No Prior Agreement needed with Foreign Country to examine a Witness by Video Conferencing: Kerala High Court

The High Court of Kerala in a significant judgment has ruled that even though there are no arrangements between the Government of India and the Government of a foreign country under S.285(3) of the Criminal Procedure Code (CrPC) it would not be a bar for examining a witness by video conferencing. In the judgment Nabeesathu Sudheer @ Mondi Sudheer v. State of Kerala, the division bench also held that an omission to take oath or make any affirmation will not invalidate any proceeding or render evidence inadmissible under Section 7 of the Oaths Act, 1969, and that if any party to criminal proceedings is aggrieved on any technical ground he must raise objection only at the earliest stage and if the objection was not raised at the earliest stage, he cannot be heard on that aspect. The judgment was delivered by the division bench consisting of Judges, K. T. Sankaranand M. L. Joseph Francis.

According to the Prosecution, the victim Sakkeer,  aged 29, who was elected as the Chairman of the Law College, Thiruvananthapuram on 16/01/1995,lost his life on the same night, as a result of a cold blooded murder. Sakkeer, an active memberof the DYFI, theYouth Wing of Communist Party of India (Marxist) had come home after he was elected as the Chairman of the Thiruvananthapuram Law College. In the midnight, the accused persons who were later identified to be sympathizers and workers of the PDP (People’s Democratic Party) constituted an unlawful assembly and armed with deadly weapons, illegally trespassed into his house and inflicted injuries on him and his father. Sakkeer tried to escape and ran to the compound of Shajahan, his neighbor and tried to hide somewhere there. The prosecution alleged that the accused chased him and inflicted several injuries with deadly weapons. Sakkeer was brought dead to the hospital. The Trial Court found accused Nos. 1 to 5, 7, 8 and 10 guilty of the offences under Section 302 and accused Nos. 6, 9, 13 and 15 to 19 were acquitted. Against the conviction and sentence, the accused filed Criminal Appeals while the father of Sakkeer, filed for Revision challenging the acquittal of some of the accused. The High Court disposed of the Criminal Appeals and the Revision by a common judgmentdated 02/09/2005, set aside the conviction as well as acquittal and remanded the case to the Trial Court withcertain directions. One of the defects pointed out by the High Court was that the accused were not properlyquestioned under Section 313 of the Code of Criminal Procedure. The High Court also held that Shajahan, who is the only occurrence witness in respect of that part of the incident which took place in his compound, was notexamined. The petition filed by the prosecution to examine Shajahan, who was at that time in Saudi Arabia, wasdismissed by the Sessions Court. The High Court also directed to examine Shajahan by video conferencing, in casehe is not available in India.  He was examined through video conferencing via the Indian Embassy at Saudi Arabia.

The Senior Counsel appearing for the accused had submitted that the oath was not administered to Shahjahan and, therefore, his evidence cannot be relied on at all. But the court held that no prejudice was caused to the accused, if at all it is taken that no oath was administered to Shahjahan. The division bench said: “Even if there was an omission to take oath or make any affirmation that will not invalidate any proceeding or render inadmissible any evidence whatever. The court also reiterated the holding of the Supreme Court in State of H. P. v. Gita Ram, “that the very object of Section 465 of the Code is that if on any technical ground any party to the criminal proceedings is aggrieved, he must raise the objection thereof at the earliest stage. If he did not raise it at the earliest stage, he cannot be heard on that aspect after the whole trial is over.“The Senior Counsel for the accused had also submitted that the video conferencing should have been done as provided under Section 285(3) of the Code of Criminal Procedure. For that purpose, it was mandatory that there was an arrangement between the Central Government with the Government of Saudi Arabia in relation to criminal matters. He also submitted that the Code of Criminal Procedure having prescribed a procedure for a particular matter, it should have been done only as provided in the Code and not otherwise.  But the court rejected that contention and held that even if there is any irregularity that would not vitiate the conviction, as provided under Section 465 of the Code of Criminal Procedure. The court said “In the present case, there is no case for the accused or for the prosecution that any arrangement has been made by the Central Government with the Government of UAE in relation to criminal matters, as provided under sub-section (3) of Section 285 of the Code of Criminal Procedure. Going by the decisions of the Supreme Court and of this Court, a commission cannot be appointed to examine such witness in Dubai, UAE.  But he can be examined via video conferencing.”

The Kerala High Court alsoheld that an “Evidence of an injured witness can be treated as natural evidence” and its judgment found the accused guilty of the offences alleged against them. The Court found the sentence imposed by the Trial Court just and reasonable.  This judgment had shed light on examination of a witness in a foreign country where India has no agreement and regarding the invalidation of proceedings in absence of an oath. Sakkeer, the victim is listed as a martyr by his party members and is still remembered for his historic victory in the student body elections at the Thiruvananthapuram Law College.

Read the Judgment here