1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(MAIN) NO. 166 OF 2009 State (Through Central Bureau of Investigation Special Crime Branch, Mumbai) ... Applicant versus 1. Mr. Samson D'Souza S/o Late Peter D'Souza, R/o House No.1020, Grande Peddem, Anjuna, Goa. 2. Mr. Placido Carvalho, S/o Late Cyril Carvalho, R/o House No.1812, Gaonwadi, Anjuna, Bardez-Goa. ... Respondents Shri C. A. Ferreira, Special Public Prosecutor for the Applicant. Shri Ryan Menezes, Advocate for Respondent No.1. Shri J. P. D'Souza, Advocate for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 14TH JULY, 2009. ORDER Challenge in this petition, filed under Section 482 of the Code of Criminal Procedure, 1973, is to the Order dated 6-3-2009 by which the learned 2 Children's Court has refused to issue a Letter Rogatory under Section 166-A of the said Code in favour of the competent authority in U.K. for recording the statements of two witnesses, namely Ms. Fiona Mackeown and Mr. Charles M. Carter, both prosecution witnesses. 2. Shri C. A. Ferreira, learned Special Public Prosecutor and Shri J. P. D'Souza, learned Counsel on behalf of Respondent No.2 are of the view that the issue of Letter Rogatory under Section 166-A is a matter between the prosecution and the Court and the accused has no concern with it. Shri Ferreira, learned Special Public Prosecutor has submitted that the CBI had taken over further investigations of the case on 5-6-2008 after the Anjuna Police Station had filed a charge-sheet on 31-5-2008 after investigations. He further submits that about 200 witnesses have been examined thereafter by the CBI and other evidence is also collected. According to the CBI the said Ms. Fiona Mackeown after registering her complaint had proceeded to U.K. and had no plans to return to India in the near future and for the purpose of investigations it has become essential to examine the said Fiona Mackeown in the light of the evidence collected by the CBI. Likewise, it is stated that Mr. Charles M. Carter who is an important witness who was present at Luis Shack on the intervening night of 17/18th February, 2008 has detailed knowledge about the incident and that he too has no plans to return to India in the near future and he too is required to be examined on the evidence collected by the CBI. It is submitted that the statements of persons/witnesses are to be recorded as per the requirement of law and procedure on the subject in vogue 3 in U.K. and duly authenticated by the Officer recording the same. Learned Special Public Prosecutor therefore submits that a request was made to the Children's Court to issue a Letter Rogatory under Section 166-A of the Court in favour of the competent authority, U.K. which request has been refused. 3. Shri Ryan Menezes, learned Counsel on behalf of Respondent No.1 has submitted that initially the case was registered as unnatural death and then as homicidal death upon a complaint of the said Ms. Fiona Mackeown on 19-2-2008 and thereafter her statement was recorded in greater detail by another Police Inspector of Bicholim Police Station to whom the investigations were entrusted on 18-3-2008. Learned Counsel also submits that likewise the statement of the said Charles M. Carter was also recorded twice. Learned Counsel further submits that the learned trial Court has carefully examined the questionnaire submitted by the CBI and has come to the conclusion that the questionnaire is covered by the statements recorded. Learned Counsel further submits that the provision of Section 166-A was meant to get evidence which was not available but certainly not to get something which is available which has already been obtained. 4. Be that as it may, Section 166-A which came to be introduced w.e.f. 19-2-1990 in the Code, provides that notwithstanding anything contained in this Code, if, in the course of investigation into an offence, an application is made by the Investigating Officer or any Officer superior in rank to the Investigating Officer, that evidence may be available in a country or place outside India, any 4 Criminal Court may issue letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or under which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the things so collected to the Court issuing such letter. 5. Sub-Section(2) provides that the letter of request shall be transmitted in such manner as a Central Government may specify in this behalf. Sub- Section(3) further provides that every statement recorded or document or thing received under sub-section(1) shall be deemed to be evidence collected during the course of investigation under this chapter. 6. The learned Children's Court noted that more than eight months had lapsed after the CBI had taken over the investigation on 5-2-2009 and the application for issuing Letter Rogatory was filed thereafter. Learned Children's Court further noted that the powers under Section 166-A of the Code are not intended to provide for de novo investigation. It would have been a different case if the statement of these witnesses had not at all been earlier recorded and moreover the complainant herself i.e. the said Ms. Fiona Mackeown was not an eye witness and both of the witnesses had already given detail statements to the 5 Police which form part of the records. The learned Children's Court also noted that the provision of Section 166-A provides for issue of a letter of request to examine orally any person and that it cannot be considered to say that it provides for re-examination as is sought to be done, by the CBI, and, therefore the learned Children's Court proceeded to reject the application. 7. Admittedly, it is not the case of the prosecution that the said Ms. Fiona Mackeown was an eye witness to the crime and her complaint was recorded on 19-2-2008 and subsequently a detailed statement was recorded on 15-3-2008. It is at her behest that the case was registered as homicidal death and again at her request that the CBI was asked to carry out further investigations. If that be the case, she might as well come and co-operate with the CBI, in case she is really interested in a fair and impartial investigations. Sooner than later, she will also have to come to give her evidence before the Court. The application has been made as if she is required to comment upon the investigations which have been conducted so far and that would be absolutely unnecessary. As far as the said Charles M. Carter is concerned, he too is not an eye witness. According to the CBI he was present at the Luis Shack on the night on 17/18th February, 2008, and he has already given his detailed statement twice over as submitted on behalf of the accused. This is not a case where evidence is available in U.K. which otherwise was unavailable in the course of the investigations. The statements of both the witnesses have been recorded, twice over, if I may use that expression, and therefore the impugned Order refusing to issue Letter Rogatory cannot be faulted. 6 In fact, the application of CBI does not even disclose as to which authority in U.K. the letter had to be issued by the Children's Court. Letter Rogatory as defined by the Apex Court in Union of India v. W. N. Chadha(AIR 1993 SC 1082) is nothing but a formal communication in writing sent by a Court or Judge requesting the testimony of a witness residing within the jurisdiction of that foreign Court may be formally taken thereon under its direction and transmitted to the issuing Court making such request for use in a pending legal contest or action. This request entirely depends upon the comity of Courts towards each other, that is to say, on the friendly recognition accorded by the Court of one nation to the laws and usages of the Court of another nation. 8. Since the statements of the said witnesses have already been recorded by the investigating agency, no useful purpose would have been served by issuing the Letter Rogatory, as sought by the CBI. 9. In the circumstances, I find there is no merit in this petition and consequently the same is hereby dismissed. N. A. BRITTO, J. RD