TaxTMI 
TaxTMI 
2019 (4) TMI 2152
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 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 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 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. 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 matrimo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Code of Criminal Procedure before the High Court 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 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, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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) SCC 741.]. In Natasha Singh v. CBI (State) (2013) 5 SCC 741, though the application for examination of witnesses was filed by the Accused but, on the principles relating to the exercise of powers Under Section 311, this Court observed, inter alia, as under: 8. Section 311 Code of Criminal Procedure 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" under Code of Criminal Procedure, 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 Code of Criminal Procedure has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pondent No. 2), who is standing the trial for offences Under Sections 302, 304-B and 498-A Indian Penal Code. 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 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 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 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 testim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able, 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; Provided that where the examination of the President or 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 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.- (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. (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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 Accused. Of course, as set out hereinafter, evidence by videoconferencing has to be on some conditions. Thereafter, with reference to Sections 284 and 285 Code of Criminal Procedure, this Court further observed that,- 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 atte....