mgn 1 ca-936 & 937-11 in suo-motu pil-182-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRI. JURISDICTION CRIMINAL APPLICATION NO.936 OF 2011 AND CRIMINAL APPLICATION NO.937 OF 2011 IN SUO MOTU PUBLIC INTEREST LITIGATION NO.182 OF 2010 The State of Maharashtra ..Applicant Versus The Secretary, Department of Women & Child Development, Govt. of Maharashtra & Ors. ..Respondents Mr. V.A. Sonpal, “A” Panel Counsel for applicant State. Prof. Dr. Asha Bajpai, Amicus Curiae and Chairman State Coordination Committee for Child Protection. Mr. Nitin Pradhan with Ms. S.D. Khot and Ms. Kutti Krishnan for the C.W.C. Mr. Rathod, Deputy Commissioner, Women and Child Development Department. Superintendent of Home for Mentally Deficient Children, Mankhurd present. Mr. S.E. Lasne for respondent Nos. 2 and 3. Mr. P.D. Dalvi, for respondent No.12. Mr. Kiran Kandpile for respondent No.11. Mr. C.K. Bhangoji, i/b. R.K. Mendadkar for respondent No.5. CORAM : MOHIT S. SHAH, C. J. AND DR. D.Y. CHANDRACHUD, J. 25 August 2011 PC: Having heard Mr. Sonpal, “A” Panel Counsel for the applicant- State and the learned Counsel for respondent Nos.5,11 and 12 in Criminal Application No.937 of 2011 and other accused having been served, we are satisfied that these are fit cases where the trial of offences of sexual assault and sexual abuse on inmates of the homes for mentally mgn 2 ca-936 & 937-11 in suo-motu pil-182-11.sxw deficient children being the offences punishable under Section 376(c) and 376(i), 376(k), 377, 307, 324, 354, 323, 324, 467, 468, 471, 109, 114 Indian Penal Code read with Sections 23, 25 and 28 of Juvenile Justice (Care and Protection of Children) Act, 2000 are required to be transferred under Section 407 of the Code of Criminal Procedure to the Sessions Court, Mumbai. Hence, Sessions Case No.68 of 2011 pending on the file of the Sessions Court, Alibag-Raigad and Sessions Case No.5 of 2011 pending on the file of the Sessions Court at Kalyan, District Thane are transferred to the City Civil & Sessions Court at Mumbai. 2. Both the Sessions cases shall be transferred to the Sessions Court, Mumbai within two weeks from today. Having regard to the nature of the offences and in the peculiar facts and circumstances, we direct the Sessions Court, Mumbai, to conduct the trial as expeditiously as possible. 3. Learned Counsel for the applicant-State has also prayed that the Sessions Court be directed to conduct the trial in both the Sessions Cases in camera. Section 327(2) clearly provides for trial to be held in camera. Learned Counsel for the accused also has no objection if such direction is given. Accordingly we direct that both the cases shall be conducted in camera. 4. Mr. Sonpal, “A” Panel Counsel for the applicant-State also submits that since the victims in these two cases are not only minors, but also mentally deficient children, the physical presence of the accused will create psychological barriers in their giving evidence at the trial and, therefore, the evidence of the witnesses in these two Sessions Cases may be recorded by Audio-Video electronic means in the presence of a mgn 3 ca-936 & 937-11 in suo-motu pil-182-11.sxw psychiatrist. 5. Learned Counsel for the accused oppose the prayer and submit that the proviso to sub-section (1) of Section 275 of the Code permits the evidence to be recorded by Audio-Video electronic means only in warrant cases, but there is no such provision in Section 276 of the Code providing for recording evidence in trial before the Court of Sessions. 6. It is necessary to note that proviso to sub-section (1) of Section 275 was inserted with effect from 31 December 2009 by Amendment Act of 2009. Long prior to the said amendment, the Supreme Court examined this question in State of Maharashtra vs. Dr. Praful B.Desai, (2003) 4 SCC 601. The Apex Court held that Section 273 provides for evidence to be taken in presence of the accused and that the term “presence” used in Section 273 does not mean actual physical presence in Court, but recording of evidence by way of video-conferencing would fully serve the purpose of Section 273. The Court held that video- conferencing involves actual reality and so long as the accused and/or his pleader are present when the evidence is recorded by video- conferencing, requirements of Section 273 Cr.P.C., are fully satisfied. 7. After the decision in Dr.Praful B. Desai’s case, we may also refer to the decision in Sakshi vs. Union of India and others, AIR 2004 SC 3566 where the Apex Court held that since the whole enquiry before the Court is to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. The Apex Court, thereafter also held that recording of evidence by video-conferencing vis-a-vis Section 273 Cr.P.C. is permissible. The Apex Court held that rules of procedure mgn 4 ca-936 & 937-11 in suo-motu pil-182-11.sxw are hand maiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties. The Apex Court also referred to the decision in State of Punjab v. Gurmit Singh, 1996 (2) SCC 384 and held that the directions being given in the case of Sakshi (supra) were in addition to those given in State of Punjab vs. Gurmit Singh’s case. 8. In view of the above, even in the absence of any express provision in Section 276 of the Code, we see no impediment to the power of the Sessions Court to record evidence by way of video conferencing. Accordingly prayer (b) in each of this application is also granted and the Sessions Court trying the above two Sessions Cases may record the evidence of the witnesses who were/are inmates of the homes for mentally deficient children by way of audio-video conferencing. 9. We make it clear that this order shall not prevent the Sessions Court from passing such other and further order as may be necessary in the facts and circumstances of the case including giving appropriate directions for protection of the child witnesses and child victims. 10. In so far as prayer (d) is concerned, we continue the order at ad- interim stage that the inmates of the Home for Mentally Deficient Children who are victims and/or witnesses shall not be allowed to be accessed by any unauthorised persons. 11. We further direct that the Commissioner of Police shall provide police protection to the mentally deficient children at Mankhurd within three days. mgn 5 ca-936 & 937-11 in suo-motu pil-182-11.sxw 12. Mr. Sonpal, “A” Panel Counsel for the applicant-State agrees to convey this order to the Commissioner of Police. 13. Both the Criminal Applications are accordingly allowed in terms of directions contained in paras.1, 2,3, 8, 10 and 11. 14. At this state learned Counsel for the accused prays that the operation of this order be stayed for some time in order to enable them to take recourse in accordance with law. 15. In the facts and circumstances of these cases, we see no justification to stay the operation of this order and the prayer is rejected. Registry to send down forthwith the writs to the Sessions Courts at Alibag, District Raigad, Kalyan, District Thane and to the City Civil & Sessions Court, Mumbai. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.