Analysis of Video Conferencing

INTRODUCTION

Videoconferencing is “the holding of a conference among people at remote locations by means of transmitted audio and video signals.”

Through these conferences, individuals meet one another in a real-time virtual manner as if they “were in the same room” without the hassle and the expense of traveling.

While slight limitations remain “depending on the quality of the equipment” employed by courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.

Videoconferencing systems contain four key components: a 

1. transmission system, 
2. camera/microphone, 
3. CODEC (encoder/decoder), and 
4. compression/decompression hardware and software

More advanced systems commonly used in courtrooms also include remote controls with “zooming, panning, and tilting functions,” and varying screen options, such as “multiple split-window displays.” Split-window displays present images of several individuals, physically separated by distance, together on one screen. One of the newest and most innovative forms of VCT uses cameras that track a specific type of badge. While wearing these unique badges, courtroom participants are followed by cameras as they move, thus allowing a more dynamic interaction to take place. As with most technology, each feature is “expected to become more refined and less expensive over time.”

Reason due to which video conferencing can be granted as a method for criminal proceedings

1. Threat to life
2. Unknown expenses
3. Delay in procedure (time constraint)
4. Due to job creating impossibility 
5. Health constraints
6. Family issues

 

Indian Provisions Related to video conferencing

Section 273 CrPC

273. Evidence to be taken in presence of accused.—Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.]

Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

 

Gujarat STATE AMENDMENTS- [Vide Guj. Act 31 of 2017, S. 2, dt. 8-9-2017]

Gujarat.—In Section 273, after the words “in the presence of his pleader”, the words “or, as the case may be, through the medium of Electronic Video Linkage when the court on its own motion or on an application so directs in the interests of justice” shall be added. 

 

Section 285(3) CrPC

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission as the Central Government may, by notification, prescribed in this behalf.

 

Section 3 Indian Evidence Act (Interpretation Clause)

“Evidence.”— “Evidence” means and includes–

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2)6[all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.

Case Laws In which video conferencing was allowed

The fast changing speed of technology in the modern 21st century, requires us to keep pace with it. Not only do our needs change but our ability to adapt to these requirements matter a lot. At this stage the words of Justice Bhagwati in the case of National Textile Workers’ Union v. P.R. Ramakrishnan, at page 256, need to be set out. They are:

“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree. It will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the more adapting itself to the fast changing society and not lag behind.”

The Salem Advocate Bar Association, Tamil Nadu v. Union of India was one of the first cases that broadly interpreted the provisions of the Civil Procedure Code, 1908 (C.P.C) and allowed for the use of electronic media during the evidence stage. The Supreme Court while interpreting order 18 of the Civil Procedure Code ‘Hearing of the suit and Examination of witnesses’, held that the word mechanically indicates that evidence can be recorded with the help of electronic media including audio or audio-visual apparatus.

Recently in another civil proceedings, in the case of Krishna Veni Nagam vs. Harish Nagam MANU/SC/0273/2017, the court held that it may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. The court in para 14 stated;

“One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available, In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.”

This subject matter has been previously dealt with by the Indian Courts briefly in terms of criminal trials as well. Below is the summary of their holdings and ratio relevant to the case at hand. 

The interpretation of the term Physical Presence as prescribed in Section 273 of the Code of Criminal Procedure, 1973 has been liberalised through consecutive supreme court judgments. 

The most landmark holding on this subject matter has been by the Supreme Court in the year 2003 in the case of State of Maharashtra v. Dr. Prafull B. Mehta, 2003 4 SCC 601. Where the issue of validity of video conferencing was challenged and upheld. It was held the recording of such evidence would be as per ‘procedure established by law’.  The court held that Section 273 contemplates constructive presence. This shows that actual physical presence is not a must. This indicates that the term “presence”, as used in this section, is not used in the sense of actual physical presence. Further the court held that Further, evidence can be both oral and documentary and electronic records can be produced. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing. The court in this judgment clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence.  

The court reaffirmed this judgment and the permissibility of recording of evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C in the case of in Sakshi and Ors. vs. Union of India, AIR 2004 SC 3566

In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan and Ors; AIR 2005 SC 972 the court acknowledged the possibility of video conferencing trial and stated in para 43

“It is true that in a normal trial the Criminal Procedure Code requires the accused to be present at the trial but in the peculiar circumstances of this case a procedure will have have to be evolved, which will not be contrary to the rights given to an accused under the Criminal Procedure Code but at the same time protect the administration of justice.”

 

Safeguards provided by multiple Courts

Indian Courts have also provided the need for safeguard to be in place for such virtual video conferencing proceedings. 

In 2003, the high court of Karnataka provided safeguards for Audio-Video Link in light of Civil Procedure Code amendments. 

“10. In the light of these two judgments and in the light of the amendment to CPC, the observation of the learned trial Judge requires my interference. At the same time this Court is of the view that sufficient safeguards have to be provided for the purpose of recording evidence through Audio-Video I Link. The safeguards are :

1. 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 a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
4. The witness should not plead any inconvenience on account of the time difference between India and USA.
5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
11. The expenses and the arrangements are to be borne by the applicant who wants this facility.”

In the case of State of Maharashtra v. Dr. Prafull B. Mehta, 2003 4 SCC 601, the court stated that;

“an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/ prompted.’

The Calcutta High Courts in the case of Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11, provided elaborative requirements of safeguards necessary for proceeding matters on virtual platforms. The court in para 10 stated 

“10. In addition to the above I fully agree with Supreme Court and Karnataka High Court at least to such extent that if the Law Courts do not permit technology development in the Court proceedings it would be bagging behind compared to other sectors. Technology is definitely a tool. But the following safe guards are to be taken for purpose of recording evidence through Audio-Video Link : 

(1) Before action of the witness under Audio-Video Link starts the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as who is going to depose on the screen with a copy of such identification affidavit to the other side. 

(2) The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in the similar manner before examining the witness with a copy of the other side with regard to identification before hand. 

(3) As soon as identification part is complete, oath will be administered through the media as per the Oaths Act, 1969 of India. 

(4) The witness will be examined during working hours of Indian Courts. Plea of any inconvenience on account of time difference between India and other country will not be allowed. 

(5) The witness action, as far as practicable, be proceeded without any interruption without granting unnecessary adjournments. However, discretion of the Court or the Commissioner will be respected. 

(6) Witness includes parties to the proceedings. 

(7) In case of non-party witness, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents should be sent to the witness for his acquaintance and an acknowledgement in this regard will be filed before the Court. 

(8) Court or Commissioner must record any remark as is material regarding the demur of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically. 

(9) Depositions of the witness either in the question answer form or in the narrative form will have to sign as early as possible before a Magistrate or Notary Public and thereafter it will form part of the record of the proceedings. 

(10) Mode of digital signature, if can be adopted in this process, such signature will be obtained immediately after day’s deposition. 

(11) The visual is to be recorded at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect.

(12) In case of perjury Court will be able to take cognizance not only about the witness gave evidence but who induced to give such evidence. 

(13) The expenses and the arrangements are to be borne by the applicant who wants to this facility. 

(14) Court is empowered to put condition/s necessary for the purpose.”

In the current case at hand, the petitioner is both willing to cooperate and seek presence before the courts. Certain factors as briefly discussed do not allow him to travel to India from his place of stay in order to present himself before this court. Therefore the court must in the interest of justice provide the petitioner the right to present himself in court virtually

 

Supreme Court and High Court Guidelines

Below is the relevant portion of the guidelines including necessary definitions, minimum requisites of video conferencing, preparatory arrangements (for overseas and remote point). 

The video conferencing guidelines provided by Gujarat High Court and Delhi high court are in the lines of the guidelines provided by Hon’ble Supreme court of India. 

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate