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. In fact, 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. However, the intention of the petitioner securing physical presence of the witness for examination may be one with ulterior motive, which I am not inclined to discuss in detail. That apart, it is worthwhile to note that the framers of the Rules even visualised the argument of this nature while implementing the Rules and they vigilantly implemented Rule 8(24) and the said provision provides that subject to the orders of the Court, if any party or his authorised person is desirous of being physically present at the Remote Point at the time of recording of the evidence, it shall be open for such party to make arrangements at his own cost. If so, the dread persuasion of the petitioner could be addressed by resorting to Rule 8(24), subject to the orders of the Court. {Para 10}
11. It is pertinent to note 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.
12. Epitomizing the discussion, it is held that the learned Special Judge rightly allowed the petition with a view to secure examination of CW1, whose presence could not be secured without undue delay or expenses, through video linkage and with bona fide intention to dispose of a case of the year 2012, pending for the last 11 years, without further delay. Therefore, the order impugned does not suffer from any infirmity or requires any interference and the order impugned is liable to be confirmed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.MC NO. 1465 OF 2023
GOPAL.C. Vs CENTRAL BUREAU OF INVESTIGATION
PRESENT
MR. JUSTICE A. BADHARUDEEN
Dated: 3rd day of March, 2023
This petition has been filed under Section 482 of the Code of
Criminal Procedure and the petitioner is the sole accused in
C.C.No.3/2012 pending before the Special Judge (SPE/CBI)-II,
Ernakulam. The petitioner impugns order in Crl.M.P.No.18/2023
in C.C.No.3/2012 sprang up from the common order in
Crl.M.P.Nos.18 and 19 of 2023 dated 13.01.2023.
2. Heard the learned counsel for the petitioner as well as
the learned Deputy Solicitor General of India (`DSGI' for short
hereinafter).
3. Summary of the factual events. Public Prosecutor (CBI)
had filed Crl.M.P.Nos.18 and 19 of 2023 before the Special Court
and sought examination of the defacto complainant in
C.C.No.3/2012 by name Sujesh.P.S, who is the first witness (CW1)
in the case, through video linkage on the ground that the first
witness has been working in Dubai and his presence for
examination could not be secured without delay or expenses.
Similarly, the Public Prosecutor (CBI) also filed
Crl.M.P.No.19/2023 to examine CW16 through video linkage.
4. The petitioner herein objected Crl.M.P.No.18/2023,
where examination of CW1 was sought for through video linkage,
while not raising any objection in Crl.M.P.No.19/2023, where
CW16 was sought to be examined through video linkage. The
objection raised by the petitioner herein before the Special Court
was that the accused would be denied and estopped from
effectively cross examining CW1, if he could not be examined by
securing his physical presence. Further the demeanour and
approach of the witness during cross examination were vital and
therefore, examination of CW1 in physical form is essential to
protect the interest of the accused and to properly defend the case.
5. The learned Special Judge appraised the contentions in
view of the objection raised by the petitioner herein regarding
examination of CW1 through video linkage. The learned Special
Judge found that in the advanced era of technology, a witness could
effectively be cross examined even through video linkage and in
order to ensure such facility, the Electronic Video Linkage Rules
for Courts (Kerala), 2021 was enacted. Accordingly, the objection
raised by the petitioner herein was negated and finally the Special
Court allowed examination of CW1 through video linkage facility.
6. The learned counsel for the petitioner herein, who
challenged the order passed by the learned Special Judge in
Crl.M.P.No.18/2023, reiterated the contentions raised before the
Special Court mainly on the submission that an effective cross
examination of CW1 would be possible only when physical
examination would be permitted and the right of the accused to
cross examine the witness effectively, would be curtailed by opting
the mode of video linkage and the same is detrimental to the
interest of the accused.
7. Whereas the learned DSGI zealously opposed this
contention and argued that if the apprehension of the petitioner
holding the view that effective cross examination will be possible
only through physical examination, is appreciated, the very
purpose of enactment of Electronic Video Linkage Rules for Courts
(Kerala), 2021 would become ineffective and, therefore, the prayer
could not be allowed. According to him, the learned Special Judge,
rightly negatived the contention in this regard. It is also pointed
out by the learned DSGI that cross examination of a witness either
through video linkage or through physical mode, would be equally
effective and there is no need to discriminate the proceedings in
any manner and to make the rules inoperative.
8. While appraising the rival contentions on the issue,
Rules 7 and 8 of the Electronic Video Linkage Rules for Courts
(Kerala), 2021 notified as on 28.05.2023, assumes significance.
Rule 7 provides the mode of service of summons in relation to
witnesses proposed to be examined or heard through electronic
video linkage and Rule 8 deals with examination of persons. As
per Rule 8(25) it has been provided that the examination through
Electronic Video Linkage shall be treated as substantive
compliance of the provisions of the Code of Criminal Procedure
1973 (Act 2 of 1974), Code of Civil Procedure, 1908 (Act 5 of
1908), Criminal Rules of Practice, Kerala, Civil Rules of Practice,
Kerala or any other law which requires personal appearance of
parties, witnesses or any other Required Person for the purpose of
any enquiry, trial or any other proceedings in or in relation to the
Subordinate Courts or Tribunals.
9. Similarly, Rule 8(23) provides that when a Required
Person is unable to reach the Court point or the Remote Point due
to sickness or physical infirmity or due to any genuine reason
which the court may decide, or the presence of the Required Person
cannot be secured without undue delay or expenses, the Court may
authorise the conduct of the proceedings through Electronic Video
Linkage from the place where the Required Person is situated. In
such circumstances, the Court may direct the use of portable Video
system. The authority for the same shall be given by the Court to
the concerned Co-ordinator or any other person deemed fit by the
Court. Thus going by Rule 8(23), it has been stipulated that for
any genuine reason which the court may decide or the presence of
the Required Person cannot be secured without undue delay or
expenses, the Court may authorise the conduct of the proceedings
through Electronic Video Linkage from the place where the
Required Person is situated. In the present case, which has been
pending for the last 11years, in order to facilitate trial of the matter
without being stalled further, the learned Public Prosecutor (CBI)
filed Crl.M.P.No.18/2023 highlighting the reasons precisely stated
in Rule 8(23) and, accordingly, the Special Court allowed the
petition, so as to avoid further delay in examining the crucial
witness.
10. 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. In fact, 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. However, the intention of the
petitioner securing physical presence of the witness for
examination may be one with ulterior motive, which I am not
inclined to discuss in detail. That apart, it is worthwhile to note
that the framers of the Rules even visualised the argument of this
nature while implementing the Rules and they vigilantly
implemented Rule 8(24) and the said provision provides that
subject to the orders of the Court, if any party or his authorised
person is desirous of being physically present at the Remote Point
at the time of recording of the evidence, it shall be open for such
party to make arrangements at his own cost. If so, the dread
persuasion of the petitioner could be addressed by resorting to Rule
8(24), subject to the orders of the Court.
11. It is pertinent to note 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.
12. Epitomizing the discussion, it is held that the learned
Special Judge rightly allowed the petition with a view to secure
examination of CW1, whose presence could not be secured without
undue delay or expenses, through video linkage and with bona fide
intention to dispose of a case of the year 2012, pending for the last
11 years, without further delay. Therefore, the order impugned
does not suffer from any infirmity or requires any interference and
the order impugned is liable to be confirmed.
13. Accordingly the petition fails and is dismissed.
The interim order granted in this matter stands vacated and
the Special Jude can go on with examination of CW1 through
video linkage facility.
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