Author: Gokul Abimanyu. O.R., Student at Tamil Nadu National Law University.
During this pandemic situation where people are in anxiety to come out of their homes even for their basic needs, many of the administrative and judicial processes are functioning with certain alternatives. Though there are certain obstacles, some alternative methods have been used by courts to dispose of the cases. One such method is virtual courts which means that court processes are done through electronic methods. The court process like examination, cross-examinations of witnesses, accused, petitioners, and other people are hindered by this pandemic situation. To overcome such hindrance, the courts started to examine witnesses through video conferencing. Though this is not a new concept to the Indian Evidence Act, this became significant in this pandemic situation. In such situations, recording of examination through video conferencing is relevant and becomes an important topic to discuss. A comprehensive discussion has been made in this research paper with respect to the examination of a witness by video conferencing. This research paper is an attempt to study the ‘Examination of a witness by video conferencing’ which I feel is the need for the hour in this pandemic situation.
EXAMINATION BY VIDEO CONFERENCING- ORAL OR DOCUMENTARY EVIDENCE
A question primarily arises whether video conferencing is oral or documentary evidence. In the case of video conferencing, the court permits the witness to make statements through electronic means. Here, the witness makes the statements before the court by video conferencing. To make it clear, it is oral evidence made through electronic means. So, it is oral evidence and cannot be considered as electronic evidence i.e., a form of documentary evidence.
But there are certain situations where some documents are admitted by the court as evidence through video conferencing. In such cases, they are considered documentary evidence depending on the facts and circumstances of the case.
THE LEGALITY OF EXAMINATION OF WITNESS BY VIDEO CONFERENCING:
The provisions that apply to the recording of evidence through video conferencing will be the same that apply to the recording of evidence in the normal courts inclusive of sections 272 to 283 of Criminal Procedure Code and Order 16, 18 and so on of Civil Procedure Code. A provision has been added to the subsection (1) of section 275 of the Criminal Procedure Code in the year 2009 which is read as follows:
“Provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offense”.
So, this section permits the taking of evidence of a witness by video conferencing under this subsection. Also, going through the guidelines provided by the Supreme Court and various High Courts make it clear that the evidence can be recorded by video conferencing. It is pertinent to mention that section 273 of the Criminal Procedure Code makes it mandatory to record the evidence in the presence of the accused. Section 273 of the Cr.P.C reads as follows:
“Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader”
In the case of State of Maharashtra vs Dr. Prafull B. Desai and Another, the court opined “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 court interprets the phrase ‘presence of the accused’ as a constructive presence and not an actual presence. Hence, it is clear that when the evidence has been recorded with the presence of the accused or his pleader over video conferencing, it is considered as the ‘presence’ of the accused as put forth under section 273 of the Criminal Procedure Code. In light of the above, it is permitted to record the evidence of witnesses who were even staying abroad by video conferencing.
JUDICIARY ON EXAMINATION OF WITNESS BY VIDEO CONFERENCING
Judiciary has put forth its opinion in many cases with respect to the development of the technology and the use of video conferencing for a recording of evidence in a trial. Some of the important cases are as follows:
In the case of Som Prakash Vs State of Delhi, Justice Krishna Iyer has opined that “in our technological age nothing more primitive can be conceived of than denying discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific aids to prove guilt.” Justice has rightly pointed out the need for accommodating the new scientific techniques in a trail to mitigate the workload of the judges.
In the case of SIL Import, USA V Exim Aides Exporters, Bangalore, the use of technology that is in existence has been given a good boost, where the Supreme Court held that “Technological advancement like facsimile, Internet, e-mail, etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament”
The Supreme Court has ruled that when an effective consultation can be derived from the use of electronic media or through remote conferencing, it is unnecessary that the two persons have to sit together at one place otherwise than it is required by the law.
In the case of Twentieth Century Fox Film Corporation Vs NRI Film Production Associates Ltd the Hon’ble High Court of Karnataka observed that “before a witness is examined in terms of the Audio-Video Link, the witness is to file an affidavit or an undertaking duly verified before a notary or Judge that the person who is shown as the witness is the same person who is going to dispose on the screen”.
In the case of Santini Vs Vijaya Venketesh the Supreme Court mandates the presence of both the parties in matrimonial cases to have a possibility of an emotional bond. The court feels that if either of the party is absent, it can weaken the process of settlement of the dispute.
The facility of producing evidence by recording it through the process of videoconferencing has been permitted in criminal cases. The Court expressed the view that there cannot be any plausible objection for adopting the same procedure in civil cases also. But necessary precautions must be taken as to both identifying witnesses and the accuracy of the equipment used. “Where a witness or a party requests that the evidence of a witness may be recorded through video conferencing, the court should be liberal in granting such a prayer”
PROCEDURE AND GUIDELINES FOR EXAMINATION OF WITNESS BY VIDEO CONFERENCING
The basic rules concerning the examination of witness through video conferencing that are enumerated in the Indian Evidence Act, Cr.P.C and C.P.C, etc. and the various judgments, guidelines are to be adhered to while recording evidence through video conferencing. In addition to the above, some additional precautions should be taken into account before recording the evidence of witnesses through video conferencing. In the case of Sujay Mitra vs State of West Bengal the High court of Calcutta has given the following guidelines which a trial court has to consider while recording evidence through video conferencing:
- The court has to be satisfied with the witness’s identity.
- Before recording the evidence of the witness, the oath of the witness has to be taken into account.
- Only at the time of the courts’ working hours, the witness must be examined.
- It is mandatory that the Copies of the documents that are to be proved by the witness must be provided in advance.
- It is necessary to make sure that no other person other than the witness is present in the room of the Indian embassy (Place where he is giving his evidence through video conferencing).
- For the purpose of evaluation of the evidence of the witness, the demeanor of the witness must be recorded by the court and it stands relevant.
- Once the examination of the evidence of the witness through video conference has begun, it must be continued on a day-to-day basis until the recording of evidence of the said witness is completed.
- Any other conditions or measures may be incorporated by the court to have a smooth recording of evidence by video conferencing.
In the case of Twentieth Century Fox Film Corporation vs NRI Film Production Associates (P) Ltd., Amitabh Bagchi vs Ena Bagchi, and some few cases, certain safeguards or precautions are enumerated by the Superior courts that are to be ensured before recording evidence through video conferencing which are as follows:
- The time of the recording of evidence through video conferencing has to be fixed by the officer who has been appointed to record evidence.
- The officer who has been appointed to record evidence has to ensure that no person other than the witness himself is present in the room where the witness is there while giving evidence.
- The magistrate has the authority to disallow the recording of evidence through video conferencing if he finds that the witness doesn’t attend at the time fixed without any proper reason and he can also take action against the respondent if he with his counsel doesn’t attend at the time fixed.
- To ensure that it is the same person who is shown as a witness is deposing before the court, an affidavit has to be filed by the witness.
- The officer appointed has to make sure that the witness has not been guided or taught. He has to ensure that the visual is being recorded at both ends. He is to ensure that there is no interruption during the recording of evidence through video conferencing.
- In these cases, digital signatures can also be obtained and it is to be done immediately after the day of evidence.
- All these expenses have to be borne by the applicant who wants to have a recording of evidence through video conferencing.
All the above mentioned are merely directory and the court changes or add on to it based on the facts and circumstances of the case.
Taking into account this pandemic situation, the Supreme Court of India on 06/04/2020 issues an order which has again acknowledged the recording of evidence through video conferencing. Those guidelines are issued to mitigate the physical presence of advocates, witnesses, the court staff, public servants, litigants, and representatives of media in court across the country and to make sure that justice has been served without any interruption.
CHALLENGES IN EXAMINATION OF WITNESS BY VIDEO CONFERENCING
Though there are certain merits in the examination of witness through video conferencing, it also faces certain challenges in the Indian scenario. The following are the challenges,
- Lack of Infrastructure– This is the primary challenge faced by the Indian judiciary. In various Indian courts, there is no basic technological infrastructure in various parts of the country. The majority of the courts in India don’t have basic infrastructure like uninterrupted internet and electricity connections which is the base for the recording of evidence through video conferencing.
- Evaluation of Witnesses– It is very difficult for a judge to ascertain the demeanor of the witness in a video conferencing.
- Cross-examination– It is believed that cross-examination is the process that works on the verbal and non-verbal cues which are revealed by the witness. But many of the advocates feel that there is no proper clarity of audio and visual to catch such cues.
- Lack of fluency with Technology– Technological education must be given to the judges and the appointed commissioners for recording evidence from the witness as they are not well acquainted with growing technology.
The procedures for recording of evidence through video conferencing are absent.
Indian courts are using video conferencing to carry on some of their work, while the whole country is under lockdown and enforcing social distancing. This is done with the motive of ensuring that citizens have access to justice even at times of pandemic like this. This pandemic has taught lessons on the gaps in the capacity and readiness of Indian courts to shift itself to online modes in situations like this. And the judiciary has got an opportunity to speed up the process for creating a framework for online mode of working, as far as possible. Enabling participation through video could help give access to many who are located far away from courts.
“If law Courts do not permit technological development in Court proceedings, it would be lagging behind compared to other sectors. Law has to develop and if law is to develop, technology has to be made as a tool”
- Though the recording of evidence through video conferencing is legally permitted by the provisions of law and by several judgments, there is an immediate need for statutory developments to ensure a better approach in conducting civil and criminal trials through video conferencing.
- It is to be accepted that this is not an appropriate time or time has not ripe to bring any new provisions with respect to the examination of witness through video conference. This is because, before making any statutory developments there must be facilities in the trial Courts for videoconferencing and they must be fool-proof. So, I am of the view that at an appropriate point of time (i.e. after making available all such technological facilities in the trial courts) a separate law relating to examination by video conferencing and telephone links can be made. The first duty of the Government is to bring technology to the Indian Courts.
- Recording of evidence by video conferencing shall be used in cases where there is no compulsion placed in the law for the parties to appear before the court or in cases where the parties are unable to appear before the court. This will eradicate the huge time consumption in disposing cases. E.g., a commission would be involved in recording the evidence at the place where the witness resides. In such cases where the witness cannot appear before the court without any inordinate delay, expense, or inconvenience, the court could consider issuing of commission to record evidence by way of video conferencing. Or rather than appointing a commission, the court could directly record the evidence of a witness through video conferencing. Recording of evidence through video conferencing will act as a substitute for the recording of evidence by the commission.
- Recording evidence by video conferencing speed up the disposal of matters in the court. The court shall record the evidence of public servants like doctors, bank managers, experts, and so on through video conferencing which will be easier for them and this will create no hindrance to their public services.
- The deputed commissioner or the court has to record all remarks of the demur of the witness while he is giving the evidence through video conferencing.
- The officer has to make a memo if the witness doesn’t answer the questions and the memo would be considered when the evidence is read in the court.
- Drastic changes are needed in the Indian legislations concerning the examination of evidence to create a better problem-solving approach to civil and criminal trials and to deduce the burden of the courts.
From the light of above, it is to be concluded that there is a certain established framework for the examination of witness through video conferencing in our country but which needs to be strengthened by statutory developments that shall be made after giving proper access to technology to the Indian Courts. Also, we have seen that there are some challenges faced by the courts in the examination of witnesses through video conferencing. If the court tries to overcome all the above-mentioned challenges, it is no doubt that the examination of witness through video conferencing will ensure speedy disposal of cases and helps in clearing backlog of cases.
 Code of Criminal Procedure (Amendment) Act 2008, s 275.
 Criminal Procedure Code,1973, s 273.
  AIR 2053 (SC).
 Som Prakash vs. State of Delhi,  Cri. LJ 784 (SC).
 SIL Import, USA V Exim Aides Exporters, Bangalore  4 SCC 567 (SC).
 Grid Corpn. Of Orissa Ltd. V. AES Corpn,  AIR 3435 (SC).
 Twentieth Century Fox Film Corporation Vs NRI Film Production Associates Ltd,  5 KarLJ 98 (HC).
  4 SCC 150 (SC).
 Bodala Murali Krishna v Bodala Prathima,  AIR 43(HC).
 International Planned Parenthood Federation v Madhu Bala Nath,  AIR 71 (HC).
  3 UC 2292 (HC).
  5 KarLJ 98 (SC).
  AIR 11 (HC).
 Twentieth Century Fox Film Corporation Vs NRI Film Production Associates Ltd,  5 KarLJ 98.