Mukta Gupta JUDGMENT
Mukta Gupta, J.
1. Aggrieved by the order dated 5th May, 2016 passed by the learned Special Judge disposing of an application dated 4th September, 2015 filed by CBI seeking permission to examine some foreign based witnesses through video conferencing, the petitioners prefer the present petitions.
2. In the application the CBI prayed that statements of three witnesses, that is, Ms. JH, her father Mr. RJH and Mr. KJP (names concealed to ensure that the identity of the victims is not revealed) be permitted to be examined through video conferencing. According to the CBI, Ms. JH was one of the two victims, Mr. RJH, her father whereas the third witness Mr. KJP was the husband of the other victim as well as the complainant of the case. All these witnesses were Australian citizens however, Ms. JH was presently residing at Nairobi, Kenya. Thus the two witnesses required to be examined were at Australia and the third at Nairobi, Kenya.
3. The learned Trial Court vide the impugned order noted that a perusal of the record revealed that the Court had already issued process to the three witnesses on several occasions and summons were sent through concerned Ministry of Home Affairs, Government of India along with the written consent sent by the CBI to incur all expenses of summoning and stay of the above witnesses in India, in connection with their examination in this case however, the three witnesses have not given their consent to come and depose in India. Thus relying upon the decision of the Supreme Court reported as MANU/SC/0268/2003 : 2003 (4) SCC 601 State of Maharashtra vs. Dr. Praful B. Desai the learned Special Judge allowed the application.
4. During the course of hearing, it was pointed out to this Court that CBI in the list of witnesses along with the charge sheet or even in the second list of witnesses did not name Mr. RJH, father of Ms. JH as a witness. A specific query was put to the learned counsel for the CBI as to how summons were issued to this witness and the CBI was directed to file an affidavit in this regard vide order dated 2nd February, 2017. An affidavit of Shri Surender Singh, Deputy Superintendent of Police, CBI has been filed on 9th February, 2017 wherein it is admitted that though Mr. RJH was not cited as a witness, it is claimed that repeated summons were issued to Mr. RJH by the learned Trial Court which have not been challenged before this Court. Hence in the present petitions, the petitioners cannot claim that Mr. RJH be not examined as a witness.
5. Learned senior counsel for Atul Jain has handed over certified copies of the application filed by the CBI dated 8th August, 2014 and the order pursuant thereto. A perusal of the application dated 8th August, 2014 seeking more time to serve summons on Ms. JH, reveals that though in the application, CBI was referring only to issue summons to Ms. JH, daughter of Mr. RJH however, in the prayer clause it was prayed "In view of the above facts & circumstances it is most respectfully prayed that, fresh summons may please be issued giving at least 6 months time in the name of M/s. JH and Mr. RJH." The underlined words have been added in hand in the prayer clause of the application.
6. On the application of the CBI dated 8th August, 2014 order was passed by the learned Special Judge noting that an application has been filed by the learned P.P. for CBI for fixing a long date for service of summons upon Ms. JH and the witness Ms. JH be summoned for 30th September, 2014 and summons be further handed over to HIO for being forwarded to the Ministry of Home Affairs as per rules. Other witnesses were directed to be summoned for 11th September, 2014. Despite their being no order for summoning Mr. RJH, in ........