Admitting a petition filed by the accused challenging the permission given to the victim in the 2013 Kolkata Irish rape case to depose from her country through Skype, the Supreme Court has issued notice to the West Bengal government and prosecution in the case.
Significantly, a bench of Justice J S Khehar and Justice R Banumathi also agreed to delve on an important question raised in the petition by accused Sujoy Mitra as to --Whether a prime witness who is a foreign national can be examined through video conference in a criminal trial, when there is no extradition treaty between India and his/her country?
The accused had on October 1 approached the Supreme Court against the Alipur fast track court and Calcutta High Court permitting the victim to depose from Ireland by video conferencing through Skype “in violation” of a 2003 Supreme Court order. The trial is taking place in a fast track court in Alipur, Kolkata and the victim is being cross examined through videoconference from the Indian Embassy in Ireland.
Mitra also complains about poor quality of the video saying it will seriously prejudice his case. He also accused the victim of using unfair means while deposing.
Mitra’s lawyers R Basant and Manoj V George had argued before the bench that the apex court had in State of Maharashtra vs Dr Praful B Desai (2003), ruled that 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.
“The accused is apprehending miscarriage of justice on account of flawed recording of evidence of the main witness,” said the lawyers.
The following other substantial questions of law has been raised in the Special Leave Petition for the consideration of the Supreme Court:
Whether the courts below are justified in permitting the prosecution to examine an Irish national through video conferencing and rely upon her statements made on foreign soil and recorded by the trial court through video conference, particularly when there is no extradition treaty between India and Ireland and there is no provision to prosecute her in India in case of perjury or contempt of court found out on her part?
Whether a prime witness in a criminal trial such as prosecutrix in a rape case can be permitted to be examined through video conferencing without there being any legal procedure to be followed by the trial court and prosecution during such examination?
Whether the High Court is justified in allowing trial court to act upon the evidence of a foreign national that was recorded through video conferencing without complying with the mandates of this Hon’ble Court delivered in State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601?
Whether the High Court is justified in disallowing the petitioner for agitating against the flawed evidence recording through video conferencing holding that he had not challenged the initial order of trial court, whereby the application for on-line examination of witness was allowed?
Whether the Ld. Trial Court failed in its duty to issue summons as provided in Chapter VI of CrPC, where the copy of the summons to be served by registered post addressed to the witness at the place where she ordinarily resides or carries on business or personally works for gain?
Whether the Ld. Trial Court failed to appreciate that the application filed by the prosecution at the behest of Embassy of Ireland is unknown to criminal procedures according to the municipal laws of India on the ground that it would be time consuming to send summon upon the victim?
Whether the Ld. Trial Court failed to appreciate that this court in the case of State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 was dealing in a case where the video conferencing was supposed to take place in a studio of VSNL and this court expected such a set up of a video conferencing equipment and technology in the Court in recording of evidence in criminal trial?
Whether the Ld. Trial Court violated the mandate of this Hon’ble Court by not affording an opportunity to avail the facility of play back of the so called video conferencing to the Petitioner?
Whether the Ld. Trial Court went wrong in appreciating a webcam based Skype chat to be video conferencing when video conferencing required distinct technology platforms of a video conferencing as provided in VSNL studios?
Whether the Ld. Trial Court ought to have passed a speaking order regarding the Video Conference facility available in the court as the Petitioner had raised objections that there is no prevailing or existing arrangement to record evidence of a particular witness through video conference?
Whether the Ld. Trial Court failed in affording an opportunity to the petitioner or the counsel to verify /reply to the report filed by the prosecution regarding the arrangements of recording evidence on video conference when specific apprehensions were raised by the petitioner?
The woman was allegedly raped by Mitra after being drugged at the latter’s SP Mukherjee Road residence on May 31, 2013.
According to the police charge sheet, the Irish woman had landed in Kolkata on May 7. She met Mitra for the first time on the dance floor of a nightclub.
They met again when she went to the same nightclub to celebrate her birthday.
There, Mitra allegedly spiked her drink, took her home and raped her.
In her complaint, the woman said she was drowsy and could not resist Mitra. When she returned to her hotel on AJC Bose Road, her friends took her to the police station. According to police records, this was the first rape of a foreigner in Kolkata since a Japanese woman accused a man posing as a city guide of raping her at gunpoint at a Sudder Street hotel in 2004.
Read the petition here.