INTRODUCTION

Evidence, according to Section 3 of the Indian Evidence Act, 1872, includes:

Oral Evidence: All statements which the court permits or requires to be made before it, by witnesses, in relation to fact under enquiry.

Documentary Evidence: All documents including electronic records produced for the inspection of the court.

Electronic record is a documentary evidence under section 3 of the Evidence Act and any information contained in an electronic record is deemed to be a document. An electronic record may be computer printout, Compact Disc (CD), Video Compact Disc (VCD), Pen Drive etc or in other words, it may be stored, recorded, copied in media produced by the computer or may be printed on a paper.

Documentary Evidence can further be classified into primary and secondary evidence:

Primary Evidence: According to Section 62 of the Indian Evidence Act 1872, primary evidence is the document itself produced for the inspection of the court.

Where the document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it (for those who have not executed it, it is treated as secondary evidence for them).

Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Secondary Evidence: According to Section 63 of the Indian Evidence Act 1872, secondary evidence includes certified copies issued by the authorized representative consistent with law; copies made from original document by mechanical process which insure the accuracy of the copy and all the copies compared with such copies; copies made from or compared with the original; counter parts of documents as against the parties who did not execute them; oral accounts of the contents of a document given by some person who has himself seen it.

Electronic Evidence: As a part of documentary evidence, electronic evidence was included as Section 65(A) & 65(B) through an amendment in Indian Evidence Act 1872. Therefore, electronic evidence is a form of documentary evidence in electronic form. Hard Discs, SD cards, memory cards etc where electronic information or pictures or audio or video are directly saved are primary evidence, however, CDs or any other copies made from them in any other manner are secondary evidence.

VIDEO CONFERENCE GUIDELINES ISSUED BY THE HIGH COURT OF DELHI

  1. Video conferencing facilities provide Delhi Courts with the ability to receive evidence and submissions from witnesses or persons involved in Court proceedings in an affair where it would be expensive, cumbersome or otherwise undesirable for a person to attend a court in person. However, it is at the discretion of the court to decide whether evidence should be recorded by video-conferencing or not.
  2. Video conference facilities enabling audio and visual communication between persons at different locations are installed at different places including High Court of Delhi, all District Courts in Delhi, Prisons in Delhi.
  3. "Court point" means the courtroom or other places where the court is sitting to record the evidence by video conference and the "remote point" is the place where the person to be examined via video conference is located. Moreover, person to be examined includes a person whose statement is required to be recorded or in whose presence proceedings are to be recorded.
  4. The proceedings by way of video conference shall be conducted as judicial proceedings and the same protocol will be followed, where ever possible. All relevant statutory provisions such as Information Technology Act, 2000, and the Indian Evidence Act, 1872, shall apply to the recording of evidence by video conference.
  5. The facility of video conference can be used in all matters including remands, bail applications and in civil and criminal trials in case where a witness is located intrastate, interstate or overseas. These guidelines will not apply to Section 164 of CrPC.
  6. Appearance by video conferencing: The court may either suo moto or on application of a party or a witness, direct by a reasoned order that any person shall appear before it or make submissions to the court through video conferencing.
  7. Preparatory arrangements for video conference: Coordinators are appointed at the court point as well as the remote point; in High Court, the Registrar (Computers) shall be the coordinator at the court point; in District Courts, Official-incharge of Video-Conferencing Facility is nominated by the District Judge who shall be the coordinator at the court point.
  8. Coordinators at the remote point are also appointed by the court. In case, where the person is examined overseas, the court may appoint the official of the Consulate/Embassy of India or duly recognised Notary Public/Oath Commissioner as the coordinator. In case, where the person to be examined is in another state or U.T, a Judicial Magistrate or any other official may be deputed by the District Judge to act as a coordinator. In case, where the person to be examined is in custody, the concerned Jail Superintendent or any other official deputed by the court shall be the coordinator. In case, where the person to be examined is in any public or private hospital, the Medical Superintendent or any other official person deputed by the court shall act as a coordinator. In case where the person to be examined is a juvenile, the Superintendent or any other official deputed by the court shall act as the coordinator.
  9. The coordinator at the remote point shall ensure that the person to examined is available at least 30 minutes before the scheduled time, also no other recording device is permitted except the one installed in the room and entry in the video conference room is also regulated.
  10. The coordinator taking the orders of the court at the remote point shall provide a translator, an expert in sign language, an expert for reading documents in case where the person is visually challenged, an interpreter or special educator, as the case maybe.
  11. A set of plaint, written statements and all the necessary documents must be sent in advance to all the non-party witnesses to make them acknowledge with the matter concerned. Further, the witness has to file an affidavit duly verified by notary or judge, that the person is shown as witness and person deposing before the court is the same person. Moreover, even the person who wishes to examine any witness on screen shall file an affidavit.
  12. Minimum requirements for video conference: A desktop or laptop with internet connectivity and printer, device ensuring uninterrupted power supply, video camera, microphones and speakers, display unit, document visualizer, comfortable sitting arrangements ensuring privacy, adequate lightening and insulations, digital signatures from licensed certifying authorities for the coordinators at the court point and the remote point.
  13. All the expenses of recording the evidence through video conferencing will be borne by the applicant, who wants to avail this facility of video conferencing.
  14. General Procedure: The identity of the person to be examined shall be confirmed by the court with the help of the coordinator at the remote point. It is the duty of the officer deputed by the court to fix the time for recording evidence. Moreover, witness will only be examined during the working hours of Indian courts.
  15. Depositions of the witness will form part of the record of proceedings after they are signed. They must be signed as soon as possible before a Magistrate or Notary Public. In this process, even digital signatures can be used and such signatures shall be obtained immediately after the day's evidence.

EVIDENCE CAN BE RECORDED THROUGH VIDEO CONFERENCING

There are numerous guidelines given by the Supreme Court of India and various High Courts, time to time about recording of evidence through video conferencing. The law which would be applicable to recording of evidence through video conferencing will be the same as applicable to recording of evidence in courts normally, including section 272-283 of Code of Criminal Procedure and Order 16 & 18 of Civil Procedure Code.

Cr.P.C amendment of 2009, added a proviso to subsection (1) of 275 Cr.P.C which says, "provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence", after analyzing the proviso, it can be said that taking evidence of a witness through video conferencing is permissible.

In case of State of Maharashtra Vs Dr. Prafull Desai and Anr1 the apex court interpreted the meaning of the term "presence of the accused" as per Section 273 Cr.P.C, which means that the accused may not be physically present , evidence may also be taken in the presence of the pleader of accused. The Supreme Court also permitted recording of evidence of witnesses staying abroad through video conferencing.

In case of Twentieth Century Fox Film Corporation Vs NRI Film Production Associates Ltd.2 the Hon'ble High Court of Karnataka observed that "before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or Judge that the person who is shown as the witness is the same person who is going to dispose on the screen". A copy is to be made available to the other side. The Judge also observed that Order 18, Rule 3(4) (3) provides for recording evidence either by writing or mechanically in the presence of a judge.

In case of Santhini Vs Vijaya Venketesh3 the Supreme Court held that in matrimonial cases, evidence via video conference is not permissible. Both the parties have to be present in court to have a possibility of an emotional bond. The absence of either of the party can create a dent in the process of settlement. Supreme Court further observed that Family Court judge should never be a slave to the concept of speedy trial. It is important for both the parties to be present at the same place and the same time for reconciliation. If, this is permitted then it can defeat the purpose of the whole act.

CROSS-EXAMINATION THROUGH VIDEO CONFERENCE

In case of State of Maharashtra Vs Dr. Prafull Desai and Anr4 the apex court interpreted Section 273 of Cr.P.C in the light of technological advancements. Bench comprising of Justice S.N Variava and Justice B.N Agrawal observed that recording of evidence through video conferencing is absolutely legal. Justice Variava further added that "In cases where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience, the court could consider issuing a commission to record evidence by way of video conferencing". The Supreme Court further observed that the cross-examination can be done in the presence of Presiding Officer of the Court or get it recorded by a Commissioner appointed by the court after the documents are filed in Court along with the affidavit and after the relevancy and admissibility of such documents are determined by the court. However, examination-in-chief and cross-examination must relate to relevant facts. The object of cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief, shift the facts already stated by the witnesses, to detect and expose any discrepancies, to elicit suppressed facts which will support the cross-examining party.

The cross-examiner should be asked to repeat the question, if the witness is unable to understand. Ordinary witness should not be asked regarding legal provisions. Moreover, while recording omissions and contradictions, the presiding officer must verify the previous statement. Further, unless the documents are properly filed on record, they should not be permitted to refer in cross-examination. If a document is duly proved mechanically or otherwise is not exhibited, still it can be read in evidence.

CONCLUSION

In modern times, there is a great need to make statutory changes to develop a better approach towards civil and criminal trials and to lessen the burden on investigators and judges. Justice Variava has rightly observed in his judgement that where the attendance of a witness cannot be procured without inordinate delay, expense or inconvenience, the court could consider issuing of commission to record evidence by way of video conferencing. Normally a commission would involve recording of evidence at the place where the witness is. However, advancement in science and technology has now made it possible to record such evidence by way of video conferencing in the town/ city where the court is. Recording of evidence through video conferencing will fasten up the disposal of matters, also it will become easier for the public servants like doctors, mechanical experts etc. to give their evidence before the court without creating any hindrance to public services. More changes in the legislations are needed to develop a better problem-solving approach to civil and criminal trials and to reduce the work load of the courts.

Footnotes

1. 2003 4 SCC 601

2. AIR 2003 Kant 148, 2003 (5) KarLJ 98

3. (2018) 1 SCC 1

4. Supra note 1

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.