Supreme Court directions for video conferencing /Hybrid hearing/virtual hearing

In this backdrop, we issue the following directions:

(i)

After a lapse of two weeks from the date of this order, no High Court shall deny access to video conferencing facilities or hearing through the hybrid mode to any member of the Bar or litigant desirous of availing of such a facility;

(ii)

All State Governments shall provide necessary funds to the High Courts to put into place the facilities requisite for that purpose within the time frame indicated above;

(iii)

The High Courts shall ensure that adequate internet facilities, including Wi-Fi facilities, with sufficient bandwidth are made available free of charge to all advocates and litigants appearing before the High Courts within the precincts of the High Court complex;

(iv)

The links available for accessing video conferencing/hybrid hearings shall be made available in the daily cause-list of each court and there shall be no requirement of making prior applications. No High Court shall impose an age requirement or any other arbitrary criteria for availing of virtual/hybrid hearings;

(v)

All the High Courts shall put into place an SOP within a period of four weeks for availing of access to hybrid/video conference hearings. In order to effectuate this, Justice Rajiv Shakdher, Hon’ble Judge of the High Court of Delhi is requested to prepare a model SOP, in conjunction with Mr Gaurav Agrawal and Mr K Parameshwar, based on the SOP which has been prepared by the e-Committee. Once the SOP is prepared, it shall be placed on the record of these proceedings and be circulated in advance to all the High Courts so that a uniform SOP is adopted across all the High Courts for facilitating video conference/hybrid hearings;

(vi)

All the High Courts shall, on or before the next date of listing, place on the record the following details:

(a)

The number of video conferencing licences which have been obtained by the High Court and the nature of the hybrid infrastructure;

(b)

A court-wise tabulation of the number of video conference/hybrid hearings which have taken place since 1 April 2023; and

(c)

The steps which have been taken to ensure that Wi-Fi/internet facilities are made available within every High Court to members of the Bar and litigants appearing in person in compliance with the above directions.

(vii)

The Union Ministry of Electronics & Information Technology is directed to coordinate with the Department of Justice to ensure that adequate bandwidth and internet connectivity is provided to all the courts in the North-East and in Uttarakhand, Himachal Pradesh and Jammu and Kashmir so as to facilitate access to online hearings;

(viii)

All High Courts shall ensure that adequate training facilities are made available to the members of the Bar and Bench so as to enable all practising advocates and Judges of each High Court to be conversant with the use of technology. Such training facilities shall be set up by all the High Courts under intimation to this Court within a period of two weeks from the date of this order; and

(ix)

The Union of India shall ensure that on or before 15 November 2023, all tribunals are provided with requisite infrastructure for hybrid hearings. All Tribunals shall ensure the commencement of hybrid hearings no later than 15 November 2023. The directions governing the High Courts shall also apply to the Tribunals functioning under all the Ministries of the Union Government including CESTAT, ITAT, NCLAT, NCLT, AFT, NCDRC, NGT, SAT, CAT, DRATs and DRTs.

Notice shall also be issued to the Registrar In-charge of the Appellate Tribunal for Electricity5 . Mr K M Nataraj, Additional Solicitor General shall immediately contact the Chairperson of the APTEL and take necessary steps on behalf of the Union of India to ensure that video conferencing/hybrid facilities are made available at APTEL within a period of one month from the date of this order.

Above all, it must be noted that technology plays an essential role in securing access to courtrooms and as a result, access to justice for citizens across the country. Lawyers and litigants using electronic gadgets to access files and legal materials cannot be asked to turn the clock back and only refer to paper books. In the march of technology, the Courts cannot remain tech averse. Placing fetters on hybrid hearings, like mandating an age criteria, requiring prior application, and frequent denial of access to virtual participants has the direct effect of discouraging lawyers and litigants to use technology. Not only does this affect the efficiency and access to courts, but it also sends out the misguided message that access to courts can be restricted at whim to those who seek justice.

The use of technology by the Bar and the Bench is no longer an option but a necessity. Members of the Bench, the Bar and the litigants must aid each other to create a technologically adept and friendly environment. The above directions must be implemented by all concerned stakeholders in letter and in spirit.

IN THE SUPREME COURT OF INDIA

 CRIMINAL ORIGINAL JURISDICTION 

 Writ Petition (Criminal) No 351 of 2023 

Sarvesh Mathur Vs The Registrar General High Court of Punjab and Haryana.

Coram: DR. DHANANJAYA Y. CHANDRACHUD; CJI., J.B. PARDIWALA; J., MANOJ MISRA; J. 

Dated: October 06, 2023.

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Whether the right of accused to have fair trial is violated if the court is examining witnesses through video linkage?

 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

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Supreme Court Guidelines for the recording evidence of child witnesses through Video conferencing

The draft SOP as suggested by the learned Amicus Curiae is as under:

“1. It is suggested that testimony of children, who are victims of inter-state/inter-district child trafficking, is recorded through video conferencing either at the video conferencing room of the court complex in the district or vulnerable witness room in the court complex of the district or the office of DLSA in the district where the child is residing.1

2. To facilitate the above, it is prayed that the Ld. District Judges of all districts may ascertain the availability of video conferencing facility in the district/Taluk court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Court may be requested to place the said information on its website on or before 30.04.2022. Further, it is prayed that efforts should be made to ensure that such video-conferencing infrastructure/facility is created in every district, especially in those states where the incidence of child trafficking cases is high.

3. The Secretary, DLSA of the district can be requested to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses. However, if the Chairman of the DLSA considers necessary or desirable, he/she may appoint a Retired judicial Officer as a Remote Point Coordinator. It is prayed that the Hon'ble High Courts may place the aforesaid information i.e. the names and contact details of the RPC of each district on the website alongwith the information in para 2 above.

4. When an offence of inter-state/inter-district child trafficking is taken up for trial by a Court, and if the Court point and the remote point have video conferencing facilities, the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.

5. The authorized officer at the Court Point may get in touch with the RPC at the Remote Point and work out all modalities for recording of the child witness statement through video conferencing.

6. If video conferencing is feasible, a date and time be fixed by the trial court for examination of the witness(es). Summons may be issued to the child witness(es) to present himself/herself for evidence before the RPC. The summons may be served in addition through the local process server of the remote point. The witness would be required to come with identification documents. The summons would also have the name and contact details of the RPC at the Remote Point and would also mention that the witness can take help of legal aid or other assistance through the Secretary, District Legal Service Authority, if required.

7. The child witness shall be entitled to the presence of a support person as defined in the Protection of Children from Sexual Offences Rules, 2020 or any other applicable laws/guidelines or as allowed by the Trial Court. Further, best practices that are required to be followed in recording the evidence of child witnesses should continue to be followed even during the recording of the testimony through video conferencing. These include, ensuring that the child witness is provided diet money on the basis of the distance travelled by him or her to reach the remote point, the presence of a police officer at the remote point to ensure that the chid witness does not come in contact with the accused (if out on bail) or any relative of the accused, and any other best practice required by the law/relevant guidelines/being followed by the States.

8. Copy of documents, if any, required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC. The RPC at the Remote Point would assist in examination of the witness and ensure that no tutoring takes place and no unauthorized person or recording device is present in the room.

9. The RPC may take all measures possible and shall seek the assistance of the support person to ensure that the child witness is comfortable. Questions posed by the Public Prosecutor/Defense Counsel may be put to the Ld. Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness. The RPC may help with translation or take the assistance of a translator/special educator if required or render any other assistance which the Learned Trial Court may require.

10. On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC at the Remote Point who shall take a print-out and read the same out to the witness. After ascertaining the deposition is correct and verified as under law including the affixation of the child's thumb impression/signature, the RPC may certify the same and send the deposition back, in a secure manner, to the Trial Court by Speed Post and by electronic means as permitted by law. An original may also be kept by RPC in case the Speed Post is misplaced for some reason.

11. Whenever a Trial Court proposes to record the testimony of a child witness, who is residing in another State, an intimation of the same should also be given to the Registrar of the High Court of the Court point. The Ld. Registrar may intimate the same to the Ld. Registrar of the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.

12. This Standard Operating Procedure is only a broad guideline. The method and manner of recording of testimony be dependent upon the video conferencing rules framed by the respective High Courts, which would be kept in mind while recording the testimony of the child witness. It should be kept in mind that the recording of the testimony should be done expeditiously, without undue delay.

1 It can also be done at Taluk level as in some cases, video conferencing room can be available in a court complex at Taluk level or Sub Divisional level.”

9. We have carefully examined the draft SOP which contains minute details about steps to be taken for recording the testimony of child witnesses at Remote Points. Responses have been filed by the High Courts. There is no objection taken by any High Court to the SOP being put in practice immediately. We direct that the SOP, as has been reproduced above, shall be followed in all criminal trials where child witnesses, not residing near Court Points, are examined and not physically in the courts where the trial is conducted. We direct the RPCs to ensure that child-friendly practices are adopted during the examination of the witnesses.

 In the Supreme Court of India

(Before L. Nageswara Rao and B.R. Gavai, JJ.)

SMW (C) No(s). 6/2021

In Re Children in Street Situations

Decided on February 1, 2022

Citation: 2022 SCC OnLine SC 189

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Whether wife can appear through video conferencing before Marriage Officer for registration of marriage under Special Marriage Act?

 The Kerala High Court in Pardeep Kodiveedu Cletus vs. Local

Registrar of Marriages (Common), 2018 (1) ILR (Kerala) 377, while examining a case of registration of marriage under the Kerala Registration of Marriages (Common) Rules, 2008, held that personal appearance of the parties to the marriage can be dispensed with by the Local Registrar. It was further observed that the Local Registrar is empowered to obtain their

personal appearance through video conferencing. In para 9 of the judgment, it was observed as under:-

9. True, inconvenience caused by a rule can never be a ground for

annulling the same or reading down the Rule in a different fashion.

But, if the purpose of the rule could be ensured otherwise, should the

parties be put to inconvenience? My conclusion is that if the purpose of the rule can be ensured otherwise, the provision of law can be

interpreted by courts in a fashion not causing any inconvenience to the parties. I am fortified in this view by the principle quod est

 inconveniens, aut contra rationem non permissum est in lege (that

which is inconvenient, or against reason, is not permitted in law). I am

also fortified in this view by the following observation in the

commentaries on 'Statutory Interpretation' by Francis Bennion:

"The court seeks to avoid a construction that causes unjustifiable

inconvenience to persons who are subject to the enactment, since

this is unlikely to have been intended by Parliament. Sometimes

however there are overriding reasons for applying such a

construction, for example where it appears that Parliament really

intended it or the literal meaning is too strong."

I do not find any overriding reason in this matter for the court to

interpret the provision contained in Rule 11 in such a fashion

compelling the parties to the marriage to be physically present before

the local Marriage Officer, for the purpose of registering their

marriage.”

The ratio of judgment passed in Dr. Praful B. Desai's case

(supra) is that statement of a witness or accused can be recorded by way of

video conference in the presence of his pleader/counsel under Section 273

Cr.P.C. This view was taken keeping in view that under Sections 284 and

285 of the Cr.P.C., attendance of the witness can be exempted by appointing a Commission, who can go to the place where the witness or accused is present and record his statement to meet the ends of justice. Hence, for all

intents and purposes, under the criminal law, presence of the witness is not

necessary before the Court for recording of his evidence. In the same

manner, for the purpose of issuing the marriage registration certificate, as

held by the High Court of Jharkhand in Upasana Bali's case (supra), parties

to the marriage can appear before the Registering Officer through video conference.

Appellant No.1-husband, in the present case, is not seeking

complete exemption of appearance of his wife-appellant No.2 (who is

working in USA) before the Registrar of Marriage. He is seeking that his

wife should be allowed to appear through video conferencing, so that the

marriage can be registered. Appellant No.2-Misha Verma, wife of appellant

No.1, was employed in Virginia University School of Medicine as Resident

Doctor. Now, she is working in J.W. Ruby Memorial Hospital at 1 Medical

Center Drive, Morgantown, West Virginia 26505, United States. The

appellants solemnized marriage on 07.12.2019 according to Hindu rites and

ceremonies in the presence of their respective families at Gurugram

(Haryana). In this case, presence of Misha Verma can be secured through

video conferencing and presence of husband-Ami Ranjan and three

witnesses can be marked by their appearance in the office of Registrar of

Marriages. Then, the certificate of marriage can be issued on doing

verification of facts as contemplated under Sections 15 and 16 of the

Special Marriage Act. Once, the marriage certificate is issued, it can be

made part of the public record under Section 47 of the Act by entering it

into the Marriage Certificate Book. There shall be no violation of Section

47 of the Act. The entire process can be done after seeking presence of Misha Verma wife of appellant No.1-Ami Ranjan through video

conferencing. For all intents and purposes, this would be a valid marriage

certificate.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

LPA No.125 of 2021 (O&M)

(in CWP No.20480 of 2020)

Date of decision: 09.03.2021

Ami Ranjan Vs. State of Haryana 

CORAM: HON'BLE MS. JUSTICE RITU BAHRI

HON'BLE MRS. JUSTICE ARCHANA PURI

Author: Ritu Bahri, J. (oral)

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Karnataka HC: Court can frame charge and record statement U/S 164 of CRPC through video conferencing in Covid19

The Video Conferencing Rules (in short ‘Video

Conferencing Rules’), framed by this Court, a copy of which is

annexed to the petition, lay down the procedure for recording of

evidence by Video Conferencing. Rule 8 contemplates the

examination of persons including the witnesses through Video

Conferencing. Rule 11 indicates that in certain circumstances,

even for remand, an accused can be produced before the

learned Magistrate through Video Conferencing. Rule 11.2

specifically permits recording of statement under Section 164 of

Cr.P.C read with Rule 5 of Chapter 5 of Karnataka Criminal

Rules of Practice 1968 (in short ‘the Rules of Practice’) by Video

Conferencing. Rule 11.2 specifically permits recording of a

statement of the accused under Section 313 through Video

Conferencing. Thus, at the time of framing of charge and at the

time of recording of plea, the presence of the accused before

the Court can be procured through Video Conferencing. By

procuring the presence of the accused through Video

Conferencing in case of Sessions triable cases and in case of

warrant triable cases, the charge can be read over and

explained to the accused and his plea can be recorded. Rule 5

of the Video Conferencing Rules will apply for recording of the

evidence by Video Conferencing. If the accused is in Judicial

Custody, Video Conferencing facility can be provided at the

prison and in such case, the remote point coordinator within the

meaning of Rule 5.3 will be the Jail Superintendent or the officer

in-charge of the prison. In case the accused is on bail, any fit or

proper person will have to be appointed as the coordinator to

ensure that proceedings are conducted in a fair, impartial and

independent manner.

8. Though there is no specific provision in Cr.P.C to that

effect, there is a practice followed by various Courts of taking

the signature of the accused on the plea. If by way of abundant

precaution, the learned Judges desire that the signature of the

accused is necessary on the plea, in case of accused in judicial

custody, a copy of the charge framed and plea recorded

thereon can be send by e-mail to the coordinator who will be an

officer of the concerned prison. He can be directed to down

load the same, take print and obtain the signature of the

accused in his presence and send it to the Court. In case of an

accused on bail, the coordinator can be directed to follow the

same procedure. While recording the plea, the Judicial Officer

will be well advised to record a statement of the accused that

the Judge was clearly audible and visible to him while the

charge was read over and explained to him and while his plea

was recorded.

IN THE HIGH COURT OF KARNATAKA

W.P. No. 7338/2020

Decided On: 19.06.2020

 High Court of Karnataka  Vs.  The State of Karnataka

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Karnataka HC: Court can record statement of accused U/S 313 of CRPC through video conferencing during Covid19

 Under Rule 11.2 of the Video Conferencing Rules, it is

specifically provided that in exceptional circumstances, for the

reasons to be recorded in writing, the Courts can record the

statement of the accused under Section 313 of Cr.P.C through

Video Conferencing.

16. The Court in its discretion can take recourse to subsection

(5) of Section 313 of Cr.P.C and permit the accused to

file his written statement with reference to the questions

formulated. The questions can be sent to Jail and the accused

can be directed to file his written statement duly signed by him

before the Jailor or the Superintendent of Jail. The Court can

always direct the Jail authorities to allow the Advocate of the

accused to meet the accused for the purposes of preparation of

written statement. If accused is on bail, he can be called upon

to answer the questions in writing by handing over the same to

his Advocate by directing that written statement of the accused

shall be countersigned by him by identifying the signature of his

client. The other option is of recording the statement by

procuring presence of the accused by Video Conferencing

Hearing. The concerned Jail superintendent or the officer-incharge

of the prison will be the coordinator at the remote point of

the prison. Before recording the statement and in the midst of

recording the statement, the learned Judge can put questions to

the accused to ascertain whether he is clearly audible and

whether the accused understood the questions posed to him.

The learned Judge may record this in the statement to that

effect. If the signature of the accused is required, a copy of the

written statement recorded can be sent by e-mail to the Jail

authorities with an instruction to the Jail authorities to obtain

signature of the accused on the statement and then forward the

statement to the Court. In case of accused on bail, similar

procedure can be followed. The only difference being a fit and

proper person appointed by the Court will be the coordinator at

the remote point where the accused is sitting.

17. We must note here that we are deciding the issue only in

the context of an exceptional situation created in which due to

spread of COVID-19, the Courts are not able to function

normally. As observed by the Apex Court in suo motu Writ

Petition (Civil) No. 5 of 2020, it is the duty of every Court to

ensure that the Court premises do not contribute to the spread

of virus. Moreover, in suo motu Writ Petition (Civil) No. 1 of

2020, the Apex Court has categorically directed that in the

present situation, the presence of all the undertrial prisoners

before the Courts must be stopped forthwith and recourse to

Video Conferencing Hearing must be taken for all purposes.

This direction issued by the Apex Court will have to be read with

the directions issued on 6th April, 2020 in suo motu Writ Petition

(Civil) No. 5 of 2020. The course adopted by the Courts while

recording the plea of the accused and recording the statement

of the accused under Section 313 of Cr.P.C through video

conferencing hearing will be a step taken to reduce the physical

presence of the stakeholders in the Courts precincts to meet the

exceptional situation and to secure the functioning of the Courts

by following the best possible health practice. Therefore, such

a course adopted by the Courts shall be deemed to be lawful, in

view of the directions contained in clause (i) of paragraph-6 of

the aforesaid order dated 6th April, 2020 issued in suo motu Writ

Petition (Civil) No.5 of 2020. The directions of the Apex Court

in paragraph 6 are specifically under Article 142 of the

Constitution of India, which will apply during the epidemic of

COVID-19.

IN THE HIGH COURT OF KARNATAKA

W.P. No. 7338/2020

Decided On: 19.06.2020

 High Court of Karnataka  Vs.  The State of Karnataka

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, C.J. and S. Vishwajith Shetty, 

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Supreme Court: cheque bounce cases can be tried by video conferencing

We are informed that the petitioner is lodged in Tihar

Jail, Delhi in connection with his involvement in other cases.
After hearing the learned senior counsel for the petitioner and
respondents, we are of the view that transfer of these cases from
Srinagar is not necessary as the trial can be conducted by Video
Conferencing which facility is available at Tihar Jail, Delhi. We
direct that the trial be conducted by Video Conferencing.
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Criminal) No(s).38/2019

PANKAJ DAYAL Vs VIJAY K. SONDHI 

CORAM :
HON'BLE MR. JUSTICE L. NAGESWARA RAO
HON'BLE MR. JUSTICE M.R. SHAH
Dated: 15-2- 2019.

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Whether Advocate for accused can be provided video conferencing facility to talk with accused in jail?

In our view such a direction on part of the Supreme Court Legal
Services Committee is quite commendable and praiseworthy. Very often we
see that the learned Advocates who appear in matters entrusted by the
Supreme Court Legal Services Committee, do not have the advantage of
having had a dialogue with either the accused or those who are in the know
of the details about the case. This at times seriously hampers the efforts on
part of the learned Advocates. All such attempts to facilitate dialogue between the counsel and his client would further the cause of justice and
make legal aid meaningful. We, therefore, direct all Legal Services
Authorities/Committees in every State to extend similar such facility in
every criminal case wherever the accused is lodged in jail. They shall
extend the facility of video conferencing between the counsel on one hand
and the accused or anybody in the know of the matter on the other, so that
the cause of justice is well served.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) No. 6740 of 2018
(Diary No.20446 of 2018)

Imtiyaz Ramzan Khan V State of Maharashtra .

Dated:August 14, 2018

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Procedure to be followed by court for recording evidence of witness on video conferencing

 To be remembered that what is being considered is recording evidence on commission. Fixing of time for recording evidence on commission is always the duty of the officer who has been deputed to so record evidence. Thus the officer recording the evidence would have the discretion to fix up the time in consultation with VSNL, who are experts in the field and who , will know which is the most convenient time for video conferencing with a person in USA. The Respondent and his counsel will have to make it convenient to attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. We do not have the slightest doubt that the officer who will be deputed would be one who has authority to administer oaths. That officer will administer the oath. By now science and technology has progressed enough to not worry about a video image/audio interruptions/distortions. Even if there are interruptions they would be of temporary duration. Undoubtedly 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. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve the evidence. It must be remembered that there have been cases where evidence is recorded on commission and by the time it is read in Court the witness has left the country. There also have been cases where foreign witness has given evidence in a Court in India and that then gone away abroad. In all such cases Court would not have been able to take any action in perjury as by the time the evidence was considered, and it was ascertained that there was perjury, the witness was out of the jurisdiction of the Court. Even in those cases the Court could only ignore or disbelieve the evidence. The officer deputed will ensure that the Respondent, his counsel and one assistant are allowed in the studio when the evidence is being recorded. The officer will also ensure that the Respondent is not prevented from bringing into the studio the papers/documents which may be required by him or his counsel. We see no substance in this submission that it would be difficult to put documents or written material to the witness in cross-examination. It is now possible, to show to a party, with whom video conferencing is taking place, any amount of written material. The concerned officer will ensure that once video conferencing commences, as far as possible, it is proceeded with without any adjournments. Further if it is found that Dr Greenberg is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing. If the officer finds that Dr. Greenberg is not answering questions, the officer will make a memo of the same. Finally when the evidence is read in Court, this is an aspect which will be taken into consideration for testing the veracity of the evidence. Undoubtedly the costs of video conferencing would have to be borne by the State.

Supreme Court of India

The State Of Maharashtra vs Dr. Praful B. Desai on 1 April, 2003

Bench: S Variava, B Agrawal

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Whether video conferencing before family court can be adopted only after failure of settlement?

We have already discussed at length with regard to the complexity and the sensitive nature of the controversies. The statement of law made in Krishna Veni Nagam (supra) that if either of the parties gives consent, the case can be transferred, is absolutely unacceptable. However, an exception can be carved out to the same. We may repeat at the cost of repetition that though the principle does not flow from statutory silence, yet as we find from the scheme of the Act, the Family Court has been given ample power to modulate its procedure. The Evidence Act is not strictly applicable. Affidavits of formal witnesses are acceptable. It will be permissible for the other party to cross-examine the deponent. We are absolutely conscious that the enactment gives emphasis on speedy settlement. As has been held in Bhuwan Mohan Singh (supra), the concept of speedy settlement does not allow room for lingering the proceedings. A genuine endeavour has to be made by the Family Court Judge, but in the name of efforts to bring in a settlement or to arrive at a solution of the lis, the Family Court should not be chained by the tentacles by either parties. Perhaps, one of the parties may be interested in procrastinating the litigation. Therefore, we are disposed to think that once a settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed. That apart, when they give consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for videoconferencing. That much of discretion, we are inclined to think can be conferred on the Family Court. Such a limited discretion will not run counter to the legislative intention that permeates the 1984 Act. However, we would like to add a safeguard. A joint application should be filed before the Family Court Judge, who shall take a decision. However, we make it clear that in a transfer petition, no direction can be issued for video conferencing. We reiterate that the discretion has to rest with the Family Court to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing.

55. Be it noted, sometimes, transfer petitions are filed seeking transfer of cases instituted under the Protection of Women from Domestic Violence Act, 2005 and cases registered under the IPC. As the cases under the said Act and the IPC have not been adverted to in Krishna Veni Nagam (supra) or in the order of reference in these cases, we do intend to advert to the same.

56. In view of the aforesaid analysis, we sum up our conclusion as follows :-

(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.

(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.

(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.

(iv) In a transfer petition, video conferencing cannot be directed.

(v) Our directions shall apply prospectively.

(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent

Reportable

Supreme Court of India

Santhini vs Vijaya Venketesh on 9 October, 2017

        CIVIL ORIGINAL JURISDICTION

      TRANSFER PETITION (CIVIL) NO.1278 OF 2016

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Whether accused can be remanded without producing him before magistrate either physically or through video conference?

 The second question is as to whether remand for custody of the accused can be given without producing before the court below either physically or through video linkages. To answer the question aforesaid, reference of section 167 Cr.P.C. would be relevant. As per the provision aforesaid, an accused is required to be forwarded to the Magistrate for remand if the investigation is not completed within a period of 24 hours given under section 57 Cr.P.C. In that case, police officer making investigation shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. Sub-section (2) of section 167 Cr.P.C. provides that if an accused is forwarded to a Magistrate, whether he has or has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole and if such Magistrate has no jurisdiction to try the case or to commit it for trial, he may order to forward the accused to a Magistrate having jurisdiction. As per the provision aforesaid, for remand of the case, accused needs to be forwarded to the Magistrate.

19. The order for remand of custody of the accused is without even forwarding the accused to the Magistrate whether having or not having jurisdiction to try the offence. Thus the orders for remand of the accused petitioner without forwarding him to the Magistrate physically or through video linkages is illegal. The court below should not have passed an order under section 167 Cr.P.C. unless the accused is forwarded to him. Therefore, second question is answered in favour of the petitioner.

N THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

DB Civil Writ Petition (Habeas Corpus) Nos. 120 and 121/2016

Decided On: 26.05.2016

 Rahul Pareek  Vs. State of Rajasthan and Ors.

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Whether recording of evidence on video conferencing will violate right of accused?

At this stage we must deal with a submission made by Mr Sundaram. It was submitted that video- conferencing could not be allowed as the rights of an accused, under Article 21 of the Constitution of India, cannot be subjected to a procedure involving "virtual reality". Such an argument displays ignorance of the concept of virtual reality and also of video-conferencing. Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. In virtual reality, one can be made to feel cold when one is sitting in a hot room, one can be made to hear the sound of the ocean when one is sitting in the mountains, one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one's sofa etc. Video-conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. To take an example, today one does not need to go to South Africa to watch World Cup matches. One can watch the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing room and watching the match on TV, it cannot be said that he is in the presence of the players but at the same time, in a broad sense, it can be said that the match is being played in his presence. Both, the person sitting in the stadium and the person in the drawing room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video- conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In video-conferencing both parties are in the presence of each other. The submissions of the respondents' counsel are akin to an argument that a person seeing through binoculars or telescope is not actually seeing what is happening. It is akin to submitting that a person seen through binoculars or telescope is not in the "presence" of the person observing. Thus it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video-conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 of the Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".

20. Recording of evidence by video-conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the accused. The accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded courtroom. They can observe his or her demeanour. In fact the facility to playback would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of playback would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in court. All these objects would be fully met when evidence is recorded by video-conferencing. Thus no prejudice, of whatsoever nature, is caused to the accused. Of course, as set out hereinafter, evidence by video- conferencing has to be on some conditions.

Delhi High Court

International Planned ... vs Madhu Bala Nath on 7 January, 2016

FAO(OS) 416/2015 & CM No.13475/2015 (stay)

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
Citation;AIR 2016 Delhi 71

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Court should allow evidence to be recorded through Video conferencing;Delhi HC

Recording of evidence by video-conferencing also
satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the accused. The
accused and his pleader can see the witness as clearly as
if the witness was actually sitting before them. In fact the
accused may be able to see the witness better than he
may have been able to if he was sitting in the dock in a
crowded courtroom. They can observe his or her
demeanour. In fact the facility to playback would enable
better observation of demeanour. They can hear and
rehear the deposition of the witness. The accused would
be able to instruct his pleader immediately and thus
cross-examination of the witness is as effective, if not
better. The facility of playback would give an added
advantage whilst cross-examining the witness. The
witness can be confronted with documents or other
material or statement in the same manner as if he/she was
in court. All these objects would be fully met when
evidence is recorded by video-conferencing. Thus no
prejudice, of whatsoever nature, is caused to the accused.
Of course, as set out hereinafter, evidence by videoconferencing
has to be on some conditions.
Procedures have been laid down to facilitate dispensation of
justice. Dispensation of justice entails speedy justice and justice
rendered with least inconvenience to the parties as well as to the
witnesses. If a facility is available for recording evidence through
video conferencing, which avoids any delay or inconvenience to the 
parties as well as to the witnesses, such facilities should be resorted to.
Merely because a witness is traveling and is in a position to travel
does not necessary imply that the witness must be required to come to
Court and depose in the physical presence of the court.
 We are not for a moment laying down that a witness can never
be called to Court. There may be circumstances or situations where
physical presence of a witness may be necessary and required by the
Court, in such situations it would be obligatory on the witness to be
present in Court. Where a witness or a party requests that the
evidence of a witness may be recorded through video conferencing,
the Court should be liberal in granting such a prayer. There may be
situations where a witness even though within the city may still want
the evidence to be recorded through video conferencing in order to
save time or avoid inconvenience, the Court should take a pragmatic
view.
16. In the present case, the application was premised on the ground
that the witness holds an important position in her organization and
has to travel world over. We do not feel that such a request was
unreasonable. Furthermore, the appellant/defendant has contended
that the expenditure entailed for travel of the witness, who is a lady of
over 54 years of age and her stay in Delhi would be a financial burden 
on the appellant. This, in our view is a factor that the learned single
judge should have taken into account. We are of the view that the
learned Single Judge erred in dismissing the application.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 07th January, 2016
 FAO(OS) 416/2015 & CM No.13475/2015 (stay)
INTERNATIONAL PLANNED PARENTHOOD
FEDERATION (IPPF) 
versus
MADHU BALA NATH

CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA

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Whether family court can record evidence through Video Conferencing?

On verification from the Registrar General, we are informed that there is no circular issued for any prior permission to be obtained from the High Court through Registrar General to record evidence through Video Conferencing by the Family Court.  Thus, a discretion is vested with the Family Court itself to record evidence through the process of Video Conferencing.  Not only that, under Section 10(3) of the said Act, the Family Court is empowered to lay down its own procedure to arrive at a settlement or to get the truth of the matter.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.11.2014

CORAM

The Hon'ble MR.SANJAY KISHAN KAUL, CHIEF JUSTICE

AND

The Hon'ble MR.JUSTICE M.SATHYANARAYANAN

W.P.No.30976 of 2014

and M.P.No.1 of 2014

Sudha Ramalingam vs    Registrar General

Citation;AIR2015(NOC)266 MADRAS

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When court should permit recording of evidence through Video conferencing?

 The presence of the person can be obtained physically so also
virtually. What is important is that a person should be seen and be heard

and vice versa. These are the methods of distant communication, which is
possible by virtual measures and microspeakers. Therefore, it is not
necessary for the Judge to insist for the physical presence of the witness
when it is not possible especially in the circumstances of this case, a
virtual presence can be secured which is very much legal and for this
purpose, it is not necessary for the Judge himself to give time but such
evidence can be recorded by appointing Commissioner. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6514 OF 2014

Mrs. Suvarna Rahul Musale  vs. Rahul Prabhakar Musale 

CORAM : MRS. MRIDULA BHATKAR, J.
DATE : 9th September, 2014.
Citation;2015(2) ALLMR230

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Divorce by video conferencing

Ahmedabad: Ahmedabad is seeing an increase in divorces that are going digital. In the last one year, the family court near Income-Tax Circle has disposed of around 50 divorce cases over video-conferencing.  “In most cases, the families get the youths married with great pomp and show in the traditional manner before they leave for foreign shores. Once they reach abroad, they feel that their partners would not be able to keep up with them. Sometimes, it is a case of marry in haste and repent in leisure. Many decide to cut their losses and get a divorce.  But lack of leave or the cost of travel prevent people from being physically present in court. This is where the video-conferencing facility comes in handy,” says advocate Prateek Bhatt, who represented 32- year-old Pragnesh Patel, a New Ranip resident now settled in Australia.  Pragnesh married Krupa, a Ghatlodia resident living in Australia, in 2005. The couple settled abroad and had a son Arth, who is two years old now. Soon, they both began bickering. The fights escalated and one day, Krupa took Arth and returned to India.  She filed a divorce petition here. As Pragnesh was also ready to give her a divorce, their lawyers approached the family court. On May 29, Pragnesh gave his statement to court through video-conferencing.

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