A single judge bench of the Calcutta High Court enumerated the guidelines to be adhered with for admitting the testimony of the litigants via video conferencing in criminal cases.

Date of Judgement: 17 June 2015

Composition of the Bench: Single judge bench of hon’ble Mr. Justice Ranjit Kumar Bag

Facts in brief: 

The petitioner is facing trial as an accused under Section 376 of the Indian Penal Code, the survivor was residing in Dublin, Ireland. 

August 6, 2014: The evidence of four prosecution witnesses was recorded by the trial court. 

September 17, 2014: The trial court passed the order for examination of the survivor as P.W.5 through video conference on the basis of prayer of the prosecution. 

The trial court fixed the date for examination of the victim through video conference on January 6, 2015. 

September 17, 2014: The trial court made detailed discussion about the pros and cons of recording evidence of the victim through video conference which was not challenged by the petitioner before any higher forum. 

January 21, 2015: The victim was examined in part through video conference without any demur from the defence. 

February 18, 2015: The petitioner moved an application before the trial court praying for adjournment of hearing on the ground that the petitioner would like to move before the High Court for recording of evidence of P.W.5 through video conference without following the guidelines laid down by the Supreme Court. 

The said application of the petitioner was rejected by the trial court. 

Issues

Whether evidence could be recorded through video conferencing. 

In State of Maharashtra V. Dr. Praful B. Desai the apex Court laid down the guidelines for recording of evidence of the witness through video conference by issuing commission. It was held in paragraph 19:

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 present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other. 

The Court in the instant case opined as  long as the accused and/or his pleader are present during recording of evidence by video conferencing the requirements of s. 273 of the CrPC were being fulfilled without causing prejudice to the accused and would be as per ‘procedure established by law.’ 

Whether failure of the survivor in filing the affidavit disclosing the identity of the victim before recording of evidence. 

In Amitabh Bagchi V. Ena Bagchi, a Single Judge of the High Court laid down some guidelines for recording of evidence of any witness through Audio-Video link. 

According to the said guidelines, the witness must file an affidavit disclosing his identity as the person who would give evidence through video conference. The similar affidavit must be given by the party who wishes to examine the witness through video conference.

The objective of giving such an affidavit is to establish the identity of the person giving evidence through video conference.

However, Bag J delineated a distinction in the instant case, the prosecution had already filed an application before the trial court praying for examination of P.W.5 from Ireland through video conference as the physical attendance would entail an inordinate amount of delay, expense and inconvenience.

The trial court allowed the said application by a reasoned order after giving an opportunity of hearing to both parties on September 17, 2014. 

The petitioner did not challenge the legality and validity of the said order dated September 17, 2015 and the same has attained finality. 

Moreover, the identity of P.W.5 was established as the victim by one Benjamin Besra, First Secretary, Embassy of India situated in Ireland as per proposition of law laid down by the Supreme Court in Dr. Praful B. Desai. 

Upon a careful consideration of the aforementioned factums, Justice Bag opined that all the guidelines laid down in the case of Amitabh Bagchi had been followed in substance so far as they were applicable in a criminal proceeding.

Whether absence of extradition treaty between Ireland and India obviated the possibility of recording evidence of the victim through video conference vitiated the trial.

In the case of Praful B. Desai the court had adverted to the efficacy of an extradition treaty. 

In the contingency of  a witness committing contempt of court or perjury, he can be brought to justice by taking recourse to the extradition treaty.

However, in the instant case, Justice Bag posited that the Presiding Officer of the trial court recorded the evidence of the P.W.5 through video conference and recording of evidence has already been done in part without any objection from the side of the petitioner. At this juncture, his lordship opined that the absence of any extradition treaty between Ireland and India would be “merely academic” 

Accordingly, absence of extradition treaty was not construed to be a bar on the recording of P.W.5’s evidence. 

Whether failure of the Judge in recording his satisfaction that there was no other person in the Indian Embassy to prompt the victim at the time of recording of her evidence through video conference vitiated the trial. 

In Dr. Praful B. Desai the apex Court mandated the presence of an Officer from Indian Embassy/Consulate in the country where the evidence will be recorded and will ensure that there is no other person in the room where the witness is sitting at the time of recording of evidence through video conference. 

In the instant case, upon a perusal of the trial court order dated January 21, 2015, the Court inferred  that the Learned Judge of the trial court was satisfied with the arrangement made by the prosecution for recording of evidence of the P.W.5 through video conference.

One Benjamin Besra, First Secretary of Indian Embassy in Ireland identified P.W.5 and confirmed that the victim is present in the chamber of the Embassy of India, which indicates that Learned Judge of the trial court was satisfied about the identity of the victim and about the fact that there was no other person in the Embassy of India in Ireland except the victim for the purpose of recording of her evidence through video conference.

Hence the averment of the appellant of the failure of the trial Judge in ascertaining the absence of anyone else in the room was not deemed to be cogent particularly when Learned Defence Counsel would get ample opportunity to cross-examine P.W. to elicit any information in favour of the defence.

Whether failure of the Judge in not recording the demeanour of the victim at the time of recording of evidence vitiated the trial.

The counsel for the appellant had drawn strong exception to the judge not recording demeanour of P.W.5 in that she was not looking at the camera while deposing. 

In the instant case, the Court observed that the above averment had no substance. 

The Court observed that the victim of a rape case while giving evidence in court could not be compelled to look at the face of the Learned Defence Counsel or to look directly at the accused in the dock. Asking the victim of a rape case is asked to look at the camera whereby she could see the accused could rekindle the traumatized undergone by the victim. 

Furthermore, the Court opined that the trial court will record only such demeanour of the witness which is essential for evaluation of the evidence of the said witness. 

Thus, the question of the appellant being prejudiced could not arise. 

Ratio Decidendi 

The Court affirmed the judgement of the lower Court. 

The evidence was deemed to be admissible through video conferencing. The Court rightly refused to allow the appeal on the basis of overly “academic reasons” like the absence of extradition treaty or the failure of the prosecution in filing an affidavit since the spirit for the existence of these provisions had been complied with. 

Lastly, in the instant case the Court enumerated certain provisions to be complied with when cases of the present nature were being tried through video conferencing. Majority of these provisions were merely reiterations of provisions enumerated in prior pronouncements of the Supreme Court-

(i) The court must be satisfied about the identity of the witness giving evidence through video conference,

(ii) The court will administer the oath to the witness before recording of the evidence,

(iii) The witness must be examined during the working hours of the Indian Courts, 

(iv) The copy of the documents to be proved by the witness must be sent to the witness in advance, 

(v) The court must ensure that the witness is alone in the room of the Indian Embassy from where the witness is giving evidence through video conference,

(vi) The court must record the demeanour of the witness which is relevant for the purpose of evaluation of evidence of the witness,

 (vii) The recording of evidence of the witness once started through video conference must be continued on day-to-day basis till completion of recording of evidence of the said witness, 

(viii) The trial court can impose any other condition to ensure smooth recording of evidence of the witness through video conference.