M/S Sharma Associates vs State Of Uttarakhand & Another
2023 Latest Caselaw 858 UK

                                                   2



           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
        Criminal Miscellaneous Application No.558 of 2023

M/s Sharma Associates                                           .......Applicant
                                          Vs.

State of Uttarakhand & another
                                                               .....Respondents

With Criminal Miscellaneous Application No.565 of 2023

M/s Sharma Associates .......Applicant Vs.

State of Uttarakhand & another .....Respondents With Criminal Miscellaneous Application No.572 of 2023

M/s Sharma Associates .......Applicant Vs.

State of Uttarakhand & another .....Respondents With Criminal Miscellaneous Application No.575 of 2023

M/s Sharma Associates .......Applicant Vs.

State of Uttarakhand & another .....Respondents

Mr. Kaushal Pandey, Advocate with Mr. H.S. Dhanik, Advocate, for the applicants. Mr. Tumul K Nainwal, Brief Holder, for the State of Uttarakhand. Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. Imran Ali, Advocate, for the private respondent.

Hon'ble Sharad Kumar Sharma, J (Oral)

In these four C482 Applications, the challenge, which has been given is to the order dated 15.03.2023, i.e. an order which has been passed by the learned Trial Court, who is presently ceased with the proceedings under section 138 of the Negotiable Instruments Act, by permitting the cross-examination of the witnesses through video conferencing.

2. It is this order, which has been put to challenge on an apprehension that there could be a possibility of tampering of the evidence or misleading the court by putting a false evidence, as per the unfounded apprehension expressed by the applicant in paragraph no.20, that there would be a possibility that the witnesses may be tutored by the opposite side.

3. In fact, in order to answer the theory of apprehension, which has been expressed by the learned counsel for the applicant, it would be necessary to deal with the Rules which have been framed by the High Court of Uttarakhand vide its Letter No.344/XXXVI-A- 1/20-342/2020, dated 26.11.2020, which has been framed by the High Court in the exercise of its powers under Article 225 to be read with Article 227 of the Constitution of India, namely, High Court of Uttarakhand Video Conferencing Rules-2020.

4. As per the said Rules, which have a statutory force, the term "Court" has been defined under sub-section (iv) of Rule 2 of the Rules, which means that the court would includes a physical court or a virtual court or the Tribunal. The definition of "court" as given, therein under the rules would be wide enough to include the Court of 3rd Additional Chief Judicial Magistrate, Dehradun, District Dehradun, who is presently ceased with the proceedings under section 138 of the Negotiable Instruments Act, to make the Rules of 2020, applicable to govern the proceedings under section 138 of the NI Act, which have been carried by the said court. The relevant definition of the "Court" under the rules of 2020 is extracted hereunder:-

"(iv) "Court" includes a physical court and a virtual Court or tribunal."

5. In order to meet out the probable apprehension, which has been expressed by the learned counsel for the applicant, as per the pleadings raised in paragraph no.20, of the C482 Application, the learned Senior Counsel for the private respondent has referred to that as per the Rules of 2020, as framed by the High Court of Uttarakhand, Rule 9 becomes relevant to be considered in the instant cases, where

the Rule 9 has provided, that exhibiting or showing a document to the witnesses or an accused at the remote point would be permissible, subject to the conditions which have been given, therein, particularly as that contained under Rule 9.2. On the simplicitor interpretation of the said Rules, it opens that at the point of cross-examination can be put to a person by transmitting a copy of same to the Court, electronically including the document visualizer. Relevant Rule 9 of rules is extracted hereunder:-

"9. Exhibiting or Showing Documents to Witness or Accused at a Remote Point If in the course of examination of a person at a Remote Point by video conferencing, it is necessary to show a document to the person, the Court may permit the document to be shown in the following manner:

9.1 If the document is at the Court Point, by transmitting a copy or image of the document to the Remote Point electronically, including through a document visualizer; or 9.2 If the document is at the Remote Point, by putting it to the person and transmitting a copy/image of the same to the Court Point electronically including through a document visualizer. The hard copy of the document counter signed by the witness and the Coordinator at the Remote Point shall be dispatched thereafter to the Court Point via authorized courier/registered speed post."

6. In order to further elucidate his arguments, which has been put forth that if the provision contained under section 273 of the CrPC is taken into consideration, which, in its chapter XXIII, provides the manner in which the evidence is to be taken in the presence of an accused person, the provisions contained under section 273 of CrPC, there was an amendment made by the insertion of proviso by Act No.13 of 2013, wherein, it provided that in serious matters, which relate to the commission of serious offences, appropriate measure is to be resorted to ensure the cross examination of the accused person, could be taken. For the purposes of convenience section 273 of CrPC is extracted hereunder:-

"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:

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross- examination of the accused]."

7. The implications of section 273 of CrPC, as to what would be the ambit of the exercise of powers by the court to permit the cross examination, was a subject matter, which was considered by the Hon'ble Apex Court in the judgment reported in 2003 (4) SCC 601, "State of Maharashtra Vs. Dr. Praful B. Desai", which stood decided along with Criminal Appeal No.477 of 2003 "P.C. Singh Vs. Dr. Praful B. Desai and another", and particularly, the reference is had to paragraph no.12, of the said judgment, which has considered the implications of section 273 of CrPC. The Court has provided for the dispensation from the personal attendance, in such cases, for recording of the evidence in the presence of the pleader, would be deemed to be within the exercise of powers under section 273 of CrPC, because section 273 of CrPC, itself deals with as to what would the evidence mean, and that would be inclusive of the recording of such statement or called as oral evidence of the witnesses. Relevant paragraph 12 is extracted hereunder:-

"12. Considering the question on the basis of Criminal Procedure Code, we are of the view that the High Court has failed to read Section 273 properly. One does not have to consider dictionary meanings when a plain reading of the provision brings out what was intended. Section 273 reads as follows:

"Section 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.

Explanation : In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

Thus Section 273 provides for dispensation from personal attendance. In such cases evidence can be recorded in the presence of the pleader. The presence of the pleader is thus deemed to be presence of the Accused. Thus Section 273 contemplates constructive presence. This shows that actual physical presence is not a must. This indicates that the term "presence", as used in this Section, is not used in the sense of actual physical presence. A plain reading of Section 273 does not support the restrictive meaning sought to be placed by the Respondent on the word "presence". One must also take note of the definition of the term 'Evidence' as defined in the Indian Evidence Act. Section 3 of the Indian Evidence Act reads as follows:

                    "Evidence----Evidence      means       and
                    includes-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

such statements are called oral evidence

(2) all documents including electronic records produced for the inspection of the Court;

such documents are called documentary evidence"

Thus evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video- conferencing."

8. In view of the aforesaid mandate of the Hon'ble Apex Court, and coupled with the interpretation given to the section 273 of CrPC, the impugned order, which has been passed by the court of 3rd Additional Chief Judicial Magistrate, Dehradun, District Dehradun,

wherein, the permission has been granted to cross examine the witness through video conferencing, it cannot be said to be faulted of under law, as the same stands supported by the statutory mandate of the Rules framed by the High Court in 2020, particularly, as referred to Rule 9 of the Rules of 2020, to be read in consonance with the judgment of the "State of Maharashtra Vs. Dr. Praful B. Desai" (Supra).

9. In that view of the matter, the challenge which has been given by the applicant in these 482 Applications to the order dated 15.03.2023, cannot be faulted of in any manner whatsoever because the court, exercising its power and permitting the examination of the witnesses through video conferencing, did have a legislative backing, as such.

10. The C482 Applications lack merit and the same are accordingly dismissed.

(Sharad Kumar Sharma, J.) 29.03.2023

NR/