1wp-3484-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Writ Petition No. 3484 of 2010 Mr Nelson Michael De Souza .. Petitioner. V/s State of Maharashtra & Anr .. Respondents Mr S.G.Rajput,Advocate for the Petitioner. Ms M. H. Mhatre, APP for the State. CORAM : A.M. KHANWILKAR & A.R. JOSHI, JJ. DATED : 6th JANUARY,2011. P.C.:- 1. Heard learned counsel for the petitioner and the learned A.P.P.for the State. 2. Twofold grievance have been made in this petition. The petition is filed by the brother of the complainant. It is stated that the complainant is a Foreign National (Citizen of Canada). According to the petitioner, the complainant is not in a 2wp-3484-10.sxw position to visit India due to unavoidable circumstance. In that, his wife is seriously ill and has recently undergone some surgery in connection with pancreatic cancer. Since the complainant has not made appearance before the Magistrate, as a result of which the complaint cannot proceed further. The Additional Chief Metropolitan Magistrate thought it appropriate of issuing warrant against the complainant on 14.10.2010 in C.C.No.1830/P/2000. Thus, it is contended that the order issuing warrant against the complainant is not only uncalled for but against the provisions of law. 3. It is further submitted that as a matter of fact, the complainant on his own had filed application before the Magistrate as back as on 4.9.2008 that he is willing to depose and give evidence on Video Conferencing as he is finding it difficult to visit India. However, no orders have been passed on the said application dated 4.9.2008. The fact that such application was filed by the complainant on 4.9.2008 is not in dispute. It is also not in dispute that the said application has remained undecided. We are in agreement with the argument of the petitioner that unless the said application is disposed of, one way or the other, the question of taking coercive action against the complainant by issuance of arrest warrant is inappropriate. We 3wp-3484-10.sxw accordingly, set aside the impugned order dated 14.10.2010 passed by the Additional Chief Metropolitan Magistrate, 19th Court, at Esplanade, Mumbai in C.C.No.1830/P/2000 issuing warrant to secure the presence of the complainant to depose in the pending criminal case before him. Instead, we direct the said Magistrate to decide the pending application preferred by the complainant dated 4.9.2008 that he may be permitted to depose and give evidence on Video Conferencing. That application be decided, as expeditiously as possible, in any case not later than four weeks from today. If the Court accepts the request of the complainant, the deposition can be recorded on Video Conferencing and the trial court would proceed on that basis. However, if the said application is rejected, it may be open to the complainant either to assail the correctness of the view taken by the Magistrate before the Superior Court or in the alternative make it convenient to appear before the Magistrate for deposing and giving evidence in the pending criminal case in person. Those matters will be considered at the appropriate stage. Petition is disposed of on the above terms. (A.R. JOSHI, J.) (A.M. KHANWILKAR,J) 4wp-3484-10.sxw