Telangana High Court
The State Of Telangana vs K.Bhaskara Chary on 28 July, 2023
HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
CRIMINAL REVISION CASE No.360 of 2023
O R D E R:
This Criminal Revision Case is filed under Sections 397 and 401 of Code of Criminal Procedure (for short 'Cr.P.C.) by the petitioner/complainant/State challenging the order dated 08.03.2023 in Crl.M.P.No.186 of 2023 in Spl.S.C.No.28 of 2019 passed by the Special Judge For Trial of Offences under SCs and STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad.
2. The brief facts of the case are that since January, 2018, the de- facto complainant was going to respondent/accused for her M.Sc. dissertation work and from March, 2018 onwards, she was working in his lab. Since 02.03.2018, respondent/accused was trying to molest and harass the de-facto complainant by sending very indecent messages and pictures through whatsapp and also touched her. Further, she received abusive messages and vulgar pictures on her cell phone from respondent/accused. Aggrieved by the same, de- facto complainant registered a case against respondent/accused in FIR No.146 of 2018 on the file of the Station House Officer, Osmania University Police Station, for the offences under Sections 354, 354(A) and 509 of the Indian Penal Code (for short 'IPC'), Sections 3(1)(w), 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of 2 GAC, J crlrc_360_2023 Atrocities) Act (for short 'the Act') and Section 67 of Information Technology Act (for short 'IT Act').
(ii) After due investigation, the police have filed charge sheet and the case was numbered as Spl.S.C.No.28 of 2019 on the file of the Court of the Special Judge for Trial of Offences under SCs and STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad.
(iii) While things stood thus, the prosecution has filed Crl.M.P.No.186 of 2023 in Spl.S.C.No.28 of 2019 under Section 257 of Cr.P.C. to record the evidence of LW1 and LW6 through video conferencing and the trial Court vide order dated 08.03.2023 has dismissed the said petition with a direction to the prosecution agency to produce the witness by physical mode by the next date of hearing in Spl.S.C.No.28 of 2019. Aggrieved by the same, the petitioner/State has filed the present Criminal Revision Case.
3. Heard Sri S.Ganesh, learned Assistant Public Prosecutor for the petitioner/State and learned counsel for respondent. Perused the record.
4. Learned Assistant Public Prosecutor contended that the orders passed by the trial Court are arbitrary and that the trial Court has failed to exercise its judicial discretion. Therefore, prayed to set aside the order dated 08.03.2023.
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5. Learned counsel for the respondent contended that the petition filed under Section 275 Cr.P.C. for recording the evidence of LWs.1 and 6 is not maintainable by law or facts. Further, it is submitted that no reasons were mentioned for prosecuting LWs.1 and 6 through video conference and that without assigning any reason, the prosecution cannot seek any relief.
6. Learned counsel for the respondent further contended that the Government of Telangana issued Gazette Notification No.14/SO/2020, wherein Government of Telangana has framed rules for video conferencing for Courts in the State of Telangana. As per Rule 5(1) of the said Rules, there shall be Coordinator both at the Court Point and at the Remote Point from which any required person is to be examined or heard. However, Coordinator may be required at the Remote Point only when a witness or a person accused of an offence is to be examined.
7. Learned counsel for the respondent also contended that the Rule 5(3) prescribe appointment of Coordinator and other procedures and it is the duty of the petitioner to ensure that the conditions mentioned in the Rules for Video Conferencing for the Courts in the State of Telangana will be followed by the petitioner and witnesses. Therefore, prayed to dismiss the criminal revision case. 4
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8. To support his contentions, learned counsel for the respondent relied upon the judgment of the Rajasthan High Court in Central Bureau of Investigation v. Sohan Lal Bishnoi1, wherein it is held as follows:
22. Mr. Nahata has further contended that High Court has not laid down any procedure by enacting rules or instructions for recording evidence of a witness through video conferencing. Learned counsel has, therefore, urged that in such circumstances recording evidence through video teleconference would be dehors rules of procedure and therefore violative of Article 21 of the Constitution which envisage fundamental right to an accused of getting tried in accordance with procedure established by law. It is also submitted by learned counsel that the judgment in Praful B. Desai & Anr.
(supra) is clearly distinguishable in as much as it was a case of summons trial wherein recording evidence is governed by Section 275 Cr.P.C. permitting evidence to be recorded by audio video electrical means whereas no such provision is available under Section 276 Cr.P.C. laying down procedure for recording evidence in sessions case. Alternatively, it is argued by learned counsel that the concerned witness has not refused to appear before the learned trial Court for recording her statement and the (15 of 27) reasons for her non- appearance with other option are simply illusory.
33. It has also come to the fore that the prosecuting agency by realizing significance of the evidence of the concerned witness, persuaded/requested learned trial Court to issue her summons from time to time and in all 1 S.B.Criminal Misc. Petition No.2240 of 2019 5 GAC, J crlrc_360_2023 on 19 occasions summons were sent for ensuring her presence. At this juncture, it may also be observed that at one point of time learned trial Court had given next date of three months for recording evidence of the witness vide its order dated 16th of October, 2017. On 16th of October, 2017, the learned trial Court, while issuing fresh summons to the witness along with information in prescribed proforma for (21 of 27) recording her evidence, posted the matter on 25th of January, 2018. This indulgence was granted by the learned trial Court on a request made by CBI. Later on also, from time to time endeavour was made by the leaned trial Court to summon the witness but on one pretext or the other the witness did not turn up to depose before the Court. All these sequence of events clearly goes to show that CBI has soft peddled its efforts to examine the witness, leading to a situation of halting the trial for last eight months.
35. In Dr. Praful B. Desai & Anr. (surpa), a judgment of Supreme Court, on which prosecuting agency has placed heavy reliance, suffice it to observe that it was a case of construing Sections 274 and 275 Cr.P.C. for recording evidence by way of video conferencing in open Court. In that matter, essentially, the Court examined the relevant provisions pertaining to a trial for offences under Section 338 read with Sections 109 and 114 IPC, in accordance with summons trial. Moreover, the witness in that case, Dr. Ernest Greenberg of Sloan Kettering Memorial Hospital, New York, USA, though had expressed his willingness to give evidence but refused to come to India for that purpose. Therefore, in that background, the Court permitted his examination as a witness by video conferencing and laid down the procedure. Therefore, besides being a summons case, it 6 GAC, J crlrc_360_2023 was a case of unwillingness of the witness to come to India to depose and the Supreme Court permitted recording statements of the witness though video conferencing. The present one is a Sessions trial and there is nothing on record to show that the concerned witness has shown her unwillingness to visit India for deposition, therefore, the judgment aforesaid is clearly distinguishable on the facts and circumstances of the case.
38. On behalf of accused-respondent, it is vociferously canvassed that unlike Section 275 Cr.P.C., there is no amendment in Section 276 Cr.P.C. permitting recording of evidence of a witness by audio video electronic means in a trial before Court of Session. However, in my view, this question need no elaborate examination/adjudication. While refraining to dilate on this question, I feel its threadbare examination would unnecessary encumber the order. Precisely, the plea raised in the instant petition is thrashed out by the Court on the touchstone of peculiar facts and circumstances besides sequence of events during trial. Therefore, for thwarting plea of the prosecuting agency, it would not be appropriate to scrutinize contention of defence touching Section 276 Cr.P.C. Thus, this question is left open.
9. The facts of the above case clearly apply to the facts and circumstances of the present case. In the said judgment, it was held that there is nothing on record to show that the concerned witness has shown her unwillingness to visit India for deposition. In the 7 GAC, J crlrc_360_2023 present case also, no reasons were assigned by the prosecution as to why the witnesses are not willing to come before the trial Court.
10. On perusal of the impugned order dated 08.03.2023, it is evident that the prosecution filed the petition under Section 275 Cr.P.C. praying to record the evidence of de-facto complainant/LW1, who is a resident of West Bengal and that the summons were served on the witness but she addressed a letter to the trial Court as well as Investigating Agency stating that the evidence of LW1 as well as LW6 may be received through video conference mode. Admittedly, the petition does not disclose the reasons as to why the witnesses' evidence needs to be recorded by video conference rather than physical mode.
11. Section 354A IPC envisages Sexual harassment and punishment for sexual harassment.
12. On perusal of the complaint, it is evident that allegations are made against the respondent/accused for harassing the de-facto complainant sexually in working place.
13. learned counsel for respondent/accused contends that it would be easy for the Court below to record cross examination of the witnesses in physical mode rather than virtual mode and it will be easy for the counsel to confront any document of the witnesses, if 8 GAC, J crlrc_360_2023 present before the Court in physical mode. It is further contended that specific allegations are levelled against the respondent/accused that respondent has sent abusive messages and pictures from his cell phone and in order to confront those messages, the presence of the de-facto complainant is very much necessary and it will be highly impossible for the respondent/accused to cross examine the witness in virtual mode.
14. Section 275 Cr.P.C. reads as follows:
275. Record in warrant- cases.
(1) In all warrant- cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that, the evidence could not be taken down by himself for the reasons referred to in sub- section (1). (3) Such evidence shall ordinarily be taken down in the form of a narrative; but the Magistrate may, in his discretion take down, or cause to be taken down, any part of such evidence in the form of question and answer.
(4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.9
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15. In the present case, the petition filed by State before the trial Court does not disclose that the evidence shall be recorded by the audio, video and electronic means in the presence of the accused person, who has alleged to have committed the offence. It is for the prosecution to file a petition under Section 276 Cr.P.C. but not under Section 275 Cr.P.C. as the trial is before the Special SC ST (POA) Court and not before the Magistrate.
16. Section 278 Cr.P.C. defines the procedure in regard to such evidence when completed.
(1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
17. On perusal of the record, it is evident that PWs.1 to 9 were examined in this case. PW1 is the Director of National Institute of Nutrition (for short 'NIN'), Tarnaka; PW2 is the then Scientist of the NIN; PW3 is a retired Senior Deputy Director of NIN, Tarnaka; other witnesses i.e.,PWs.4 to 7 are circumstantial witnesses examined on behalf of the prosecution; PW8 is the Investigating Officer and PW9 is the Assistant Director of APFSL. The impugned order passed by the 10 GAC, J crlrc_360_2023 trial Court discloses that the prosecution has relied upon certain electronic evidence and filed Ex.P5-certificate under Section 65-B of Indian Evidence Act, some whatsapp messages/particulars/data was also placed before the trial Court to prove the charges framed against the respondent/accused.
18. Further, the trial Court has taken into consideration the rules framed in Gazette Notification No.14/SO/2020, dated 29.10.2020 and observed that Schedule - II requisition form for video conference with full particulars of the name of the witness and Court Point Coordinator and the Remote Point Coordinator to be appointed for the purpose of recording the evidence through video conference mode. However, no application was made by the prosecution in the prescribed format before the trial Court.
19. The trial Court has also observed that the evidence placed including whatsapp particulars/communications/messages have to be confronted to the witness and it is not possible to confront such material to the witness through video conference mode. Therefore, the trial Court held that it was not appropriate to record the evidence of LW1 through video conference mode and directed the prosecution to produce the witness by physical mode by next date of hearing. Further, the evidence of the witnesses, which are to be recorded by 11 GAC, J crlrc_360_2023 the Court, are that of the de-facto complainant and her mother, who are residing at West Bengal.
20. On perusal of record, no reasons were assigned by the prosecution as to why the witnesses could not be present before the concerned Court in a criminal trial. The cordinal principles of criminal justice system are that the prosecution has to prove the guilt of the respondent/accused beyond reasonable doubt and fair opportunity is to be given to the respondent/accused to prove his innocence. Therefore, this Court is of the considerable opinion that there are no irregularities and abnormalities in the order passed by the trial Court so as to interfere with the said orders. This Court concurs with the observation made by the trial Court. As per the aforesaid discussion, the Criminal Revision Case is liable to be dismissed.
21. Accordingly, the Criminal Revision Case is dismissed as devoid of merits.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 28.07.2023 TMK 12 GAC, J crlrc_360_2023 HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY CRIMINAL REVISION CASE No.360 of 2023 Date: 28.07.2023 TMK