of the jurisdiction
of the Court. Even in those cases the Court could only ignore or disbelieve
the evidence. The officer deputed will ensure that the Respondent, his counsel
and one assistant are allowed in the studio when the evidence is being recorded.
E The officer will also ensure that the Respondent is not prevented from bringing
into the studio the papers/documents which may be required by him or his
counsel. We see no substance in this submission that it would be difficult to
put documents or written material to the witness in cross-examination. It is
now possible, to show to a party, with whom video conferencing is taking
place, any amount of written material. The concerned officer will ensure that
F once video conferencing commences, as far as possible, it is proceeded with
without any adjournments. Further if it is found that Dr Greenberg is not
attending at the time/s fixed, without any suffici<:nt cause, then it would be
open for the Magistrate to disallow recording of evidence by video
conferencing. If the officer finds that Dr. Greenberg is not answering questions,
G the officer will make a memo of the same. Finally when the evidence i~. read
in Court, this is an aspect which will be taken into consideration for testing
the veracity of the evidence. Undoubtedly the costs of video conferencing
would have to be borne by the State.

25. Accordingly the impugned judgment is set aside. The Magistrate
H will now proceed to have the evidence of Dr. Greenberg recorded by way of
STATE OF MAHARASHTRA v. DR. PRAFUL B. DESAI [S.N. VARIAVA,J.] 265
video conferencing. As the trial has been pending for a long time the trial A
court is requested to dispose off the case as early as possible and in any case
within one year from today. With these directions the Appeals stand disposed
of. The Respondent shall pay to the State and the complainant the costs of
these Appeals.

S.K.S. Appeals disposed of. B

~r

..,......