MANU/UP/1036/2019

IN THE HIGH COURT OF ALLAHABAD

Application U/S 482 No. 13660 of 2019
Decided On: 11.04.2019
Appellants: Sanjeeva Palan and Ors.
Vs.
Respondent: State of U.P.
Hon'ble Judges/Coram:
Saumitra Dayal Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ramesh Kumar Pandey
For Respondents/Defendant: G.A.
ORDER
Saumitra Dayal Singh, J.
1. Heard learned counsel for applicants and the learned AGA for the State.
2 . Learned counsel for the applicants is permitted to implead the accused persons as
opposite party nos. 2 to 5.
3 . In view of the order proposed to be passed, notice is not being issued to opposite
party nos. 2 to 5 at this stage.
4 . The present applicants Sanjeeva Palan, Usha Palan and Shalaka Palan have
approached this Court against the order dated 09.01.2019 passed by the learned
Additional Sessions Judge, Court No. 13, Ghaziabad, in Sessions Trial No. 1374 of 2007
(State Vs. Ravi & Ors.). By that order, an application filed by the present applicants
through counsel praying for their evidence to be recorded through commission has been
rejected. Earlier, proceedings under Sections 82 and 83 Cr.P.C. had been initiated to
ensure presence of the present applicants.
5 . In short, the applicants claim that Savita, daughter-in-law of applicant nos. 1 & 2
and mother of applicant no. 3 had been murdered. The present applicants claim to be
eye witness of the said occurrence. However, they further claim that applicant nos. 1
and 2 are of advanced age being more than 80 years and are permanent residents of
Udupi, Karnataka, where they have been living since the occurrence of the murder of
Savita in the year 2007. They also claim to be fearful of their safety if they were to
appear to lead evidence before the court below at Ghaziabad. Moreover, it has been
stated that they are not conversant with any language other than Kannada. Specifically,
it has been stated that they are not conversant either in Hindi or English. In such
circumstances, the application was filed by the applicants before the learned trial court
under Section 284 Cr.P.C. praying that their evidence may be recorded through
commission and earlier coercive process issued against them may be withdrawn. In the
body of the application, the applicants further relied on the decision of the Supreme
Court in State of Maharashtra Vs. Praful B. Desai, MANU/SC/0268/2003 : (2003) 4 SCC
601, to submit that should the court consider proper, their evidence be recorded

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 through video conferencing.
6 . The above application has been rejected by the learned court below after briefly
taking note of the contents of the application. The reasons for rejecting the application
as contained in the impugned order are that the trial is of the year of 2007 and it has
remained pending for very long for want of evidence. Also, reference has been made to
an earlier order dated 05.12.2018 by which the present applicants had been declared
absconders and proceedings for attachment had been consequently issued. In such
facts, it has been concluded that the applicants are seeking to delay the proceedings.
Last, it has been observed that if the applicants were to appear, the court may consider
grant of expenses to them to ensure their presence.
7. Learned counsel for the applicants submits that the order of the learned court below
does not advance the interest of justice and, in fact, it seeks to coerce the applicants to
appear at the risk of their safety. The said order also overlooks the peculiar difficulty
being faced by the applicants owing to their advanced age and lack of knowledge of
Hindi and English.
8 . Then, referring to the provisions of Section 284 read with Section 285 (1) Cr.P.C.
and the decision of the Supreme Court in State of Maharashtra Vs. Praful B. Desai
(supra), it has been submitted that it was not mandatory for the learned court below to
compel the applicants to appear before it to adduce evidence. Undoubtedly, the
applicants are close relatives and eye witness of the occurrence and therefore their role
in the trial is most crucial. Therefore, in the entirety of the facts and circumstances of
the case, it has been submitted that the learned court below ought to have exercised its
power under Section 284 read with Section 285 Cr.P.C., keeping in mind the principles
laid down by the Supreme Court in State of Maharashtra Vs. Praful B. Desai (supra).
Also, it has been submitted that in such facts, the accused persons could not have been
heard to object to the application filed by the applicants for recording of evidence
through commission or through video conferencing.
9. Learned AGA submits that if the applicants are so desirous of leading evidence, they
have not been prevented by the accused persons to participate in the trial proceedings.
10. Having heard learned counsel for the parties and gone through the record, insofar
as it appears that it has remained from being considered by the court below that it had
power under Sections 284, 285 read with the proviso to Section 275 (1) of the Cr.P.C.
to either issue a commission to record the evidence, or to record evidence through
video conferencing. Reliance had been placed on State of Maharashtra Vs. Praful B.
Desai (supra). These aspects have not been considered in the right spirit and it has not
been weighed by the court below whether any prejudice could be caused to any parties
if the evidence of the applicants were to be recorded by issuance of commission or
through video conferencing a facility that is becoming increasingly available to courts.
11. The order dated 09.01.2019 passed by the learned Additional Sessions Judge, Court
No. 13, Ghaziabad, in Sessions Trial No. 1374 of 2007 (State Vs. Ravi & Ors.) is
accordingly set aside.
12. It is expected that the learned court below would act in the best interest of justice,
keeping in mind the difficulties and peculiarities of the present case, while passing a
fresh order.
13. In view of the apprehension expressed by the applicant nos. 1 an 2 who are old,
being 80 years of age and the further difficulty cited by them of language, it would be

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 in the interest of justice that the court below should pass a proper order, keeping in
mind all facts and circumstances brought before it by the present applicants.
14. The objections, if any, of the accused persons may also have to be viewed in light
of the facts and circumstances brought by the present applicants, as the accused
persons may not stand prejudiced if the evidence of the applicants is recorded through
commission or through video conferencing. However, no further observation is being
made as to whether the learned court below may proceed to record the evidence
through commission or through video conferencing. In that regard, a decision has to be
made by the learned court below. It is only expected that it would act in the best
interest of justice, keeping in mind the difficulties and peculiarities of the present case.
15. Such exercise may be completed as expeditiously as possible, preferably within a
period of one month from the date of production of a certified copy of this order. For
the purpose of reconsideration of the application, the attendance of the present
applicants may not be insisted upon and they may be permitted to be represented
through counsel. Also, no coercive measure may be taken against them in the
meanwhile.
16. The present application is disposed of.
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