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Courts Can Permit Advocates To Conduct Cross-Examination Of Witnesses Present In Court Via Video Conferencing: Kerala High Court

Manju Elsa Isac

6 Jan 2025 5:37 PM IST

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Courts Can Permit Advocates To Conduct Cross-Examination Of Witnesses Present In Court Via Video Conferencing: Kerala High Court

While considering whether cross-examination of witnesses present in court can be done from a remote point, the Kerala High Court said that the courts can allow advocates to conduct cross-examination through video conferencing mode.Justice V. G. Arun said that courts need not deny such request just because it is not expressly allowed in Electronic Video Linkage Rules for Courts (Kerala), 2021....

Justice V. G. Arun said that courts need not deny such request just because it is not expressly allowed in Electronic Video Linkage Rules for Courts (Kerala), 2021. The Court however added that the permission need not be granted as a right but can be allowed if there are valid reasons. It emphasized:

"...Rule 10 (Electronic Video Linkage Rules for Courts) enables Advocates to address arguments from a Remote Point, without the presence of the co-ordinator. If arguments can be advanced from a Remote Point without the co-ordinator being present, conduct of cross-examination can also be permitted. Grant of such permission will be in the interest of justice and would ensure expeditious disposal of cases, by avoiding unnecessary adjournments. Needless to say, permission to conduct cross-examination through video conferencing need not be granted as a right. On the other hand, if valid reasons are stated for seeking such permission, absence of a specific provision in the Rules should not be a fetter. While granting permission, court can insist that all requisite facilities should be available at the remote point and a competent advocate, well-versed with the facts of the case, present in the court for the entire duration of the cross-examination".

The Court said that granting such permission will ensure expeditious disposal of cases by avoiding unnecessary adjournments. The Court remarked that the whole objective of the Electronic Video Linkage Rules is to make courts more accessible and the proceedings more expeditious.

The case was filed challenging the decision of the trial court disallowing the Senior Counsel to conduct cross-examination of prosecution witness through cross-examination. Permission was sought citing health reasons and the counsel's inability to travel. The Counsel for the opposite side submitted that if the court is allowing the request, there should be a lawyer physically present in the court room who should be capable of aiding the court and answering queries.

The Court after examining the definition under Rule 2, namely Rule 2(o) noted that as per the Rules, an advocate who intends to examine a witness can be permitted to appear before the court virtually. The Court further noted that as per Rule 3(1), video conference facility can be used at all stages of judicial proceedings. The Court said that though Rule 6(1) only allows parties to the proceedings or witnesses to move application for video conference, this should not be reason to deny permission to examine witnesses by the counsel through video conference. The Court said that such an action would impede the right of an accused to avail the services of a counsel of his choice.

The Court further noted that while Rule 5 mandates the presence of co-ordinators at the Remote point, when a witness or person accused of an offence is examined, Rule 10(1) makes it clear that the presence of a co-ordinator shall not be necessary at the Remote Point where arguments are addresses by the advocate or required person. The Court said that if the Rules enable advocates to advance arguments from a remote point without the presence of a co-ordinator, conduct of cross-examination can also be permitted.

The Court allowed the petition.

The Court asked the Registrar General of the High Court to send a copy of the judgment to the Rules Committee for them to consider whether the Rules need to be amended to enable courts to permit cross-examination from a remote point.

Counsels for the Petitioner: Advocates S. Rajeev, V. Vinay, M. S. Aneer, Sarath K. P., K. S. Kiran Krishnan

Courts Can Permit Advocates To Conduct Cross-Examination Of Witnesses Present In Court Via Video Conferencing: Kerala High Court

Manju Elsa Isac

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