Punjab & Haryana High Court Allows Witness Living Abroad To Appear Through WhatsApp Video Call

Observing that it would be highly unfair to put witnesses to unnecessary difficulties when she wish to appear through ordinary video call instead of going to embassy, the Punjab & Haryana High Court has allowed a witness living in America to appear in trial court through WhatsApp video call.

According to Video Conferencing Rules, if a witness is staying abroad then she is required to appear through Indian Embassy to record her statement.

The High Court said, "The only interest of any witness is to help in the cause of justice, and in return, it would be highly unfair if the Court puts such witnesses to unnecessary difficulties, expenditure, or inconvenience when the witnesses themselves have expressed their desire to appear through the ordinary course of video conference and not through embassy."

It added further, if the Court forces them to visit the Indian Embassy, given the reluctance of the witness to travel to the Embassy, "would cause lack of interest, unnecessary hardships and expenditure to such witnesses."

However, the judge clarified that at the time of the video conference, "the camera should cover most of the area of the room, and it should be in such a view that the witnesses are not tutored in any manner or put under any threat, fear, or duress."

The witnesses shall be identified by checking their identities on the same WhatsApp no. from which they are contacted for such call or through the same email IDs from where they are contacted on ascertaining their identity, and the remaining statements will be recorded following the rules already in place, added the judge.

Kulvir Ram who was accused in trespassing and assault case had filed the plea, challenging the Trial Court's decision to allow the witness to appear through ordinary video call on watsapp instead of going to the Video Conferencing (VC).

The Trial Court had earlier directed the witness to appear through VC by going to the embassy as per the model rules. However, an application was filed by the complainant mentioning that the witness could not get her statement recorded through the embassy. Hence, the complainant sought permission from the court to get their statements recorded through ordinary VC, i.e., through WhatsApp and other electronic channels and also submitted that they would prove their identity with the help of their passport and ID. The plea was accordingly allowed by the Trial Court.

Counsel for the accused argued that if the witnesses appear through WhatsApp or another video conference, someone can impersonate them and they can also be tutored.

After hearing the submissions and examining the rules, the Court noted, "As per sub-rule 5.3.1, for overseas persons, there is one Coordinator at remote point who is an official of an Indian Consulate/ relevant Indian Embassy/ the relevant High Commission of India when a witness or a person accused of an offence is to be examined."

The judge also referred to rule 8.15 to underscore that "when a person is not capable to reaching the Court Room or the Remote Point due to sickness or physical infirmity, or presence of the required person cannot be secured without undue delay or expense, the Court may authorize the conduct of video conferencing from the place at which such person is located."

Consequently, the Court opined that, it was fully justified for the trial Court concerned to have permitted the recording of the statements of the witnesses through ordinary video conference/WhatsApp video call.

 Adding that the Court does not find any illegality in trial Court's decision, the judge said, "it appears to be well reasoned and in sync with ground realities keeping in mind the end to end encryption and other in safety mechanisms of that application."

Click here to read/download the order

Mr. Vansh Chawla, Advocate for the petitioner.

Ms. Swati Batra, DAG, Punjab.