IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30 .03.2011
THE HON’BLE Mr. JUSTICE K.VENKATARAMAN
C.R.P. (PD) No.284 of 2011 & M.P.No.1 of 2011
4250, Albany Drive,
U.S.A. … Petitioner
4/5, Oorur Olcott 5th Avenue,
Chennai – 600090. … Respondent
Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 06.01.2011 passed in I.A.No.3040 of 2010 in FCOP No.569 of 2004 on the file of Principal Family Court at Chennai.
For petitioner : Ms.K.M.Nalinishree
or Respondent : Ms.Geetha Ramaseshan
O R D E R
The present revision is directed against the order of the learned Principal Family Judge at Chennai dated 06.01.2011 made in I.A.No.3040 of 2010 in FCOP No.569 of 2004.
2. The respondent in this revision, who is the wife of the petitioner has filed the said O.P for dissolution of marriage that took place between them on 17.04.2002. In the said O.P, the petitioner has taken out an application in I.A.No.3040 of 2010 seeking permission to lead the evidence through Video Conferencing in the O.P as well as in the Interlocutory Applications. The said application was dismissed by the Court referred to above and the present revision is directed against the said order.
3. The reason for filing the said application as put forth in the affidavit in nut shell are stated here under:
He is a permanent resident in U.S.A and he is unable to come and lead evidence in person in view of his pre-occupation in his career. He is not able to conduct the trial personally because he is unable to get leave from his employer. The terms and conditions of his work are very severe because of the recession prevalent in the U.S.A. Though, he was at Chennai, in view of the various proceedings by the respondent herein, he was unable to get on with the matter. For effective adjudication of the matter, he has to be permitted to lead evidence through video conferencing.
4. The said application was opposed by the respondent herein. It is stated that in order to effectively cross-examine the petitioner, his personal appearance is necessary. She may have to mark certain documents through him and the same cannot be done through video conferencing.
5. The learned Judge of the Principal Family Court at Chennai considering the rival submissions, dismissed the application on the ground that number of documents are to be marked in the O.P on the side of the respondent herein and that parties have to be examined in detail with reference to the documents. The presence of the parties in court during enquiry in the main O.P will enable this Court to record evidence without any difficulty.
6. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents.
7. The learned counsel appearing for the petitioner strenuously contended that evidence can be recorded through video conferencing. The petitioner is employed in U.S.A and it would be difficult for him to get leave therein and hence he is unable to appear in person before the Family Court. Therefore, he has to necessarily file an application to lead evidence through video conferencing. In support of the case, she relied on the decision reported in (2003) 4 SCC 601, State of Maharashtra v. Dr.Praful B.Desai.
8. On the other hand, the learned counsel appearing for the respondent contended that the respondent has filed number of documents and unless otherwise the petitioner appears before the Court to lead evidence and available for cross examination, an effective cross examination cannot be carried out. Through video conferencing, according to the learned counsel appearing for the respondent, the petitioner cannot be cross-examined.
9. I have carefully considered the submissions made by the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.
10.1. As stated already, the learned counsel appearing for the petitioner relied on the judgment reported in (2003) 4 SCC 601, State of Maharashtra v. Dr.Praful B.Desai and contended that when a request is made by a party for examining him through video conferencing, the same shall be permitted. On a specific question raised by this Court, whether the said permission shall be granted automatically without any discretion of the Court, the learned counsel emphasized that discretion does not lie in a Court when such request was made and it shall be granted. 10.2. The phrase “Presence of the Accused” as provided under Section 273 of Cr.P.C came in for consideration before the Hon’ble Apex Court in the said decision. Section 273 of Cr.P.C reads as follows:
“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 the presence of his pleader.” 10.3. While considering the same, the Hon’ble Apex Court has held that recording of evidence by way of video conferencing is permissible. So long as the accused and/or his pleader is present when the evidence is recorded in the said way, it has to be presumed that the evidence is being recorded “in the presence” of the accused and would fully meet the requirements of Section 273 of Cr.P.C. Paragraphs 20, 25 and 26 of the judgment referred to above that was relied on by the learned counsel appearing for the petitioner is usefully extracted here under: “20. 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 dock in a crowded courtroom. They can observe his or her demeanour. In fact the facility to playback would enable better observation of demeanor. 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 playback 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 video-conferencing has to be on some conditions.
25. 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 was submitted that there would be no way of ensuring that the witness 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 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-examining him. Lastly, it was submitted that the cost of video-conferencing, if at all permitted, must be borne by the State.
26. To be remembered that what is being considered is recording evidence on commission. Fixing of time for recording evidence on commission 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 officer concerned. If they do not 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 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/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 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 the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read in 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 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 a foreign witness has given evidence in a court in India and then gone away abroad. In all such cases the court would not have been able to 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 would 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. 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 officer concerned will ensure that 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 sufficient 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, 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 into consideration for testing the veracity of the evidence. Undoubtedly, the costs of video-conferencing would have to be borne by the State.” 10.4. In the said decision, interpretation of the term “presence” in Section 273 of Cr.P.C came in for consideration before the Hon’ble Apex Court and the Hon’ble Apex Court while dealing with the same held that it does not mean actual physical presence in the Court. 10.5. Thus, the Hon’ble Apex Court has held that recording the evidence by way of video-conferencing is permissible. The evidence recorded would be as per the procedure established by law and that no prejudice would be caused to the accused by recording the evidence in such a manner. No where in the said decision, the Hon’ble Apex Court has held that the evidence has to be recorded by video-conferencing. 11.1. Yet another contention that has been raised by the learned counsel appearing for the petitioner is that Order 18 Rule 4 of CPC contemplates recording the evidence either in writing or mechanically, which means through the help of electronic media. Hence the evidence could be recorded through video conferencing. In this connection, the learned counsel appearing for the petitioner relied on the decision reported in (2003) 1 SCC 49, Salem Advocate Bar Association v. Union of India. Paragraph 19 of the said decision, on which much reliance is placed on by the learned counsel appearing for the petitioner is usefully extracted here under: “19. Order 18 Rule 4(2) gives the court the power to decide as to whether evidence of a witness shall be taken either by the court or by the Commissioner. An apprehension was raised to the effect that the court has no discretion and once it decides that the evidence will be recorded by the Commissioner then evidence of other witnesses cannot be recorded in court. We do not think that this is the correct interpretation of sub-rule (2) of Rule 4. Under the said sub-rule, the court has the power to direct either all the evidence being recorded in court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the court. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of the other five witnesses evidence will be recorded in court. In this connection, we may refer to Order 18 Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word “mechanically” indicates that the evidence can be recorded even with the help of the electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.” 11.2. In the said decision, the Hon’ble Apex Court has held that the word “mechanically” indicates that the evidence can be recorded even with the help of the electronic media, audio or audio visual. Even in the said decision, it has not been held by the Hon’ble Apex Court that the evidence has to be recorded only through video conferencing. 12.1. Yet another submission that has been made by the learned counsel appearing for the petitioner is that even under Order 18 Rule 5, it is envisaged that the evidence can be recorded mechanically, in the language of the Court, in the presence of the Judge. Order 18 Rule 5 is usefully extracted here under: “5. How evidence shall be taken in appealable cases.- In cases in which an appeal is allowed, the evidence of each witness shall be-
(a) taken down in the language of the Court-
(i) in writing by or in the presence and under the personal direction and superintendence of, the Judge, or
(ii) from the dictation of the Judge directly on a typewriter ; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.”
12.2. Emphasizing further, the learned counsel appearing for the petitioner contended that effect of the said provision has to be given in toto.
12.3. In this connection, the learned counsel appearing for the petitioner relied on the decision reported in AIR 2004 SUPREME COURT 355, A.T.Corpn. Ltd. v. Shapoorji Data Processing Ltd. Paragraphs 21 and 22 of the said judgment is usefully extracted here under: “21. In a situation of this nature, the doctrine of suppression of mischief rule as adumbrated in Heydon’s case (3 Co. Rep. 7a, 76 ER 637) shall apply. Such an amendment was made by the Parliament consciously and, thus, full effect thereto must be given.
22. In Halsbury’s Laws of England, volume 44 (1), fourth reissue, para 1474, PP 906-07, it is stated:
“Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that parliament intends that the Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon’s case where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general [be they penal or beneficial, restrictive or enlarging of the common law], four things are to be discerned and considered: (1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common law did not provide;
(3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and
(4) the true reason of the remedy.
and then the office of all the judges is always to make such construction as shall:
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit);
(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good).”
12.4. The question that arose for consideration before the Hon’ble Apex Court was whether the plaintiff can file an affidavit purporting to be his examination in chief. The background of the case is that an affidavit was filed by the plaintiff purporting to be his examination in chief to be taken on evidence in the suit. An objection was raised by the defendant. However, the said objection was turned down. Being aggrieved, the defendant filed a writ petition before the High Court. The Hon’ble High Court also concurred with the view of the Trial Court. The Hon’ble High Court has opined that no prejudice would be caused to the defendant, if the plaintiff files an affidavit purporting to be his examination in chief, since he would get an opportunity to cross examine the plaintiff and plaintiff’s witnesses. When the matter came before the Hon’ble Apex Court, the Hon’ble Apex Court also concurred with the view of the High Court and dismissed the Civil Appeal. The facts of the case is entirely on different footing.
13. The learned counsel appearing for the respondent relied on the decision reported in AIR 2009 SUPREME COURT 1252, State of Haryana v. Bhup Singh. Relying on the said decision, the learned counsel appearing for the respondent contended that the direction contained in a decision cannot be held to be declaration of law within the meaning of Article 141 of the Constitution. The decision thus, does not constitute binding precedent. By placing emphasis on the said decision, the learned counsel appearing for the respondent contended that the decision made in (2003) 4 SCC 601, State of Maharashtra v. Dr.Praful B.Desai is not binding precedent and hence, it cannot be said that in all cases, the evidence has to be recorded through video-conferencing.
14. As contended rightly by the learned counsel appearing for the respondent, in the decision reported in (2003) 4 SCC 601, State of Maharashtra v. Dr.Praful B.Desai, the Hon’ble Apex Court has not held that in all cases evidence has to be recorded through video-conferencing. In the case on hand, assurances has been given on the side of the respondent, by the learned counsel appearing for the respondent that if the petitioner appears before the Family court to give evidence, he will not be unnecessarily harassed and he will not be made to wait endlessly. It is assured that without any much adjournments, he will be cross-examined on the side of the respondent.
15. While considering the said submission made by the learned counsel appearing for the respondent, I am of the considered view that the petitioner, if he appears before the Family Court, he will have to be cross-examined without dragging him endlessly and making him to stay for weeks together or months together. That apart, the evidence, if recorded in the open Court, the respondent will be in a better position to effectively cross-examine him on the very number of documents filed on behalf of the respondent. The petitioner cannot say that he will not attend the Court at all to lead evidence.
16. Summing up the entire discussions made above, I am of the considered view that the Court below has rightly rejected the application preferred by the petitioner and I do not find any illegality or infirmity in the said order.
17. In fine, the Civil Revision Petition stands dismissed. Consequently, connected miscellaneous petition is closed. However, no orders as to costs.
18. However, the learned Judge of the Principal Family Court at Chennai is directed to dispose of the O.P at the earliest, in any event within a period of four months from the date of receipt of a copy of this order. I hope that both the petitioner as well as the respondent will co-operate with the Court in disposing of the matter within the time as fixed by this Court. pgp/mvs
The Principal Family Court,