This article is written by Harsh Jain. Along with holding degrees in LLB, and LLM, Harsh is NET, JRF qualified. Harsh has successfully cleared Rajasthan Judicial Services, Mains Examination. Also, Harsh is pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata. This article gives a deep overview of the recording of evidence through video conferencing.

Video conferencing is a tool which can not only give a boost to the justice delivery system but also save a lot of time, money, and effort of courts, parties, government etc. But, Supreme court has given clear guidelines while deciding various cases explaining where evidence can be recorded through video conferencing and where it can not be.

What is Evidence?

According to Section 3 of the Indian Evidence Act states that:

Evidence means and includes:

1. Oral Evidence: All statements which the court require and permit to be made before it by the witnesses, regarding the matter of fact under inquiry.
2. Documentary Evidence: Any document (including electronic records), produced for the inspection of the court.

Documentary evidence can further be divided into primary and secondary evidence.

According to Section 62 Indian Evidence Act:

Primary evidence:

• The document itself produced for the inspection of the court is called primary evidence.
• If a document is executed in several parts, each of such part will be treated as primary evidence of the document.
• When a document is executed in counterparts, each counterpart is primary evidence against the parties who have executed it (for those who have not executed it, it is treated as secondary evidence for them).
• But where a number of documents are made through a uniform process, eg. printing, lithography or photography, then each of them is primary evidence of the contents of other documents made through such process, but they are not primary evidence of the contents of the original document.

According to Section 63 Indian Evidence act:

Secondary evidence includes:

• Certified copies issued by a person authorized, duly following the procedure provided in law.
• Copies made from the original documents through a mechanical process which in itself ensures the accuracy of the copy and all the copies compared with such copies.
• All the copies which are made from and compared with the original documents
• When a document is executed in counterparts, each of such documents is a secondary evidence against the parties who have not signed on such counterparts.
• When oral accounts of the contents of documents are given by a person who has
  himself seen them.

What is Electronic Evidence:

Electronic Evidence was included in the definition of documentary evidence through an amendment in Indian Evidence act. So, the Electronic evidence is just a form of documentary evidence in electronic form.

Hard Disks, micro sd card, memory cards of a smartphone or digital cameras etc., where electronic information, pics etc are directly saved are primary evidence.

While CDs made from them or copies made in any other manner are secondary evidence.

Video conferencing – is it oral evidence or it is documentary evidence?

All statements which the court require and permit to be made before it by the witnesses, regarding the matter of fact under inquiry are oral evidence. In video conferencing, if the court is just permitting to make these statements through electronic means. It is not covered in the definition of documentary evidence. It is purely a oral evidence in electronic form.

But, if any documents are being admitted as evidence then they may be treated as documentary evidence depending on the facts and circumstances and discretion of the court.

What are the laws, and guidelines governing recording of evidence in India?

There are various guidelines given time to time by Supreme court, various high courts etc. regarding the recording of evidence through video conferencing. Law applicable to them will be the same as applicable to evidence recorded in courts normally, including 272 to 283 Cr.P.C. and Order 16, 18 etc. C.P.C. with some changes to avoid some technical issues.

Can evidence be recorded in legal cases through video?

By amendment in Cr.P.C in 2009, a proviso was added to subsection (1) of section 275 Cr.P.C. which states 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”.

By analyzing this provision, we can say that taking evidence of a witness through video conferencing is permissible.

By observing various guideline of various high courts and supreme court (2 & 3)also, it is clear that evidence can be taken through video conferencing.

Here it is worth mentioning that as per Section 273 Cr.P.C., evidence must be recorded in the presence of the accused. But, here presence does not mean the actual physical presence of the accused. Evidence may also be taken in presence of the pleader of accused if attendance of accused is dispensed with. Presence of pleader is deemed to be the presence of accused as provided by section 273 and 275 (1) proviso.

In case of State of Maharashtra vs Dr. Prafull B. Desai and Another: AIR 2003 SC 2053, the Apex Court interpreted the meaning of the term ‘presence of the accused’ in the aforesaid manner.

Supreme court and various High courts on Evidence to be recorded on video conferencing:

Few instances where Apex court and various other court allowed and denied recording of evidence through video conferencing are :

In State of Maharashtra vs Praful B Desai (Dr.)

Supreme court permitted recording of evidence of witnesses staying abroad through video conferencing.

In Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra:

The court permitted Kasab to appear through video conferencing.

Delhi High Court in International Planned Parenthood Federation (IPPF) vs Madhu Bala Nath

directed courts to have a liberal and pragmatic approach in allowing the witnesses to depose through Video conferencing.

Gujarat High Court Ketan @ Arcit Pravinbhai Patel vs State of Gujarat

gave directions to the State to consider the production of undertrial person in concerned courts through video conferencing.

The Bombay High Court

taking suo-motu cognizance of a letter written by Shaikh Abdul Naeem, who was one of the accused in the Aurangabad Arms Haul case has directed the Maharashtra government to install video conferencing facilities in all courts in the state by the end of March 2017.

Recently in February 2018, it was reported that Jammu bench of Jammu and Kashmir High court

for the first time heard 11 cases listed before Srinagar wing of High court through video conferencing. The Chief Justice of J & K High court, Justice Badar Durrez Ahmed had himself heard these cases.

Apex court in Asha Ranjan vs State of Bihar and others, transferred Mohammad Shahabuddin

from Siwan Jail, district Siwan in Bihar, to Tihar Jail, Delhi directing that pending trials shall be conducted by video conferencing by the trial court.

The Division Bench of Madras High Court created history when it conducted the court proceedings over Skype

from Chennai for the first time in a case related to 89 inmates of an unauthorized private children’s Home for girls run by Mose Ministries in Turuchi. In this case, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India. To avoid any discomfort to them the court decided to take evidence through video conferencing.

SIL Import, USA vs Exim Aides Exporters, Bangalore (1999) 4 SCC 567

In this decision also use of available technology was given a boost. But, it was also held that technologies like internet, email etc. were being used swiftly even before the bill was discussed in parliament. So, if Parliament has decided that notice is to be given in writing, the court cannot ignore this fact. The court assumes that Parliament was well aware of the modern technology available.

Grid Corpn. Of Orissa Ltd. vs AES Corpn. 2002 AIR (SC) 3435

Here supreme court held that it is not necessary for two parties to sit together at one place where an effective consultation can be done through electronic means and remote conferencing, unless, law or any condition specifically mentioned in the contract has binding on them to do so.

Hon’ble Karnataka High court in TWENTIETH CENTURY FOX FILM CORPORATION vs NRI FILM PRODUCTION ASSOCIATES (P) LTD. (AIR 2003 KANT 148)

held that a witness must file an affidavit or undertaking duly verified by a notary or a judge before he is examined, that the person who is going to depose on screen is the same person who is shown as the witness on the records.

But, in Santhini vs Vijaya Venketesh

The apex court held that Evidence via video conference not permissible in matrimonial cases. If both parties are not present in court, then there less possibility of emotional bond. It can create a dent in the process of settlement. Family court judge should never be the slave of the concept of a speedy trial. Reconciliation requires the presence of both parties at the same time and same place. This if permitted, can defeat the purpose of the whole act.

When should court permit recording of evidence through Videoconferencing?

Generally, all the courts have a liberal approach towards allowing recording of evidence through video conferencing. Unless there were special reasons to deny it, courts are always willing to adopt the technology for the betterment of all. By evaluating various cases where courts admitted and denied an application for recording evidence through video conferencing, we can say that, unless it is a mandatory condition of law or a written and valid contract among parties that parties must appear physically it must be allowed by the courts. In any other such circumstances where the court considers that if the recording of evidence through video conferencing is allowed, it will defeat the purpose of the law or procedure established by law, the court can deny it.

Procedure and precautions for recording through video conferencing as suggested by courts:

As stated above, while recording evidence through video conferencing basic rules and provisions provided in Indian Evidence act, Cr.P.C., C.P.C. etc. and also provided by the apex court and various high courts in various judgments and guidelines etc. must be followed. But some additional precautions are also suggested by courts which must be kept in mind:

Sujay Mitra vs State of West Bengal CRR No.1285 of 2015

Calcutta High court gave some guidelines which a trial court must keep in mind while recording evidence through video conferencing:

1. The court must satisfy itself regarding the identity of the witness.
2. The oath must be administered to witness before recording his evidence.
3. The witness can only be examined during the working hours of Indian courts.
4. Copies of the documents to be proved must be provided to witnesses well in advance.
5. It must be ensured by the court that the witness is alone in the room of Indian embassy from where he is giving evidence through video conferencing.
6. The demeanor of the witness must be recorded by the court which is relevant for the purpose of evaluation of the evidence.
7. Once the recording of the evidence is started through video conferencing, it must be continued on day by day basis till evidence of such witness is recorded completely.
8. Other conditions can be imposed by the court to ensure smooth recording of evidence through VC.

In the case of Amitabh Bagchi vs Ena Bagchi – Ac and 2005 Calcutta II,  Twentieth Century Fox Film Corporation vs NRI Film Production Associates (P) Ltd., (AIR 2003 KANT 148) and some other cases,  some safeguards are suggested by superior courts, which are to be taken during recording evidence through video conferencing:

1. An officer appointed either from India or from consulate/ embassy in the country where evidence is being recorded. He will remain present and ensure that there is no other person than the witness himself in the room where the witness is sitting while giving his evidence.
2. It is the duty of this officer to fix the time for recording evidence, who has been deputed to record evidence.
3. Witnesses will be only examined during the working hours of Indian courts. No witness is allowed to take the excuse of inconvenience due to difference India and any other country where he is staying.
4. The magistrate has the power to disallow recording evidence by video if he has reason to believe that witness is not attending at the time fixed without any sufficient reason.
5. The magistrate can take the legal action provided by law to compel the attendance of the respondent and their counsel if they do not attend at the time fixed by the officer concerned.
6. A set of the plaint, written statements, and all other necessary documents must be sent in advance to all the non-party witnesses to make them acknowledged with the matter concerned.
7. The witness has to file an affidavit duly verified by notary or judge, that the person is shown as witness and person deposing before the court is the same person.
8. Even the person who wishes to examine any witness on screen shall file an affidavit.
9. After the process of identification is complete, an oath is administered ac per Oaths Act 1969 by an officer duly authorized to do so.
10. The officer deputed has to ensure that:
11. The witness is not taught, prompted or guided.
12. Respondent, their counsel, and one assistant are allowed in the studio when evidence is being recorded.
13. That witness is not prevented from bringing along with them, all the necessary documents required by their counsels.
14. That the visual is recorded at both the ends and the witness alone is present in the conferencing room.
15. Officer concerned has to ensure that, as far as possible, once the conferencing has started, it must proceed without adjournment and interruption.
16. If the witness is not answering the questions, the officer will make a memo regarding it. This memo will be taken into consideration when the evidence is read in the court.
17. the court or commissioner, as the case may be, must record all material remarks regarding demur of the witness while he is on screen and shall also note, either mechanical or manually.
18. Depositions of the witness will form part of the record of proceedings after they are signed. They must be signed as soon as possible before a magistrate or notary public. In this process, even digital signatures can be used and such signatures shall be obtained immediately after the day’s evidence.
19. All the expenses of recording the evidence through video conferencing will be borne by the applicant, who wants to avail this facility of video conferencing.
20. These guidelines are just directory and they are not limited to these only i.e. they are not inclusive. Courts may adopt them or may also add to them or change any of them according to the facts and circumstances of a particular case.

Technical requirements:

Before recording evidence through video conferencing, there are certain minimum technical requirements which must be fulfilled. They are as follows:

1. A computer system.
2. A high-speed internet connection.
3. Power back up to ensure uninterrupted power supply during the conference.
4. Printer.
5. A good quality video camera of prescribed standards.
6. Good quality microphones and speakers.
7. Monitors/ Display units.
8. A document visualizer machine.
9. Sitting arrangements must be made ensuring the privacy of the witnesses during the proceedings.
10. Efforts must be made to reduce the noise disturbance, as much as possible.
11. Facility for digital signatures at both the ends must be available.
12. Adequate lighting arrangements must be made to ensure clear visibility.

Technical difficulties

1. Lack of infrastructure:
2. Still, in many parts of the country, courts do not have basic infrastructure like computer systems, uninterrupted supply of electricity and high-speed internet connections to facilitate recording of evidence through video conferencing.
3. Lack of technical knowledge required for video conferencing among judges and no availability of technical assistance to them.
4. No mechanism to compel witnesses in countries other than India, to be present at the time of the conference.
5. People are still not as acquainted with the technology, as required, and hence, they are reluctant to adopt it. They still prefer the conventional methods.
6. Judges do not have enough time to record evidence through video conferencing and they have to appoint commissioners for this purpose. But commissioners are not well acquainted with technology and guidelines for recording evidence through video conferencing.
7. The speed of the internet is not world class.
8. The government has not supported the efforts of courts and has not provided with the appropriate funds required for making this possible.
9. Advocates have a tendency to linger on the cases by taking adjournments during the trials. Parties in default also want to take advantage of the loopholes in the legal system as delays irritate opposite parties and sometimes may even change the fate of matter in their favor. Generally, only one party to the suit is interested in it. Party in default and his counsels do not agree to adopt this procedure as it may result in early disposal of a matter which will probably be decided against them.
10. There are diversified opinions and judgment of courts and still, there is no clear and specific guideline regarding this.

Conclusion

Supreme Court has rightly observed in Som Prakash Vs State Of Delhi 1974 Cri. LJ 784

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.” There is a need to make statutory changes to develop a better approach towards criminal and civil trials and to lessen the burden on investigators and judges. Recording of evidence through video conferencing will not only fasten up the disposal of matters piling up in courts, but also, reduce the cost of court proceedings, will make it lot cheaper for parties to fight their matters, it will also become a lot easier for public servants like doctors, I.O.’s, mechanical experts, forensic experts etc. to give their evidence before the court without any detriment to public services, which suffer in their absence, if conventional methods are adopted. Statutory changes are needed to develop more fully a problem-solving approach to criminal trials and to deal with a heavy workload on the investigators and judges.

The courts have generally observed that, for speedy and effective disposal of cases, there is a requirement to avail technologies and innovations in the justice delivery system, but, with necessary safeguards and precautions. These days courts are becoming more and more lenient in including the recording of evidence through video conferencing into their trail system.  Unless it is against the established rules of law or a valid written agreement between the parties to the proceedings courts generally allow evidence to be recorded through video conferencing.

References:

1. Indian Evidence Act
2. Guidelines available on ecourts website: http://ecourts.gov.in/sites/default/files/EVIDENCE%20THROUGH%20VIDEO%20CONFERENCING%20-%20by%20Ms%20B%20Gayathri_0.pdf
3. Guidelines available on NJAC website: http://www.nja.nic.in/CJ-CM_Resolution/Delhi_HC/Video%20Conferencing%20Guidelines%20issued%20by%20DHC.PDF
4. State of Maharashtra v. Dr. Prafull B. Desai and Another: AIR 2003 SC 2053
5. Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra
6. Santhini Versus Vijaya Venketesh
7. http://www.livelaw.in/delhi-hc-moots-pragmatic-and-liberal-approach-in-allowing-witnesses-to-depose-through-video-conferencing-2/
8. http://www.livelaw.in/gujarat-hc-moots-production-undertrial-courts-video-conferencing-issues-directions/
9. http://www.livelaw.in/ensure-video-conferencing-facility-courts-march-end-bombay-hc-tells-maharashtra-government/
10. http://www.livelaw.in/sc-transfers-shahabuddin-siwan-jail-tihar-jail-orders-trial-video-conferencing/
11. http://www.livelaw.in/madras-hc-division-bench-creates-history-conducting-hearing-over-skype/
12. http://www.lawyersclubindia.com/forum/Supreme-court-s-view-on-video-conferencing-62835.asp
13. https://barandbench.com/jammu-kashmir-high-court-video-conferencing-bd-ahmed/
14. http://ecourts.gov.in/sites/default/files/Topic-2%20(Mode%20of%20treating%20and%20Recording%20evicdence,%20including%20recording%20of%20evidence%20through%20VC).pdf
15. http://www.nja.nic.in/CJ-CM_Resolution/Delhi_HC/Video%20Conferencing%20Guidelines%20issued%20by%20DHC.PDF
16. https://blog.ipleaders.in/court-proceedings-video-conferencing/
17. Som Prakash Vs State Of Delhi 1974 Cri. LJ 784