Recording Of Testimonies Of Child Witnesses Through VC: Supreme Court Asks NALSA To Bear Cost For Honorarium For Remote Point Co-ordinators

It is pertinent to note, that as per the draft Standard Operating Procedure ("SOP") for recording testimony of child victims/witnesses through video conferencing, circulated by the Amicus Curiae, Mr. Gaurav Agarwal on 15.01.2021, the Chairperson of the District Legal Services Authority ("DLSA") can, if required, appoint a retired judicial officer as a 'remote point co-ordinator'. However, no mechanism has been provided to ascertain which Government/authority would bear the cost. Therefore, several High Courts have sought the Apex Court's intervention to clarify the same.

Senior Advocate, Ms. Anitha Shenoy, appearing for the petitioner, apprised the Bench comprising Justices L. Nageswara Rao and B.R. Gavai that the draft SOP for recording of testimony had been circulated to all the High Courts and the State Governments. Most of the High Courts have also provided their comments which have been separately marked. The Bench was informed that most of the High Courts were in agreement with the said draft SOP and suggested that the procedure should be in line with the various Video Conferencing rules followed by the respective States.

As per the said draft SOP -

1. For the purpose of recording testimony, the Video Conferencing room or the vulnerable witness room in the Court complex in the district; or office of DLSA in the district where the child resides can be used;
2. The District Judge of all districts is to ascertain the availability of the Video Conferencing facility in the district, taluk, court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Court may be requested to place the said information on its website on or before 30.04.2022.
3. Efforts are to be made to create Video Conferencing infrastructure facilities in every district, especially those states where incidents of child trafficking cases are high.
4. The Secretary, DLSA can be a remote point co-ordinator for recording of testimony. If the Chairperson of DLSA thinks it fit, they might appoint a retired judicial officer as a remote point co-ordinator.
5. High Courts shall place the requisite information, such as, names, contacts details of remote point co-ordinators on their website along with their information.
6. In inter-district and inter-state child trafficking cases, if the court point and remote point both have Video Conferencing facility, Trial Court should ordinarily give preference to recording testimony through Video Conferencing.
7. The authorised officer at court point should get in touch with the remote point co-ordinator and work out all modalities of recording statements through Video Conferencing.
8. If Video Conferencing is feasible, a date and time is to be fixed by the Trial Court for recording testimony. Summons may be issued to the witnesses to be present before the remote point co-ordinator.
9. Witnesses may be asked to come with identity proof and they can take help of legal aid.
10. Witnesses are entitled to the presence of a support person as defined under POCSO.
11. Best practices in recording of testimony of child witnesses to be followed.
12. The child witness is to be provided money for the distance travelled by them.
13. Assistance of a special educator, interpreter etc. can also be taken, if required.

Ms. Shenoy submitted that the source of payment of honorarium to the remote point co-ordinator, which has not been provided for in the SOP, could be taken up and clarified by the Bench.

The two broad issues taken up by the Bench -

1. Requisite information to be displayed on the website of High Courts;
2. Source of honorarium paid to the remote point co-ordinator.

Requisite information to be displayed on the website of High Courts

Ms. Shenoy suggested that a common All India Website could be created that would have all the requisite data. Considering that the same would require some time to be developed, in the meanwhile, she reckoned the information could be put up on the High Courts' website.

"One suggestion is whether it is possible to have a common All India website inclusive of all data of court points, remote points, all personnel. At least for the time being this information can be put up on the High Court website."

The Bench enquired if DLSAs have their own websites.

Ms. Shenoy informed the Bench, "NALSA definitely has its website. Can I be permitted to flag this issue to find out whether DLSAs have websites?"

The Bench was of the opinion that the information can be made available on the website of the High Courts and additionally it can be put up on the website of the DLSAs.

Source of honorarium paid to the remote point co-ordinator

The Bench stated that whoever is appointed as a remote point co-ordinator, whether a retired judicial officer or not, has to be paid a honorarium.

"With respect to the issue of honorarium payment to retired judicial officers. If you are employing somebody else or the retired judicial officers, I think payment has to be made."

In this regard, Ms. Shenoy took the Court's attention to Section 312 of the Cr.P.C., which deals with expenses of complainants and witnesses.

"Under the CrPC there are expenses of complainants and witnesses because this is a process in which it provides for examination of witnesses to take place, whether this is a fund that can be utilised. Your lordships may look at Section 312 of CrPC…Ofcourse it is a payment for the witnesses, but it anyway facilitates that process."

Section 312 reads as under -

"Expenses of complainants and witnesses.—Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of the Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code."

She added that POSCO also provides for fees to be paid to the interpreters and special educators, which the Court can peruse to address the issue at hand.

"Under POCSO, there are facilitators and there are fees to be paid to interpreters etc., when children suffer from mental disability, and also special educators. Here it might be from the State Government, that is my understanding."

Mr. Agarwal informed the Court that in the pilot project in one of the cases, the DLSA had paid the remote point coordinators.

"Earlier when we did the pilot project, DSLA paid it to the two remote point co-ordinators."

The Bench thought Section 312 to be relevant for determining the source of the honorarium payment.

Advocate, Mr. Manish Kumar appearing for the State of Bihar submitted that the payment and expenses should be for each witness examined, so that it would be convenient for the Court while imposing cost.

"So far as this payment and expense is concerned, this shall be per witness being examined, so that tomorrow the Court can impose cost in accordance with the payment made by the State Govt. w.r.t. all this exercise from the accused. The power is granted to court for imposition of fine as well, mostly they are child labourers and involved in this kind of activity."

The Bench enquired -

"Can we say that the payment w.r.t. examination of witnesses is paid initially by the DSLA or District Judge and thereafter cost can be imposed."

Mr. Kumar stated that initially the expenses should be borne by the State machinery.

Ms. Shenoy apprised the Bench that under the Legal Services Authorities Act, 1987, there is a provision for a National Legal Aid Fund, which can be utilised for making the honorarium payments.

Section 15 reads as under -

"15. National Legal Aid Fund.—(1) The Central Authority shall establish a fund to be called the

National Legal Aid Fund and there shall be credited thereto—

(a) all sums of money given as grants by the Central Government under section 14;

(b) any grants or donations that may be made to the Central Authority by any other person for the

purposes of this Act;

(c) any amount received by the Central Authority under the orders of any court or from any other

source.

(2) The National Legal Aid Fund shall be applied for meeting—

(a) the cost of legal services provided under this Act including grants made to State Authorities;

(b) the cost of legal services provided by the Supreme Court Legal Services Committee;

(c) any other expenses which are required to be met by the Central Authority."

The Bench was of the view that if NALSA was to bear the cost, then it ought to be heard.

"We have to hear NALSA then. Can you take instructions that this cost has to be borne by NALSA."

Mr. Agarwal appearing on behalf of NALSA requested the Court to pass an order to him to seek instructions on how the payment of honorarium can be worked out.

"The first part can be implemented. Getting all the details where video conferencing exists, putting it on the website. For the other issue your lordships can pass an order against me to find out that NALSA will figure out modes of how it can be worked out."

The Bench decided to pass an order, but kept the matter pending till May to keep a track of the progress and pass clarification orders, if and when required.

[Case Title: Santosh Vishwanath Shinde v. Union of India| W.P.(Crl.) No. 274 of 2020]