Special public prosecutor D M Arekar's case was that in the circumstances, where the witness Dr Ernest Greenberg was unwell and would be unable to travel to India, tele-conferencing, whereby the USA-based doctor would be seen on video screen in presence of the court in Mumbai and the magistrate himself, can help give crucial evidence.

The Esplanade Court is hearing a criminal case of 1988 where the state, at the instance of Azad Maidan police, has filed a case against two specialists, Dr P B Desai and Dr A K Mukherjee,with Bombay Hospital in a case of medical negligence. According to the chargesheet filed by the police station before the metropolitan magistrate, a retired IAS officer, P C Singhi's wife Leela Singhi was a breast cancer patient. She had been taken to New York's Sloan Kattering Memorial Hospital by her husband in November 1987 where she had suddenly started suffering from vaginal bleeding. The doctors at the hospital, including Dr Greenberg, had said her case was inoperable and should be treated only through medicines.

She was apparently reacting well to the advice but developed bleeding again once back in India, towards the end of 1987. She was then admitted to Bombay Hospital under Dr Desai's care. It is alleged Dr Desai decided to remove her uterus against the US doctor's advice. Assistant surgeon A K Mukherjee took her on the operation table and opened her abdomen. But it was found the operation was impossible. He then consulted Dr Desai who did not attend to the patient and instead told Dr Mukherjee toclose the abdomen. The patient, allegedly not examined by Dr Desai till her discharge, died after severe pain. The prosecution has charged Dr Desai and Dr Mukherjee of a rash act causing fatal injury.

In the ongoing prosecution, the two doctors have already been held guilty of misconduct by the Maharashtra Medical Council, Mumbai under Section 22 (1) (a) of the MMC Act, 1965 on January 11, 1991. Dr Greenberg, who has filed an affidavit in the case, however, has claimed he would be unable to travel to India to be examined in the case.

The application by Arekar for video conferencing permission was made in July 1998. Arekar has buttressed his arguments quoting from the Criminal Procedure Code, 1973 which he argued does not provide to secure presence of a person as a witness who is not an Indian citizen. The Criminal Manual also does not provide for payment of travelling expenses and diet money to such foreigners as witness. Indian laws, due to lack of any such agreement with foreign countries to which theseforeigners belong, cannot summon the witnesses either. A commission to be sent to USA to examine Dr Greenberg would be equally expensive.

He then quoted SC cases where tape-record evidences were admitted as evidence subject to the condition that the one who has recorded it must come to court to depose that he recorded it and heard the voice. Once the voice is identified, the court treats it as `evidence'. In video-conferencing, on the other hand, the voice is recorded on a tape, and the same will be recorded in presence of the court as the voice on the tape in USA will reach the tape in the conference room in India. He said both MTNL and VSNL have such facilities.

He has also used Justice S N Variava's judgement to support him, when Justice Variava presiding over the Special scam Court had directed that one key witness, Ramaswamy Iyer based in US could be examined through the facility. ``This also minimises or almost eliminates possibility of loss of material recorded,'' he had noted. While this wasallowed by Justice Variava, the examination had not materialised.