State of Maharashtra V

Praful B. Desai 2003 4 SCC

FACTS
The complainant’s wife was suffering from terminal cancer. The
complainant’s wife was examined by Dr. Ernest Greenberg of Sloan
Kettering Memorial Hospital, New York, USA, who opined that she
was inoperable and should be treated only with medication.
Thereafter the complainant and his wife consulted the Respondent,
Dr. Praful B Desai, who was a consulting surgeon practicing for the
last 40 years. In spite of being made aware of Dr Greenberg’s
opinion the Respondent suggested surgery to remove the uterus.
The complainant and his wife agreed to the operation on the
condition that it would be performed by the Respondent. On
22nd December 1987, Dr. A. K. Mukherjee operated on the
complainant’s wife. When the stomach was opened ascetic
fluids oozed out of the abdomen. Dr. A. K. Mukherjee
contacted the Respondent who advised closing up the
stomach. Dr. A. K. Mukherjee accordingly closed the
stomach and this resulted in intestinal fistula. Whenever the
complainant’s wife ate or drank the same would come out of
the wound. As a result, the complainant’s wife required
20/25 dressings a day for more than 3 1/2 months in the
hospital and thereafter till her death.
The complainant’s wife then suffered terrible physical
torture and mental agony. After stating that the
Respondent did not once check upon the
complainant’s wife after the operation; the
Respondent claimed that the complainant’s wife was
not his patient. However, the bill sent by the Bombay
Hospital showed that the fees were charged by the
Respondent. It was the case of the prosecution that
the Maharashtra Medical Council had, in an inquiry,
held the Respondent guilty of negligence and strictly
warned him. The prosecution made an application to
examine Dr. Greenberg through a video-conference
Issue
Whether or not in a criminal trial, evidence
can be recorded by video conferencing?
Section 273, CrPC
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.
Section 3, Indian Evidence Act
Definition of ‘Evidence’-
(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.
The Supreme Court’s
Judgement
The Trial Court had allowed video conferencing, when an appeal was filed in the High
Court, it was held that as per sec 273 of CrPC, evidence must be recorded in the presence
of the accused and thus video conferencing could not be allowed. The matter then came
before the Supreme Court.

The Supreme Court stated that The High Court had based its decision on the meaning of
the term "presence" in various dictionaries and held that the term "presence" in Section
273 means actual physical presence in Court and that the SC was unable to agree with
this.
It was then stated that sec 273 of the CrPC does not mandate physical presence and that
video conferencing can be permitted as evidence under Section 3 of the Indian Evidence
Act.