Calcutta High Court (Appellete Side)
Sikha Saha Gupta vs The State Of West Bengal & Ors on 16 May, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 327 of 2019
Sikha Saha Gupta
Vs
The State of West Bengal & Ors.
For the Petitioner : Mr. Devajyoti Barman,
Ms. Sanjukta Basu Mallick.
For the State : None.
For the Opposite Parties No. 2 to 7 : None.
Heard on : 24.04.2023
Judgment on : 16.05.2023
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Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for transfer of G.R. Case
No. 1084 of 2018 arising out of Jaigoan Police Station Case No. 129 of
2018 under Section 498A of Indian Penal Code r/w Section 4 of Dowry
Prohibition Act from the file of the Learned Additional Chief Judicial
Magistrate, Alipurduar, to any other competent Magisterial Court within
the jurisdiction of the Learned Chief Judicial Magistrate, Malda.
2. The petitioner's case is that the petitioner is the wife of the opposite party
No. 2 herein and daughter in law of the opposite party Nos. 3 and 4 and
sister in law of the opposite party nos. 5, 6 and 7.
3. That it is an admitted fact that the opposite parties are residents of Uttar
Dewketa Toll, P.O. & P.S. Jaigoan, District-Alipurduar, PIN - 735182.
4. On the basis of a written complaint filed by the petitioner, Jaigoan Police
Station Case No. 129 of 2018 under Section 498A of Indian Penal Code
read with Section 4 of Dowry Prohibition Act was started against the
opposite parties.
5. That initially a complaint was lodged at the English Bazar Women's
Police Station on 22.06.2018 being English Bazar Women's Police Station
Case No. 00 of 2018 and after receiving the same the L.A.S.I. made a
prayer for transfer of the case to Jaigoan Police Station, which is the
local police station of the opposite party nos. 2, 3, 4, 5, 6 and 7, and the
prayer was allowed by the Ld. Court. Thus, the instant matter was
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transferred to Jaigoan Police Station and registered there as FIR No. 129
of 2018 under Section 498A of Indian Penal Code read with Section 4 of
Dowry Prohibition Act in which Charge-sheet being No. 224/18 under
Section 498A of the Indian Penal Code read with Section 4 of Dowry
Prohibition Act was filed and the case is now pending before the Learned
Additional Chief Judicial Magistrate, Alipurduar.
6. Mr. Devajyoti Barman, learned counsel for the petitioner has
submitted that the petitioner is a permanent resident of the address as
mentioned in the cause title before her marriage and since her birth, and
it will be tough for her being a woman and helpless lady having no
parents as her guardian, being under the care and guidance of her elder
brother, to travel from her residence at Malda to Jaigaon at Alipurduar.
7. That she being an unemployed helpless person having no financial
security/capacity to maintain herself has also filed a petition under
Section 125 Cr.P.C. pending before the Learned 1st Judicial Magistrate,
Malda.
8. Thus the prayer for transfer of G.R. Case No. 1084 of 2018 arising out of
Jaigoan Police Station Case No. 129 of 2018 under Section 498A of
Indian Penal Code read with Section 4 of Dowry Prohibition Act from the
file of the Learned Additional Chief Judicial Magistrate, Alipurduar, to
any other competent Magisterial Court within the jurisdiction of the
Learned Chief Judicial Magistrate, Malda.
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9. In spite of due notice there is no representation on behalf of the
opposite parties no. 2 to 7.
10. In the present case the First Information Report was registered on
22.06.2018 at Malda, English Bazar women Police Station.
11. Then on the prayer of a LASI (I.O.) of the Police Station, the case was
transferred to Jaigaon Police Station, District- Alipurduar and the FIR at
Alipurduar was registered on 27.06.2018.
12. Charge Sheet has been submitted on 30.08.2018 being Jaigaon Police
Station C.S. No. 224/2018.
13. Mr. Barman has placed an order of a coordinate bench where the Court
allowing a petition under Section 24 of code of civil procedure,
transferred a proceedings under Section 9 of the Hindu Marriage Act as
per convenience of the wife.
14. The Judgment in Rupali Devi vs State of Uttar Pradesh, 2019 0 AIR
(SC) 1790, has been relied upon by the petitioner, wherein the court held
as follows:-
"6. A look at the provisions of Chapter XIII of the Code
of Criminal Procedure, 1973 (Cr.P.C) dealing with the
jurisdiction of the Criminal Court in inquires and trials
will now be required. Section 177 of the Code of
Criminal Procedure contemplates that "every offence
shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed". It is,
therefore, clear that in the normal course, it is the court
within whose local jurisdiction the offence is committed
that would have the power and authority to take
cognizance of the offence in question.
8. Section 178 creates an exception to the "ordinary
rule" engrafted in Section 177 by permitting the courts in
another local area where the offence is partly committed
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to take cognizance. Also if the offence committed in one
local area continues in another local area, the courts in
the latter place would be competent to take cognizance
of the matter. Under Section 179, if by reason of the
consequences emanating from a criminal act an offence
is occasioned in another jurisdiction, the court in that
jurisdiction would also be competent to take cognizance.
Thus, if an offence is committed partly in one place and
partly in another; or if the offence is a continuing offence
or where the consequences of a criminal act result in an
offence being committed at another place, the exception
to the "ordinary rule" would be attracted and the courts
within whose jurisdiction the criminal act is committed
will cease to have exclusive jurisdiction to try the
offence.
10. The question that has posed for an answer has
nothing to do with the provisions of Section 178 (b) or (c).
What has to be really determined is whether the
exception carved out by Section 179 would have any
application to confer jurisdiction in the courts situated in
the local area where the parental house of the wife is
located.
13. The object behind the aforesaid amendment,
undoubtedly, was to combat the increasing cases of
cruelty by the husband and the relatives of the husband
on the wife which leads to commission of suicides or
grave injury to the wife besides seeking to deal with
harassment of the wife so as to coerce her or any person
related to her to meet any unlawful demand for any
property, etc. The above stated object of the amendment
cannot be overlooked while answering the question
arising in the present case. The judicial endeavour must,
therefore, always be to make the provision of the laws
introduced and inserted by the Criminal Laws (second
amendment) Act, 1983 more efficacious and effective in
view of the clear purpose behind the introduction of the
provisions in question, as already noticed.
14. "Cruelty" which is the crux of the offence under
Section 498A IPC is defined in Black's Law Dictionary to
mean "The intentional and malicious infliction of mental
or physical suffering on a living creature, esp. a human;
abusive treatment; outrage (Abuse, inhuman treatment,
indignity)". Cruelty can be both physical or mental
cruelty. The impact on the mental health of the wife by
overt acts on the part of the husband or his relatives; the
mental stress and trauma of being driven away from the
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matrimonial home and her helplessness to go back to
the same home for fear of being illtreated are aspects
that cannot be ignored while understanding the
meaning of the expression "cruelty" appearing in Section
498A of the Indian Penal Code. The emotional distress
or psychological effect on the wife, if not the physical
injury, is bound to continue to traumatize the wife even
after she leaves the matrimonial home and takes shelter
at the parental home. Even if the acts of physical cruelty
committed in the matrimonial house may have ceased
and such acts do not occur at the parental home, there
can be no doubt that the mental trauma and the
psychological distress cause by the acts of the husband
including verbal exchanges, if any, that had compelled
the wife to leave the matrimonial home and take shelter
with her parents would continue to persist at the
parental home. Mental cruelty borne out of physical
cruelty or abusive and humiliating verbal exchanges
would continue in the parental home even though there
may not be any overt act of physical cruelty at such
place.
16. We, therefore, hold that the courts at the place
where the wife takes shelter after leaving or driven
away from the matrimonial home on account of acts of
cruelty committed by the husband or his relatives,
would, dependent on the factual situation, also have
jurisdiction to entertain a complaint alleging
commission of offences under Section 498A of the
Indian Penal Code."
15. In the present case the investigating is complete, trial is to commence.
16. In view of the observation of the Supreme Court in Rupali Devi (Supra),
in the present case, the Court at Malda, where the petitioner has taken
shelter in her parent's house after being compelled to leave her
matrimonial home due to the cruelty inflicted by the accused persons
also has the jurisdiction.
17. The initial FIR was also registered at Malda. As the initiation of the case
occurred at Malda, the police also had the jurisdiction to conduct the
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investigation. The case was transferred to Jaigaon at Alipurduar as
the evidence as to the offence/incident if any would be at the
alleged place of occurrence being the Matrimonial home of the
petitioner at Jaigaon. Investigation is now complete. There are six
accused persons. The offence alleged is under Section 498A of IPC.
18. In Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar & Ors.,
2022 LiveLaw (SC) 141, the Supreme Court held as follows:-
"Issue Involved
11. Having perused the relevant facts and contentions
made by the Appellants and Respondents, in our
considered opinion, the foremost issue which requires
determination in the instant case is whether allegations
made against the in-laws Appellants are in the nature of
general omnibus allegations and therefore liable to be
quashed ?
12. Before we delve into greater detail on the nature
and content of allegations made, it becomes pertinent to
mention that incorporation of section 498A of IPC was
aimed at preventing cruelty committed upon a woman
by her husband and her in-laws, by facilitating rapid
state intervention. However, it is equally true, that in
recent times, matrimonial litigation in the country has
also increased significantly and there is a greater
disaffection and friction surrounding the institution of
marriage, now, more than ever. This has resulted in an
increased tendency to employ provisions such as 498A
IPC as instruments to settle personal scores against the
husband and his relatives.
13. This Court in its judgment in Rajesh Sharma and
Ors. Vs. State of U.P. & Anr; (2018) 10 SCC 472, has
observed:-
"14. Section 498-A was inserted in the statute with the
laudable object of punishing cruelty at the hands of
husband or his relatives against a wife particularly
when such cruelty had potential to result in suicide or
murder of a woman as mentioned in the statement of
Objects and Reasons of the Act 46 of 1983. The
expression 'cruelty' in Section 498A covers conduct
which may drive the woman to commit suicide or cause
grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful
demand. It is a matter of serious concern that large
number of cases continue to be filed under already
referred to some of the statistics from the Crime Records
Bureau. This Court had earlier noticed the fact that most
of such complaints are filed in the heat of the moment
over trivial issues. Many of such complaints are not
bona fide. At the time of filing of the complaint,
implications and consequences are not visualized. At
times such complaints lead to uncalled for harassment
not only to the accused but also to the complainant.
Uncalled for arrest may ruin the chances of settlement."
14. Previously, in the landmark judgment of this court in
Arnesh Kumar Vs. State of Bihar and Anr; (2014) 8
SCC 273, it was also observed:-
"4. There is a phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is
greatly revered in this country. Section 498-A IPC was
introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband
and his relatives. The fact that Section 498-A IPC is a
cognizable and non-bailable offence has lent it a
dubious place of pride amongst the provisions that are
used as weapons rather than shield by disgruntled
wives. The simplest way to harass is to get the husband
and his relatives arrested under this provision. In a
quite number of cases, bed- ridden grandfathers and
grand-mothers of the husbands, their sisters living
abroad for decades are arrested."
15. Further in Preeti Gupta & Anr. Vs. State of
Jharkhand & Anr; (2010) 7 SCC 667, it has also been
observed:-
"32. It is a matter of common experience that most of
these complaints under section 498A IPC are filed in the
heat of the moment over trivial issues without proper
deliberations. We come across a large number of such
complaints which are not even bona fide and are filed
with oblique motive. At the same time, rapid increase in
the number of genuine cases of dowry harassment are
also a matter of serious concern.
33. The learned members of the Bar have enormous
social responsibility and obligation to ensure that the
social fiber of family life is not ruined or demolished.
They must ensure that exaggerated versions of small
incidents should not be reflected in the criminal
complaints. Majority of the complaints are filed either on
their advice or with their concurrence. The learned
members of the Bar who belong to a noble profession
must maintain its noble traditions and should treat
every complaint under section 498A as a basic human
problem and must make serious endeavour to help the
parties in arriving at an amicable resolution of that
human problem. They must discharge their duties to the
best of their abilities to ensure that social fiber, peace
and tranquility of the society remains intact. The
members of the Bar should also ensure that one
complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint
the implications and consequences are not properly
visualized by the complainant that such complaint can
lead to insurmountable harassment, agony and pain to
the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth
and punish the guilty and protect the innocent. To find
out the truth is a herculean task in majority of these
complaints. The tendency of implicating husband and all
his immediate relations is also not uncommon. At times,
even after the conclusion of criminal trial, it is difficult to
ascertain the real truth. The courts have to be extremely
careful and cautious in dealing with these complaints
and must take pragmatic realities into consideration
while dealing with matrimonial cases. The allegations of
harassment of husband's close relations who had been
living in different cities and never visited or rarely
visited the place where the complainant resided would
have an entirely different complexion. The allegations of
the complaint are required to be scrutinized with great
care and circumspection.
36. Experience reveals that long and protracted criminal
trials lead to rancour, acrimony and bitterness in the
relationship amongst the parties. It is also a matter of
common knowledge that in cases filed by the
complainant if the husband or the husband's relations
had to remain in jail even for a few days, it would ruin
the chances of amicable settlement altogether. The
process of suffering is extremely long and painful."
16. In Geeta Mehrotra & Anr. Vs. State of UP &
Anr; (2012) 10 SCC 741, it was observed:-
"21. It would be relevant at this stage to take note of an
apt observation of this Court recorded in the matter of
G.V. Rao vs. L.H.V. Prasad & Ors. reported in
(2000) 3 SCC 693 wherein also in a matrimonial
dispute, this Court had held that the High Court should
have quashed the complaint arising out of a matrimonial
dispute wherein all family members had been roped into
the matrimonial litigation which was quashed and set
aside. Their Lordships observed therein with which we
entirely agree that:
"there has been an outburst of matrimonial dispute in
recent times. Marriage is a sacred ceremony, main
purpose of which is to enable the young couple to settle
down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious
proportions resulting in heinous crimes in which elders
of the family are also involved with the result that those
who could have counselled and brought about
rapprochement are rendered helpless on their being
arrayed as accused in the criminal case. There are
many reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties
may ponder over their defaults and terminate the
disputes amicably by mutual agreement instead of
fighting it out in a court of law where it takes years and
years to conclude and in that process the parties lose
their "young" days in chasing their cases in different
courts." The view taken by the judges in this matter was
that the courts would not encourage such disputes."
17. Recently, in K. Subba Rao v. The State of
Telangana, (2018) 14 SCC 452 it was also observed
that:-
"6. The Courts should be careful in proceeding against
the distant relatives in crimes pertaining to matrimonial
disputes and dowry deaths. The relatives of the
husband should not be roped in on the basis of omnibus
allegations unless specific instances of their involvement
in the crime are made out."
18. The above-mentioned decisions clearly demonstrate
that this court has at numerous instances expressed
concern over the misuse of section 498A IPC and the
increased tendency of implicating relatives of the
husband in matrimonial disputes, without analysing the
long term ramifications of a trial on the complainant as
well as the accused. It is further manifest from the said
judgments that false implication by way of general
omnibus allegations made in the course of matrimonial
dispute, if left unchecked would result in misuse of the
process of law. Therefore, this court by way of its
judgments has warned the courts from proceeding
against the relatives and in-laws of the husband when
no prima facie case is made out against them."
And finally the court held:-
"22. Therefore, upon consideration of the relevant
circumstances and in the absence of any specific role
attributed to the accused appellants, it would be unjust
if the Appellants are forced to go through the tribulations
of a trial, i.e., general and omnibus allegations cannot
manifest in a situation where the relatives of the
complainant's husband are forced to undergo trial. It
has been highlighted by this court in varied instances,
that a criminal trial leading to an eventual acquittal also
inflicts severe scars upon the accused, and such an
exercise must therefore be discouraged."
19. The Supreme Court in Jyoti Mishra Vs Dhananjaya Mishra, Transfer
Petion (Criminal) Nos. 94-95 of 2010, on August 27, 2010, held:-
"6. Otherwise also, we are not inclined to transfer a
criminal case from one State to another solely on the
ground that it would be more convenient for the
complainant (wife) to prosecute the matter there. It is
true that in cases of dissolution of marriage, restitution
of conjugal rights or maintenance, this Court shows
much indulgence to the wife and ordinarily transfers the
case to a place where it would be more convenient for
the wife to prosecute the proceedings.
7. But a criminal case is on a somewhat different
footing. The accused may not be able to attend the
court proceedings at Indore for many reasons, one of
which may be financial constraints, but the
consequences of non- appearance of the accused before
the Indore Court would be quite drastic. Having regard
to the consequences of non-appearance of the accused
in a criminal trial, we are loath to entertain the
petitioner's prayer for transfer. In a criminal
proceeding, the right of the accused to a fair trial
and a proper opportunity to defend himself cannot
be ignored for the convenience of the complainant
simply because she happens to be the estranged
wife."
20. The Supreme Court in Santhini vs Vijaya Venketesh, Transfer
Petition (Civil) No. 1278 of 2016, on 9 October, 2017, held:-
"6. We have heard Mr. V.K. Sidharthan, learned counsel
for the petitioner and Mr. Rishi Malhotra, learned
counsel for the respondent. We have also heard Mr. Ajit
Kumar Sinha, learned senior counsel who has been
requested to assist the Court.
7. Before we refer to the scheme under the 1984 Act
and the 1955 Act, we think it apt to refer to the
decisions that have been noted in Krishna Veni Nagam
(supra). In Mona Aresh Goel (supra), the three-Judge
Bench was dealing with the transfer of the matrimonial
proceedings for divorce that was instituted by the
husband in Bombay. The prayer of the wife was to
transfer the case from Bombay to Delhi. The averment
was made that the wife had no independent income and
her parents were not in a position to bear the expenses
of her travel from Delhi to Bombay to contest the divorce
proceedings. That apart, various inconveniences were
set forth and the husband chose not to appear in the
Transfer Petition. The Court, considering the difficulties
of the wife, transferred the case from Bombay to Delhi.
In Lalita A. Ranga (supra), the Court, taking note of the
fact that the husband had not appeared and further
appreciating the facts and circumstances of the case,
thought it appropriate to transfer the petition so that the
wife could contest the proceedings. Be it noted, the wife
had a small child and she was at Jaipur and it was
thought that it would be difficult for her to go to Bombay
to contest the proceedings from time to time. In Deepa's
case, the stand of the wife was that she was
unemployed and had no source of income and, on that
basis, the prayer of transfer was allowed. In Archana
Rastogi (supra), the Court entertained the plea of
transfer and held that the prayer for transfer of
matrimonial proceedings taken by the husband in the
Court of District Judge, Chandigarh to the Court of
District Judge, Delhi deserved acceptance and,
accordingly, transferred the case. Similarly, in Leena
Mukherjee (supra), the prayer for transfer was allowed.
In Neelam Bhatia (supra), the Court declined to transfer
the case and directed the husband to bear the to-and-fro
travelling expenses of the wife and one person
accompanying her by train whenever she actually
appeared before the Court. In Soma Choudhury (supra),
taking into consideration the difficulties of the wife, the
proceedings for divorce were transferred from the Court
of District Judge, South Tripura, Udaipur (Tripura) to the
Family Court at Alipore (West Bengal). In Anju Ohri
(supra), the Court, on the foundation of the convenience
of the parties and the interest of justice, allowed the
transfer petition preferred by the wife. In Vandana
Sharma (supra), the Court, taking note of the fact that
the wife had two minor daughters and appreciating the
difficulty on the said bedrock, thought it appropriate to
transfer the case and, accordingly, so directed.
8. Presently, we think it condign to advert in detail as to
what has been stated in Anindita Das (supra). The
stand of the wife in the transfer petition was that she
had a small child of six years and had no source of
income and it was difficult to attend the court at Delhi
where the matrimonial proceedings were pending. The
two-Judge Bench referred to some of the decisions
which we have already referred to and also adverted to
Ram Gulam Pandit v. Umesh J. Prasad and Rajwinder
Kaur v. Balwinder Singh and opined that all the
authorities are based on the facts of the respective
cases and they do not lay down any particular law
which operates as a precedent. Thereafter, it noted that
taking advantage of the leniency shown to the ladies by
this Court, number of transfer petitions are filed by
women and, therefore, it is required to consider each
petition on merit. Then, the Court dwelled upon the fact
situation and directed that the husband shall pay all
travel and stay expenses to the wife and her companion
for each and every occasion whenever she was required
to attend the Court at Delhi. From the aforesaid
decision, it is quite vivid that the Court felt that the
transfer petitions are to be considered on their own
merits and not to be disposed of in a routine manner."
21. Thus in view of the observation in Jyoti Mishra (Supra) & Santhini
(Supra), transferring the present Criminal Case would amount to an
abuse of the process of law/court.
22. The petitioner with leave of the Court is at liberty to avail of the video
conferencing facility at the District Court at Malda.
23. In Santhini (Supra), the Court held:-
"3. The two-Judge Bench, after hearing the learned
counsel for the parties, the learned Additional Solicitor
General and the learned Senior Counsel who was
requested to assist the Court, made certain references to
the doctrine of 'forum non conveniens" and held that it
can be applied to matrimonial proceedings for advancing
the interest of justice. The learned Additional Solicitor
General assisting the Court suggested about conducting
the proceedings by videoconferencing. In that context, it
has been held:-
"14. One cannot ignore the problem faced by a husband
if proceedings are transferred on account of genuine
difficulties faced by the wife. The husband may find it
difficult to contest proceedings at a place which is
convenient to the wife. Thus, transfer is not always a
solution acceptable to both the parties. It may be
appropriate that available technology of
videoconferencing is used where both the parties have
equal difficulty and there is no place which is convenient
to both the parties. We understand that in every district
in the country videoconferencing is now available. In
any case, wherever such facility is available, it ought to
be fully utilised and all the High Courts ought to issue
appropriate administrative instructions to regulate the
use of videoconferencing for certain category of cases.
Matrimonial cases where one of the parties resides
outside court's jurisdiction is one of such 14 (2000) 10
SCC 277 categories. Wherever one or both the parties
make a request for use of videoconferencing,
proceedings may be conducted on videoconferencing,
obviating the needs of the party to appear in person. In
several cases, this Court has directed recording of
evidence by video conferencing.
xxxx
16. The advancement of technology ought to be utilised
also for service on parties or receiving communication
from the parties. Every District Court must have at least
one e-mail ID. Administrative instructions for directions
can be issued to permit the litigants to access the court,
especially when litigant is located outside the local
jurisdiction of the Court. A designated officer/manager
of a District Court may suitably respond to such e-mail
in the manner permitted as per the administrative
instructions. Similarly, a manager/information officer in
every District Court may be accessible on a notified
telephone during notified hours as per the instructions.
These steps may, to some extent, take care of the
problems of the litigants. These suggestions may need
attention of the High Courts."
[Emphasis added]
4. After so stating, the two-Judge Bench felt the need to
issue directions which may provide alternative to
seeking transfer of proceedings on account of inability of
a party to contest proceedings at a place away from
their ordinary residence which will eventually result in
denial of justice. The safeguards laid down in the said
judgment are:-
"(i) Availability of videoconferencing facility.
(ii) Availability of legal aid service.
(iii) Deposit of cost for travel, lodging and boarding in
terms of Order 25 CPC.
(iv) E-mail address/phone number, if any, at which
litigant from outstation may communicate."
Be it stated, the Court took note of the spirit behind the
orders of this Court allowing the transfer petitions filed
by wives and opined that the Court almost mechanically
allows the petitions so that they are not denied justice
on account of their inability to participate in proceedings
instituted at a different place. It laid stress on financial
or physical hardship. It referred to the authorities in the
constitutional scheme that provide for guaranteeing
equal access to justice, power of the State to make
special provisions for women and children, duty to
uphold the dignity of women18 and various steps that
have been taken in the said direction.
5. In the said case, the Court transferred the case as
prayed for and further observed that it will be open to
the transferee court to conduct the proceedings or record
the evidence of the witnesses who are unable to appear
in court by way of videoconferencing. The aforesaid
decision was brought to the notice of the two-Judge
Bench in the instant case by the learned counsel
appearing for the respondent who advanced his
submission that there is no need to transfer the case
and the parties can be directed to avail the facility of
videoconferencing. The two-Judge Bench, after referring
to the Statement of Objects and Reasons of the Family
Courts Act, 1984 (for brevity, 'the 1984 Act'), various
provisions of the said Act, Sections 22, 23 and 26 of the
1955 Act, Rules 2, 3 and 4 of Order XXXIIA which were
inserted by the 1976 amendment to the Code of Civil
Procedure (for short, "the CPC"), the concept of
reconciliation, the role of the counsellors in the Family
Court and the principle of confidence and confidentiality,
held:-
"19. To what extent the confidence and confidentiality
will be safeguarded and protected in video conferencing,
particularly when efforts are taken by the counsellors,
welfare experts, and for that matter, the court itself for
reconciliation, restitution of conjugal rights or dissolution
of marriage, ascertainment of the wishes of the child in
custody matters, etc., is a serious issue to be
considered. It is certainly difficult in video conferencing,
if not impossible, to maintain confidentiality. It has also
to be noted that the footage in video conferencing
becomes part of the record whereas the reconciliatory
efforts taken by the duty-holders referred to above are
not meant to be part of the record. All that apart, in
reconciliatory efforts, physical presence of the parties
would make a significant difference. Having regard to
the very object behind the establishment of Family
Courts Act, 1984, to Order XXXIIA of the Code of Civil
Procedure and to the special provisions introduced in
the Hindu Marriage Act under Sections 22, 23 and 26,
we are of the view that the directions issued by this
Court in Krishna Veni Nagam (supra) need
reconsideration on the aspect of video conferencing in 12
matrimonial disputes."
Being of this view, it has referred the matter to be
considered by a larger Bench. That is how the matter
has been placed before us.
44. We, as advised at present, constrict our analysis to
the provisions of the 1984 Act. First, as we notice, the
expression of desire by the wife or the husband is
whittled down and smothered if the Court directs that
the proceedings shall be conducted through the use of
videoconferencing. As is demonstrable from the analysis
of paragraph 14 of the decision, the Court observed that
wherever one or both the parties make a request for the
use of videoconferencing, the proceedings may be
conducted by way of videoconferencing obviating the
need of the parties to appear in person. The cases
where videoconferencing has been directed by this
Court are distinguishable. They are either in criminal
cases or where the Court found it necessary that the
witness should be examined through videoconferencing.
In a case where the wife does not give consent for
videoconferencing, it would be contrary to Section 11 of
the 1984 Act. To say that if one party makes the
request, the proceedings may be conducted by
videoconferencing mode or system would be contrary to
the language employed under Section 11 of the 1984
Act. The said provision, as is evincible to us, is in
consonance with the constitutional provision which
confer affirmative rights on women that cannot be
negatived by the Court. The Family Court also has the
jurisdiction to direct that the proceedings shall be held
in camera if it so desires and, needless to say, the
desire has to be expressed keeping in view the
provisions of the 1984 Act."
The Court has discouraged hearing before a family court through
video conferencing but not in a criminal case. The present case is a
criminal case.
24. The State of Maharashtra vs Dr. Praful B. Desai, Appeal (crl.) 476 of
2003 and 477 of 2003, on 01.04.2003, the Supreme Court held:-
"24. 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 concerned officer. 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
into 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 foreign witness has given evidence in a Court in
India and that then gone away abroad. In all such
cases 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 could 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
concerned officer 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."
25. CRR 327 of 2019 is dismissed.
26. No order as to costs.
27. All connected Applications stand disposed of.
28. Interim order if any stands vacated.
29. Let a copy of this judgment be sent to the learned Trial Court and the
learned District Judge, Malda for necessary compliance.
30. Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.
(Shampa Dutt (Paul), J.)
