Witness Examination Through Virtual Mode Does Not Affect The Rights Of Accused: Kerala High Court

The Kerala High Court recently held that the examination of a witness during trial may be conducted through video linkage mode as per the provisions of the Electronic Video Linkage Rules for Courts (Kerala), 2021 and that the same would not affect the rights of the accused.

A single bench of Justice A Badharudeen noted that under Rule 8(25) Electronic Video Linkage Rules for Courts (Kerala), 2021 witness examination via video conferencing is to be treated as compliance of the provisions of the Code of Criminal Procedure 1973, Code of Civil Procedure, 1908, Criminal Rules of Practice, Kerala and Civil Rules of Practice, Kerala. It is also applicable to any other law requiring personal appearance of parties in Subordinate Courts or Tribunals in relation to any enquiry, trial or any other proceedings, the court noted.

"The examination of the witness either through physical mode or through video linkage, the same makes no difference as far as the right of the accused to cross examine the witness is concerned," it said.

The court was considering a plea challenging the order of a Special Court (CBI) that allowed the de facto complainant to be examined via video linkage facility for the reason that he was working in Dubai and his physical presence in court could not be ensured without delay or incurring expenses.

The court in this regard referred to Rule 8(23) that provides that if a person is not able to be present in court physically on account of sickness or physical infirmity or due to any genuine reason, the court can authorise the concerned person to be present through video mode.

The counsel for the Petitioner argued that for the trial to proceed effectively the witness must be present physically as this is the only way to ascertain the demeanour and approach of the witness. It was contended that to protect the interest of the accused, it was imperative to secure the physical presence of the de facto complainant.

The Deputy Solicitor General of India (DSGI) however opposed this on the ground that the purpose of Electronic Video Linkage Rules for Courts (Kerala), 2021 would be invalidated if physical presence of the witness was insisted on under every circumstance.

The court while agreeing with the DSGI on this aspect observed that:

“if the submissions of the learned counsel for the petitioner is accepted, the same is akin to make the Electronic Video Linkage Rules for Courts (Kerala), 2021 redundant. The principles governing interpretation do not permit interpretation of a provision of law or an enactment to make the same as redundant.”

The court in this case refused to interfere with the order of the Special Judge that allowed the examination of the de facto complainant through video linkage to prevent further delay in a case that had been pending for 11 years. The court concluded that:

“Since the purpose of enactment of Electronic Video Linkage Rules for Courts (Kerala), 2021 itself is to examine the witnesses whose presence could not be secured without undue delay or expenses and for other reasons stated in Rule 8(23), a person who has been employed in Dubai whose presence could not be secured without delay and also without spending travelling and other expenses when allowed to be examined through video linkage, in terms of the rules, in such a case the petitioner has no right to say that cross examination by video linkage is not effective and as good as physical mode and, therefore, such examination should not be permitted.“ 

Case Title: Gopal C V Central Bureau of Investigation

Citation: 2023 LiveLaw (Ker) 121

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