Madras HC Directs State To Implement Audio-Video Recording Of Witness Statements [Read Order]

The Madras High Court on Friday issued certain guidelines to be followed by the investigating officers, for audio-visual recording of witness statements in heinous crimes punishable with imprisonment of ten years and above and in offences involving women and children.

While the guidelines are not mandatory in nature, the bench of Justices S Vaidyanathan and N Anand Venkatesh asked the prosecution to place a status report within three months, containing an action plan to implement the practice.

The bench noted that the proviso to Section 161(3) of CrPC gave the prosecution a means to record statements of witnesses by audio visual means.

"It does not require a direction from this Court to implement this and the police department by itself should have started this process long back. This provision is available in the Code for the last ten years and it remains to be a dead letter without being implemented," the bench remarked.

The directions were issued due to the problem of witnesses turning hostile that has afflicted the criminal justice system for long and the "accused persons were going scot-free in many murder cases." The court directed,

• In all crimes, particularly, offences affecting the human body covered under Chapter XVI of IPC and punishable with imprisonment of 10 years and above, the statements of eyewitnesses, the injured witnesses and the complainant shall be recorded during investigation under Section 164 of CrPC, and through audio-video electronic means, wherever it is available.
• In all crimes against women and children under various special enactments, the same procedure shall be followed.
• The State Government shall ensure that audio-video recording facilities are provided to all Magistrate Courts, Mahalir Courts and Sessions Courts throughout Tamil Nadu, within a period of three months from the date of receipt of copy of this order.
• The State Government shall also make arrangements to facilitate the storage and safe keeping of the electronic data in the respective Courts.

The order was passed in compliance with Doongar Singh and Others v. The State of Rajasthan, whereby the Supreme Court had dealt with this issue of recording the Statements by audio-video means under Section 164 of CrPC.

"In view of the above Judgment of the Hon'ble Supreme Court, it is now mandatory for the prosecution to examine the eyewitnesses as early as possible and their statements must be recorded under Section 164 of Cr.P.C., and it should also be recorded by audio-video electronic means. This judgment of the Hon'ble Supreme Court is now the law of the land and it should be implemented in its letter and spirit," the court said.

The bench was also mindful of the proceedings pending before the Supreme Court in case titled Shafhi Mohammad v. State Of Himachal Pradesh, whereby the it is attempting to bring about detailed guidelines with regards the usage of audio-video electronic means at the stage of investigation.

The Supreme Court is closely looking into the various issues including the present infrastructure and usage problems in putting to practice videography during investigation, viz., admissibility of electronic evidence in the absence of a certificate under Section 65-B(4) of the evidence Act, funding, lack of training, etc.

It has already issued certain guidelines in this regard and therefore, the high court refrained from passing mandatory directions.

"Insofar as the recording of the statement of witnesses by audio-video electronic means as provided by proviso to sub-section 3 of Section 161 of Cr.P.C., this Court does not want to give any mandatory directions or issue any guidelines, for the present, in view of the fact that the Hon'ble Supreme Court is already dealing with this issue in greater detail in Shafhi Mohammad case and this Court wants to await the final decision of the Hon'ble Supreme Court in this regard. In the meantime, this Court leaves it to the discretion of the prosecution to adopt audio-video electronic means in heinous crimes punishable with imprisonment of ten years and above and in offences involving women and children," the high court said.

The court brushed aside the difficulties pointed out by the prosecution with regards implementation of such measures. The prosecution had pointed out that there was likelihood of the audio-video recorded statements being tampered, without providing for necessary centralized protection of such recordings. The prosecution also expressed its concern over the possibility of such recordings leaking on social media, thereby making witnesses more vulnerable.

"Practical difficulties that are pointed out by the prosecution cannot be a ground to stop the implementation of these provisions. At some stage, the audio-video electronic means must be used widely during investigation and it has been effectively implemented in many foreign countries.

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…Only if the provision is implemented, it can be fine tuned and made perfect over a period of time. Any new method to start with will have its own problems in implementation and that should not deter the prosecution to start the process. Law has to update itself according to the changing times and it cannot remain static," the court remarked.

The court accepted the prosecution's suggestion that the practice should be implemented in a phased manner, resolving the issues that arise, one at a time. It also held that it was important for the State Government to implement the witness protection scheme, as directed by the Supreme Court in Mahender Chawla & Ors. v. Union of India & Ors., to effectively put into practice the audio-video recording scheme.

"…it is the law of the land as on today. Unless, the witness protection scheme is implemented, the audio-video electronic means cannot be effectively brought into force, since it may expose the witnesses to a larger threat. The Hon'ble Supreme Court has directed the scheme to be implemented within a period of one year, i.e., by the end of 2019. The State Government is directed to implement this scheme as per the directions given by the Hon'ble Supreme Court and a status report shall also be filed in this regard."

The matter will now be taken up on April 1, 2020.

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