It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failur..

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. [255-A, B] Sri Krishna Gobe v. Stale of Maharashtra, [1973] 4 SCC 23, relied on. 1.4. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the jurists and referred by Courts in number of cases. The apex Court has approved the principle of updating construction as enunciated by Francis Bennion, in a number of decisions. However, it is well settled law that the doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an ongoing statute. [255-C; 256-E; 257-D] National Textile Workers' Union v. P.R. Ramakrishnan, [1983] 1 SCC 228; Commissioner of Income Tax, Bombay v. M/s. Podar Cement Pvt. Ltd., [1997] 5 SCC 482; State v. S.J. Chowdhury, [1996] 2 SCC 428; SIL Import USA v. Exim Aides Silk Exporters, [1999] 4 SCC 567 and Basavaraj R. Patil v. State of Karnataka, [2000] 8 SCC 740, relied on. Statutory Interpretation by Francis Bennion 2nd Edition, Page 617 -referred to. 1.5. Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video conferencing has nothing to do with virtual reality. Video conferencing is an advancement in science and technology which permits one to see. hear and talk with someone far away, with the same facility and ease as if he is personally present. In fact he/ she is present on a screen. Except for touching one can see, hear and observe as if the party is in the same room. Thus, so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 Cr.P.C. Recording of such evidence would be as per "procedure established by law". [257-E; 258-A, B, C] 1.6. Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no predspace, of whatsoever nature, is caused to the accused. It is also possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. [258-D, E, F; 259-A] 1.7. To this method there may arise some difficulties if the witness commits Contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore, as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws Contempt of Court and perjury are also punishable. [259-B] 2.1. In cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. In the instant case, the concerned doctor had refused to come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his attendance. In such case commission could be issued for recording evidence. Normally a commission would involve recording evidence at the place where the witness is. However, advancement in science and technology has now made it possible to record evidence of witness by way of video conferencing in the town/city where the Court is. Thus in such matters, the Court could consider issuing a commission to record the evidence by way of video-conferencing. However, commission cannot be issued if there is no arrangement between the Government of India and the country where the commission is proposed to be issued because the services of an official of the country (mostly a Judicial Officer) would be required to record such evidence and to ensure attendance. When a witness is willing to give evidence an official of the Court can be deputed to record evidence on commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the video-conferencing takes place. It must be clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence. [260-D-F; 262-B, C] Ratilal Bhanji Mithani v. State of Maharashtra, [1972] 3 SCC 793, followed. 2.2. Time for recording evidence on commission is always fixed by the officer who has been deputed to so record evidence. The officer would have the discretion to fix up the time in consultation with VSNL, who are experts in the field. Respondent and his counsel will have to make it convenient to attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. However, the officer deputed would be one who has authority to administer oaths and he will administer the oath. Undoubtedly an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve such evidence. [263-F, G; 264-A-C] 2.3. In the instant case, the concerned officer will ensure that once video conferencing commences, as far as possible, it is proceeded with, without any adjournments. Further it if is found that the doctor in USA is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing.

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failur..

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. [255-A, B] Sri Krishna Gobe v. Stale of Maharashtra, [1973] 4 SCC 23, relied on. 1.4. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the jurists and referred by Courts in number of cases. The apex Court has approved the principle of updating construction as enunciated by Francis Bennion, in a number of decisions. However, it is well settled law that the doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an ongoing statute. [255-C; 256-E; 257-D] National Textile Workers' Union v. P.R. Ramakrishnan, [1983] 1 SCC 228; Commissioner of Income Tax, Bombay v. M/s. Podar Cement Pvt. Ltd., [1997] 5 SCC 482; State v. S.J. Chowdhury, [1996] 2 SCC 428; SIL Import USA v. Exim Aides Silk Exporters, [1999] 4 SCC 567 and Basavaraj R. Patil v. State of Karnataka, [2000] 8 SCC 740, relied on. Statutory Interpretation by Francis Bennion 2nd Edition, Page 617 -referred to. 1.5. Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video conferencing has nothing to do with virtual reality. Video conferencing is an advancement in science and technology which permits one to see. hear and talk with someone far away, with the same facility and ease as if he is personally present. In fact he/ she is present on a screen. Except for touching one can see, hear and observe as if the party is in the same room. Thus, so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 Cr.P.C. Recording of such evidence would be as per "procedure established by law". [257-E; 258-A, B, C] 1.6. Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no predspace, of whatsoever nature, is caused to the accused. It is also possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. [258-D, E, F; 259-A] 1.7. To this method there may arise some difficulties if the witness commits Contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore, as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws Contempt of Court and perjury are also punishable. [259-B] 2.1. In cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. In the instant case, the concerned doctor had refused to come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his attendance. In such case commission could be issued for recording evidence. Normally a commission would involve recording evidence at the place where the witness is. However, advancement in science and technology has now made it possible to record evidence of witness by way of video conferencing in the town/city where the Court is. Thus in such matters, the Court could consider issuing a commission to record the evidence by way of video-conferencing. However, commission cannot be issued if there is no arrangement between the Government of India and the country where the commission is proposed to be issued because the services of an official of the country (mostly a Judicial Officer) would be required to record such evidence and to ensure attendance. When a witness is willing to give evidence an official of the Court can be deputed to record evidence on commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the video-conferencing takes place. It must be clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence. [260-D-F; 262-B, C] Ratilal Bhanji Mithani v. State of Maharashtra, [1972] 3 SCC 793, followed. 2.2. Time for recording evidence on commission is always fixed by the officer who has been deputed to so record evidence. The officer would have the discretion to fix up the time in consultation with VSNL, who are experts in the field. Respondent and his counsel will have to make it convenient to attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. However, the officer deputed would be one who has authority to administer oaths and he will administer the oath. Undoubtedly an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve such evidence. [263-F, G; 264-A-C] 2.3. In the instant case, the concerned officer will ensure that once video conferencing commences, as far as possible, it is proceeded with, without any adjournments. Further it if is found that the doctor in USA is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing.

Constitution - Sections 6, 16 and 34B of Show

Constitution - Sections 6, 16 and 34B of Extradition Act, 1962 - Appellant challenged the validity of warrant .Appellant must be held to be in lawful custody of his daughter unless any other or further order is passed by a court of competent jurisdiction.  Lastly, it is imperative to note that the State does not seek for enforcement of the custody and/ or restrain order passed by the Probate and Family Court, Massachusetts in view of the rigours contained in Sections 13 and 44A of the Code of Civil Procedure. Even the Family Court does not appear to have dealt with this aspect of the matter. In any event, as the matter is pending before the High Court, it alone will have a final say therein. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Charges framed against the Appellant not only for the offences for which the Appellant has been extradited but also for some additional offences - Challenge against thereto - Whether the criminal courts in the country have no jurisdiction to try i..

Charges framed against the Appellant not only for the offences for which the Appellant has been extradited but also for some additional offences - Challenge against thereto - Whether the criminal courts in the country have no jurisdiction to try in respect of offences which do not form part of the extradition judgment, and the Appellant/accused can be tried only for the offences mentioned in the extradition decree - Held, when a person is extradited for a particular crime, he can be tried for only that crime - Section 21 of the Act, 1962 makes a specific provision to that effect - As per 1993 amendment, a fugitive could be tried for a lesser offence, without restoring him to the State from which he was extradited or for any other offence, if the State concerned gives its consent - Contention that Appellant had been extradited under International Convention for the Suppression of Terrorist Bombings (the Convention) and therefore, he can be tried only for the offences which are related to the said Convention cannot be sustained - Court at Portugal has not granted extradition merely on the basis of Extradition Treaty but also on the basis of reciprocity - Extradition request was made to the Government of Portugal by the Government of India under the provisions of the Extradition Act applicable to Non Treaty States i.e. Section 19 of the Act, 1962 - Appellant can also be tried for lesser offence/offences in view of Section 21 of the Act as disclosed by the facts - Designated Judge has correctly concluded that the Appellant can be tried for lesser offences, even if, the same are not covered by the Extradition Decree since the same is permitted under Section 21(b) of the Act, 1962 - Appeal dismissedCriminal - Extradition of Fugitive - Extradition ensures a mode of formal surrender of an accused by the one country to another based on Reciprocal arrangements - Held, Fair balance needs to be struck between Human Rights norms and the need to tackle Transnational crime - Extradition allowed on the specific undertaking of the Government of India that the extradited criminal will not be subjected to death penalty or imprisonment beyond 25 years - Amendment to the Extradition Act, enables the requesting State to try the fugitive for a lesser offence without restoring him to the requested State - Doctrine of double criminality and Specialty are both safeguards of the individual rights of the extradited accused who should not be tried on unexpected counts, as well as the rights of the requested State to have its laws and processes given adequate deference by the requesting State - Appeal Dismissed