The Kerala High Court recently held that video conference examination of witnesses is admissible under the Electronic Video Linkage Regulations for Courts (Kerala), 2021 (2021 Rules) and does not impact the accused’s rights.
A single bench of Justice A Badharudeen was hearing a petition filed by Gopal C., an accused in a 2012 case who was contesting a special court decision allowing a witness to appear online/virtually for examination.
The bench observed that the soul purpose of the Rules is to allow the examination of witnesses who are not physically present in order to minimise delays in the disposition of the case or other expenses.
It further stated that the Rules allow a party or his authorised representative to be present at a remote location during the recording of evidence if he so wants, but he must make the arrangements at his own expense.
Appearing for the Central Bureau of Investigation (CBI), Senior Public Prosecutor Rekha K. requested that the de facto complainant, who is the first witness in the case, be examined via video conference before the special court.
The first witness was working in Dubai, and his physical presence for examination could not be arranged without significant delay or expense.
Appearing for the petitioner, Vinod Vallikappen claimed that for the trial to be effective, the witness must be physically present in order to assess the witness’ manner and approach.
It was also argued that the physical presence of the de facto complainant is required to defend the accused’s interests.
The Deputy Solicitor General of India (DSGI) vigorously opposed the petitioner’s arguments, arguing that the 2021 Regulations provide for the physical presence of witnesses in all circumstances.
The bench recognised that Rule 8(25) of the aforementioned Rules provides for witness examination via video conference.
The same is regarded as complying with the provisions of the Code of Criminal Procedure (CrPC), the Criminal Rules of Practice of Kerala, the Civil Rules of Practice of Kerala, or any other law that calls for the personal appearance of parties, witnesses, or other individuals during any investigation, trial, or other proceeding in lower courts and tribunals.
The Court further pointed out that Rule 8(23) permits video conferencing from the location where the required person is located to conduct proceedings if their presence cannot be guaranteed without excessive delay or expense, or for any other valid cause.
As a result, the bench refused to overturn the special judge’s decision to allow the de facto complaint to be examined through video conference.
