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2006 DIGILAW 3348 (MAD)

Poulose v. Arulraj

2006-12-05

M.JEYAPAUL

body2006
Judgment :- The revision is preferred against the order passed in Crl.M.P. No.349 of 2006 in S.C.No.73 of 2005. 2. The revision petitioner is Prosecution Witness No.I in S.C.No.73 of 2005 on the file of the learned Chief Judicial Magistrate, Ramanathapuram for offences under sections 366, 368, 376, 387 read with 34and 109 of the Indian Penal Code. 3. The charge is that on 27.11.2003, Miss.Persin, the minor daughter of the petitioner, who was aged 17 years old, was kidnapped by the fourth accused with the connivance of the other accused and raped by him in illegal custody. 4. During the course of investigation of this case, the daughter of the petitioner was allegedly rescued from the custody of the accused and produced before the learned District Munsif cum Judicial Magistrate, Rameswaram. The custody of the minor girl Persin was entrusted to the petitioner who is the father of the said girl on condition that the minor girl should be produced before the court as and when required. 5. Thelearned Chief Judicial Magistrate, Ramanathapuram issued a notice on 18.4.2006 calling upon the petitioner herein to produce the girl for the purpose of examination as the case is pending for quite a long time for her examination. 6. The petitioner filed Crl.M.P.No.349 of 2006 seeking to withdraw the aforesaid notice mandating the petitioner to produce his daughter as the undertaking given by him had lapsed on account of the majority attained by his daughter Persin. 7. The learned Chief Judicial Magistrate, Ramanathapuram, having adverted to the facts and circumstances under which the undertaking was given by the petitioner to produce the minor as and when called upon by the court, dismissed the application observing therein that though the daughter of the petitioner has attained majority, he is bound to produce her inasmuch as the petitioner has not chosen to relieve himself from such an obligation by producing the minor just prior to her attaining majority. 8. The aforesaid order is under challenge before this court. The learned counsel appearing for the petitioner would contend that the undertaking given by the petitioner stands terminated the moment the minor daughter of the petitioner has become major. As such, she has every right to go abroad on her own volition. The petitioner has no control over her on attaining her majority. The learned counsel appearing for the petitioner would contend that the undertaking given by the petitioner stands terminated the moment the minor daughter of the petitioner has become major. As such, she has every right to go abroad on her own volition. The petitioner has no control over her on attaining her majority. He is incapable of abiding by the undertaking given by him at the time when his daughter was a minor. It is further submitted by the learned counsel for the petitioner that as the minor daughter of the petitioner is now in foreign country, the petitioner is prepared to bear the entire expenditure for recording evidence of his daughter by video conferencing. 9. The learned counsel appearing for the respondents would submit that the petitioner cannot shirk his responsibility by saying that his daughter has become major. As he has not chosen to relieve himself from the undertaking given before the court, he cannot validly contend that he is not able to comply with the mandates of the court as the person in his custody has become major. He further contends that the video conferencing facility, which is not available in the premises of the Chief Judicial Magistrate, Ramanathapuram, cannot also be effectively utilised. Further his submission is that recording of evidence by video conferencing has many shortcomings. 10. This court, for the effective disposal of this Criminal Revision Case, sought for a report from the learned Chief Judicial Magistrate, Ramanathapuram as to the availability of video conferencing facility in Ramanathapuram for the purpose of recording evidence of the daughter of the petitioner. But, the learned Chief Judicial Magistrate, Ramanathapuram has submitted before this court through his report that no such facility was available in Ramanathapuram. Now, it is brought to the notice of this court that such a facility is available in Madurai. 11. Coming to the obligation of the petitioner arisen out of the undertaking given by him while taking the custody of his minor daughter, the court finds that the petitioner should have alerted the learned Chief Judicial Magistrate, Ramanathapuram on the eve of attaining majority by the daughter of the petitioner herein so as to ensure her appearance before the court without fail for the Trial of the case. If the petitioner has sought for discharge from such obligation even at the time when the daughter of the petitioner was in India, the Trial Court would have taken some steps to ensure the presence of the daughter of the petitioner at the relevant point of time. Of course, the daughter of the petitioner is a free bird immediately on attaining majority. Her shackle is automatically broken the moment she attains majority. But, as the petitioner has failed in his duty to inform the court and get himself relieved of the obligation to produce his daughter before the court, the petitioner has graduated to the position of a surety who has courted an obligation to produce his daughter who has since become major. Having connived with his daughter in her departure from this country, the petitioner cannot take a valid contention that he lost control over his daughter. Therefore, the court finds that the learned Chief Judicial Magistrate, Ramanathapuram has rightly directed the petitioner herein to produce his daughter, who by his act of commission and omission, has become a surety for the appearance of his daughter. 12. Now, the daughter of the petitioner is in Britain. Her attendance cannot be procured without an amount of delay, expense or inconvenience. Now, the petitioner has come forward with a solution for the impasse in the trial on account of the absence of his daughter. He is now prepared to shoulder the entire financial burden that may be caused on account of examination of his daughter by exploiting video conferencing facility. 13. The Honourable Supreme Court in State Of Maharashtra V. Dr.Praful B.Desai (2003 SCC (CRI.) 815) has given green signal for utilising the latest video conferencing facility for the purpose of recording evidence of course on certain contingencies and also on complying with certain conditions. 14. It is submitted that the daughter of the petitioner is willing to adduce evidence through video conferencing facility. Great Britain is found to be a country having extradition treaty with India. Under the laws of the said country, contempt of court and perjury are punishable. 15. Therefore, a Commissioner of Oath has to be engaged by the learned Chief Judicial Magistrate, Ramanathapuram to record the evidence of Miss.Persin, the daughter of the petitioner herein, who is in Britain, by using video conferencing facility at Madurai. Under the laws of the said country, contempt of court and perjury are punishable. 15. Therefore, a Commissioner of Oath has to be engaged by the learned Chief Judicial Magistrate, Ramanathapuram to record the evidence of Miss.Persin, the daughter of the petitioner herein, who is in Britain, by using video conferencing facility at Madurai. The accused and/or his pleader shall be present when the evidence is recorded by video conferencing. The Commissioner of Oath appointed by the learned Chief Judicial Magistrate has the discretion to fix up the time for video conferencing, taking into account the convenience and inconvenience of the parties concerned. He shall ensure that the witness in the foreign shore is not coached or tutored or prompted at the time of recording evidence through video conferencing. He shall also ensure that the witness in the foreign shore gives evidence in a room in the Consulate or Embassy of our country in the foreign shore. 16. Therefore, while dismissing the Criminal Revision Case confirming the order passed by the learned Chief Judicial Magistrate, Ramanathapuram, the latter is directed to appoint a Commissioner of Oath to record evidence of Miss.Persin, the daughter of the petitioner in S.C.No.73 of 2005 through video conferencing at Madurai and to submit a report with the deposition recorded in the light of the aforesaid observation made by this court. The entire expenditure involved in recording the evidence through video conferencing in S.C.No.73 of 2005 shall be borne by the petitioner herein. The connected Miscellaneous Petition is closed.