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Atul Jain v. Central Bureau of Investigation - (High Court of Delhi) (16 Feb 2017)

Evidence by video conferencing in open court should be only if witness is in a country having extradition treaty with India



Aggrieved by order passed by Special Judge disposing of an application filed by CBI seeking permission to examine some foreign based witnesses through video conferencing, Petitioners prefer present petitions. In the application, CBI prayed that statements of three witnesses, be permitted to be examined through video conferencing. Trial Court vide impugned order noted that a perusal of record revealed that, Court had already issued process to the three witnesses on several occasions and summons were sent through concerned Ministry of Home Affairs, Government of India along with the written consent sent by the CBI to incur all expenses of summoning and stay of the above witnesses in India, in connection with their examination in this case however, three witnesses have not given their consent to come and depose in India. Thus, relying upon decision of Supreme Court in State of Mahrashtra vs. Dr. Praful B. Desai, Special Judge allowed the application.

Merely because application was filed after 13 years examination of two witnesses cannot be denied. Plea that there is no extradition treaty with Kenya also rejected for the reason that though Ms.JH is presently in Kenya but she is an Australian citizen and Mr.KJP is also an Australian citizen, presently in Adelaide, Australia. India has an extradition treaty with Australia and thus merely because presently Ms. JH is in Kenya her examination at Kenya through video conferencing cannot be declined.

In Dr. Praful B. Desai, Supreme Court while dealing with issue of examination of witnesses, whose presence cannot be obtained easily noting the provisions of Sections 284 and 285 of Criminal Procedure Act (Cr.P.C.) which permits examination of witnesses on commission, held that recording of evidence by video conferencing also satisfies the object of providing, in Section 273 of Cr.P.C., that evidence be recorded in the presence of the accused. Supreme Court also noted that 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.

As noted, witnesses are both Australian citizens and India has an extradition treaty with Australia. Thus, India having no extradition treaty with Kenya is not relevant to the present case. Finding no merit in objections raised High Court upheld impugned order to the extent it directs examination of witnesses through video conferencing.

Relevant : State of Mahrashtra vs. Dr. Praful B. Desai


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