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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1620  OF 2015  (Arising from SLP(Criminal) No.8157/2015)

Sujoy Mitra ..Appellant versus

State of West Bengal ..Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

Leave granted. 2. The appellant before this Court is an accused, who is facing  trial in ST No. 1(8) of 2014 arising  out  of  Kalighat  police  station Case No. 164/2013 dated 1.6.2013, inter alia, under Section  376 of the Indian Penal Code.  The complainant in the above case is  a citizen of Ireland, resident in Dublin.  Four witnesses were  examined by the trial Court before examining the prosecutrix-PW5.  The  trial  Court  accepted  to  record  the  testimony  of  the  prosecutrix, through video conference. 3. The  appellant  before  this  Court  raised  a  challenge  to  the  procedure adopted by the trial Court, while recording the statement  of PW5 on various grounds, by filing a petition under Section 482  of the Code of Criminal Procedure.  The learned 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,

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that the postulated procedure was not fair to the appellant, the  appellant has approached this Court. 4. We have heard learned counsel for the rival parties at some  length, and are satisfied, that the following procedure should be  adopted, in addition to the steps and safeguards provided in the  impugned order, while recording the statement of PW5: I) The State of West Bengal shall make provision for recording  the testimony of PW5 in the trial Court by seeking the services of  the National Informatic Centre (NIC) for installing the appropriate  equipment for video conferencing, by using “VC Solution” software,  to facilitate video conferencing in the case.  This provision shall  be made by the State of West Bengal in a room to be identified by  the concerned Sessions Judge, within four weeks from today.  The  NIC will ensure, that the equipment installed in the premises of  the  trial  Court,  is  compatible  with  the  video  conferencing  facilities at the Indian Embassy in Ireland at Dublin. II) Before  recording  the  statement  of  the  prosecutrix-PW5,  the  Embassy shall nominate a responsible officer, in whose presence the  statement is to be recorded.  The said officer shall remain present  at all times from the beginning to the end of each session, of  recording of the said testimony. III) The officer deputed to have the statement recorded shall also  ensure,  that  there  is  no  other  person  besides  the  concerned  witness,  in  the  room,  in  which  the  testimony  of  PW5  is  to  be  recorded.  In case, the witness is in possession of any material or  documents, the same shall be taken over by the officer concerned in  his personal custody.

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IV) The statement of  witness will then be recorded.  The witness  shall be permitted to rely upon the material and documents in the  custody  of  the  officer  concerned,  or  to  tender  the  same  in  evidence, only with the express permission of the trial Court. V) The officer concerned will affirm to the trial Court, before  the commencement of the recording of the statement, the fact, that  no other person is present in the room where evidence is recorded,  and further, that all material and documents in possession of the  prosecutrix-PW5 (if any) were taken by him in his custody before  the statement was recorded.  He shall further affirm to the trial  Court, at the culmination of the testimony, that no other person  had  entered  the  room,  during  the  course  of  recording  of  the  statement of the witness, till the conclusion thereof.  The learned  counsel for the accused shall assist the trial Court,to ensure,  that the above procedure is adopted, by placing reliance on the  instant order.  VI) The statement of the witness shall be recorded by the trial  Court, in consonance with the provisions of Section 278 of the Code  of Criminal Procedure.  At the culmination of the recording of the  statement,  the  same  shall  be  read  out  to  the  witness  in  the  presence of the accused (if in attendance,or to his pleader).  If  the witness denies the correctness of any part of the evidence,  when the same is read over to her, the trial Court may make the  necessary  correction,  or  alternatively,  may  record  a  memorandum  thereon, to the objection made to the recorded statement by the  witness,  and  in  addition  thereto,  record  his  own  remarks,  if  necessary.

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VII) The  transcript  of  the  statement  of  the  witness  recorded  through  video  conferencing(as  corrected,  if  necessary),  in  consonance  with  the  provisions  of  Section  278  of  the  Code  of  Criminal Procedure, shall be scanned and dispatched through email  to the embassy.  At the embassy, the witness will authenticate the  same in consonance with law. The aforesaid authenticated statement  shall be endorsed by the officer deputed by the embassy.  It shall  be scanned and returned to the trial Court through email.  The  statement signed by the witness at the embassy, shall be retained  in  its custody in a sealed cover. VIII) The statement received by the trial Court through email shall  be re-endorsed by the trial Judge.  The instant statement endorsed  by  the  trial  Judge,  shall  constitute  the  testimony  of  the  prosecutrix-PW5, for all intents and purposes. 5. We are satisfied, that the aforesaid parameters will meet  the  ends  of  justice,  and  that  no  further  inputs  are  required.  Needless to mention, that the procedure for recording the statement  of  PW5,  as  noticed  above,  was  finalised  with  the  invaluable  assistance of the learned counsel for the rival parties. 6. In  recording  our  conclusions  in  regulating  the  above  procedure, the learned senior counsel for the appellant emphasised,  that recording of the video-graphic testimony of the witness should  be furnished to the appellant, and it is only thereupon, that the  direction contained in the judgment rendered by this Court in State  of Maharashtra vs. Dr. Praful B. Desai (2003) 4 SCC 601, can be  deemed to have been fully complied with.  The instant contention of  the learned senior counsel for the appellant is based on a variety

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of reasons including the fact, that the statement may be recorded  in  a  language  which  is  not  known,  and/or  is  not  properly  understandable to the accused.  And even if the statement of the  witness is recorded in English, because of different accents of  English (based on the countries of their origin), it may not be  possible  to  fully  understand  the  testimony  of  the  concerned  witness. 7. Having given our thoughtful consideration to the instant  contention advanced at the hands of the learned senior counsel for  the appellant, we find no reason whatsoever to agree with the same.  In case of there being any difficulty in recording the testimony of  the concerned witness, it is always open to the trial Court to seek  appropriate assistance (based on, or independently of such plea  raised by a party to the proceeding), as may be required by the  trial  Court,  for  a  truthful  recording  of  the  testimony  of  the  concerned witness.  We are of the view, that furnishing recorded  video-graphic testimony to an accused may eventually turn out to be  a cumbersome process, if the same has to be replicated in all  cases.   Specially  because  this  procedure  is  increasingly  being  adopted, by allowing the accused to participate in their trials,  from jail premises also (at certain stages of the trial).  And  further more, it is likely to lead more record, which will also  have to be maintained for its safe custody.  What has been allowed  to  the  accused  herein,  is  what  an  ordinary  accused  would  be  entitled to, had the statement been recorded by the trial Court  itself. 8. The instant appeal is accordingly disposed of.  The trial

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Court  shall  fix  the  date  of  hearing,  as  and  when  the  video- conferencing facilities have been provided for in the premises of  the trial Court, and after the same have been synchronized with the  facilities available at the Indian Embassy in Ireland at Dublin. 9. The trial Court shall forward the instant order through  the Sessions Judge, 24 Parganas, Alipore to the Ambassador of the  Indian Embassy in Ireland at Dublin for compliance. 10. The instant parameters have to be adopted to record the  testimony of the prosecutrix-PW5, in addition to the procedure and  safeguards provided for in the impugned order.  Accordingly, it  will be imperative to record her testimony afresh.

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

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

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ITEM NO.4               COURT NO.3               SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.)  No(s).  8157/2015 (Arising out of impugned final judgment and order dated 17/06/2015  in CRR No. 1285/2015 passed by the High Court Of Calcutta) SUJOY MITRA                                        Petitioner(s)                                 VERSUS STATE OF WEST BENGAL                               Respondent(s) (with appln. (s) for permission to file addl. documents) Date : 02/12/2015 This petition was called on for hearing today. CORAM :           HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR          HON'BLE MRS. JUSTICE R. BANUMATHI

For Petitioner(s) Mr. Basant R, Sr. Adv. Mr. Manoj V. George, Adv. Mr. Francis Samson Correa, Adv. Mr. Arvind Kumar Singh, Adv. Mr. Siju Thomas, Adv. Mr. Rohit Adlakha, Adv.

                   for Mr. Zulfiker Ali P. S,AOR                       For Respondent(s) Mr. Joydeep Mazumdar, Adv.

Mr. Rohit Dutta, Adv.                     Mr. Parijat Sinha,Adv.                                 UPON hearing the counsel the Court made the following                              O R D E R

Leave granted. The appeal stands disposed of in terms of the reportable  

judgment, which is placed on the file.

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