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TOPIC – II

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING EVIDENCE THROUGH VIDEO CONFERENCING

INDEX SHEET

Sl.
Name of the Judicial Officer Page Nos.
No.
Sri E. Bhimarao,
1. VII-Addl. District Judge, 2 - 19
Vijayawada
Sri N. Ramesh Babu,
2. XII-Addl. District Judge, 20 – 29
Vijayawada
Smt Sattaru Rajani,
Additional District Judge/
3. 30 – 36
Chairman Permanent Lokadalat,
Machilipatnam
Sri V.S.Srivivasa Sarma,
4. Prl. Senior Civil Judge, 37 – 48
Machilipatnam
Sri Shaik Madar,
5. Senior Civil Judge, 49 – 52
Nandigama
Sri Mohd. Abdul Rafi,
6. I-Addl. Chief Metropolitan Magistrate, 53 – 61
Vijayawada
Sri G.Venkateswarlu,
7. III-Addl. Chief Metropolitan Magistrate, 62 – 84
Vijayawada
Smt U. Indira Priyadarshini,
8. IV-Addl. Chief Metropolitan Magistrate, 85 – 93
Vijayawada
Smt L. Thejovathi,
9. Prl. Junior Civil Judge, 94 – 95
Nuzvid
Smt K. Aruna Kumari,
10. Prl. Junior Civil Judge, 96 – 102
Gudivada
Sri Beera Srinivasu,
11. Addl. Junior Civil Judge, 103 – 109
Jaggayyapeta
Sri H. Amara Rangeswara Rao,
12. Addl. Junior Civil Judge, 110 – 118
Avanigadda
Sri P. Shiyaz Khan,
13. Addl. Junior Civil Judge, 119 – 121
Tiruvuru
Sri M. Rama Krishnam Raju,
14. Junior Civil Judge, 122 – 128
Vuyyuru
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Presented by: Sri E. Bhimarao,


VII-Addl. District Judge,
Vijayawada.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING EVIDENCE THROUGH VIDEO CONFERENCING

Before going to the main topic it is essential to know the meaning and
definition of evidence.

Meaning of evidence:
The Word 'evidence' is derived from the Latin word 'Evidentia' which
means 'the state of being evident, i.e., plain, apparent clear”. It is also related
to the Latin expression' evidence evidere' which means to show clearly, to make
plain, certain or to prove.

Definition of Evidence:
Section 3 of Indian Evidence Act defines evidence as follows” 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) all documents including electronic records produced for the
inspection of the court;
such documents are called documentary evidence.

The mode of recording evidence in general for both civil and criminal
proceedings is incorporated in Indian Evidence Act . Criminal Procedure
Code, Criminal rules of practice and other special enactments in respect
of criminal proceedings. Civil Procedure Code, Civil Rules of Practice and
special enactments in relation to Civil Proceedings.

The present topic is very vast and as such I am trying to restrict the
present topic to Indian Evidence Act, Cr.P.C., C.P.C., and rules of practice in a
consized manner.

Mode of treating and recording evidence according to Indian Evidence Act


in general : Taking and recording evidence would assume great significance in
administration of Justice. A good and reasoned Judgment lags behind clear
and correct recording of evidence. Courts require relevant facts and record
evidence in clear and intelligible manner. When the language of a written
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instrument is perfectly plain, no construction will be made to contradict the


language. As such, a Presiding Judge must cease to be a mere recording
machine. He should take a participatory role in the trial exercising his control
over the proceedings effectively; he should interfere when irrelevant fact is
unnecessarily brought on record. The Court May restrict the parties to
adduce evidence to relevant fact and fact in issue in view of section 5 of
Evidence Act. The judge has to decide the admissibility of evidence as in
section 136.

Section 165 of Indian Evidence Act permitted the judge to discover the
relevant fact, ask any question without compelling to answer at any time to any
witness or party about any fact relevant or irrelevant and may order the
production of any document subject to sections 121 to 131 and 148 or 149
and neither party nor his agent shall be entitled to any objection and such
reply is not subjected to cross examination without the leave of the court
provided it must be based upon facts declared by this Act to be relevant and
duly proved.

Inadmissible evidence like hearsay when it not covered Under section 32


need not be recorded. For instance no confession made to a police officer, shall
be proved as against a person accused of any offence by virtue of section 25
except leading to discover of fact under section 27. So unless there is any
leading discovery of fact in furtherance of confession of accused, confessional
statement of accused need not be marked and so also need not record oral
evidence to that effect.

While recording secondary evidence provisions under section 63 and 65


of Indian Evidence Act has to strictly follow. To save time not reproduced the
above sections as all of us have acquainted with those sections.

By virtue of section 118 of Evidence Act , while recording the evidence of


witness of tender years, extreme old age, disease, whether of body or mind, or
any other cause of the same kind cannot be permitted unless court considers
such witness understand the questions put to them or from receiving rational
answers to those questions.

While recording the evidence of dumb witness, such witness may be


permitted in any other manner in which he can make it intelligible as by
writing or by signs in open court as per section 119.
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The court has to permit to lead evidence by husband or wife to the party
to the suit and in criminal proceedings against any person, the husband or
wife respectively as per section 120.

The court shall not permit any person to compel to disclose


communications during marriage unless the person who made it or his
representative in interest consents in suits between two persons or
proceedings in which one married person is prosecuted for any crime
committed against the other as per section 122.

The court shall not permit to give evidence as to affairs of State as in


section 123.

So also court shall not permit to compel a public officer to disclose


official communications or professional communications subject to 128 or
confidential communications with legal adviser as in sections 124,126 and 129
respectively.

So also sections 130 to 134 of Indian Evidence Act has to bare in mind
while recording evidence.

As per section 135 of Evidence Act, while permitting to produce order of


witness shall be regulated by civil and criminal procedure and in the absence
of the same discretion of the court.

As per section 138 the witness has to be examined in chief then cross
examined and the if a party calling him so desires re- examination.
The court has to see the examination must relate to relevant facts but the
cross examination need not be confined to the facts which the witness testified
on his examination in chief as per section 138.

The re-examination shall be directed to the explanation of matters


referred to in cross examination and if new matter is by permission of the court
introduced in re examination the adverse party may further cross examine
upon the matter.

Court cannot permit to examine a person summoned to produce a


document unless and until he is called as a witness under section 139.
Court may permit to cross examine and re-examine witness to character as per
section 140.
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Court need not permit leading question in chief examination and in re-
examination except with the permission of the court, if objected by other party
and shall permit as to the matters which are introductory on undisputed or
which have in its opinion already sufficiently proved as per section 142.

Court may permit leading questions in cross examination as per section


143.

So also the court while recording evidence has to see the provisions
under section 144, 146 to 155 and 159 to 161 of Evidence Act fulfilled or not.

Mere marking of an exhibit doesn't dispense with the proof of the


document. If the objection relates to deficiency of stamp duty of a document,
the Court has to decide the objection then and there before proceeding further.
On this aspect, a decision of the Apex Court of its Constitution Bench
consisting of Hon’ble Judges in the case of Javer Chand & Others v. Pukhraj
Surana: AIR 1961 SC 1655 may be referred to. If a previous contradictory
statement of a witness is intended to be proved, his attention must be drawn to
it. Section 145 of the Evidence Act enables the opponent to cross-examine such
witness as to previous statement made by him in writing or reduced to writing
without such writing being shown to him. If the witness gives answer in the
affirmative, the previous statement in writing need not be proved. On the other
hand, if the witness denies to have made the previous statement attributed to
him or states that he does not recollect it, the cross examiner must read out to
the witness the relevant portion which is to be contradictory to his statement in
the Court and give him opportunity to reconcile the same if it can. It appears
in mind that the relevant portion of his previous statement which contradicts
his statement in Court should be exhibited. His whole previous statement
should not be exhibited. Examination in chief and cross-examination must
relate to relevant facts. Ordinary witness should not be asked regarding legal
provisions. At times legal questions may be relevant to an expert witness. While
recording omissions and contradictions, the Presiding Officer must verify the
previous statement. When the omissions relate to the natural part of the
statement, it should be specifically recorded to that effect. Courts take judicial
notice of public document.

Under section 157 of the Indian Evidence Act, a witness may be


corroborated by his/her previous statement. Section 145 of the Act permits use
of a previous statement for contradiction of a witness during cross-
examination. Again clause (1) of section 146 provides that during cross
examination, question may be put to a witness to test his veracity. Section 153
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generally deals with exclusion of evidence to contradict answers to questions


testing veracity. However, exception (2) of it permits a witness being
contradicted if he has denied any fact which was put to him to impeach his
impartiality. Section 155 (3) deals with impeaching the credit of a witness liable
to be contradicted.

The Apex Court in N. Sri Rama Reddy after considering the matter laid
down that the evidence of the tape recorded conversation/statement apart from
being used for corroboration is admissible for the purposes stated in Section
146 (1), Exception (2) to section 153 and section 155 (3) of the Evidence Act.

In Indian law, to incorporate the provisions on the appreciation of digital


evidence, the Information Technology (IT) Act 2000, is amended to allow for the
admissibility of digital evidence. Sections 65-A and 65-B provide provisions for
evidences relating to electronic records and admissibility of electronic records,
and that definition of electronic records includes video conferencing.

The Evidence Act does not contemplate or permit the proof of an


electronic record by oral evidence. If an electronic record as such is used as
primary evidence under section 62 of the Evidence Act, the same is admissible
in evidence. The general law on secondary evidence under section 63 read with
section 65 of the Evidence Act has no application in case of secondary evidence
by way of electronic record. The same is wholly governed by sections 65-A & 65
B. In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru: (2005) 11 SCC 600,
the Apex Court while considering the print out of the computerised records of
the calls pertaining to the cell phones in view of the production of electronic
record held as follows “ irrespective of the compliance with the requirement of
section 65–B, which is a provision dealing with admissibility of the electronic
records, there is no bar to adducing secondary evidence under the other
provisions of the Evidence Act, namely, sections 63 & 65. It may be that the
certificate containing the details in Sub-section (4) of section 65-B is not filed
in the instance case, but that does not mean that secondary evidence cannot
be given even if the law permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, sections 63 & 65.”

But the Apex Court in Anvar P.V. v. P.K. Basheer & Others vide Civil
Appeal no. 4226 of 2012 while delivering judgment on 18th September, 2014
over ruled the legal position as laid down in Navjot Sandhu case (supra). Their
Lordships observed, inter alia, that an electronic record by way of secondary
evidence shall not be admitted in evidence unless the requirements under
section 65–B Evidence Act are satisfied. Thus, in the case of CD, VCD, chip,
etc., the same shall be accompanied by the certificate in terms of section 65-B
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obtained at the time of taking evidence, without which, the secondary evidence
pertaining to that electronic record, is not admissible. The Hon'ble Supreme
Court further held that Sections 63 and 65 of Indian Evidence Act have no
application to the secondary evidence of the electronic evidence and the same
shall be wholly governed by Sections 65A and 65 B of Indian Evidence Act. The
original recording in Digital voice recorder/mobile phone need to be preserved
as they may get destroyed and in such case CD/DVD is in admissible and
cannot be exhibited as evidence and that oral testimony or expert opinion is
also barred.

Above all, be it noted that strict adherence to section 65–B of the


Evidence Act is imperative for the proof of electronic evidence.
In State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053) [The
question involved whether a witness can be examined by means of a video
conference.] The Hon'ble Supreme Court observed that video conferencing is an
advancement of science and technology which permits seeing, hearing and
talking with someone who is not physically present with the same facility and
ease as if they were physically present. The legal requirement for the presence
of the witness does not mean actual physical presence. The court allowed the
examination of a witness through video conferencing and concluded that there
is no reason why the examination of a witness by video conferencing should
not be an essential part of electronic evidence.

In BODALA MURALI KRISHNA VS. SMT. BODALA PRATHIMA (2007 (2) ALD
72) The Hon'ble Court held that, “…the amendments carried to the Evidence
Act by introduction of Sections 65-A and 65-B are in relation to the electronic
record. Sections 67-A and 73-A were introduced as regards proof and
verification of digital signatures. As regards presumption to be drawn about
such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were added. These
provisions are referred only to demonstrate that the emphasis, at present, is to
recognize the electronic records and digital signatures, as admissible pieces of
evidence.”

In TWENTIETH CENTURY FOX FILM CORPORATION Vs. NRI FILM


PRODUCTION ASSOCIATES (P) LTD. (AIR 2003 KANT 148) The Hon'ble
Karnataka High Court held 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).
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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.

The witness has to be examined during working hours of Indian Courts.


Oath is to be administered through the media.
The witness should not plead any inconvenience on account of time different
between India and USA.

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.

Learned Judge is to record such remarks as is material regarding the


demur of the witness while on the screen.

Learned Judge must note the objections raised during recording of


witness and to decide the same at the time of arguments.

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.

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.

The learned Judge may also impose such other conditions as are
necessary in a given set of facts.

The State Of Maharashtra .v. Dr. Praful B. Desai 2003 (4) SCC 601
The Hon'ble Supreme Court held that a trial judge could record evidence of
witnesses staying abroad through video conferencing.
The Hon'ble Supreme Court further held as follows:-
"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," he said.
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"This is not virtual reality, it is actual reality. Video conferencing is an


advancement of science and technology which permits one to see, hear and
talk with someone far away with the same facility as if he is present before you,
that is, in your presence," the apex court said. "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," it said.

The State Of Maharashtra .v. Dr. Praful B. Desai 2003 (4) SCC 601 the
Hon'ble Supreme Court held that considering the question on the basis of
Criminal Procedure Code, we are of the view that the High Court has failed to
read Section 273 properly. One does not have to consider dictionary meanings
when a plain reading of the provision brings out what was intended. Section
273 reads as follows:

"Section 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.

Explanation : In this section, "accused" includes a person in relation to whom


any proceeding under Chapter VIII has been commenced under this Code.

Thus Section 273 provides for dispensation from personal attendance. In such
cases evidence can be recorded in the presence of the pleader. The presence of
the pleader is thus deemed to be presence of the Accused. Thus 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. A plain reading
of Section 273 does not support the restrictive meaning sought to be placed by
the Respondent on the word "presence". One must also take note of the
definition of the term 'Evidence' as defined in the Indian Evidence Act. Section
3 of the Indian Evidence Act Evidence means and includes both oral and
documentary evidence.

Thus evidence can be both oral and documentary and electronic records
can be produced as evidence. This means that evidence, even in criminal
matters, can also be by way of electronic records. This would include video-
conferencing.

The following provisions in Cr.P.C deals with mode of recording evidence:


1. Sections 272 to 283 of the Code of Criminal Procedure, 1973 read with
rules covered under Chapter XIII of General Rules and Circular Order
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(Criminal) Volume –I would throw light to a Presiding Judge or


Magistrate on mode of taking and recording evidence in criminal cases.
2. Section 273 mandates to record all the evidence in presence of the
accused. If personal attendance of the accused is dispensed with, the
same must be recorded in presence of his pleader.
3. Section 274 lays down that the Magistrate shall record the memorandum
of substance of evidence of a witness in open Court and such
memorandum must be signed by him and shall form part of the record
so far as summons case is concerned. In a warrant case, the Magistrate
shall record the evidence of a witness by taking down by himself or cause
it to be taken down in the narrating form.
4. Section 275(3) permits the Magistrate to record the evidence in the form
of question and answer. In view of the proviso to section 275(1), the
evidence of a witness may be recorded by audio video electronic means in
presence of the advocate of the accused.
5. Section 276 says that recording of evidence before Sessions Court should
be in the form of narrative. The Presiding Judge may, in his discretion,
take down or cause to be taken down, any part of such evidence in the
form of question and answer and the evidence so taken down shall be
signed by the Presiding Judge.
6. Section 278 stipulates that evidence of a witness when completed should
be read over to him in presence of the accused or his pleader. It should
not be done so at the end of the day after all witnesses have been
examined. When the evidence is read over to the witness or to his
pleader, if necessary, it can be corrected. If the witness denies the
correctness of any part of the evidence, the Presiding Judge may instead
of correcting the evidence, make the memorandum of the objection raised
by the witness and shall add such remarks as he deems fit. If the
evidence is recorded in the language not understood by the accused or
his pleader, it shall be contemplated in open Court in the language
understood to them.
7. Section 280 empowers the Presiding Judge or the Magistrate to record
the remarks, if any, if he thinks material in respect of the demeanour of
any witness and he should avoid formulating any opinion on the
credibility of the witness until the whole evidence has been taken.
8. Rules 53 to 58 of Criminal Rules of Practice deals with the recording of
evidence
9. Rule 53 Deposition when to be signed by witness:-
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In each witness is examined and the requirements of Section 278 Cr.P.C


are complied with, the witness shall be required to sign or affix his
thumb impression on the record of his deposition.
10. Rule 54 Evidence as to the age of the accused:-
In every case in which the precise age of the accused person is relevant
to the determination of the sentence or order to be passed, evidence shall
be taken on the question and whenever necessary the opinion of a
medical expert shall be obtained.
11. Rule 55 Evidence of Gosha –women:-
When the deposition of a Gosha women has to be taken, the Court shall,
if necessary, adjourn to a place where the witness can be examined with
due regard to her privacy, in the presence of the accused, precautions
being of course taken to make sure of her identity.
12. Rule 56 Police officers not to interpret evidence:-
Police Officers shall not, as a rule, be employed to interpret the evidence
of a witness in cases prosecuted by the police.
13. Rule 57 Charges for interpretation:-
Sessions Judges and Chief Judicial Magistrates are authorized to incur
under intimation to the High Court, expenditure to a limit not exceeding
Rs.150/- (Rupees One hundred and fifty only) in each case on account of
interpretation of evidence in a language not known by the accused or in a
language other than the language of the court and not understood by the
accused or in a language other than the language of the court and not
understood by the Advocate o the accused or by the Court. They are also
authorised the limit prescribed to pass similar charges incurred by
Magistrates subordinate to them.
14. Explanation:-
The Provisions of the foregoing paragraph shall also apply to cases of
interpretation of statements made by the deaf and dumb or the dumb
and to the payment of remuneration to the expert in interpreting such
statements.
15. Rule 58 Marking of exhibits:-
(1) Exhibits admitted in evidence shall be marked as follows:-
(i) if filed by the prosecution with the capital letter ‘P’ followed
by a numeral, P1, P2,P3 and the like;
(ii) if filed by defence with the capital letter ‘D’ followed by a
numeral, D1, D2, D3 and the like;
(iii) in case of Court exhibits with the capital letter ‘D’ followed
by a numeral C1, C2, C3 and the like;
(2) All the exhibits filed by the several accused shall be marked
consecutively. All material objects shall be marked in Arabic
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numbers in continuous series as M.O. 1, M.O.2 and M.O.3 and the


like, whether exhibited by the prosecution or the defence or the
Court.
16. Procedure for recording evidence in absence of the accused has been laid
down in section 299 of the Code of Criminal Procedure. This is the
salutary exception to the scheme of trial in the Court. The object of
section 299 is to procure and preserve the evidence so as to prevent its
loss.
17. The court should see that while summoning a prisoner as witness has to
order the officer in charge of the prisoner to produce such witness if it is
necessary for the ends of justice to enable such persons as witness and if
such order is by 2nd Class Magistrate, the said order has to be
countersigned by Chief Judicial Magistrate by following provision
U/Sec.267 Cr.P.C.
18. When a charge is altered or added after the commencement of trial, the
prosecutor and the accused shall be allowed to further examine with
reference to such alteration or addition unless recorded the reason that
such re examination is for the purpose of variations or to delay or for
defeating the ends of justice – 217 Cr.P.C.
19. In criminal cases the commission shall be directed to Chief Metropolitan
Magistrate or Chief Judicial Magistrate within whose jurisdiction the
witness is found if the witness is within the territories to which they code
extends and if witness in within India to which Code does not entered,
the commissioner shall directed to such Court or officer as the Central
Government by notification specify in this behalf and if witness is in a
country or place outside India and arrangements have been made by the
Government of such country as per Sec.285.
20. So also provisions U/Sec.291,292,293,299,304,307,318,319 has to bear
in mind while recording evidence.
21. U/Sec.311 Cr.P.C. the court may at any stage of trail summon any
person as a witness or recall and re-examine any person already
examined, if his evidence appears to be essential to the just decision of
the case".
22. While recording the evidence presiding officer has to permit the accused
as witness if he requested so in writing U/Sec.315 (1) Cr.P.C.
23. While recording evidence appellate court may take further evidence direct
Magistrate and if appellate Court in High Court , direct Sessions Court
to record evidence, if it thinks additional evidence to be necessary and
shall record the reasons for taking additional evidence.
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Mode of recording evidence contemplated in C.P.C. is as follows:


Order XIII states that While recording evidence, the presiding officer has
to see whether original documents are filed or not . The Court may at any stage
of the suit reject any document which it considers irrelevant or otherwise
inadmissible, recording the grounds of such rejection. The admitted document
in evidence shall be endorsed on every document and a statement of its
having been so admitted; and the endorsement shall be signed or initialed by
the Judge. And as per AP amendment Court may order any document to be
impounded. Court may send for papers from its own records or from other
Courts. Provisions as to documents applies to material objects.

While recording evidence under Order XV, the Court may, for
reasons to be recorded, permit a party to call, whether by summoning
through Court or otherwise, any witness, other than those whose names
appear in the list if such party shows sufficient cause for the omission to
mention the name of such witness in the said list. Any party to the suit
may, without applying for summons under Rule 1, bring any witness to
give evidence or to produce documents.

Under Order XVI-A Where it appears to a Court that the evidence of


a person confined or detained in a prison within the State is material in a
suit, the Court may make an order requiring the officer in charge of the
prison to produce that person before the Court to give evidence :
Provided that, if the distance from the prison to the Court-house is more
than twenty-five kilometres, no such order shall be made unless the Court
is satisfied that the examination of such person on commission will not
be adequate.

While recording evidence the presiding officer has to see the party
having the right to begin shall produce his evidence in support of the
issues which he is bound to prove. The other party shall then produce
his evidence (if any) As per AP Amendment In every case, the examination-
in-chief of a witness shall be on affidavit and copies thereof shall be supplied to
the opposite party by the party who calls him for evidence: The evidence (cross-
examination and re-examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the Court shall be
taken either by the Court or by the Commissioner appointed by it:
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In cases in which an appeal is allowed, the evidence of each witness shall


be,_

(a) taken down in the language of the Court,_

(i) in writing by, or in the presence and under the personal direction
and superintendence of, the Judge, or,

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so directs, recorded


mechanically in the language of the Court in the presence of the Judge.

Where the evidence is taken down in language different from that in


which is given, and the witness does not understand the language in which it
is taken down, the evidence as taken down in writing shall be interpreted to
him in the language in which it is given.

Evidence taken down under Section 138 shall be in the form prescribed
by Rule 5 and shall be read over and signed and, as occasion may require,
interpreted and corrected as if it were evidence taken down under that rule.

Where the evidence is not taken down in writing by the Judge, or from
his dictation in the open Court, or recorded mechanically in his presence, he
shall be bound, as the examination of each witness proceeds, to make a
memorandum of the substance of what each witness deposes, and such
memorandum shall be written and signed by the Judge and shall form part of
the record.

Where English is not the language of the Court, but all the parties to the
suit who appear in person, and the pleaders of such of the parties as appear by
pleaders, do not object to having such evidence as is given in English, being
taken down in English, the Judge may so take it down or cause it to be taken
down.

Where evidence is not given in English but all the parties who appear in
person, and the pleaders of such of the parties as appear by pleaders, do not
object to having such evidence being taken down in English, the Judge may
take down, or cause to be taken down, such evidence in English.

The Court may, of its own motion or on the application of any party or
his pleader, take down any particular question and answer, or any objection to
any question, if there appears to be any special reason for so doing.
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Where any question put to a witness is objected to by a party or his


pleader, and the Court allows the same to be put, the Judge shall take down
the question, the answer, the objection and the name of the person making it,
together with the decision of the Court thereon.

The Court may record such remarks as it thinks material respecting the
demeanour of any witness while under examination.

In cases in which an appeal is not allowed, it shall not be necessary to


taken down or dictate or record the evidence of the witnesses at length; but the
Judge as the examination of each witness proceeds, shall make in writing, or
dictate directly on the typewriter, or cause to be mechanically recorded, a
memorandum of the substance of what the witness deposes, and such
memorandum shall be signed by the Judge or otherwise authenticated, and
shall form part of the record.

Where a Judge is prevented by death, transfer or other cause from


concluding the trial of a suit, his successor may deal with any evidence or
memorandum taken down or made under the foregoing rules as if such
evidence or memorandum had been taken down or made by him or under his
direction under the said rules and may proceed with the suit from the stage at
which his predecessor left it.

Where a witness is about to leave the jurisdiction of the Court or other


sufficient cause is shown to the satisfaction of the Court why his evidence
should be taken immediately, the Court may, upon the application of any party
or of the witness, at any time after the institution of the suit, take the evidence
of such witness in manner hereinbefore provided.

The Court may at any stage of a suit recall any witness who has been
examined and may (subject to the law of evidence for the time being in force)
put such question to him as the Court thinks fit.

Notwithstanding anything contained in these rules, the Court may,


instead of examining witnesses in open Court, direct their statements to be
recorded on commission under Rule 4-A of Order XXVI.]

Presiding Officer has to follow the procedure laid downin order to X, XI


and XII while recording evidence.

Rules107 to 115 of Civil Rules of Practice deals with the procedure to be


followed in recording the evidence and main rules are:
16

Rule 102, Rule 103, 113, 114 and 115 states as follows:
102. (62) Production of documents:-

(1)(a) All the parties including defendants shall produce along with a list at or
before the settlement of issues in the suit, all the documentary evidence
of every description in their possession or power on which they intend to
rely and which has not already been filed in the court. The said list shall
be in Form No. 7 and shall be signed and verified by the party filing the
same or his advocate and a copy of the list together with a copy of each
of the documents shall be served on the other side before filing in the
court unless otherwise ordered by the Court.

(b) ALL THE PARTIES INCLUDING DEFENDANTS OR THEIR ADVOCATES


SHALL PRODUCE ON OR BEFORE THE SETTLEMENT OF ISSUES, ALL
THE OTHER DOCUMENTARY EVIDENCE IN ORGINAL WHETHER THE
COPIES THEROF HAVE BEEN FILED ALONG WITH PLAINT OR
WRITTEN STATEMENT.

(2) The Court shall not ordinarily receive any documentary evidence in
possession or power of any party which should have been but has not been
produced on the due date, except in exceptional circumstances and good cause
is shown for the default.

103 (New) Examination of parties etc:-


The courts, before forming issues shall, as for as expedient follow the
essential preliminaries contained in Orders X,XI and XII of the Code which
gives the Court the extended issues in the matter of examination of parties
discovery, and inspection and obtaining admissions at appropriate stages. In
comparatively big and complicated cases the court may, after the documents
have been lodged in the court, allow at least one date for the aforesaid
purposes.

113. (New) Evidence:-


(1) At the top of every sheet used for recording evidence shall be written the
name of the witness, his father’s name, age, residence and occupation,
the number of the witness and the case number.
(2) All additions, alterations, etc., in the deposition shall be attested by the
presiding Judge.
Note:- Where the evidence is taken down in the presence and under the
personal direction and superintendence of the Judge or form the
17

dictation of the Judge directly on a type writer and Judge shall sign or
initial each page as soon as it is completed.
(3) Whenever the court consider it necessary to appoint a commissioner for
recording the evidence (cross examination or re-examination) of witness
or witnesses whose evidence (Examination in chief by an affidavit) has
already been filed in the Court. The court may appoint a commissioner
for recording evidence of witness/witnesses from a panel prepared for
this purpose on rotation basis.
(4) The court for the reason to be recorded in writings may however appoint
an advocate or retired judicial officer as a commissioner where a
commissioner from the panel is not available for recording evidence.
(5)(a) The District Judge shall prepare a panel of commissioners for recording
of evidence of witnesses under order XVIII Rule 4 of C.P.C for all the
courts situated at the District Head Quarters.
(b) The Additional District Sessions Judge/Senior Civil Judge/Junior Civil
Judge of the Court situated outside the Head Quarters shall prepared
panels of commissioners for their courts with the approval of the District
Judge. Where there are more than one court at a station out side the
District Head Quarters, a common panel of the Commissioners shall be
prepared for all the courts by the senior most judge of the station with
the approval of the district Judge.

(c) The panel of commissioners shall be prepared from the following


categories after obtaining their willingness.
(i) advocates having sufficient experience at the Bar and practicing in
the courts..
(ii) Any retired District Judge/Sr. Civil Judge/Jr. Civil Judge.

6) SITTINGS OF THE COMMISSIONER:


a) The Commissioner shall complete the recording of the evidence(Cross
examination and re-examination) of witness/witnesses and shall
submit the evidence recorded by him along with a report to the
Court on or before the date fixed by the Court, which shall not
normally be beyond / Sixty days.
b) The sittings of the Commissioner for recording the evidence shall be
within the premises of the Court or at any place directed by the
Court.

7. MARKING AND CERTIFYING OF EXHIBITS:


a) Where a party/witness wants to rely on a document which has
already been filed in the Court, the same shall be referred and
18

identified by its Serial number, description, and the date as given


in the list of document filed in the Court.
b) The party in his Affidavit shall list out the documents referred in
the Affidavit with its Sl.No. Description and date in the last para of
the Affidavit.
c) The Court shall consider the admissibility of the documents,
referred in the Affidavit of Examination-in-Chief and endorse on
the documents, if admitted in evidence the following particulars
Viz.,
i) The number and title of the suit.
ii) The name of the person who filed the document and the
Exhibit number given by the court.
iii) The date on which it was produced.
iv) The Statement of its having been admitted. And the
endorsement shall be signed or initialed by the Judge.
d) Where any document is not admitted there shall be endorsement
on the document that it has not been admitted and the
endorsement shall be signed or initialed by the Judge
e) Where the Court decides to admit a document subject to objection,
the Court shall make an endorsement to that effect on the
document and give an Exhibit Number.
f) The Court shall note the corresponding Exhibit numbers against
the entries of the documents in the list given in the last para of the
Affidavit.
g) Where documents are produced for Cross Examination of a
Witness of the other party or where a document is handed over to a
witness in the Cross-examination to refresh his memory, the
Commissioner shall mark them as Exhibits for identification.
8. Handing the Original Record to the Commissioner;
The Court shall hand over the original record with pagination under
proper receipt to the Commissioner keeping the original proceedings
sheet of the court proceedings and duplicate plaint, copy of written
statement and Xerox copies of the documents etc., with the Court.
9. Register of Commissioner:
The Court shall maintain a separate Register of Commissioners
appointed under Order XVIII Rule 4 of Civil Procedure Code.
19

114. (New) Translation of Evidence:-


Where a witness gives evidence in a language not understood by the
Court, the court may get the evidence translated by an interpreter and pay him
reasonable fees for his services: the costs being borne by the party calling the
witness in the first instance and being charged as costs in the suit.

115. (79) Marking of Exhibits:-


a. Exhibits admitted in evidence shall be marked as follows:
(i) If filed by the defendant or one of several plaintiffs, with the
capital letter’ A’ followed by a numeral A1,A2,A3 etc.
(ii) If filed by the defendant or one of several defendants with the
capital letter “B” followed by a numeral, B1,B2,B3 etc.
(iii) If court exhibits with the capital letter ’C’ followed by a
numeral C1,C2,C3 etc.,
(iv) If third party exhibits, with the capital letter ‘X’ followed by a
numeral X1,X2,X3 etc.,
b. The exhibits filed by the several plaintiffs or defendants shall be
marked consecutively.
c. If in a preceding subsequent to the trial of a suit or matter, further
exhibits are admitted in evidence, they shall be marked in
accordance with the above scheme with numbers consecutive to
the number on the last Exhibit previously filed
Conclusion
The Presiding Judge shall be very careful while following the procedure
established by law since the force of judgment is derived from the recording of
evidence. As such, the mode of taking and recording evidence is integral
feature of trial. Higher Court (Appellate/ Revisional Court) looks at the evidence
through the eyes of the trial Judge. Unless a Judge is well equipped with legal
knowledge and also well trained in recording evidence, it will impact on
Judgment.
20

Presented by: Sri N. Ramesh Babu,


XII-Addl. District Judge,
Vijayawada.

MODE OF TREATING AND RECORDING EVIDNECE INCLUDING RECORDING


EVIDENCE THROUGH VIDEO CONFERENCE

The People in India have faith and confidence on Courts. They come to
Court for justice. As such, the duty of a Court is to arrive at the truth and
subserve the ends of justice. For discovery of the truth, Courts require proper
or relevant facts and record evidence in clear and intelligible manner. As such,
a Presiding Judge or Magistrate must cease to be a mere recording machine.
He should take a participatory role in the trial. Exercising his control over the
proceedings effectively, he should interfere when irrelevant fact is
unnecessarily brought on record so that the ultimate objective i.e., the truth is
arrived at.

According to Section 5 of the Indian Evidence Act evidence may be given


in a suit or proceeding of the existence or non existence of every fact in issue
and of such other facts as are declared to be relevant, from Section 6 to Section
55 of the Indian Evidence Act “and of no others”. The words used in Section 5
of the Indian Evidence Act as “and of no others” would not permit any Court to
record evidence except which is declared to be relevant under Section 6 to
Section 55 of the Indian Evidence Act. Various provisions of the Indian
Evidence Act explain the mode and manner in which the evidence has to be
recorded.

Section 3 of the Indian Evidence Act defines the evidence and according
to it 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. All documents including electronic records produced for the inspection of
the Court, such documents are called documentary evidence."

The following aspects must be kept in mind during the course of


recording evidence.
1. Examination in chief and cross-examination must relate to relevant
facts. The objects of cross-examination are to impeach the accuracy, credibility
and general value of the evidence given in chief, shift the facts already stated
by witnesses, to detect and expose discrepancies, to elicit suppressed facts
21

which will support the case of cross-examining party.


2. Repetition of questions on the same aspect must be prohibited.
3. The cross-examiner should be asked to repeat the question, if the
witness is unable to understand. This minor precaution can prevent improper
and incorrect recording of evidence. Ordinary witness should not be asked
regarding legal provisions. At times legal questions may be relevant to an
expert witness.
4. While recording omissions and contradictions, the Presiding Officer must
verify the previous statement. When the omissions relate to the natural part of
the statement, it should be specifically recorded to that effect.
5. Unless documents are properly filed on record, they should not be
permitted to refer in cross-examination.
6. Handwriting or signature may be proved by the person who wrote or
signed, who acquainted with the handwriting or signature or by the Court itself
by means of comparison or through opinion of expert.
7. If a document is duly proved but mechanically or otherwise is not
exhibited, still it can be read in evidence. Courts take judicial notice of public
document. All official documents are also public documents. Certified copies of
public documents are treated to be genuine unless contrary is proved. Truth of
contents of certified copies of private documents like sale deed, gift deed, lease
deed, etc., are required to be proved by independent evidence.
8. Court insists for direct evidence and primary evidence. Execution of a
document is proved by admissible evidence. Admissible evidence is by way of
admission by signatory to the document of its execution, by way of examination
of a scribe, by way of examination of an attesting witness, by proof of signature
and handwriting of the person who signed or wrote the document produced, by
proof of digital signature, by expert’s opinion or by proof as to verification of
digital signature.
9. Where several accused of the same name appear at one trial, care should
be taken in recording evidence to specify the name of the father of the accused.

Mode of recording Evidence in Criminal Cases


1. Taking and recording evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence. Sections 272 to 283 of the Code of Criminal
Procedure, 1973 read with rules covered under Chapter XIII of General Rules
and Circular Order (Criminal) Volume –I would throw light to a Presiding Judge
or Magistrate on mode of taking and recording evidence in criminal cases.
2. Section 273 mandates to record all the evidence in presence of the
accused. If personal attendance of the accused is dispensed with, the same
must be recorded in presence of his pleader.
22

3. Section 274 lays down that the Magistrate shall record the memorandum
of substance of evidence of a witness in open Court and such memorandum
must be signed by him and shall form part of the record so far as summons
case is concerned. In a warrant case, the Magistrate shall record the evidence
of a witness by taking down by himself or cause it to be taken down in the
narrating form.
4. Section 275(3) permits the Magistrate to record the evidence in the form
of question and answer. In view of the proviso to section 275(1), the evidence of
a witness may be recorded by audio video electronic means in presence of the
advocate of the accused.
5. Section 276 says that recording of evidence before Sessions Court should
be in the form of narrative. The Presiding Judge may, in his discretion, take
down or cause to be taken down, any part of such evidence in the form of
question and answer and the evidence so taken down shall be signed by the
Presiding Judge.
6. Section 278 stipulates that evidence of a witness when completed should
be read over to him in presence of the accused or his pleader. It should not be
done so at the end of the day after all witnesses have been examined. When the
evidence is read over to the witness or to his pleader, if necessary, it can be
corrected. If the witness denies the correctness of any part of the evidence, the
Presiding Judge may instead of correcting the evidence, make the
memorandum of the objection rose by the witness and shall add such remarks
as he deems fit. If the evidence is recorded in the language not understood by
the accused or his pleader, it shall be contemplated in open Court in the
language understood to them.
7. Section 280 empowers the Presiding Judge or the Magistrate to record
the remarks, if any, if he thinks material in respect of the demeanor of any
witness and he should avoid formulating any opinion on the credibility of the
witness until the whole evidence has been taken.
8. As per rule 83, the margin of one-fourth of the deposition sheet should
be left blank. Rule 84 enables Court to record deposition by type writing
machine. A certificate must be given by the Presiding Judge that evidence is
recorded to his dictation in open Court and each page of the record so made
must be attested by him.
9. Rule 85 indicates that Presiding Judge or Magistrate shall record in his
own handwriting the name of the witness examined, name of his father and if
she is a married one, the name of her husband, profession, age of the witness,
village, police-station, district in which the witness resides, the entry of age of
the witness shall be according to the estimation of the Presiding Judge.
10. So far as doubtful expression is concerned, the trial Court should
actually record the word used by the witness so that its exact signification can
23

be assessed in judgment. Assistance of an interpreter may be taken if the


language of the witness is not understood by the accused Court, or lawyers.
11. According to rule 87, deposition of each witness should be separately
paragraphed and consecutive numbers should be assigned.
12. In reference to Rule 88, the Magistrate or the Presiding Judge shall
personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct.

ELECTRONIC EVIDENCE
The definition of 'evidence' has been amended to include electronic
records. The definition of 'documentary evidence' has been amended to include
all documents, including electronic records produced for inspection by the
court. New sections 65-A and 65-B are introduced to the Evidence Act, under
the Second Schedule to the IT Act. Section 65-A provides that the contents of
electronic records may be proved in accordance with the provisions of Section
65-B. Section 65-B provides that notwithstanding anything contained in the
Evidence Act, any information contained in an electronic, is deemed to be a
document and is admissible in evidence without further proof of the original's
production, provided that the conditions set out in Section 65-B are satisfied.
The conditions specified in Section 65-B (2) are:

Firstly, the computer output containing the information should have


been produced by the computer during the period over which the computer
was used regularly to store or process information for the purpose of any
activities regularly carried on over that period by the person having lawful
control over the use of the computer.

The second requirement is that it must be shown that during the said
period the information of the kind contained in electronic record or of the kind
from which the information contained is derived was 'regularly fed into the
computer in the ordinary course of the said activity'.

A third requirement is that during the material part of the said period,
the computer was operating properly and that even if it was not operating
properly for some time that break did not affect either the record or the
accuracy of its contents.

The fourth requirement is that the information contained in the record


should be a reproduction or derived from the information fed into the computer
in the ordinary course of the said activity.
24

Under Section 65-B(4) the certificate which identifies the electronic


record containing the statement and describes the manner in which it was
produced giving the particulars of the device involved in the production of that
record and deals with the conditions mentioned in Section 65-B(2) and is
signed by a person occupying a responsible official position in relation to the
operation of the relevant device 'shall be evidence of any matter stated in the
certificate’.

Section 65-B(1) states that if any information contained in an electronic


record produced from a computer (known as computer output) has been copied
on to a optical or magnetic media, then such electronic record that has been
copied 'shall be deemed to be also a document' subject to conditions set out in
Section 65-B(2) being satisfied. Both in relation to the information as well as
the computer in question such document 'shall be admissible in any
proceedings when further proof or production of the original as evidence of any
contents of the original or of any fact stated therein of which direct evidence
would be admissible.'

The Evidence Act does not contemplate or permit the proof of an


electronic record by oral evidence. If an electronic record as such is used as
primary evidence under section 62 of the Evidence Act, the same is admissible
in evidence. The general law on secondary evidence under section 63 read with
section 65 of the Evidence Act has no application in case of secondary evidence
by way of electronic record. The same is wholly governed by sections 65-A & 65
B. In State (NCT of Delhi) Vs Navjot Sandhu @ Afsan Guru: (2005) 11 SCC 600,
the Apex Court while considering the print out of the computerized records of
the calls pertaining to the cell phones in view of the production of electronic
record held as follows

“Irrespective of the compliance with the requirement of section 65–B,


which is a provision dealing with admissibility of the electronic records, there is
no bar to adducing secondary evidence under the other provisions of the
Evidence Act, namely, sections 63 & 65. It may be that the certificate
containing the details in Sub-section (4) of section 65-B is not filed in the
instance case, but that does not mean that secondary evidence cannot be given
even if the law permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, sections 63 & 65.”

But the Apex Court in Anvar P.V. Vs P.K. Basheer & Others vide Civil
Appeal no. 4226 of 2012 while delivering judgment on 18th September, 2014
over ruled the legal position as laid down in Navjot Sandhu case (supra). Their
25

Lordships observed, inter alia, that an electronic record by way of secondary


evidence shall not be admitted in evidence unless the requirements under
section 65–B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same
shall be accompanied by the certificate in terms of section 65-B obtained at the
time of taking evidence, without which, the secondary evidence pertaining to
that electronic record, is not admissible.

In BODALA MURALI KRISHNA VS. SMT. BODALA PRATHIMA REPORTED


IN 2007 (2) ALD 72 it has been observed that the amendments carried to the
Evidence Act by introduction of Sections 65-A and 65-B are in relation to the
electronic record. Sections 67-A and 73-A were introduced as regards proof and
verification of digital signatures. As regards presumption to be drawn about
such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were added. These
provisions are referred only to demonstrate that the emphasis, at present, is to
recognize the electronic records and digital signatures, as admissible pieces of
evidence.

JAGJIT SINGH Vs. STATE OF HARYANA reported in 2006 11 SCC 1. In this


case the speaker of the Legislative Assembly of the State of Haryana
disqualified a member for defection. When hearing the matter, the Supreme
Court considered the digital evidence in the form of interview transcripts from
the Zee News television channel, the Aaj Tak television channel and the
Haryana News of Punjab Today television channel. The court determined that
the electronic evidence placed on record was admissible and upheld the
reliance placed by the speaker on the recorded interview when reaching the
conclusion that the voices recorded on the CD were those of the persons taking
action. The Supreme Court found no infirmity in the speaker's reliance on the
digital evidence and the conclusions reached by him. The comments in this
case indicate a trend emerging in Indian courts that judges are beginning to
recognize and appreciate the importance of digital evidence in legal
proceedings.

RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING


In a land mark Judgment in the State of Maharashtra Vs Dr.Praful B.
Desai reported in 2003(4) SCC Page 601 the Hon’ble Apex Court has held that
evidence can be recorded by video conferencing. The question that fell for
consideration in that case was whether in a criminal trial evidence can be
recorded by video conferencing. The Hon’ble Bombay High Court has held on
an interpretation of Section 273 Criminal Procedure Code that it can not be
done. In that case Dr.Ernest Greenberg of U.S.A opined that the wife of the
complainant was inoperable and should be treated only with medication when
26

she was suffering from terminal cancer. In spite of it was informed, the
respondent suggesting a surgery to remove her uterus. Subsequently a surgery
was conducted by Dr.A.K.Mukherjee at the advice of the respondent and
consequently she died. When an application was made to examine Dr.Ernest
Greenberg through video conferencing, the trial Court has allowed that
application. But when it was challenged in the High Court of Bombay which
held that examination of a witness cannot be done by video conferencing. Then
the Hon’ble Apex Court held interpreting Section 273 Cr.P.C as follows:

“Section 273 provides for dispensation from personal attendance. In such


cases evidence can be recorded in the presence of the pleader. The presence of
the pleader is thus deemed to be presence of the Accused. Thus 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. A plain reading of Section
273 does not support the restrictive meaning sought to be placed by the
Respondent on the word "presence”.

It has been further observed in the same decision which is as follows:


“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, Criminal Procedure Code. Recording of such evidence would be as
per "procedure established by Law. 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 Court room. They can observe his or
her demeanor. In fact the facility to play back would enable better observation
of demeanor. 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 play back
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”.

Further in the same decision it has been observed that 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 and that in cases
27

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 the evidence by way of video conferencing.

In International Planed Parenthood Federation (IPPF) Vs Madhu


Balanath, dated.07.01.2016 in FAO (OS) 416/2015 and C.M.No.13475/2015
the Hon’ble High Court of Delhi has observed as follows:

“With the development of law and technology, the Courts have to use
procedure, which facilitates the Courts in dispensing speedier justice. If a
facility is available to the Court for the purposes of expediting the trial then
every opportunity is to be taken by the Court to make use of such technology
so as to further the process of dispensation of justice”.

“The role of a witness is paramount in the justice system of any country.


By deposing in a case, they assist the court in discovering the truth. According
to Bentham, "witnesses are the eyes and ears of justice". Witnesses are the real
backbone of the proceedings. It is the testimony of the witnesses that enables
the Court to arrive at the truth. Witnesses have to be treated with due respect
and are not to be put to any inconvenience merely because they agree to
testify. It is common knowledge that when a witness travels to Court for the
purpose of deposition, a witness has to spend several hours in Court and at
times major part of the time spent in Court is in waiting for the case to reach
and the proceedings to commence. In these circumstances, to insist on the
witness traveling to Court and waiting for hours may not be judicious”.

In Som Prakash Vs State Of Delhi reported in 1974 Cri. LJ 784


The Hon’ble Supreme Court has observed that in our technological age
nothing more primitive can be conceived of than denying discoveries and
nothing cruder can retard forensic efficiency than swearing by traditional
oral evidence only thereby discouraging the liberal use of scientific aids
to prove guilt and that Statutory changes are needed to develop more fully
a problem solving approach to criminal trials and to deal with heavy
workload on the investigators and judges.

While the courts have held that recording of evidence through video
conferencing is permissible in law, they have also cautioned that necessary
precautions must be taken, both as to the identity of the witnesses and
accuracy of the equipment used for the purpose. Certain guidelines have been
indicated by them which are summarized below:
28

1. 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 and who will ensure that there is no other person in the
room where the witness is sitting while the evidence is being recorded.
2. Fixing the time for recording evidence is always the duty of the officer
who has been deputed to record evidence.
3. The witness would be examined during working hours of Indian courts. A
plea of any inconvenience on account of the time difference between India and
another country would not be allowed.
4. If it is found that the witness 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.
5. The respondent and their counsel would have to make it convenient to
attend at the time fixed by the officer concerned. If they do not attend, the
Magistrate would take action as provided in law, to compel attendance.
6. In case of non-party witnesses, a set of plaint, written statement and/or
other papers relating to proceeding and disclosed documents must be sent to
the witness for their acquaintance and an acknowledgement in this regard
must be filed.
7. Before action of the witness under audio-video link starts, the witness
would have to file an affidavit/undertaking duly verified before a
judge/magistrate/notary that the person shown as witness is the same person
as who is going to depose with a copy of such affidavit to the other side.
8. The person who wishes to examine the witness on the screen would have
to file an affidavit/undertaking.
9. As soon as identification is complete, oath would be administered as per
the Oaths Act 1969 of India, by an officer duly authorized to administer an
oath.
10. The officer would ensure that the witness is not
coached/tutored/prompted. The officer deputed will ensure that the
respondent, their counsel and one assistant are allowed in the studio when the
evidence is being recorded. The officer will also ensure that witness is not
prevented from bringing into the studio the papers/documents which may be
required by their counsel. The visual is to be recorded at both ends. The
witness alone can be present at the time of video conference.
11. Magistrate and notary are to certify to this effect.
12. The officer concerned will ensure that once video conferencing
commences, as far as practicable, it is proceeded without any interruption and
without any adjournments.
13. If the officer finds that the witness is not answering the questions, the
officer will make a memo of the same. When the evidence is read in court, this
29

is an aspect that will be taken into consideration.


14. The court/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 the recording of the witness either manually or
mechanically.
15. Depositions of the witness either in the question-answer form or in the
narrative form have to be signed as early as possible before the concerned
Judge and will thereafter form part of the record of the proceedings. Digital
signature can be adopted in this process, and such a signature will be obtained
immediately after day’s deposition.
16. The expenses and the arrangements are to be borne by the applicant
who wants to avail the facility of video conferencing.

Conclusion
The Indian legal system has recognized and embraced video conferencing
as an extremely effective instrument to collect evidence as it aids in avoiding
unnecessary adjournments of cases and also saves the parties from costs
borne on transportation and other inconveniences that may arise.

It has been witnessed that the advanced facilities available today have
reduced conventional impediments and legal uncertainties surrounding the use
of information technology, such as cost on procuring equipments, other
technological issues involving data protection, confidentiality of the documents
and evidence adduced during the proceedings and privacy of the parties.

Given its viability and the favorable response in the legal fraternity, the
use of video conferencing in Indian dispute resolution is expected to escalate
tremendously in times to come. It has already given a new dimension to
international commercial arbitration and brought consistency in proceedings,
especially in the institutionalized form of arbitration.
30

Presented by: Smt Sattaru Rajani,


Additional District Judge/
Chairman Permanent Lokadalat,
Machilipatnam.

MODE OF TREATING AND RECORDING EVIDENCE INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

INTRODUCTION
The law of evidence can be stated to be the foundation on which the
entire structure of judiciary is based. If the foundation is week the structure is
bound to collapse. Similarly if the rules of law of evidence are not sound, the
administration of justice is bound to go a stray. The provisions in Indian
Evidence Act enable the court to determine rights and liabilities of parties, i.e.,
who should offer evidence and in what manner evidence is to be offered, which
is the adjective law. Sir James Fitz James Stephen prepared the draft, suitable
to Indian conditions and the same was enacted after gathering information
from select committee, High court and members of bar and it cause in to force
on 01.09.1872. The important part in the entire Evidence Act is mode of
recording evidence and relevancy and admissibility of evidence relating to fact-
in-issue.

Definition of evidence:-
2) Evidence means and includes:-
1. All statements which the court permits or requires to be made before it
by witness in relation to matters of fact under inquiry. Such statements are
called oral evidence.
2. All documents (Including electronic record) Produced for the inspection of
the court. Such documents are called documentary evidence.
3. Broadly evidence may be classified as direct and in-direct evidence.
Direct evidence is the testimony of witness as to any matter of fact, which the
witnesses have themselves perceived.
4. Hearsay evidence is the evidence learnt by witness, not through the
medium of their own senses, but through the medium of third persons. Sec. 60
prohibits hearsay evidence subject to certain exceptions. Circumstancial
evidence is the testimony of witness as to the circumstances from which an
inference is to be drawn as to the fact in issue and all the circumstances taken
cumulatively fit to form a chain so complete that there should be no escape
from the conclusion.
5. We all know that only relevant evidence, to decide the fact in issue, can
be permitted to be adduced in judicial proceedings. So also certain facts which
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require no proof, as the court is capable of taking judicial notice by itself and
some facts which are admitted at or before the judicial proceedings also need
not be proved.
6. So far as oral evidence is concerned, it must always be direct. The
testimony of witnesses as to any matter of fact, which the witnesses have
themselves Perceived. Documentary evidence means and includes all
documents produced before the court for it's inspection including electronic
record. Documentary evidence is classified into primary evidence and
secondary evidence.
7. As per Section 62 of Evidence Act, primary evidence is the very
document it self produced before the court for its inspection. The contents of a
document are required to be proved by producing primary evidence that is the
original document. Only in the absence of such primary evidence, the next best
evidence is the secondary evidence, which can be permitted only after
satisfactorily accounting for the non production of the primary evidence.

Electronic evidence:-
8. Coming to the electronic evidence it was included in the definition of
documentary evidence, after recognizing the importance of computers and the
social influence of Information Technology and the ability to store the
information in digital form. In the year 2000, parliament enacted the
Information Technology IT Act 2000, which amended the existing Indian
statutes to allow for the admissibility of digital evidence. The amendments
recognize transactions that are carried out through electronic data interchange
and other means of electronic communication.

Admissibility of electronic evidence.


9. As already stated above, for admissibility of electronic evidence, several
amendments were made to Information Technology Act, Indian Evidence Act,
Banker’s Book of Evidence Act, and important amendments are insertion of Sec
65 A and 65 B to Evidence Act, apart from sec.22 A and the relevant
presumptions for electronic evidence. Sec. 136 of evidence Act empowers a
Judge to decide on the admissibility of the evidence.
10. Sec. 65 A provides that the contents of electronic records may be proved
in accordance with the provisions of Sec. 65 B. 11) Sec. 65 B provides that not
with standing anything contained in the Evidence Act, any information
contained in an electronic record which is printed on a paper that has been
stored, recorded and copied in optical or magnetic media produced by a
computer (Computer output), is deemed to be a document and is admissible in
evidence without further proof of production of original, provided that the
conditions set out in section65.B (2) to (5) are satisfied.
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12. Before admitting the electronic evidence, the following conditions are to
be fulfilled as Contemplated in Sec. 65 B (2) of Evidence Act.
1. The computers out put containing the information was produced
by the computer during the period over which the computer was
used regularly to store information by the person having lawful
control over the use of the computer.
2. The said information in electronic record was regularly fed into the
computer in the ordinary course of the activities.
3. Through out the material part of the said period, the computer was
operating properly.
13. Section 65 B of Evidence Act provides that in order to satisfy the
conditions set out above, a certificate of authencity signed by a person
occupying a responsible official position is required.
14. The certificate must contain,
i. Identification of the electronic record containing the statement.
ii. Description about the manner in which it was produced and
iii. Particulars of device involved in the production of the electronic
record.
15. Coming to the recording of evidence, in civil cases, the witness will be
produced or summoned to appear before the court and adduce evidence under
the provisions of Sec. 30 and orders XVI and XVIII of C.P.C. and in criminal
cases, Sec. 230 to 234 of Cr.P.C., specify the procedure of collecting evidence
and the court has the power to compel the witness to appear before it to give
evidence.
16. If the witness, for any reason, is not in a position to attend the court for
testimony, court can examine such witness through commission. In this
regard, now due to advancement of electronic technology, new law has been
developed for recording evidence of such witness through video- conferencing.
17. Indian statutes do not have any specific provision for recording evidence
through video conference and through land mark decisions, the judiciary that
has laid down the frame work and parameters for the use of video Conferencing
facilities to record evidence of witness.

Various case law on video conferencing.


18. The supreme court in the case of Salem Advocates Bar Association
reported in AIR 2003 Sec. 189, interpreted order XVIII R 4 (3) C.P.C that it
provides that the evidence may be recorded either in writing or mechanically in
the presence of Judge or commissioner. The use of the word mechanically
indicates that the evidence can be recorded even with the help of the electronic
media, audio or audio-visual and in fact whenever the evidence is recorded by
the commissioner it will be advisable that there should be simultaneously at
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least an audio recording of the statement of the witness, so as to obviate any


controversy at a later stage.
19. The Hon’ble Supreme court in the case of State of Maharastra vs. Dr.
Praul B. Desai reported in AIR 2003 SCC 2053 allowed the examination of a
witness through video conferencing, when the attendance of such witness
cannot be procured without an amount of delay, expenses or in convenience.
The Hon’ble Supreme Court also interpreted the Word “presence” in sec. 273
Cr.P.C, as ‘not physical presence’ of the witness and held that so long as the
accused and/or his advocate are present, when evidence is recorded by video
conferencing that evidence is being recorded in the presence of the accused
and would fully meet the requirement of Sec. 273 of Cr.P.C. The accused and
his advocate can see the witness as early as if the witness was actually sitting
before them. While the courts have held that recordings of evidence through
video conferencing is permissible in law, it is cautioned that necessary
precautions must be taken, both as to the identity of the witness and accuracy
of the equipment used for the purpose.
20. Later in the case of Twentieth Century fox film corporation Vs NRI
Film Production Association Private Limited (AIR 2003 Kant 148),the
following conditions have been laid down for recording video conferring of
evidence.
1. Before a witness is examined in terms of the audio-video link,
witness has 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 persons who examine the witness on the screen has 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
time difference between Indian 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 has to record such remarks as is material regarding
the demo now 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.
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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 issue 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.

21. In the case of Amitabh Bagchi vs. Ena Bagchi – Ac and 2005 Calcutta
II, some safe guards are suggested which are to be taken for the purpose of
regarding evidence through video conferring which are nothing but repetition of
the guidelines issued in the above referred case except few.
1. Before action of the witness under Audio-Video Links 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 o9f 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 sides with regard to
identification before hand.
3. As soon as identification part is complete, oath will be
administered through the medias per the Oaths Act, 1969 of India
.
4. The witness will be examined during working hours of Indian
Courts. Plea of any in-convience 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 proceedings and disclosed
documents should be sent to the witness for his acquaintance and
an acknowledgement in this regard will be filed before the court.
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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 for m 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 days 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 who gave evidence but who induced to give such
evidence.
13. The expenses and the arrangements are to be borne by the
applicant who wants this facility.
14. Court is empowered to put conditions necessary for the purpose.

22. The recent Judgment of Hon’ble Supreme Court in Anvar P.V. Vs. P.K.
Basheer and others, held that the computer out put is not admissible without
compliance of Sec. 65 B of Evidence Act. All controversies arising from the
various conflicting decisions were put to rest.
23. Thus it is now confirmed by virtue of this decision that the stored data in
CD/DVD/Pen Drive, is not admissible without a certificate u/s. 65 B (4) of
evidence Act, and in the absence of such a certificate, oral evidence to prove
existence of electronic evidence and the expert’s view u/s. 45 A of evidence Act
cannot be availed, to prove authenticity thereof.
24. Thus to prove electronic evidence, it is necessary to produce original
electronic media as primary evidence to the court, in case of secondary
evidence, copy can be produced such as CD, VCD, Chip, Pen drive etc.,
accompanied with a certificate in terms of sec. 65 B, which shall be obtained at
the time of taking the document, without which the secondary evidence is
inadmissible but in case of original recordings in Digital Voice recorders/Mobile
phones they need to be preserved as they may get destroyed earily, once they
are destroyed certificate u/s. 65 B cannot be given.
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Conclusion:-
25. Owing to advancement of electronic technology, varieties of Cyber Crimes
are being increased day by day. It is the need of the hour that the judiciary
must undergo proper training to handle there cases and to appreciate
electronic evidence. As long as the judicial system is not modernized, trial
Judges will remain clueless about electronic evidence. The Police Academy and
judicial academy shall conduct workshops like the present one, training
programmes and sensitization programmes to the investigating agencies and
Judicial officers, about the collection and admissibility of electronic evidence.
Awareness may be made to common man that while submitting electronic
evidence to police or courts, he/she should submit it with a certificate u/s. 65
(B) of Evidence Act from the concerned.
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Presented by: Sri V.S.Srivivasa Sarma,


Prl. Senior Civil Judge,
Machilipatnam.

MODE OF TREATING AND RECORDING EVIDENCE INCLUDING


RECORDING OF EVIDENCE through VIDEO CONFERENCEING.

In modern era most of our pursuits are performed with the help of
electronic technology. Information technology became indispensable and the
influence of electronic media has spread over all branches of society including
Law and the Judiciary. The solemn duty of the Judge is to adjudge a lis based
on the evidence placed before him. He has to make critical analysis of the
evidence, be it oral or documentary in nature and ultimately, he should give his
findings. Oral evidence would drudge in discrepancies and there would be an
element of human error because every human being feels or observes with the
help of the senses, which are neither uniform nor codified. Documentary
evidence may also sometime contains errors and or it is susceptible for tamper.
So emphasis was shifted to electronic evidence in all fields including Justice
Delivery System.

The proliferation of computers and the influence of information


technology on society as whole, coupled with the ability to store and amass
information in digital form have all necessitated amendments in Indian law, to
incorporate the provisions on the appreciation of digital evidence. The
Information Technology Act, 2000 and its amendment is based on the United
Nations Commission on International Trade Law (UNCITRAL) model Law on
Electronic Commerce. The Information Technology (IT) Act 2000, was amended
to allow for the admissibility of digital evidence. An amendment to the Indian
Evidence Act 1872, the Indian Penal Code 1860 and the Banker's Book
Evidence Act 1891 provides the legislative framework for transactions in
electronic world.

Trial Courts are the Courts which basically record the evidence on
disputed facts and render Judgment by applying the principles of law.
Recording of evidence correctly in a transparent way is an essential task. The
old pattern of recording by hand and later development of getting it typewritten
in Open Court has now given way to a system of using the technological means
to record the statements of the witness in Open Court. So, with the advent of
technology, the Judge should develop scientific outlook also. The Judge should
have basic understanding of scope and admissibility of electronic evidence for
effective discharge of his duties.
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Evidence Act fundamentally describes two type of evidence i.e.


Oral evidence and
Documentary evidence.
Sec.3 (2) of Evidence Act was amended to make electronic evidence as
documentary evidence. Section 3 of the Evidence Act, 1872 defines evidence as
under: "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) all
documents including electronic records produced for the inspection of the
court. Such documents are called documentary evidence. Section 62 of the
Evidence Act says Primary evidence of the contents of a document is the
document itself. On reading section 63, Secondary evidence of the contents of a
document includes, amongst other things, certified copies of that document,
copies made by mechanical processes that insure accuracy, and oral accounts
of the contents by someone who has seen that document. There are situations
where the original document cannot be produced as stated in Section 65 of the
Evidence Act and the secondary evidence listed in section 63 can be used to
prove its content. Section 2 (t) of Information Technology Act 2000 electronic
record means; “(t) 'electronic record' means, “date, record or date generated,
image or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche;”

An electronic document would either involve documents stored in a


digital form, or a print out of the same. What is recorded digitally is a
document, but which cannot be perceived by a person not using the computer
system into which that information was initially fed. Electronic documents
were admitted as real evidence, that is, material evidence, but such evidence
requires certification with respect to the reliability of the machine for
admission. Being both hearsay as well as secondary evidence, there was much
hesitation regarding the admissibility of electronic records as evidence.

In India, the change in attitude came with the amendment to the Indian
Evidence Act in 2000. Sections 65A and 65B were introduced in to the chapter
relating to documentary evidence. Section 65A provides that contents of
electronic records may be admitted as evidence if the criteria provided in
Section 65B is complied with. Section 65B provides that shall be considered
documents, thereby making it primary evidence, if the computer which
produced the record had been regularly in use, the information fed into the
computer was part of the regular use of the computer and the computer had
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been operating properly. It further provides that all computer output shall be
considered as being produced by the computer itself, whether it was produced
directly or indirectly, whether with human intervention or without. This
provision does away with the concept of computer evidence being hearsay.
Thus, with the amendments introduced into the statute, electronic evidence in
India is no longer either secondary or hearsay evidence, but falls within the
best evidence rule. So, considering the above mentioned definitions in the light
of the provisions incorporated under Sec.65-A & Se.65-B of Evidence Act;
Electronic Evidence is one another type of documentary evidence which if duly
proved in the manner provided in Sec.65-B, it can be considered as reliable
evidence subject to the certification as required under Sec.65B(2) and
Sec.65B(4) of the Act. Once electronic evidence is properly adduced, along with
the certificate of sub-section (4), the other party may challenge the genuineness
and if original electronic record is challenged, section 22A though disqualifies
oral evidence as to the contents of the electronic record, oral evidence as to the
genuineness of the record can be offered.

Sec.79A Information technology Act empowers the Central


Government to appoint any department, body or agency as Examiner of
Electronic Evidence for providing expert opinion on electronic form
evidence before any Court or Authority. ‘Electronic form of evidence’
herein means any information of probative value that is either stored or
transmitted in electronic form and includes computer evidence, digital,
audio, digital video, cellphones, digital fax machines. Further, as per
Section 85 B of the Indian Evidence Act, there is a presumption as to
authenticity of electronic records in case of secure electronic records ( i.e
records digitally signed as per Section 14 of the IT Act,2000. Other
electronic records can be proved by adducing evidence and presumption
will not operate in case of documents which do not fall under the
definition of secure electronic records. It is pertinent to point out herein
that with the passage of the Information Technology Amendment Act
2008, India would become technologically neutral due to adoption of
electronic signatures as a legally valid mode of executing signatures. This
includes digital signatures as one of the modes of signatures and is far
broader in ambit covering biometrics and other new forms of creating
electronic signatures. The position of electronic documents in the form of
SMS, MMS and e-mail in India is well demonstrated under the law and the
interpretation provided in various cases. In State of Delhi v. Mohd. Afzal
& Others, it was held that electronic records are admissible as evidence. If
someone challenges the accuracy of a computer evidence or electronic
record on the grounds of misuse of system or operating failure or
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interpolation, then the person challenging it must prove the same beyond
reasonable doubt. The Court observed that mere theoretical and general
apprehensions cannot make clear evidence defective and inadmissible.
This case has well demonstrated the admissibility of electronic evidence
in various forms in Indian courts.

Regarding the documentary evidence, in Section 59, for the words


“Content of documents” the words “Content of documents or electronic records”
have been substituted and Section 65A & 65B were inserted to incorporate the
admissibility of electronic evidence. In Section 61 to 65, the word “Document or
content of documents” have not been replaced by the word “Electronic
documents or content of electronic documents”. Thus, the intention of the
legislature is explicitly clear i.e. not to extend the applicability of section 61 to
65 to the electronic record. It is the cardinal principle of interpretation that if
the legislature has omitted to use any word, the presumption is that the
omission is intentional. It is well settled that the Legislature does not use any
word unnecessarily. In this regard, the Apex Court in Utkal Contractors &

Joinery Pvt. Ltd. v. State of Orissa[1] held that “…Parliament is also not
expected to express itself unnecessarily. Even as Parliament does not use any
word without meaning something, Parliament does not legislate where no
legislation is called for. Parliament cannot be assumed to legislate for the sake of
legislation; nor indulge in legislation merely to state what it is unnecessary to
state or to do what is already validly done. Parliament may not be assumed to
legislate unnecessarily.” On the other hand, in Section 61 to 65 Indian
Evidence Act, the word “Document or content of documents” have not been
replaced by the word “Electronic documents or content of electronic
documents”. Thus, the omission of the word, “Electronic Records” in the
scheme of Section 61 to 65 signifies the clear and explicit legislative intention,
i.e. not to extend the applicability of Section 61 to 65 to the electronic record in
view of overriding provision of Section 65-B Indian Evidence Act dealing
exclusively with the admissibility of the electronic record which in view of the
compelling technological reasons can be admitted only in the manner specified
under Section 65-B Indian Evidence Act.

The maxim generalia specialibus non derogant means that, for the
purposes of interpretation of two statutes in apparent conflict, the provisions of
a general statute must yield to those of a special one. When there are
provisions in a special Act and in a general Act on the same subject which are
inconsistent, if the special Act gives a complete rule on the subject, the
expression of the rule acts as an exception to the subject-matter of the rule
from the general Act. Under section 59 of the Evidence Act, Oral evidence
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cannot prove the contents of documents since the document is absent, the
truth or accuracy of the oral evidence cannot be compared to the document
and to prove the contents of a document, either primary or secondary evidence
is necessary. When substantial information touching the facts in issue is found
electronically stored, the hearsay rule faced new challenges in the matter of
digital documents. Before amending the Information technology Act when
electronically stored information was treated as a document, then secondary
evidence of these electronic ‘documents’ was adduced through printed
reproductions or transcripts, and the authenticity was certified. The signatory
would identify signature in Court and offer for cross examination.

By the Information Technology Act, 2000 new definitions are given to the
words “data”, “electronic record”, and “computer”. The definition of 'admission'
(Section 17 Evidence Act) has been changed to include a statement in oral,
documentary or electronic form which suggests an inference to any fact at issue
or of relevance. New Section 22-A has been inserted into Evidence Act to
provide for the relevancy of oral evidence regarding the contents of electronic
records. It provides that oral admissions regarding the contents of electronic
records are not relevant unless the genuineness of the electronic records
produced is in question. Section 59 of the Evidence Act is amended by the
Information Technology Act to exclude electronic records and inserted section
65A and section 65B, instead of submitting electronic records to the test of
secondary evidence. Section 65A has given the right to prove the contents of
electronic records in accordance with the provisions of section 65B.
Section 65A of the Evidence Act is for electronic records just as Section 61 does
is for documentary evidence. A procedure, distinct from the one for oral
evidence is formulated, to ensure electronic records obeys the hearsay rule.
Sec.65A is a special law that stands apart from the documentary evidence
procedure in Section 63 and Section 65. Any probative information stored or
transmitted in digital form is digital evidence or electronic evidence. Before
accepting digital evidence, its relevancy, veracity and authenticity and whether
the fact is hearsay or a copy is preferred to the original is to be ascertained by
the Court. Digital Evidence is “information of probative value that is stored or
transmitted in binary form”. Evidence is not only limited to that found on
computers but may also extend to include evidence on digital devices such as
telecommunication or electronic multimedia devices.

The following provisions of the Evidence Act were amended to include


and cover electronic evidence and its probative value.
1. Sec.65A. Special provisions as to evidence relating to electronic record.
2. Sec.65B. Admissibility of electronic records.
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3. Sec.67A. Proof as to digital signature


4. Sec.73A. Proof as to verification of digital signature
5. Sec.81A. Presumption as to Gazettes in electronic forms
6. Sec.85A. Presumption as to electronic agreements
7. Sec.85B. Presumption as to electronic records and digital signatures
8. Sec.85C. Presumption as to Digital Signature Certificates.
9. Sec.88A. Presumption as to electronic message
10. Sec.90A. Presumption as to electronic records five years old
11. Sec.131. Production of documents or electronic records which another
person, having possession, could refuse to produce.

A reading of certain cases prior to and post-amendment of Information


Technology Act would proved basis inputs who the law viewed electronic
evidence and how the law developed or transformed. In case of tapes as
evidence, in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdas Mehra and others, 1976 (2) SCC 17 : (AIR 1975 SC 1788), the
Supreme Court had observed as under:
". We think that the High Court was quite right in holding that the tape -
records of speeches were "documents", as defined by S.3 of the Evidence
Act, which stood on no different footing than photographs, and that they
were admissible in evidence on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified
by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker
of the record and satisfactory evidence, direct or circumstantial, had to be
there so as to rule out possibilities of tampering with the record.

(c) The subject - matter recorded had to be shown to be relevant


according to rules of relevancy found in the Evidence Act."

In the case of Bodala Murali Krishna Vrs Smt.Bodala Prathima (2007


(2) ALD 72) the Court held that, “…the amendments carried to the Evidence Act
by introduction of Sections 65-A and 65-B are in relation to the electronic
record. Sections 67-A and 73-A were introduced as regards proof and
verification of digital signatures. As regards presumption to be drawn about
such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were added. These
provisions are referred only to demonstrate that the emphasis, at present, is to
recognize the electronic records and digital signatures, as admissible pieces of
evidence.”
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In the case of Dharambir Vs. Central Bureau of Investigation (148


(2008) DLT 289), the Court arrived at the conclusion that when Section 65-B
talks of an electronic record produced by a computer referred to as the
computer output, it would also include a hard disc in which information was
stored or was earlier stored or continues to be stored. It distinguished as there
being two levels of an electronic record. One is the hard disc which once used
itself becomes an electronic record in relation to the information regarding the
changes the hard disc has been subject to and which information is retrievable
from the hard disc by using a software program. The other level of electronic
record is the active accessible information recorded in the hard disc in the form
of a text file, or sound file or a video file etc. Such information that is accessible
can be converted or copied as such to another magnetic or electronic device
like a CD, pen drive etc. Even a blank hard disc which contains no information
but was once used for recording information can also be copied by producing a
cloned had or a mirror image.

In the case of Jagdeo Singh Vs. The State and Ors, 2015 III AD (Delhi)
268, the Hon’ble High Court of Delhi, while dealing with the admissibility of
intercepted telephone call in a CD and CDR which were without a certificate
u/s 65B Evidence Act, the court observed that the secondary electronic
evidence without certificate u/s 65B Evidence Act is inadmissible and cannot
be looked into by the court for any purpose whatsoever.

In the case of State (NCT of Delhi) Vrs. Navjot Sandhu (AIR 2005 SC
3820), the Apex Court dealt with the proof and admissibility of mobile
telephone call records. While considering the appeal against the accused for
attacking Parliament, a submission was made on behalf of the accused that no
reliance could be placed on the mobile telephone call records, because the
prosecution had failed to produce the relevant certificate under Section 65-B(4)
of the Evidence Act. The Supreme Court concluded that a cross-examination of
the competent witness acquainted with the functioning of the computer during
the relevant time and the manner in which the printouts of the call records
were taken was sufficient to prove the call records.

In the case of Jagjit Singh Vrs. State of Haryana (2006) 11 SCC 1) the
Supreme Court considered the digital evidence in the form of interview
transcripts from the Zee News television channel, the Aaj Tak television
channel and the Haryana News of Punjab Today television channel. The court
determined that the electronic evidence placed on record was admissible and
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upheld the reliance placed by the speaker on the recorded interview when
reaching the conclusion that the voices recorded on the CD were those of the
persons taking action. The Supreme Court found no infirmity in the speaker's
reliance on the digital evidence and the conclusions reached by him. The
comments in this case indicate a trend emerging in Indian courts: judges are
beginning to recognize and appreciate the importance of digital evidence in
legal proceedings.

In the recent judgment of the hon'ble Supreme Court delivered in Anvar


P.V. Vrs P.K. Basheer and Others, AIR 2015 SC 180 considering whether
or not, that Computer Output is not admissible without Compliance of 65B,EA
overrules the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu
alias Afzal Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme
Court. The Court specifically observed that the Judgment of Navjot Sandhu
supra, to the extent, the statement of the law on admissibility of electronic
evidence pertaining to electronic record of this Court does not lay down correct
position and is required to be overruled. This judgment has put to rest the
controversies arising from the various conflicting judgments and thereby
provided a guideline regarding the practices being followed in the various High
Courts and the Trial Court as to the admissibility of the Electronic Evidences.
The legal interpretation by the court of the following Sections 22A, 45A, 59,
65A & 65B of the Evidence Act has confirmed that the stored data in
CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of
Evidence Act and further clarified that in absence of such a certificate, the oral
evidence to prove existence of such electronic evidence and the expert view
under section 45A Evidence Act cannot be availed to prove authenticity thereof.
The only alternative to prove the electronic record/evidence is by producing the
original electronic media as Primary Evidence to the court or it’s copy by way
secondary evidence u/s 65A/65B of Evidence Act. Thus, in the case of CD,
VCD, chip, etc., the same shall be accompanied by the certificate in terms of
Section 65B obtained at the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is inadmissible.Proper
training of law enforcement agencies in handling cyber related evidence and
correct application of procedure and sections of Evidence Law while presenting
such evidence in court is the primary need of recent times.

In the landmark decision of United States District Court for Maryland


in Lorraine v. Markel American Insurance Company in 2007 held that when
electronically stored information is offered as evidence, the following to be
ascertained .
1. is the information relevant;
45

2. is it authentic;
3. is it hearsay;
4. is it original or, if it is a duplicate, is there admissible secondary
evidence to support it; and
5. does its probative value survive the test of unfair prejudice?

In nut shell, in the above case of Anvar v. P.K.Basheer, the Apex Court
had over-ruled its earlier decision in State (NCT of Delhi) v Navjot Sandhu alias
Afsal Guru (2005) 11 SCC 600 and the application of Sex.63, Sec.65, and
Sec.65B of the Indian Evidence Act and it re-interpreted the technical
conditions upon which a copy of an original electronic record may be used.
They read as follows:
1. at the time of the creation of the electronic record, the computer that
produced it must have been in regular use;
2. the kind of information contained in the electronic record must have
been regularly and ordinarily fed in to the computer;
3. the computer was operating properly; and,
4. the duplicate copy must be a reproduction of the original electronic
record.

The non-technical conditions to establish authenticity of electronic


evidence in section 65B (4) requires the production of a certificate by a senior
person responsible for the computer on which the electronic record was
created, or is stored. The certificate must identify the original electronic record,
describe manner of creation, the device created it, and certifying compliance of
sub-section (2) of section 65B. Without source, there is no authenticity for the
translation. Source and authenticity are the two key factors for electronic
evidence. The admissibility of the secondary electronic evidence has to be
adjudged within the parameters of Section 65B of Evidence Act. It is clear and
explicit that if the secondary electronic evidence is without a certificate under
Sec.65B of Evidence Act, it is not admissible and any opinion of the Forensic
Expert and the deposition of the witness in the court of law cannot be looked
into by the Court. The certificate must:
1. identify the electronic record containing the statement;

2. describe the manner in which it was produced; and

3. give such particulars of any device involved In the production of the


electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer.
46

The certificate must also deal with any of the matters to which the conditions
for admissibility relate.

As could be seen, the case of Anvar did for India is what Lorraine did for
US Federal Courts. In Anvar, the Supreme Court had set track Indian
electronic evidence law to the special procedure created under section 65B of
the Evidence Act by applying the maxim generalia specialibus non derogant and
it held that the provisions of Sections 65A and 65B of the Evidence Act created
special law that overrides the general law of documentary evidence.

The Evidence Act prescribes a special procedure for electronic records as


copies are vulnerable to manipulation. Despite these infirmities, the Supreme
Court stepped in to certify the secondary evidence itself. S.65B of the Evidence
Act is intended to avoid these sort of situations by demanding an impartial
certificate under sub-section (4) in compliance with sub-section (2) of the Act. It
is necessary that such evidence must be received with caution. The Court must
be satisfied beyond reasonable doubt that the record has not been tampered
with. Evidence has to be received with caution as with fast development in the
electronic techniques, they are more susceptible to tampering and alterations
by transcription, excision, etc. which may be difficult to detect and it
emphasized that to rule out the possibility of any kind of tampering with the
electronic evidence, the standard of proof about its authenticity and accuracy
has to be more stringent as compared to other documentary evidence.

Cases relating to video conference


In the case of Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11) while
analyzing Sections 65-A and 65-B of Evidence Act, 1872, the Court held that
the physical presence of person in Court may not be required for purpose of
adducing evidence and the same can be done through medium like video
conferencing. Sections 65-A and 65-B provide provisions for evidences relating
to electronic records and admissibility of electronic records, and that definition
of electronic records includes video conferencing.

In the case of State of Maharashtra vs. Dr.Praful B Desai (AIR 2003 SC


2053) where, the question involved was whether a witness can be examined by
means of a video conference, the Supreme Court observed that video
conferencing is an advancement of science and technology which permits
seeing, hearing and talking with someone who is not physically present with
the same facility and ease as if they were physically present. The legal
requirement for the presence of the witness does not mean actual physical
47

presence. The Court allowed the examination of a witness through video


conferencing and concluded that there is no reason why the examination of a
witness by video conferencing should not be an essential part of electronic
evidence.

In the case of Twentieth Century Fox Film Corporation Vrs NRI Film
Production Associates (P) Ltd., (AIR 2003 KANT 148) In this case certain
conditions have been laid down for video-recording of evidence:
 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).

 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.

 The witness has to be examined during working hours of Indian Courts.


Oath is to be administered through the media.

 The witness should not plead any inconvenience on account of time


different between India and USA.

 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.

 Learned Judge is to record such remarks as is material regarding the


demur of the witness while on the screen.

 Learned Judge must note the objections raised during recording of


witness and to decide the same at the time of arguments.

 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.

 The visual is to be recorded and the record would be at both ends. The
48

witness also is to be alone at the time of visual conference and notary is to


certificate to this effect.

 The learned Judge may also impose such other conditions as are
necessary in a given set of facts.

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

The above judgment extensively deals with the manner in which the
evidence should be recorded through video conference. If the above referred
provisions of Indian Evidence Act and the ratio of the above referred judgments
are kept mind, while adjudicating a case relying on electronic evidence, then
certainly there would no scope to receive inadmissible evidence and or commit
error.

Sources for Article:-


1. Appreciation of Evidence including Evidence recorded through
Electronic Media for Sessions Cases by Hon’ble Thiru. Justice
P.SATHASIVAM, Judge, Supreme Court of India

2. Electronic Evidence/Digital Evidence & Cyber Law in India By Adv.


Prashant Mali [MSc.(Computer Science),LLB, LLM] Cyber Law &
Cyber Security Expert prashant.mali@cyberlawconsulting.com

3. Evidentiary Value of SMS, MMS, and e-mail by Karnika Seth, Managing


Partner , Seth Associates & Mr. H.M Mukherjee, Associate ,Seth
Associates

4. Article on Electronic Evidence by Sri Dharmendrasingh G.Rana ,


Asst.Public Prosecutor, Legal Department, Government of Gujarat.

5. Admissibility of Electronic Evidence : Challenges for Legal Fraternity by


Neeraj Aarora

6. Electronic evidence - admissibility in Indian courts by Cyril Joseph


Koyippally adv. koyippally @gmail.com
49

Presented by: Sri Shaik Madar,


Senior Civil Judge,
Nandigama.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING RECORDING


OF EVIDENCE THROUGH VIDEO CONFERENCING

1. INTRODUCTION:
The World is changing very fast in view of development of the Technology.
The transactions are being made without personal contacts and paper work
and also within short-time by using the Technology. For example e-Banking, e-
Business etc. Because, it saves the valuable time and also makes the business
easier and more convenient. But, the development of Technology has its
advantageous too, as some of the Experts are using their skill for illegal gain by
hacking the data, phishing, collecting personal information etc., and these are
known as Cyber offences. Therefore, it is for the legislature to take up effective
steps by bringing necessary amendments to the existing laws and also to make
new enactments to curb and control the Cyber laws and to bring the real
culprits into the clutches of the Penal Law, lest it will lead to increase in the
Cyber crimes and finally unrest in the society. So, I feel it more appropriate to
reproduce here UNDER in the same words of Sri. Justice P. N. Bhagavathi as
observed in the decision reported in AIR 1983 SC 75 (National Textile
Workders Union Vs. P.Rama Krishna Rao):

“We cannot allow the dead in the past to struggle growth of the living
present. Law cannot stand still. It must change within the changing social
concepts and values. If the bark that protects the tree fails to court and
explained along with the tree, it will either choke the tree or if it is 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 stiffle
growth of the society and choke its progress or if the society is a vigorous
enough, it will cast away the law which stands in the way of its growth. Law
must therefore suddenly be on the move adapting itself by the past changing
society and not lag behind”.

2. AMENDMENT TO SEC. 3 OF THE INDIAN EVIDENCE ACT; 1872:


Taking into consideration the development of Technology and the Cyber
Crimes, our Parliamentary made an enactment by name, “The Information
Technology” in the year 2000, and also amendments to it, subsequently.
Further, to over come the problems with regard to the proof and admissibility
of Electronic evidence, the amendments were also made to the Indian Evidence
50

Act in the year, 2000. Because, as per the provisions of Sec. 3 of Indian
Evidence Act, the evidence is of two kinds; 1) Oral, and 2) Documentary. But,
the documentary evidence did not speak about the Electronic records, since
there were no radios, tape records, T.Vs., Computers, Laptops, cell phone,
internet … etc., as there was no development of Technology in the year, 1872,
when the Evidence Act was enacted. Therefore in the year 2000, an
amendment was made to the documentary evidence of Sec. 3 by inserting the
Electronic records and its reads thus:

(i). Evidence:- “Evidence” means and includes-


(1) all statements which the court premits or requires to be made
before it by witnesses, in relation to matters of fact under
inquiry;

(2) all documents including electronic records produced for the


inspection of the court;

Such documents are called documentary evidence.

3. EVIDENCE RECORDING THROUGH VIDEO CONFERENCING:


(i). In our Country, the evidence recording through the Video conferencing is
permissible. The leading and landmark Judgment pronounced by our Hon'ble
Apex Court is in State of Maharastra Vs. Dr. Proful B. Desai (Reported in
AIR 2003 SC 2053), where in, a witness was permitted to give his evidence
through Video Conferencing. However, in the presence of accused, the evidence
shall be recorded as per the provisions of Sec. 273 of Cr.P.C., but it does not
mean, the physical presence and the presence could be made through Video
Conferencing. More over, it could be more convenient to the accused and his
Advocate hear and rehear the deposition of the accused and also observe the
demeanor of the witness in a better way. Further, it would save the time and
avoid inconvenience, if the witness is in-abroad. In the above decision, the
Hon'ble Supreme Court permitted the recording of evidence of a witness by
video recording by appointing a Commission and also but certain conditions for
recording the evidence as under:
* The identity of the witness shall be established
* The witness shall be administered oath by the officer so appointed
to record evidence
* The officer shall ensure that there is no other person in the room,
except the witness
* The officer will ensure that the witness is not
coached/tutored/prompted, while recording his evidence
51

* The officer will ensure that the respondent and his counsel and
one Assistant, are only allowed in Studio, when the evidence is
being recorded.
.. etc
(ii). In the recent Judgment of the Hon'ble Delhi High Court reported in
International Planned Parenthood Federation V. Madhu Bala Nath
(Reported in AIR 2016 Delhi 78) also, a witness who resides in London of
United Kinddom was permitted to give her evidence by Video Conferencing. As
per the said Judgment, these are conditions for recording the same as
under:
(i). The officer nominated by the Indian High Commissioner in terms
of the direction at Serial No.(iv) above shall ensure that apart from
his own presence, only counsel for the Appellant/Defendant is
present at the time of Video Conferencing. He shall ensure that no
manner of prompting by word or signs or by any other mode is
permitted.
(ii). The officer nominated by the Indian High Commission shall verify
the identity of the witness before commencement of her
examination
(iii). As soon as the identification part is complete, oath will be
administered by the Joint Registrar (J.R.) through the media as per
Oaths Act, 1969.
(iv). The witness shall be examined during working hours of Indian
Courts. The plea of any inconvenience on account of time
difference between India and London shall not be allowed.
However, the convenience of the Indian High Commission in
London shall be taken into consideration in fixing the time and
schedule.
(v). The cross-examination, as far as practicable, be proceeded without
any interruption and without granting unnecessary
adjournments. However, discretion of the Court (J.R.) shall
be respected.
(vi). The Court (J.R.) may record any material remarks regarding the
demeanor of the witness while on the screen and shall note the
objections raised during recording of evidence.
(vii). The deposition of the witness shall be signed immediately in the
presence of the nominated officer of the Indian High Commission.
The said officer shall certify/attest the signatures of the witness.
(viii). The audio and visual shall be recorded at both the ends and
thereof shall be provided to the parties at the expense of the
52

Appellant.
(ix). This record shall be made available to the officer nominated by the
Indian High Commissioner for the purpose of undertaking the
video conferencing as it would be necessary for recording the
statement and cross-examination of the witness.
(x). In case, the respondent is desirous of being physically present in
London at the time of recording of the evidence, it shall be open for
her to make arrangements on her own cost for appearance and her
representation. The respondent shall ensure that prior intimation
in this regard is filed in the Registry of this court giving full
particulars of the names of the persons as well as enclosing
documents of authority in respect of the persons, who shall be
representing them in the proceedings. The intimation in this regard
as well as documents shall also be furnished to Indian High
Commissioner in London.

4. CONCLUSION:
There are several advantageous in recording the evidence of a witness
through Video Conferencing. It saves time and cost and also avoids
inconvenience. The witnesses who are in abroad, would get more benefit, if
their evidence is recorded through the Video conferencing. So, it would be
more beneficial if all the Courts are provided with the infrastructure felicitating
and recording of evidence of a witness through Video conferencing. Because,
we have to make use of the advancement of Science and Technology so that the
challenges that arise will be dealt with properly in legal proceedings.
53

Presented by: Sri Mohd. Abdul Rafi,


I-Addl. Chief Metropolitan Magistrate,
Vijayawada.

Mode of treating and Recording Evidence, including recording of Evidence


through video conferencing.

INTRODUCTION:
People have faith and confidence on courts. They come to court for
justice. The duty of the court is to arrive at the truth and sub-serve the ends of
justice. Taking and recording of evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence. Judicious scrutiny of facts proved by admissible
evidence culminating into a reasoned judgment are the integral features of a
trial. A trial must be conducted with utmost care and sensitivity so as to
protect the rights of the parties. The Appellate Court looks at the evidence
through the eyes of the trial judge. Therefore, clear and correct recording
evidence assumes great significance.

ORAL EVIDENCE:
For proof of a fact, evidence is required to be adduced. The Indian
Evidence Act regulates production of evidence. According to Sec.3 of the
Evidence Act, Evidence means and includes oral evidence and documentary
evidence. The idea of best evidence is of the person, who has actually
perceived something by that sense by which it is capable of perception. This
becomes clear from Sec.60 of Indian Evidence Act. 1st part of Sec.60 refers to
Eye witnessing. 2nd part of Sec.60 refers to hearsay. It can be said that
hearsay evidence is not admissible to prove truthfulness of the heard
statement. Still Sec.60 of I.E.Act says that hearsay evidence is admissible, but
for certain purpose and that is, to prove something heard which is not actually
seen. (Balaram Prasad Agrawal Vs State of Bihar and others reported in
AIR 1997 SC 1830). 3rd part of Sec.60 of I.E.Act relates to oral evidence,
which is direct referring to a fact, which could be perceived by any other sense.
Any other sense means by smell, search, gait, timbre voice etc. 4th and last
part of Sec.60 of I.E Act refers to an opinion or to the grounds on with that
opinion is held by the person. Parties to a suit or other civil proceeding at
liberty to examine as many as witnesses as they choose to produce in support
of their respective claims or contentions. Sec.134 of the I.E Act says that no
particular number of witnesses shall be required for proof of any fact. It is
entirely for the parties to decide how many witnesses are necessary or required
to prove particular fact or document. Courts will not generally place any
54

restriction on the rights of parties in choosing to examine witnesses. Only in


extra-ordinary circumstances, where it feels that examination of particular
witness is quiet unnecessary or that the evidence of any witness is irrelevant to
the determination of the issues involved or that examination of a
witness/witnesses could needlessly protract the trial of the case, the court will
disallow examination of witness.

DOCUMENTARY EVIDENCE:
According to Sec.3 of the I.E Act, “Document” means any matter
expressed or described upon any substance by means of letters, figures or
marks, or by more than one of those means intended to be used, or which may
be used, for the purpose of recording that matter. A writing, printing,
lithograph, photograph, map, a plan, an inscription on a metal plate or a stone,
a plaque, a caricature etc., or documents. The purpose of production of
documents in a proceeding is to rely upon the truth of the statements
contained therein. The genuineness of a document or the truth of its contents
is proved by oral evidence vide of Sec.59 of the Evidence Act. Whereas, the
contents of the document are proved either by primary evidence or by
secondary evidence in view of Sec.61 of the Evidence Act. Sec.62 of the I.E.Act
says, “Primary Evidence” means the document itself produced for the
inspection of the court. Sec.63 of the I.E Act speaks about what is meant by
secondary evidence and its inclusion. Execution of a document is to be proved
by admissible evidence. Various methods for proving handwriting or signature
are—
i) The direct evidence of the person, who wrote or signed (Sec.67 of the
I.E.Act)
ii) Evidence of a person acquainted with the handwriting or signature
(Sec.47 of the I.E.Act)
iii) By comparison by the court (Sec.73 of the I.E.Act) and
iv) Opinion of expert as to handwriting and/or signature (Sec.45 of I.E.Act)

Execution of the document has to be proved by the evidence of those


persons, who can assert for the truth of the fact in issue, but where documents
produced is admitted by the signatory thereto and then marked as an exhibit,
no further evidence to prove the handwriting and its execution survives.
Admission of document means admission of facts contained in the document.
The Hon’ble Bombay High Court has held in case of Bama Kathari Patil Vs
Rohidas Vs Arjun Madhavi reported in 2004 (2) Mh.L.J 752, that a
document is required to be proved in according with the provisions of the
Evidence Act and merely for Administrative convenience of locating or
identifying the document, it is given an exhibit number by the court.
55

Exhibiting a document has nothing to do with its proof though as a matter of


convenience only the proved document is exhibited. If a document is duly
proved, but mistakenly or otherwise is not exhibited, still it can be read in
evidence.
Sec.68 of the I.E Act deals with proof of execution of document required
by law to be attested. Such document shall not be used as evidence until at
least one attesting witness has been called to prove the execution. A public
document is admissible per-se without formal proof in view of Sec.74(1) of the
Evidence Act. Sec.78 of the I.E Act is also in respect of other public documents
i.e., official documents. Certified copies of public documents falling Under
Sec.74(1) of the I.E.Act may be produced in proof of their contents, vide Sec.77
of the I.E Act. 2nd kind of public documents falls under Sec.74 (2) of I.E.Act,
like certified copies issued U/sec.57 r/w Sec.55 of the Registration Act, 1908
and truth of contents of such document is required to be proved by
independent evidence. For instance, Sec.54 of the Transfer of Property Act
makes registration of Sale Deed compulsory. Sec.123 of the T.P Act makes a
gift deed also compulsory registerable. Lease Under Sec.107 of the T.P. Act
and mortgages U/sec.59 of the T.P.Act are required to be registered, though all
these transactions are covered by sec.17 of the Registration of Act also. Almost
in every suit or civil proceeding, documents are produced by both the opposing
parties in support of their respective claims or contentions. Any wrong
decision given about their admissibility will seriously affect the right of parties,
resulting in injustice. If an attestable document is not duly attested, courts
have no option but to eschew them from consideration.

Procedure in recording Evidence:


Sec.273 of the Cr.P.C mandates to record all the evidence in a trial or
other proceeding in the presence of the accused, or when personal attendance
is dispensed with, in the presence of his pleader. In case of State of
Maharastra Vs Dr.Prafulla Desai reported in AIR 2003 SC 2053, the
Hon’ble Apex Court has ruled that recording of evidence by video conferencing
is permissible. The term “Presence” in this section does not mean the actual,
physical presence in the court so as to meet the requirements that the evidence
must be recorded in the presence of the accused.

According to Sec.274 of Cr.P.C, in all the summons cases, the Magistrate


shall record the memorandum of substance of evidence of a witness in the
open court, and such memorandum must be signed by the Magistrate and
shall form part of the record. In the warrant cases, the Magistrate shall record
the evidence of witnesses by taking down by himself or cause it to be taken
down in the narrative form. However, Sec.275 (3) of the Cr.P.C permit the
56

Magistrate to record the evidence of in the form of question and answers. The
evidence of the witness in this section may also be recorded by audio video
electronic means in the presence of the advocate of the accused in view of
proviso to Sec.275 (1) of Cr.P.C. Sec.276 of the Cr.P.C says that recording of
Evidence in trials before the Sessions Court, should be in the form of narrative.
But the Presiding Judge may, in his discretion, take down or cause to be taken
down, any part of such evidence in the form of question and answer, and the
evidence so taken down shall be signed by the Presiding Judge. Sec.277 of
Cr.P.C contemplates that the evidence of the witness taken down Under
Sections 275 and 276 of Cr.P.C must be in the language of the court, if the
witness is gives evidence in the language of the court. This section further
provides that the evidence of the witness maybe taken down in the language of
the witness, if practicable, otherwise true translation of the evidence in the
language of the court shall be prepared and shall form part of the record after
duly signed by the Presiding Judge. If the evidence is taken down in English
and translation thereof in the language of the court is not required by any of
the parties, the court may dispense with such translation. Sec.278 of the
Cr.P.C envisages that the evidence of witness when completed should be read
over to him in the presence of the accused or his pleader. When the evidence is
read over to the witness or to the pleader, if necessary, it can be corrected and
the witness denies correctness of any part of the evidence, the Presiding Judge
may, instead of correcting evidence, make the memorandum of objections
raised by the witness and shall add such remarks as he deems fit.

Sec.280 of Cr.P.C empowers the Presiding Judge or the Magistrate who


has recorded the evidence of the witness, to record the remarks, if any, as he
thinks material in respect to the demeanor of the said witness. But the Judge
recording the demeanor of the such witness should avoid to pronounce his
opinion on the credibility of the witness until the whole of evidence such has
been taken. Taking evidence on commission in criminal cases is most
sparingly resorted to, i.e., in case of delay, inability or inconvenience. The
Hon’ble Apex Court has held in the case of Dharmanand Pant reported in
AIR 1957 SC 594 that as a general rule in a criminal proceeding, the
important witness on whose testimony the case against the accused is to be
established, must be examined in court and issuing of commission should be
restricted to formal witnesses or such a witness whose presence cannot be
secured without unnecessary delay or inconvenience. The evidence must be
recorded in the presence of the accused in the open court so that the accused
has an opportunity to cross examine the witness and the presiding judge may
has an advantage of hearing the witness and of noting his demeanors.
57

Sec.291-A of Cr.P.C stipulates that a report of identification in respect of


a person or property issued by the Executive Magistrate can be admitted in
evidence without calling him as a witness. But the court may, if it thinks fit all
the Executive Magistrate as a witness. Procedure for recording evidence in
absence of accused has been laid in Sec.299 of the Cr.P.C. This is the salutary
exception to the scheme of the trial in the court. When an accused is
absconding and there is no immediate prospect of securing his presence, the
trial court can record evidence of witnesses in his absence. Such evidence may
be used against him on his arrest if the deponent is dead or incapable of giving
evidence or cannot be found. The object of Sec.299 Cr.P.C if to procure and
preserve the evidence so as to prevent its loss. Under Sec.311 of Cr.P.C the
court may, at any stage of inquiry or trial or other proceeding summon any
person as witness, or examine any person in attendance, who has not been
summoned as a witness or re-call and re-examine any person already
examined and the court shall summon and examine or re-call and re-examine
any such person, his evidence appears essential for the just decision of the
case (Mannan S.K & others Vs State of West Bengal 2014 Cri.L.J 4072).
The criminal trial should be conducted in open court. Only in sexual offences
or any other emotional cases in-camera proceeding should be allowed by the
court. In the deposition of every witness the Name, Father’s/Husband’s name,
Sir name, Age, Profession, Residence and descript of the residence must be
clearly mentioned. The evidence given by each witness should appear at one
place and should not be scattered at intervals through the record even if the
witness is examined on recalling. Deposition should be recorded by leaving
quarter margin on each page so as to facilitate the binding of the record. When
recording the evidence of the witness with reference to the map or plan, care
should be taken to record the evidence in such a way, that the places
mentioned by the witness are easily identifiable on the map or plan.

RECORDING OF OMMISSIONS AND CONTRADICTIONS:


Sections 138, 140, 145, 154 and 155 of the Evidence Act provides for
impeaching the credit of a witness by cross-examination. The 1st part of
Sec.145 of the I.E Act enables the opponent to cross examine a witness as to
previous statement made by him in writing or reduced to writing without such
writing been shown to him. The 2nd part deals with situation where cross-
examination assumes the shape of contradiction. This section lays down that
if the previous contradictory statement of witness is intended to be proved, his
attention must be drawn to it. The proper procedure could be to ask a witness
whether he made such statement previously. If the witness gives answer in the
affirmative, the previous statement in writing need not be proved. If on the
other hand, the witness denies have made the previous statement attributed to
58

him or states that he does not remember it, the cross examiner must read out
to the witness the relevant portion which is alleged to be contradictory to his
statement in the court and give him opportunity to reconcile the same if it can.
It should be borne in mind that in order to contradict the witness with his
previous statement, only that part which contradicts the statement in the court
should be exhibited. The whole statement should not be exhibited.

RECORDING EVIDENCE IN CERTAIN CLASS OF CASES:


Certain witnesses require a different treatment. Certain precautions are
also necessary in recording their evidence. These class of witnesses and
precautions can be briefly enumerated as follows:
a) Recording evidence of deaf and dumb witnesses:-
Sec.119 of the I.E Act stipulates that a witness who is unable to speak
may give his evidence in any other manner in which he can make it intelligible
as by writing or by signs, but such writing must be written and the signs made
in open court. But the dumb person or a person observing religious vow of
silence cannot speak but can hear. Therefore, easiest mode of recording his
evidence can be through the answers given by him in writing and in case of
illiteracy by interpretation of his signs. In case of deaf witness the task
confines to recording of only answers given by such person by signs. But in
case of deaf and dumb person interpretation pertains both questions and
answers. Sec.282 of Cr.P.C provides legal sanctity to utility of services of
interpreters. It also imposes restriction on the interpreters to make true and
correct interpretation. When an interpreter is employed, the deposition of the
witness must be recorded in the language in which the deposition is conveyed
to the court by the interpreter. In K.Sivaram Vs Mangalamba and others
reported in 1985 (2 ) A.P.L.J 189 wherein our Hon’ble High Court held that -
“If a person gives evidence entirely in a language, not known to the presiding
officer, a translator can usefully be pressed into service. But note the detailed
particulars of the translator.
b) Recording the evidence of child witness:
Great sensitivity needs to be employed in recording the evidence of a
child witness, particularly a child victim. It has to be recorded that he has
sufficient intelligence to understand the questions and answer them rationally
as required by Sec.118 of the I.E.Act. Oaths Act provides that oath cannot be
given to a child below 12 years of age. If the child is more than 12 years of age,
it has to be ascertained whether he knows the sanctity of the oath. If he knows
the sanctity, oath can be administered. There is no difference between the
statement given on oath or without oath because the witness is bound to tell
the truth.
59

USE OF MODERN TECHNOLOGY:


Law always changes with the change in the society to meet the needs of
the justice. Substantive Amendments in the evidence act were carried out in
order to provide legal recognition to electronic evidence. Information
Technology Act has been introduced. Requisite precautions have to be taken in
procuring, preserving and proving electronic evidence. Because possibility of
loss of evidence in electronic form is very high. Several factors such as
environmental changes magnetic fields, improper handling and preservation
lead to corruption of data in electronic form. At the same time strict adherence
to Sec.65-B of the I.E.Act is imperative for the proof of electronic evidence.
Section 27 of the I.E.Act is an exception to the rules enacted in sections
25 and 26 of the I.E.Act which provide that no confession made to a police
officer shall be proved as against a person accused of an offence and that no
confession made by any person whilst he is in the custody of a police officer
unless it be made in the immediate presence of Magistrate, shall be proved as
against such person. The basic idea embedded in Sec.27 of the I.E Act is the
doctrine of confirmation by subsequent events. The information might be
confessional or non-inculpatory in nature. But if it results in discovery of fact
it becomes a reliable information. Hence the legislature permitted such
information to be used as evidence by restricting the admissible portion to the
minimum.

EVIDENCE CAN BE RECORDED THROUGH VIDEO CONFERENCING:


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. 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. Video conferencing is an advancement of science and technology
which permits one to see, hear and talk with someone far away with the same
facility as is present before you, that is in your presence. Recording of evidence
by video conferencing also satisfies the object of providing, in Sec.273 of
Cr.P.C, 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 court
room. They can observe his/her demeanor. In fact the facility to play back
would enable better observation of demeanor. They can hear and re-hear 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
60

better. The facility of play back would be given an added advantage whilst
cross examining the witness. The witness can be confronted with the
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 of nature, is caused to
the accused. The evidence will be recorded in the studio/hall where the video
conferencing takes place.
Examination of witnesses in criminal cases, through video conferencing
was approved by the Hon’ble Supreme Court in a Judgment reported in State
of Maharastra Vs Dr.Praful B.Desai reported in 2003 (2) ALT (Crl.) 118
(SC), when such is the facility accorded in criminal cases, there should not be
any plausible objection for adopting the same procedure, in civil cases as long
as the necessary facilities, with assured accuracy exist. In 20th century Fox
Film Corporation Vs NRI Film production Associates Pvt Ltd., and
Amitabh Bagchi Vs Ena Bagchi, the Hon’ble High Courts of Karnataka &
Calcutta held that -- Recording of evidence through video conferencing is
permissible in law, provided that necessary precautions must be taken, both so
as to the identity of the witnesses and accuracy of the equipment, used for the
purpose. Certain guidelines were indicated therein. The party, who intends to
avail such facility, shall be under obligation to meet the entire expenditure.

PRECAUTIONS:
By practice and prudence the following procedure can be cautiously
followed to avoid miscarriage of justice. Before examining the witness ensure
that the property required for trial is in the court. The objects/articles should
be proved through the panchas, I.O and the witnesses as the case maybe. If
wrong object/articles are shown to the wrong witness, weakens the case. A
weapon must be shown to the medical officer and his opinion must be solicited
as to whether the injuries mentioned in his testimony are possible by the said
weapon. 2nd part of Sec.138 of I.E Act says that the examination–in-chief and
cross-examination must relate to relevant facts, but the cross-examination
need not be confined to the facts deposed in chief- examination. Many times
the same questions are repeatedly asked so as to elicit favourable answers or to
crate discrepancy. Repetition of questions has to be prohibited. Often
compound, complex or presumptive questions are put-forth to the witness.
Sometimes a series of questions is asked in one breath. Sometimes, the
witness does not understand the question. In all these circumstances, the
presiding officer has to be vigilant. Such questions should not be permitted
unless simplified. The cross examiner should be asked to repeat the question
if the witness is unable to understand. This minor precaution can prevent
improper and incorrect recording of evidence. Many a times questions
61

regarding legal provisions are asked. At times such questions may be relevant
to an expert witness, but for ordinary witnesses such questions are
inconsequential and should not be permitted. Sometimes it so happens that
omissions and contradictions are recorded without examining the previous
statement of the witness. Sometimes the fact which is present in the previous
statement is also brought on record as on omission. Sometimes only a part of
statement does not find place in the previous statement. While, recording
omissions and contradictions the presiding officer must verify the previous
statement. When the omission relates to only part of the statement, it should
be specifically recorded to that effect. During cross examination documents
are referred to the prosecution witness. At times they are directly referred
without filing them on record. In this method sometimes Xerox copies are also
attempted to be referred. Unless the documents are properly filed on record
they should not be permitted to referred in the cross examination. Documents
can be referred, not the copies.
The most vital aspect in recording cross examination comes when
objections are raised. The objections can be classified as objections as to oral
evidence and objections as to documents. In case of Bipin Shantilal Panchal
Vs State of Gujarat reported in 2001 Cri.L.J 1254, the Hon’ble Apex Court
held that such objections, except relating to admissibility of document, should
be postponed till final hearing and the evidence be recorded subject to
objections. After filing of affidavit of examination-in-chief and after recording
formal examination-in-chief of the concerned witness, an objection raised
regarding proof of documents or insufficiency of proof or of adopting incorrect
mode of proof has to be dealt with immediately by the presiding officer before
proceeding with the recording of cross examination. Only in a case where the
said adjudication involves a decision and complicated questions which required
a very detailed adjudication, it can be postponed till the final hearing.

CONCLUSION:
While recording oral evidence, the trial judge expected to be “all ears and
eyes” that is to say, he has to closely observed the demeanor of the witness
and note whether he hesitates, weaves, prevaricates are looks around etc., in
order to gain an insight in to the mind of the witness in order to judge whether
he is telling the truth or not. A Presiding Judge or Magistrate must cease to be
a mere recording machine. He should take participatory role in the trial.
Exercising his control over the proceedings effectively, he should interfere when
irrelevant fact is unnecessarily brought on record so that the ultimate objective
that is the truth is arrived at.
62

Presented by: Sri G.Venkateswarlu,


III-Addl. Chief Metropolitan Magistrate,
Vijayawada.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

Now it is well settled law that the Courts are competent and empowered
to record the evidence through video conferencing. The Court can observe the
demeanour of the witness while recording evidence through video conferencing
just like observing while recording evidence in the Court. The Hon’ble Apex
Court in some of the Judgments also dealt with the said Subject and laid down
the law. Likewise our Hon’ble High Court and some other Hon’ble High Courts
also dealt the subject in some cases by following judgment of the Hon’ble Apex
Court in the State of Maharashtra Vs. Dr. Praful B. Desai.

Now, digital technology offers us new packages like database, ERP tools,
court management practices, these will help in increasing the productivity of
courts, video conferencing through which we can record evidence. There is,
therefore, vast technology available for the courtroom, for enhancing the
quality of justice, and finding the truth because, justice is the finding of truth.

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


The Hon’ble apex court held that;
18. Thus the law is well settled. The doctrine "Contemporanea exposition est
optima et for tissimm" has no application when interpreting a provision of an
on-going statute/act like the Criminal Procedure Code.
19. 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
exists. 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 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 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.
63

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 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 presence of each other. The
submissions of 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, Criminal Procedure Code. Recording of
such evidence would be as per "procedure established by law".

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 Court room. They can observe his or her demeanour. In fact the
facility to play back 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 play back 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.
64

22. In this case we are not required to consider this aspect and therefore
express no opinion thereon. The question whether commission can be issued
for recording evidence in a country where there is no arrangement, is
academic so far as this case is concerned. In this case we are considering
whether evidence can be recorded by video-conferencing. Normally when a
Commission is issued, the recording would have to be at the place where the
witness is. Thus Section 285 provides to whom the Commission is to be
directed. If the witness is outside India, arrangements are required between
India and that country because the services of an official of the country (mostly
a Judicial Officer) would be required to record the evidence and to
ensure/compel attendance. However new advancement of science and
technology permit officials of the Court, in the city
where video conferencing is to take place, to record the evidence. Thus
where a witness is willing to give evidence an official of the Court can be
deported to record evidence on commission by way of video-conferencing.
The evidence will be recorded in the studio/hall where the video-
conferencing takes place. The Court in Mumbai would be issuing commission
to record evidence by video conferencing in Mumbai. Therefore the
commission would be addressed to the Chief Metropolitan Magistrate, Mumbai
who would depute a responsible officer (preferably a Judicial Officer) to proceed
to the office of VSNL and record the evidence of Dr. Greenberg in the presence
of the Respondent. The officer shall ensure that the Respondent and his
counsel are present when the evidence is recorded and that they are able to
observe the demeanour and hear the deposition of Dr. Greenberg. The officers
shall also ensure that the Respondent has full opportunity to cross-examine
Dr. Greenberg. It must be clarified that adopting such a procedure may not be
possible if the witness is out of India and not willing to give evidence.
23. It was then submitted that there would be practical difficulties
in recording evidence by video conferencing. It was submitted that there is a
time difference between India and USA. It was submitted that a question would
arise as to how and who would administer the oath to Dr. Greenberg. It was
submitted that there could be a video image/audio interruptions/distortions
which might make the transmission inaudible/indecipherable. It was
submitted that there would be no way of ensuring that the witnesses is not
being coached/tutored/prompted whilst evidence was being recorded. It is
submitted that the witness sitting in USA would not be subject to any control
of the Court in India. It is submitted that the witness may commit perjury with
impunity and also insult the Court without fear of punishment since he is not
amenable to the jurisdiction of the Court. It is submitted that the witness may
not remain present and may also refuse to answer questions. It is submitted
65

that commercial studios place restrictions on the number of people who can
remain present and may restrict the volume of papers that may be brought into
the studio. It was submitted that it would be difficult to place text books and
other materials to the witness for the purpose of cross-examining him. Lastly,
it was submitted that the cost of videoconferencing, if at all permitted, must
be borne by the State.

In Sakshi vs Union Of India on 26 May, 2004


The Hon'ble Apex Court held that;
31. The whole inquiry before a Court being to elicit the truth, it is absolutely
necessary that the victim or the witnesses are able to depose about the entire
incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C.
merely requires the evidence to be taken in the presence of the accused. The
Section, however, does not say that the evidence should be recorded in such a
manner that the accused should have full view of the victim or the witnesses.
Recording of evidence by way of video conferencing vis-a-vis Section
273 Cr.P.C. has been held to be permissible in a recent decision of this Court
in State of Maharashtra v. Dr. Praful B Desai, [2003] 4 SCC 601. There is
major difference between substantive provisions defining crimes and providing
punishment for the same and procedural enactment laying down the procedure
of trial of such offences. Rules of procedure are hand-maiden of justice and are
meant to advance and not to obstruct the cause of justice. It is, therefore,
permissible for the Court to expand or enlarge the meanings of such provisions
in order to elicit the truth and do justice with the parties.

In Dr. P.B. Desai And Ors. vs The State Of Maharashtra on 23 April, 2001
The Hon'ble Bombay High Court held that;
3. The said order is challenged mainly on the ground that recording
evidence on video conferencing would not meet the requirements of Section
273 of Cr.P.C. under which all the evidence of the prosecution witnesses has
to be recorded in the presence of the accused. It was further contended that
under the code of Cr.P.C. there are certain safeguards laid down in the form
of Sections 349 and 350 of the Cr.P.C. to ensure that the witnesses
give evidencebefore the court with all sense of responsibility and do not either
refuse to answer questions or refuse to produce documents if so required by
the court. The provisions of section 228 of IPC are also pressed in service under
which if any person intentionally offers any insult or causes any interruption to
any public servant sitting in judicial proceeding he is liable to be punished
under that provision. It is further argued that there may be possibility of
witness being coached or tutored while giving evidence and in that case
witness will not be subject to any control of the Court. Then practical
66

difficulties were also mentioned in recording evidence by video


conferencing, for instance the time difference between the two countries i.e.
USA where the witness is to be examined on video conferencing and India i.e.
the seat of the Court. It was further contended that in the case of recording
evidence on video conferencing the advantages of having the proceedings in
open court room as provided under Section 327 of Cr.P.C. where public may
have access, will not be available. In support of the aforesaid contentions
number of judgments of Indian Courts as well as U.S. Courts have been cited
to which reference will be made hereafter.
4. As against that it is contended on behalf of the prosecution that dr.
Greenberg from USA has expressed his inability to attend the Court in Bombay
to give evidence because of his old age and ill health and there is no provision
under the Code of Criminal Procedure to enforce or compel the presence of this
witness, who is an American citizen, in Court in India. It is further submitted
that the said witness is a key witness and the prosecuting agency cannot avoid
his evidence. It is further submitted that the witness will be subject to cross-
examination on behalf of the accused on video conferencing. Invoking Section
3 of the Indian Evidence Act where the definition of the word "evidence" is
given, it is contended on behalf of the prosecution that evidence includes all
statements which the Court permits or requires to be made before it by
witnesses and therefore, the evidence recorded on video conferencing also
would amount to evidence within the meaning of Section 3 of
the Evidence Act. Reliance was placed on the order date 8/11/94 passed by
Justice Variava presiding over the Special Court constituted under the
provisions of the Special Court (Trial of Offences etc.) Act, 1992 whereby
permission was given to record the evidence of a witness in U.S.A. in the
Special Case pending before him on video conferencing, which has yet
remained to be implemented.
11. This leads me to consider whether recording of evidence on video
conferencing would amount to recording the evidence of witnesses in the
presence of the accused within the meaning of Section 273 of the Cr.P.C.
12. The perusal of Section 273 shows that there is a mandate to
take evidence of the witnesses in a criminal trial in the presence of the
accused. The said provision has been judicially held to be mandatory. Few
cases may be mentioned here. In the case of Ram Shankar v. State of
Biharreported in 1975 Cri.L.J. 1402 while considering the
corresponding Section 353 of the old Code of 1898 it was observed in para 6 of
the judgment that non-compliance with the said provision vitiates the entire
trial. That was a case where personal attendance of the accused was dispensed
with and the evidence of the witnesses was recorded in the absence of his
pleader. The conviction and sentence recorded against the accused was
67

quashed and set aside on the ground that the trial was vitiated as two
prosecuting witnesses were examined in the absence of accused as well as his
pleader. The reliance was placed on the earlier Division Bench decision of
Patna High Court in the case of Bigan Singh v. King Emperor reported in
(1928) 29 Cri.L.J. 260. Similar view was taken by the Orissa High Court as
recently as in the year 1990 in the case of Banchhanidhi Singh v. State of
Orissa reported in 1990 Cri.L.J. 397. That was a case where the accused was
facing trial for offence under Section 379 of IPC and the personal attendance of
the accused was dispensed with. During the examination of the prosecution
witnesses the layer representing the accused was also not present and,
therefore, the High Court held that the examination of the witnesses was made
in gross violation of the mandatory provisions of Section 273 of Cr.P.C. and on
that score alone the entire trial was held vitiated. The next recent decision to
which reference may be made is the decision of the Division Bench of Madhya
Pradesh High Court in the case of State of M.P. v. Budhram reported in 1996
Cri.L.J. 46 where also the conviction of the accused under Section 302 of IPC
and the death sentence imposed on him was set aside on the ground that the
trial was vitiated as the evidence of witnesses was recorded in the absence of
the accused. The case was remanded back for retrial. In the case of Bigan
Singh v. King Emperor reported in AIR 1928 Patna 143 it was held that waiver
of mandatory provision of Section 353 of the old Code by the accused's pleader
would not be taken to condone the non-compliance of the mandatory provision.
It was held that non-compliance with the said provision amounted to
disobedience to an express provision as to a mode of trial and therefore is not
merely an irregularity but vitiated the trial. Similarly in the case of Bishnath v.
Emperor reported in AIR 1935 Oudh 488 relying on the similar provisions in
the old Code, it was held that when the examination in chief of the witness was
made in the absence of the accused the trial was a nullity although witnesses
had proved the case of the prosecution against the accused in cross-
examination which had taken place in the presence of the accused. Similar was
the view expressed in the case of K. Belli Gowder v. Emperor reported in AIR
1934 Madras 691 (2) wherein the Madras High Court had held that the
committal order based on the evidence recorded in the absence of the accused
was illegal. Thus such evidence was not relied even for the purpose of
committal of the accused to Sessions Court.
27. The reference to the case of the Special Court constituted under the
provisions of the Special Court (Trial of Offences etc.) Act, 1992, allowing
the evidence to be recorded on videoconferencing, would not, in my view, be
a proper guide for interpretation of Section 273 of the Cr.P.C. Firstly the
provisions of Cr.P.C. are not binding on the Special Court even in criminal
cases. Secondly the casein which video conferencing was allowed was a civil
68

case. Thirdly both the parties had given consent. Apart from that the Learned
Judge had expressly stated the reason for allowing the evidence to
be recorded on video conferencing because if the evidence were to
be recorded on commission the defendant in that case, who was a notified
party under the provisions of the said enactment, would have to be permitted
to leave India and go to USA, at the risk of his not returning to face the
proceedings pending against him in that Court. Thus though it was a civil case
the leaned Judge felt that the physical presence of the party in the U.S.A. was
necessary in case the evidence was recorded against him on commission
there for the purpose of instructing his Advocate. I am told that the order of 8th
November 1994 is yet to be implemented.

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


The Hon'ble Delhi High Court held that;
19. 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,
69

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 thatevidence 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.
24. In this case we are not required to consider this aspect and therefore
express no opinion thereon. The question whether commission can be issued
for recording evidence in a country where there is no arrangement, is
academic so far as this case is concerned. In this case we are considering
whether evidence can be recorded by video-conferencing. Normally, when a
commission is issued, the recording would have to be at the place where the
witness is. Thus Section 285 provides to whom the commission is to be
directed. If the witness is outside India, arrangements are required between
India and that country because the services of an official of the country (mostly
a judicial officer) would be required to record the evidence and to
ensure/compel attendance. However, new advancement of science and
technology permit officials of the court, in the city where video-
conferencing is to take place, to record the evidence. Thus where a witness
is willing to give evidence an official of the court can be deputed
70

to record evidence on commission by way of video-conferencing.


The evidence will be recorded in the studio/hall where the video-
conferencing takes place. The court in Mumbai would be issuing commission
to record evidence by video- conferencing in Mumbai. Therefore the
commission would be addressed to the Chief Metropolitan Magistrate, Mumbai
who would depute a responsible officer (preferably a judicial officer) to proceed
to the office of VSNL and record the evidence of Dr Greenberg in the presence
of the respondent. The officer shall ensure that the respondent and his counsel
are present when the evidence is recorded and that they are able to observe
the demeanour and hear the deposition of Dr Greenberg. The officers shall also
ensure that the respondent has full opportunity to cross-examine Dr
Greenberg. It must be clarified that adopting such a procedure may not be
possible if the witness is out of India and not willing to give evidence.
13. The learned Single Judge, in the impugned order, has not noticed the
judgments referred to above and several others of this court
where evidence has been permitted to be recorded using the facility
of video conferencing. The Supreme Court has laid down the need and
importance of advancing with technology.
14. 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.

In A Whether Reporters Of Local vs Azaruddin Valiuddin Saiyed & on 11


July, 2014
The Hon'ble Gujarat High Court held that;
6.0. On the other hand, it is the case on behalf of the
prosecution as well as on behalf of the complainant / victim that the impugned
order passed by the learned trial Court directing to hold / conduct the trial thr
ough Video Conferencing is just and proper and with a view to avoid any possib
ility of threatening the witness so that witness can depose freely and
fearlessly and without undue influence of the accused, as
the accused is very head strong persons. It is submitted that as such the
impugned order cannot be said to be contrary to Section 273 of the Code
of Criminal Procedure. It is submitted that the Hon'ble
Supreme Court in the case of Praful B Desai (supra) has categorically
held that while considering the provision of Section 273 of the Code of
71

Criminal Procedure that there may be constructive presence and at the time
of recording of the evidence physical presence is not must.
Therefore, the short question which is posed for consideration of this Court
is whether can there be a trial via Video Conferencing and
deposition of the witness can be recorded in the presence of the
pleader of the accused and whether at that time the physical presence of the
accused in the Court is must or not and / or whether such an order of
directing to conduct the trial
through Video Conferencing is contrary to Section 273 of the Code of Criminal
Procedure or not. While considering the very provision i.e. Section 273
of the Code of Criminal Procedure and the question with respect to
recording of the evidence by
Video Conferencing and the evidence so recorded i.e. by Video
Conferencing is being recorded in "presence" of the accused would
fully meet the
requirements of Section 273 of the Code, the Hon'ble Supreme Court has
specifically observed and held that recording of such evidence would be as
per the "procedure established by law". In the said decision, the
Hon'ble Supreme Court has reversed the decision of the Bombay High Court
which took view that "presence" in Section 273 means actual
physical presence of the accused in Court. In the said decision Hon'ble
Supreme Court also dealt with and considered the submission on behalf
of the accused that Video Conferencing could not be allowed as rights of the
accused under Article 21 of the Constitution of India shall be
violated while permitting the evidence to be recorded by Video
Conferencing and same shall cause prejudice to the
accused, the Hon'ble Supreme Court has observed and held that so long as acc
used and 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 and recording of
such evidence would be as per "procedure established by law". In the said
decision, the Hon'ble Supreme Court has also observed that no
prejudice, of whatsoever nature would be caused to the accused if the
accused is recorded by Video Conferencing. While holding so, in para 19
the Hon'ble Supreme Court has observed and held as under:
19. 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
72

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 exists. 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 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 sofa etc. Video conferencing has
nothing to do with virtual reality. Advances in science and technology have no,
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 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 persons sitting in the stadium and the p
erson 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 permi
ts one tosee, hear and talk with someone far away, with the same facility and e
ase 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
presence of each other. The submissions of
respondents counsel are akin to an argument that a person seeing through bin
oculars 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 rec
orded in the "presence" of the accused and would thus fully
meet the requirements of Section 273, Criminal Procedure Code. Recording
of such evidence would be as per "procedure established by law".
73

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 th
an he may have been able to if he was sitting in the dock in a
crowded Court room. They can
observe his or her demeanour. In fact the facility to play back 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 play back 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.
6.2. In view of the aforesaid direct decision of the Hon'ble
Supreme Court,
none of the submissions made by the learned advocate for the accused deserve
consideration as all the submissions are covered against the accused
by the decision of the Hon'ble Supreme Court in the case of Praful B
Desai(Supra). Under the circumstances, as such no error has been
committed by the learned trial Court in ordering the trial
to be conducted by Video Conferencing. Even otherwise, in view
of the advance in Science and Technology and facilities available, we are of the
firm opinion that the Courts must take the advantage of Science and
Technology and facilities of Video Conferencing etc available. It will save
the time of the Courts, Police Authority who are required to even bring
the accused who are in judicial custody before the Court every 15 days. The
same can save the energy, expenses and even avoid other mal
practice. Therefore, we are of the view that even
the facility of Video Conferencing can be used by the Courts
wherever it is possible and
permissible subject to availability of the facilities, even for the purpose
of recording the presence of the accused for the purpose of
making presence who is in judicial custody, who is required to be
produced
before the Court on every 15 days. It is required to be noted that many
74

times the accused are not produced before the Court due to shortage of
police staff and / or Japta not
available and due to so many such other reasons, trial is delay. Therefore,
if such
course of conducting trial / recording evidence by Video Conferencing is per
mitted and/or used
even the same shall be in the larger interest of the society and even same can
avoid delay in conducting the trial. Therefore, as such recording
evidence by Video Conferencing and / or even marking presence of the
accused who is judicial custody by Video Conferencing on every 15 days
is the need of the day.
Everybody inclusive of judiciary must take the benefit/use of advancement
in science and technology, more particularly, when the same will be in
advancement of justice, speedy trial and in a given case fair trial.

In R.Sridharan vs R.Sukanya on 30 March, 2011


TheHon'ble Madras High Court held that;
"20. Recording of evidence by video-conferencing also satisfies the object
of providing, inSection 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 demeanor. 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.
25. It was then submitted that there would be practical difficulties
in recording evidence byvideo-conferencing. It was submitted that there is a
time difference between India and USA. It was submitted that a question would
arise as to how and who would administer the oath to Dr Greenberg. It was
submitted that there could be a video image/audio interruptions/ distortions
which might make the transmission inaudible/indecipherable. It was
submitted that there would be no way of ensuring that the witness is not being
75

coached/tutored/prompted whilst evidencewas being recorded. It is


submitted that the witness sitting in USA would not be subject to any control
of the court in India. It is submitted that the witness may commit perjury with
impunity and also insult the court without fear of punishment since he is not
amenable to the jurisdiction of the court. It is submitted that the witness may
not remain present and may also refuse to answer questions. It is submitted
that commercial studios place restrictions on the number of people who can
remain present and may restrict the volume of papers that may be brought into
the studio. It was submitted that it would be difficult to place textbooks and
other materials to the witness for the purpose of cross-examining him. Lastly,
it was submitted that the cost of video-conferencing, if at all permitted, must
be borne by the State.
26. 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 officer concerned. 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 in 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 a
76

foreign witness has given evidence in a court in India and then gone away
abroad. In all such cases the 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 would 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 officer concerned 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 ofvideo-conferencing would
have to be borne by the State."
10.4. In the said decision, interpretation of the term "presence" in Section
273 of Cr.P.C came in for consideration before the Hon'ble Apex Court and the
Hon'ble Apex Court while dealing with the same held that it does not mean
actual physical presence in the Court.
10.5. Thus, the Hon'ble Apex Court has held that recording the evidence by
way of video-conferencing is permissible. The evidence recorded would be as
per the procedure established by law and that no prejudice would be caused to
the accused by recording the evidence in such a manner. Nowhere in the said
decision, the Hon'ble Apex Court has held that the evidence has to
be recorded by video-conferencing.

In Haseen Siddiqui @ Jahangir vs State Of U.P. Thru Prin. Secy. Law & ...
on 2 December, 2013
The Hon'ble Allahabad High Court held that;
8. According to Section 11(1) of Code of Criminal Procedure, State
Government may after consultation with the High Court, notify the place of
sitting of Judicial Magistrates. Session Judge cannot shift the place of sitting of
a Judicial Magistrate. In view of this, the administrative order passed by
Session Judge, Lucknow is not in consonance of either Section 9(6) of Code of
77

Criminal Procedure and above circular and is liable to be quashed and is


hereby quashed.
9. The consideration of internal security and public order has to be given
more importance, while dealing with the administration of justice at Sessions
level. Law is its wisdom declares that the rights of the public shall not be
wholly sacrificed in order that an individual benefit may be preserved to the
accused. One such, method is trial by video conferencing. Apex court has,
while dealing with the constitutionality and validity
of video conferencing vis.a.vis right of accused under sections 267 and 273 of
Code of Criminal Procedure held
that recording ofevidence by video conferencing fully satisfies object
of section 273 Cr.P.C. and services ofvideo-conferencing system could be
adopted in order to render justice of parties.

19. At this stage we must deal with a submission made by Mr. Sundaram. It
was submitted thatvideo-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
exists. 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 ocean when one is sitting in
the mountains, one can be made to imaging that he is taking part in a Grand
Prix race whilst one is relaxing on one 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 a
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 of TV, it cannot be said
that he is in 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 int eh 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,
78

hear and observe as if the party is in the same room.


In video conferencing both parties are in presence of each other. The
submissions of 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 need the
requirements of Section 273, Criminal Procedure Code. Recording of
such evidence would be as per "procedure established by law".
Recording the 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 Court room. They can observe his or her demeanour. In fact the
facility to play back 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 play back 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.
19. 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 videoconferencing, 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 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.
79

In Amitabh Bagchi vs Ena Bagchi on 16 February, 2004


The Hon’ble Culcutta High Court held that;
11. In the instant case, the petitioner wanted to pay expenses. In such
circumstances, if the guidelines and/or safe guards are directed to be followed
in examining the witness from the United States of America no prejudice will be
suffered by the opposing party. The whole compass of the argument made by
the opposite party is that the application for recording evidence by
video conferencing is a dilatory tactics on the part of the petitioner. According
to her, the approach of the petitioner herein is not a honest approach to the
Court of law. Learned counsel, appearing for her, made submission that when
the parties were residing in America what was the necessity of filing the suit in
the District Court of Howrah, West Bengal, India is unknown to him. It could
have been filed there. But for avoiding huge amount of alimony the suit was
instituted in India and now he is showing the ground of expenses in coming to
India and has applied for recording his evidence by video conferencing.
12. According to me, sitting in the Court of Superintendence under Article
227 of the Constitution of India I cannot adjudge the merit. It is open for the
Court where the suit and/or the proceeding is pending. The only question
before this Court is whether the application for recording evidence by way
of video conferencing is illegal and whether the learned District Judge rightly
refused such application or not. In spite of the interesting arguments having
been made by the parties in the Court below a surprising order was passed by
the learned District Judge, Howrah that as because two months period has
been granted by the Court such application could not be entertained. The
Court said that the order was brought to notice of the Court on 1st September,
2003 and thereafter the case was fixed without giving particulars of the date.
Thereafter it was observed that it goes without saying that if application is
allowed it will take a long time to dispose of the application and the same
would be against the direction of the Hon'ble High Court. A submission of the
opposite party/wife was recorded therein that to avoid warrant of arrest as
against a complaint filed under Section 498A of the Indian Penal Code the
petitioner/husband is avoiding the Court and wants to give evidence.
Although no such point has been agitated herein since the application was
dismissed only on account of time given by the Hon'ble High Court I do not
want to propose to go into such part in detail. But it is to be remembered that a
stray comment in respect of a criminal proceeding cannot be an appropriate
basis of a decision of an independent proceedings.

In Liverpool And London Steamship ... vs M.V. "Sea Success I" And Anr. on
16 June, 2005.
80

The Hon'ble Bombay High Court held that;


1. The present motion has been taken out for the appointment of Commissioner
for recording evidence in the suit as also it has been prayed that the evidence of one
witness namely Ms. Lynn Cook who is staying in Liverpool, United Kingdom
be recorded on video conferencing. The affidavit in support of the application states
that that the said witness is unable to come to India
for recording her evidence because she is staying along with two minor children. The
present motion is taken out under Order 26, Rule 5 of the Civil Procedure Code. The
learned Advocate appearing for the defendant No. 1 opposes the present notice of
motion and contends that this Court could not exercise discretionary jurisdiction
under Order 26, Rule 5 and appoint the Commissioner. In any event, he submits that
the evidence should not be recorded by videoconferencing. It has been contended
in support of the argument that the demeanour of the witness is essential to be noted
by the Court while examining the witness on evidence. In support of his contention
he has relied upon the judgment of this Court in the case of I.C. Corporation v.
Daewoo Corporation and Ors., and Ramesh Siram Sane v. Bhagwandas
Atmasingh and has contended that this Court should not exercise jurisdiction to
appoint the Commissioner for recording evidence and/or in any event the witness
should not be examined on video conferencing.
2. The learned advocate appearing for the plaintiff in support of the present
application has relied upon a judgment of the Apex Court in the case of State of
Maharashtra v. Dr. Praful B. Desai and has contended that
the video conferencing is the effect of advancement of science and technology
and with a view to do expeditious justice it is necessary that
the evidence berecorded by video conferencing as one of the witness is not
able to travel to India and giveevidence. The learned counsel for the plaintiff
states that he is proposing to examine only the said witness as evidence in
support of his case. I have perused the judgment of the Apex Court in the
aforesaid case in State of Maharashtra (supra). On the perusal of the aforesaid
judgment it is clear that the Apex Court has held that examining of a witness
by video conferencing is permissible and that in the case where the witness is
unable to attend the Court or unable to travel to India, this Court should lean
in favour of advancement of science and technology and see to it
that evidence is recorded expeditiously in the interest of justice by way
of videoconferencing. The Apex Court has also provided various safeguards in
paragraph 26 of the said judgment. In my opinion, in view of the judgment of
the Apex Court in the case of State of Maharashtra (supra) the view taken by
the learned Single Judge of this Court in I. C. Corporation (supra) and view
taken by Andhra Pradesh High Court in the case of Ramesh Sirarn Sane
(supra) is no longer a good law and is deemed to be impliedly overruled. In view
of the judgment of the Apex Court in the case of State of Maharashtra (supra), I
pass the following order.
81

3. The notice is made absolute in terms of prayer Clauses (a) and (b) on the
following conditions.
1. That the witness will give evidence in the room provided by Indian High
Commission and/or the Indian High Commission will depute an officer at the
earmarked place where the evidence is conducted. The said officer will take
precaution that nobody else except the witness is present in the said room
during the course when the evidence is recorded on video conferencing.
2. Insofar as India is concerned, I appoint Mr. Satish Shah, Advocate,
to record evidence on video conferencing. The video conferencing facility
will be made available by the plaintiff. If necessary, technical persons also will
remain present during the course when evidence is recorded to assist the
Commissioner. The video conferencing which is being recorded by the
Commissioner and the tapes of the said video conferencing will be kept in a
sealed envelope and filed in Court for the purpose of trial of the suit.

Milano Impex Private Ltd. vs Egle Footwear Pvt. Ltd. And Ors. on 25 May,
2011
The Delhi High Court held that;
The facility of play back 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..."
"24. 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 evidenceis
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 given evidence in a Court in India and that then
82

gone away aborad. 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..."
4. In the recent case of Mrs. Gurnam Kaur v. Pritam Singh Bhatia,
CS(OS)No.1350/1995 vide order dated 2nd May, 2011, this court has held as
under:-
"Science and technology has grown by leaps and bounds today and it is not
essential for person to be physically present before the court
for recording of his/her statement.
Video Conferencing is an established mode of recording evidence of the
parties. This method of recording the evidence has been accepted and
implemented in the Sessions trial at Karkarduma Court in Delhi, which are
serious criminal matters”.
23. The intimation in this regard as well as documents shall also be furnished
to Indian High Commission in Kuala Lumpur, Malaysia, in any case not later
than three weeks from today."
5. In the facts and circumstances of this case, the application is allowed and
Mr. Olefirenko V.V. is directed to be examined through video conferencing on
the following conditions:-
(i) Evidence of the plaintiff shall be recorded through video
conferencing between Delhi, India and Moscow, Russia.
In Abdul Karim Telgi @ Lala @ Karim ... vs State on 17 September, 2007
The Hon'ble Madras High Court held that;

8. The main stay of the learned counsel for the petitioners is that the statutory
provisions have to be followed by the Courts in the trial of criminal case
proceedings. He vehemently argues that the Hon'ble Apex Court, in the case
of State of Maharashtra v. Dr.Praful B.Desai, 2003 Supreme Court Cases (Cri)
815 = 2003 CRI.L.J.2033, has dealt with only the recording of evidence of
witnesses through video conferencing system and the said principle is not
applicable to the present case, as, by seeing the accused in the screen, the
criminal court proceedings could not be effective. The relevant portion of the
said decision is culled out thus:
"19....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'
83

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."
9. In the above said decision, it was also observed that
the recording of evidence by video-conferencing also satisfies the object
of Section 273; that evidence be recorded in the presence of the accused and
the accused and his pleader can see the witness as clearly as if the witness was
actually sitting before them and, that, in fact, the accused may be able to see
the witnesses better than he may have been able to, if he was sitting in the
dock in a crowded courtroom and that they can observe his or her demeanour.
14. As far as Section 273 Cr.P.C. is concerned, the statute requires the
presence of the accused at the time of recording or receiving evidence by the
Court. So, it is stoutly contended by the learned counsel for the petitioners that
the personal appearance of the accused is inevitable.
15. Repelling the above said argument, the learned Special Public Prosecutor
for the respondent would place his argument on the strength of the decision of
the Supreme Court in State of Maharashtra v. Dr.Praful B.Desai, referred to
supra, in which it is held that in video-conferencing, both parties are in
presence of each other and hence 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 S.273 and that recording of such evidence would be as per
'procedure' established by law.
In Bodala Murali Krishna vs Smt. Bodala Prathima on 11 October, 2006
Our Hon'ble High Court held that;
1. The petitioner is the husband of the respondent. Their marriage took place
in the year 1977 and were blessed with a child. The respondent filed H.M.O.P.
No. 136 of 2004 in the Court of Additional Senior Civil Judge, Narsaraopet,
against the petitioner, for divorce under Section 13 of the Hindu Marriage Act,
1955. The trial of the O.P. commenced.
2. The petitioner is a resident of U.S.A. He filed I.A. No. 340 of 2006 seeking
permission of the trial Court for recording his evidence through
the video conferencing. The respondent opposed the application. Through its
order, dated 15-6-2006, the trial Court dismissed the I.A. Hence, this C.R.P.
84

3. Sri D. Jagan Mohan Reddy, learned Counsel for the petitioner, submits that
there is nothing in the Evidence Act or C.P.C., which prohibits the recording
of evidence through the videoconferencing and in fact, the recent
amendments to the Evidence Act, are in the direction of permitting such a
procedure. He places reliance upon the judgments rendered by the Hon'ble
Supreme Court and the High Courts of Karnataka and Calcutta.
4. Sri P. Vijaya Kiran, learned Counsel for the respondent, on the other hand,
submits that the efforts of the petitioner is to avoid the production of passport,
which contained an entry to the effect that a woman, by name, Satya, is
married to him, and to avoid any pertinent questions. He contends that the
recognized methods of cross-examination of witnesses are through appearance
in the Court, or by appointing of a Commissioner, and not otherwise.
7. Examination of witnesses in criminal cases,
through video conferencing was approved by the Supreme Court in a
judgment reported in State of Maharashtra v. Dr. Praful B. Desai . When such
is the facility accorded in criminal cases, there should not be any plausible
objection for adopting the same procedure, in civil cases as long as the
necessary facilities, with assured accuracy exist. In Twentieth Century Fox
Film Corporation v. NRI Film Production Associates (P) Ltd. and Amitabh
Bagchi v. Ena Bagchi High Courts of Karnataka and Calcutta held that
recording of evidence through video conferencing is permissible in law,
provided that necessary precautions must be taken, both as to the identity of
the witnesses and accuracy of the equipment, used for the purpose. Certain
guidelines were indicated therein. The party, who intends to avail such facility,
shall be under obligation to meet the entire expenditure.
8. For the foregoing reasons, C.R.P., is allowed and the order under revision is
set aside. The I A., shall stand allowed, subject to the conditions that:
a) it shall be the obligation of the petitioner to arrange the necessary equipment
for recording the evidence through video conferencing, duly satisfying the
trial Court as to the accuracy of the equipment and identity of the witness;
b) the petitioner shall be under obligation to display the passport and its individual
pages as may be demanded, on behalf of respondent, and he shall abide by the
directions of the Court, issued during the course of recording;
85

Presented by: Smt U. Indira Priyadarshini,


IV-Addl. Chief Metropolitan Magistrate,
Vijayawada.

MODE OF TREATING & RECORDING EVIDENCE, INCLUDING RECORDING


OF EVIDENCE THROUGH VIDEO CONFERENCING

Quest for truth is the underlying object of a criminal trial. The duty of
the court is to arrive at the truth and subserve the ends of Justice. Judicious
scrutiny of facts proved by admissible evidence culminating into a reasoned
judgment is the integral features of a Criminal trial. A trial Judge is shouldered
with yet another responsibility to conduct Trial with utmost care and
sensitivity so as to protect the innocent and to punish the guilty. The Appellate
Court looks at the evidence through the eyes of the trial Judge. Therefore, clear
and correct recording of evidence assumes great significance.
I. Indian law on recording evidence – The Indian Evidence Act regulates
production of evidence. According to Section 3 of the Evidence Act, evidence
means and includes -

[Oral / [Documentary
S.59] Ss.61 – 63]

o Oral evidence –

o The best oral evidence is of the person, who has actually perceived
something by that sense by which it is capable of perception. This becomes
clear from S.60.

o First part of S.60 refers to eye witnessing.

o Second part of S.60 refers to hearsay.

o Third part of S.60 relates to oral evidence, which is direct referring to a


fact, which could be perceived by any other sense, means - by smell, touch,
gait, timbre voice etc.

o Fourth and last part of S.60 refers to an opinion or to the grounds on


which that opinion is held by that person.

o First part of S.60 refers to eyewitnessing. Second part of Section 60


refers to hearsay. It can be said that hearsay evidence (which is indirect &
derivative) is not admissible to prove truthfulness of the heard statement. Still
S.60 says that hearsay evidence is admissible, but for certain purpose and that
is, to prove something heard which is not actually seen. The words heard may
be used, among others, to prove conduct of the person telling and as such not
to prove truthfulness of the heard statement. In Balram Prasad Agrawal vs.
86

State of Bihar & others (AIR 1997 SC 1830), the Hon'ble Apex Court
referred to the observations of the Privy Council as:

Evidence of a statement made to a witness who is not himself called as a


witness may or may not be hearsay. It is hearsay and inadmissible when the
object of the evidence is to establish the truth of what is contained in the
statement. It is not hearsay and is admissible when it is proved to establish
by the evidence, not the truth of the statement but the fact that it was made.
The fact that it was made quite apart from its truth, is frequently relevant in
considering the mental state and conduct thereafter, of the witness or some
other person in whose presence these statements are made”.

o Documentary evidence –

o According to Section 3 of the Evidence Act, “document” means any


matter expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means intended to be used, or
which may be used, for the purpose of recording that matter. A writing,
printing, lithograph, photograph, map, a plan, an inscription on a metal plate
or a stone, a plaque, a caricature etc. are documents.

o The contents of the document are proved either by primary evidence or


by secondary evidence in view of Section 61 of the Evidence Act.

o Section 62 - “primary evidence” means the document itself produced for


the inspection of the court.

o Section 63 – “secondary evidence” a document is to be proved by


admissible evidence. The admissible evidence is by way of:

i) Admission by the signatory to the document of its execution (Section


58),

ii) Examination of a scribe (Section 67),

iii) Examination of an attesting witness (Sections 67 & 68),

iv) By proof of signature and handwriting of the person, who is alleged to


have signed or written the document produced (Section 67),

v) By proof of digital signature (Section 67 A),

vi) By opinion as to, or comparison of, signature, writing or seal with other
admitted or proved document; (Ss. 45, 47 or 73) &

vii) Proof as to verification of digital signature. (Section 73 A).

o The Hon’ble apex court in State v Navjot Sandhu while examining the
provisions of newly added S-65B, held that “in a given case, it may be that the
certificate containing the details in Sub-S.4 of S.65B is not filed, but that does not
mean that secondary evidence cannot be given. It was held by the court that, the
87

law permits such evidence to be given in the circumstances mentioned in the


relevant provisions, namely, Ss. 63 and 65 of the Indian Evidence Act 1872.
Paragraph 150 of the judgment which is apposite, reads as under:-

“150. According to Section 63, secondary evidence means and includes,


among other things, “copies made from the original by mechanical processes
which in themselves insure the accuracy of the copy, and copies compared
with such copies”.

o The Hon'ble Bombay High Court has held in case of Bama Kathari Patil
V. Rohidas Arjun Madhavi [2004 (2) Mh.L.J. 752]

“that a document is required to be proved in accordance with the provisions


of the Evidence Act and merely for administrative convenience of locating or
identifying the document, it is given an exhibit number by the Court.
Exhibiting a document has nothing to do with its proof though as a matter of
convenience only the proved document is exhibited. If a document is duly
proved, but mistakenly or otherwise is not exhibited, still it can be read in
evidence.”

II. “Evidence” in

i. Criminal proceedings –
 Ss.230-234 of Cr.P.C 1973 - procedure of collecting evidence and the
Court has the power to compel the witness to appear before it to give evidence.

 R.53 – 58 of Criminal Rules of Practice [recording of evidence].

 Ss.273 to 299 of Cr.P.C.

ii. Civil proceedings –

 Witnesses are summoned to appear before the court and adduce


evidence - Provisions of S.30, Order XVI & Order XVIII of the Code of Civil
Procedure (CPC) 1908.

III. According to Section 3 of the Indian Evidence Act, “evidence” means and
includes - all documents including “electronic records” produced for the
inspection of the court and such documents are called documentary evidence.
Thus, documentary evidence can be in the form of electronic record and stands
at par with conventional form of documents.
88

o Evidentiary value of electronic records is widely discussed under Section


65A and 65B of the Evidence Act, 1872.
o If evidence of an electronic record is to be given, a certificate containing
the particulars prescribed by 65B of the Act, and signed by a person occupying
a responsible official position in relation to the operation of the relevant device
or the management of the relevant activities would be sufficient evidence of the
matters stated in the certificate.

IV. Section 2(t) of the Information Technology Act, 2000 defines “electronic
record” as:

 data, record or data generated, image or sound stored, received or sent in


an electronic form or micro film or computer generated micro fiche.

 The Act recognizes electronic record in a wide sense thereby including


electronic data in any form such as videos or voice messages.

 The Information technology has made it easy to communicate and


transmit data in various forms from a simple personal computer or a mobile
phone or other kinds of devices.

 The Information Technology Amendment Act, 2008 has recognized


various forms of communication devices and defines a “communication device”
under section 2 (ha)of the Act :
­ “communication device” means cell phones, personal digital assistance or
combination of both or any other device used to communicate, send or
transmit any text, video, audio or image.

­ The Indian IT Act 2000 lays down a blanket permission for records not to
be denied legal effect if they are in electronic form as long as they are
accessible for future reference.

i) It is pertinent to note herein a recent development, that as per the IT


Amendment Bill 2008 – S.79A empowers the Central Government to appoint
any department, body or agency as examiner of electronic evidence for
providing expert opinion on electronic form evidence before any court or
authority.

ii) ‘Electronic form of evidence’ means - any information of probative


value that is either stored or transmitted in electronic form and includes
89

computer evidence, digital, audio, digital video, cellphones, digital fax


machines.

iii) Section 85-B of the Indian Evidence Act - Presumption as to authenticity


of electronic records in case of secure electronic records (i.e records digitally
signed as per Section 14 of the IT Act, 2000).

iv) Other electronic records can be proved by adducing evidence and


presumption will not operate in case of documents which do not fall under the
definition of secure electronic records.

V. Procedure in recording evidence:

 Chapter XXIII of the Criminal Procedure Code deals with the mode of
recording evidence in [Part-A] and Commission for examination of witness in
[Part-B]. The provisions regarding the mode of taking and recording evidence in
a criminal trial are enumerated in this Chapter.

 Part B of this Chapter deals with the examination of the witnesses on


Commission. Taking evidence on Commission in criminal cases is most
sparingly resorted to, i. e., in case of delay, inability or inconvenience. The
Hon'ble Apex Court has held in the case of Dharmanand Pant AIR 1957 S.C.
594 that :
“as a general rule in criminal proceeding, the important witness on whose
testimony the case against the accused is to be established, must be
examined in Court and issuing of Commission should be restricted to formal
witnesses or such a witness whose presence cannot be secured without
unnecessary delay or inconvenience. The evidence must be recorded in the
presence of the accused in open Court so that the accused has an
opportunity to crossexamine the witness and the Presiding Judge may has
an advantage of hearing the witness and of noting his demeanors.”

 Section 273 of the Code mandates to record all the evidence in a trial or
other proceeding in the presence of the accused, or when personal attendance
is dispensed with, in the presence of his Pleader. Idea of fair trial is implicit
herein. In the landmark judgment, the Hon’ble Supreme Court in State of
Maharashtra v Dr Praful B Desai [2003] held that, presence of accused does
not mean “physical presence” and upheld 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. Thus in cases where the
attendance of a witness cannot be procured without an amount of delay,
90

expense or inconvenience the Court could consider issuing a commission to


record the evidence by way of video conferencing.

­ When a Commission is issued, the recording would have to be at the


place where the witness is. Thus Section 285 provides to whom the
Commission is to be directed. If the witness is outside India, arrangements are
required between India and that country because the services of an official of
the country (mostly a Judicial Officer) would be required to record the evidence
and to ensure/compel attendance. However new advancement of science and
technology permit officials of the Court, in the city where video conferencing is
to take place, to record the evidence. Thus where a witness is willing to give
evidence an official of the Court can be deported to record evidence on
commission by way of video-conferencing. The evidence will be recorded in the
studio/hall where the video-conferencing takes place.
­ What if witness is out of India and not willing to give evidence? 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, prescribe in this behalf. " Thus in cases where the witness is
necessary for the ends of justice and the attendance of such witness cannot be
procured without an amount of delay, expense or inconvenience which, under
the circumstances of the case would be unreasonable, the Court may dispense
with such attendance and issue a commission for examination of the witness.
­ Normally a commission would involve recording 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. Thus 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 the evidence by way of
video conferencing.
 The aforesaid cardinal principle has been followed in several cases,
where the witness unable to attend the court proceedings-

i. Alcatel India Ltd v Koshika Telecom Ltd & ors [2004] the Court
allowed the witness to give evidence through video conferencing, as the witness
was unhealthy.
ii. Amitabh Bagchi, the High Court of Calcutta opined that a practical
outlook ought to be taken by a court in allowing electronic video conferencing
as it is a cost-effective facility and avoids delay of justice.
91

iii. Liverpool and London Steamship Protection and Indemnity


Association Ltd v MV ‘Sea Success I’ & anr. [2005], the Bombay High Court
allowed the plea of the plaintiff to depose using video conferencing, as the
witness was staying in UK with her two minor children and was unable to come
to India.
iv. Bodala Murali Krishna v Smt Badola Prathima [2007], the Andhra
Pradesh High Court similarly allowed deposition of a USA resident witness via
video conferencing. The Court was of the view that there should not be any
plausible objection for resorting to video conferencing in civil cases as long as
the necessary facilities along with assured accuracy co-exist.

v. Recently, the Hon’ble Supreme Court in Dr Kumar Saha v Dr Sukumar


Mukherjee [2011] (medical negligence case), went a step further and ordered
recording of testimonies and cross-examination of the foreign expert witnesses
through internet conferencing instead of video conferencing.

 By virtue of the amendment in the Evidence Act and insertion of Ss.65A


& 65B, a special provision as to evidence relating to electronic record and
admissibility of electronic records had been introduced. Courts have
interpreted this provision to include video conferencing. Recently in case of
Anvar vs. Bashir (Civil Appeal No. 4226/2012 decided on 18.09.14)
the Hon'ble Supreme Court deliberated upon the procedure for proof of
electronic evidence and concluded that-

“An electronic record by way of secondary evidence shall not be admitted


in evidence unless the requirements under Section 65B are satisfied.
Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied
by the certificate in terms of Section 65B obtained at the time of taking
the document, without which, the secondary evidence pertaining to
that electronic record, is inadmissible.”

Procedure and Safeguards while recording evidence through video


conferencing.

 While the courts have held that recording of evidence through video
conferencing is permissible in law, they have also cautioned that necessary
precautions must be taken, both as to the identity of the witnesses and
accuracy of the equipment used for the purpose. Certain guidelines have been
indicated in the judgments discussed above, which are summarised below:
92

1. 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 and who will ensure that there is no other person in the
room where the witness is sitting while the evidence is being recorded.
2. Fixing the time for recording evidence is always the duty of the officer
who has been deputed to record evidence.
3. The witness would be examined during working hours of Indian courts. A
plea of any inconvenience on account of the time difference between India and
another country would not be allowed.
4. If it is found that the witness 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.
5. The respondent and their counsel would have to make it convenient to
attend at the time fixed by the officer concerned. If they do not attend, the
Magistrate would take action as provided in law, to compel attendance.
6. In case of non-party witnesses, a set of plaint, written statement and/or
other papers relating to proceeding and disclosed documents must be sent to
the witness for their acquaintance and an acknowledgement in this regard
must be filed.
7. Before action of the witness under audio-video link starts, the witness
would have to file an affidavit/undertaking duly verified before a
judge/magistrate/notary that the person shown as witness is the same person
as who is going to depose with a copy of such affidavit to the other side.
8. The person who wishes to examine the witness on the screen would have
to file an affidavit/undertaking.
9. As soon as identification is complete, oath would be administered as per
the Oaths Act 1969 of India15, by an officer duly authorised to administer an
oath.
10. The officer would ensure that the witness is not
coached/tutored/prompted. The officer deputed will ensure that the
respondent, their counsel and one assistant are allowed in the studio when the
evidence is being recorded. The officer will also ensure that witness is not
prevented from bringing into the studio the papers/documents which may be
required by their counsel17. The visual is to be recorded at both ends. The
witness alone can be present at the time of video conference.
11. Magistrate and notary are to certify to this effect.
12. The officer concerned will ensure that once video conferencing
commences, as far as practicable, it is proceeded without any interruption and
without any adjournments.
93

13. If the officer finds that the witness is not answering the questions, the
officer will make a memo of the same. When the evidence is read in court, this
is an aspect that will be taken into consideration.
14. The court/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 the recording of the witness either manually or
mechanically.
15. Depositions of the witness, either in the question-answer form or in the
narrative form will have to be signed as early as possible before a magistrate or
notary public and will thereafter form part of the record of the proceedings.
Digital signature can be adopted in this process, and such a signature will be
obtained immediately after day’s deposition.
16. The expenses and the arrangements are to be borne by the applicant who
wants to avail the facility of video conferencing.

Conclusion:

In precise, it can be concluded that, in any impartial Trial, the “evidence”


stands at threshold to deliver justice.

In the advent of science & technology many extraordinary societal changes


have been taking place raising acrimony questions on the front of “evidence”.
The Indian Evidence Act has armored us from-time-time to counter the
challenges in dealing with evidence. Without any skepticism, the new
amendments aids extraordinarily in delivering the justice.

As far as, video conferencing is concerned, it will be extremely effective


instrument as it aids in collective evidence, avoids unnecessary adjournments
of cases, save time & costs and other inconveniences. It will further reduce
conventional impediments and legal uncertainties surrounding the use of
information technology viz. data protection, confidentiality of the documents,
evidence adduced during the proceedings and privacy of the parties. Given its
viability, one will expect the use of video conferencing in Indian dispute
resolution to escalate tremendously.
94

Presented by: Smt L. Thejovathi,


Prl. Junior Civil Judge,
Nuzvid.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

Once the victim is rehabilitated, it is not in her interest to recall her to


the court of law for any purpose including evidence, as she is compelled to
relive the trauma and indignity. Therefore, it would be better to take into
consideration the statement given by her before repatriation and act
accordingly. If, however, her recall is necessitated, it should be done in such a
way that it causes least harm to her. Dislocating her from the rehabilitated
ambience usually causes serious problems. Therefore, if her statement is to be
recorded, or evidence taken, it should be done in commission or through video
conferencing at an appropriate place which would create least disturbance and
discomfort to the person concerned. The Supreme Court has held in State of
Maharashtra vs Praful Desai (2003 4 SCC 601) that the recording of evidence by
way of video conferencing might be done in cases where the attendance of the
witness cannot be ensured without delay, expense and inconvenience. It was
also held by the apex court that recording of evidence by video conferencing
was a ‘procedure established by law’ under Article 21 of the Constitution and
did not violate the rights of the accused. The court observed that although the
rights of the accused must be safeguarded, they should not be overemphasized
to the extent of forgetting that the victim also has rights. Therefore, the ITPA
should make it mandatory to provide video conferencing facility at the place
where the victim would find it comfortable. The victim’s best interests should
be the deciding factor in choosing the place and time of video
recording/conferencing.
SIL Import, USA V Exim Aides Exporters, Bangalore (1999) 4 SCC 567

In yet another decision in which use of available technology has been given a
real boost, the Supreme Court held that “Technological advancement like
fascimile, Internet, e-mail, etc. were in swift progress even before the Bill
for the Amendment Act was discussed by Parliament. So when Parliament
contemplated notice in writing to be given we cannot overlook the fact
that Parliament was aware of modern devices and equipment already in
vogue.”

Grid Corpn. Of Orissa Ltd. V. AES Corpn. 2002 AIR (SC) 3435

In this the Supreme Court has ruled in favour of technology and it held
that “When an effective consultation can be achieved by resort to
electronic media and remote conferencing it is not necessary that the two
95

persons required to act in consultation with each other must necessarily


sit together at one place unless it is the requirement of law or of the
ruling contract between the parties.” In this case the contention was that
the two arbitrators appointed by the parties should have met in person to
appoint the third arbitrator.

State of Maharashtra V. Dr. Praful B Desai (2003) 4 SCC 601

The Supreme Court held that video-conferencing could be resorted to for the
purpose of taking evidence of a witness. In that case, one party was seeking
direction of the court to take evidence of a witness residing in the United States
of America. Though a lower court had ordered such evidence to be taken with
the help of video-conferencing, the concerned High Court struck down that
order on the grounds that the law required the evidence to be taken in the
presence of the accused. The Appeal Bench of the High Court upheld the said
latter order. The Supreme Court struck down the High Court order by stating
that recording of evidence satisfies the object of Section 273 of the Code of Civil
Procedure that evidence be recorded in the presence of the accused. In
explaining the benefits of video-conferencing, the Court observed that “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 Court room. They can
observe his or her demeanour. In fact the facility to play back would
enable better observation of demeanour. They can hear and rehear the
deposition of the witness.” Addressing the various submissions made before
it, the Court stated that “Virtual reality is a state where one is made to feel,
hear or imagine what does not really exist. Video-conferencing has nothing to
do with virtual reality. The Supreme Court also laid down the procedure to be
followed when recording evidence through video conferencing. The accused and
his legal counsel should be present for video conference. The accused should
be permitted to cross-examine the witness and place documents before the
witness. An officer deputed from the Indian Embassy or Consulate, or directly
from India, should be present with the witness in the foreign country during
the video conferencing. This officer should administer oath to the witness and
should ensure that the witness is not being tutored or prompted whilst
evidence is being recorded. There should be nobody, apart from the witness
and the deputed officer. The evidence of the witness should be recorded in the
Indian Embassy if possible. If the officer finds that witness is not answering
questions, the officer should make a memo to this affect. The Court should
take this fact into consideration when determining the veracity of the evidence.
96

Presented by: Smt K. Aruna Kumari,


Prl. Junior Civil Judge,
Gudivada.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

Introduction:
Taking and recording evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence.
For discovery of the truth, courts require proper or relevant facts and
record evidence in clear and intelligible manner. When the language of a
written instrument is perfectly plain, no construction will be made to contradict
the language. As such, a Presiding Judge or Magistrate must cease to be a
mere recording machine. He should take a participatory role in the trial.
Exercising his control over the proceedings effectively, he should interfere when
irrelevant fact is unnecessarily brought on record so that the ultimate objective
i.e., the truth is arrived at summary on the subject.
Sections 272 to 283 of the Code of Civil Procedure, 1973 read with rules
covered under Chapter XIII of General Rules and Circular Order [Criminal]
Volume-1 would throw light to a presiding Judge or Magistrate on mode of
taking and recording evidence in criminal cases.
Section 273 mandates to record all the evidence in presence of the
accused. If personal attendance of the accused is dispensed with, the same
must be recorded in presence of his pleader.
Section 274 lays down that the Magistrate shall record the memorandum
of substance of evidence of a witness in open court and such memorandum
must be signed by him and shall form part of the record so far as summons
case is concerned. In a warrant case, the magistrate shall record the evidence
of a witness by taking down by himself or cause it to be taken down in the
narrating form.
Section 275[3] permits the magistrate to record the evidence in the form
of question and answer. In view of the proviso to section 275 [1], the evidence
of a witness may be recorded by audio video electronic means in presence of
the advocate of the accused.
Section 276 says that recording of evidence before Sessions court should
be in the form of narrative. The presiding judge may, in his discretion, taken
down or cause to be taken down, any part of such evidence in the form of
question and answer and the evidence so taken down shall be signed by the
presiding judge.
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Section 278 stipulates that evidence of a witness when completed should


be read over to him in presence of the accused or his pleader. It should not be
done so at the end of the day after all witnesses have been examined. When
the evidence is read over to the witness or to his pleader, if necessary, it cannot
be corrected. If the witness denies the correctness of any part of the evidence,
the presiding judge may instead of correcting the evidence, make the
memorandum of the objection raised by the witness and shall and such
remarks as he deems fit. If the evidence is recorded in the language not
understood by the accused or his pleader, it shall be contemplated in open
court in the language understood to them.
Section 280 empowers the presiding judge or the magistrate to record the
remarks, if any, if he thinks material in respect of the demeanour of any
witness and he should avoid formulating any opinion on the credibility of the
witness until the whole evidence has been taken.
As per rule 83, the margin of one-fourth of the deposition sheet should
be left blank. Rule 84 enables court to record deposition by type writing
machine. A certificate must be given by the presiding judge that evidence is
recorded to his dictation in open court and each page of the record so made
must be attested by him.
Rule 85 indicates that presiding judge or magistrate shall record in his
own handwriting the name of the witness explained, name of his father and if
she is a married one, the name of her husband, profession, age of the witness,
village, police station, district in which the witness resides, the entry of age of
the witness shall be according to the estimation so far as doubtful expression is
concerned, the trial court should actually record the word used by the witness
so that its exact signification can be assessed in judgment. Assistance of an
interpreter may be taken if the language of the witness is not understood by
the accused court of lawyers. According to rule 87, deposition of each witness
should be separately paragraphed and consecutive numbers should be
assigned. In reference to Rule 88, the magistrate or presiding judge shall
personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct.

MARKING OF EXHIBITS:
The documents admitted as evidence on behalf of the prosecution shall
be marked with number in the order in which they are admitted. Exs.P.1, P2
The documents admitted as evidence on behalf of the defence shall be
marked with capital letters. Exs.D.1, D.2
When documents admitted at the instance of the court, they shall be
marked as: Ext.C-1, C-II etc.
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When a number of documents of same nature will be admitted, the whole


series shall bear the same number or same capital letter, as the case may be,
and a small number or small letter being added to distinguish each document
of the series. For example: Exhibit 11,12,13 etc., Aa,AB, Ac etc., C-1/1, C-1/2,
etc.,
When any article or material which is produced and after being proved
and admitted in evidence, it shall be marked with a roman number. For
example MO-1, MO-II etc.,
List of articles admitted in evidence shall be prepared by the Bench Clerk
of the court and shall be signed by the Judge.

EXAMINATION OF WITNESSES:
Examination in chief and cross-examination must relate to relevant
facts. The objects of cross-examination are to impeach the accuracy, credibility
and general value of the evidence given in chief, shift the facts already stated
by witnesses, to detect and expose discrepancies, to elicit suppressed facts
which will support the case of cross-examining party.
Repetition of questions is prohibited in view of the ratio laid down by the
Bombay High Court in deciding a criminal appeal in 485 of 2006 [date of
judgment:06-05-11].
The cross-examiner should be asked to repeat the question, if the
witness is unable to understand. This minor precaution can prevent improper
and incorrect recording of evidence. Ordinary witness should not be asked
regarding legal provisions. At times legal questions may relevant to an expert
witness.
While recording omission and contradictions, the presiding officer must
verify the previous statement. When the omissions relate to the natural part of
the statement, it should be specifically recorded to that effect.
Unless documents are properly filed on record, they should not be
permitted to refer in cross-examination.
Handwriting or signature may be proved by the person who wrote or
signed, who acquainted with the handwriting or signature or by the court itself
by means of comparison or though opinion of expert.
If a document is duly proved but mechanically or otherwise is not
exhibited, still it can be read in evidence. Courts take judicial notice of public
document. All official documents are also public documents. Certified copies
of public documents are treated to be genuine unless contrary is proved. Truth
of contents of certified copies of private documents like sale deed, gift deed,
leased deed, etc., are required to be proved by independent evidence.
Court insists for direct evidence and primary evidence. Execution of a
document is proved by admissible evidence Admissible evidence is by way of
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admission by signatory to the document of its execution, by way of examination


of a scribe, by way of examination of an attesting witness, by proof of signature
and handwriting of the person who signed or wrote the document produced, by
proof of digital signature, by expert’s opinion or by proof as to verification of
digital signature.
Where several accused of the same name appear at one trial, care should
be taken in recording evidence to specify the name of the father of the accused.
When a deaf witness is to be examined it is not enough to record the
evidence as to what was understood by his gestures, even though, it may take
more time, describe the gesture the individual made, and then record from the
same, with the assistance of interpretation.
If a person gives evidence entirely in a language, not know to court, a
Translator can usefully be pressed into service.
By and large, regarding a child witness of at or about 12 years of age,
through the preliminary questions put to the child witness record such
questions and answers.
Simple mistakes made by the court can automatically be corrected, and
when a witness points out to a mistake, in his deposition, let both the sides
follow to consider the tenor of deposition and the court fee it is not a mistake
but only correction as an after thought of the witness, need not correct the
deposition as desired by the witness, but endorsement has to make about
refusal to correct the same.
In making a correction, let there be no erasure, but strike off incorrect
material and then correct thing be noted in continuation. Do not rewrite any
word as superimposition. Please initial the correction.
Note the demeanour of a witness in the deposition itself. Without noting
demeanour whilst under examination, to mention the same in judgment is
unwarranted.
If the next or subsequent individual to be examined also sits in the court
hall and when it comes to light, do not refuse to record the evidence of such
person altogether, and on the other hand make an endorsement in his
deposition, about the details of the earlier presence.
Let the evidence, be write down, or you dictate to type be it in your own
language, but not to the dictation of an advocate examining the witness.
When dictating to type, naturally it will be audible but when writing
down by the presiding judge, try to be loud of what is writing, for the
convenience of both the sides.
Whenever objection is raised about the marking of a document it is
desirable the court decides it, immediately.
However, situations may crop up when it may not be possible to decide
the same immediately, and then judicial marking of the document can be
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deferred; and let it be known to both the sides, and let the docket also reflect
the same.
In Matrimonial cases, and cases touching the decency of a woman,
should be dealt within chambers, or if chamber is too small for the same, in a
cleared court hall as per. Sec.327 [2] Cr.P.C . Under Sec.376, 376 I.P.C A to D
cases shall be conducted in camera.

RECORDING ELECTRONIC EVIDENCE:


The consists of three parts- [i] Electronic Record, [ii] documentary
evidence other than electronic record, and [iii] Oral evidence.
Electronic record is documentary evidence under Section 3 of the
evidence act. Any information contained in an electronic record is deemed to
be a document. An electronic record may be like computer print out, compact
disc [CD], video compact disc [VCD], Pen drive, chit etc., In other words, it may
be printed on a paper, stored, recorded or copies in optical or magnetic media
produced by a computer. The evidence act does not contemplate or permit the
proof of an electronic record by oral evidence. If an electronic record as such is
used as primary evidence under section 62 of the evidence act, the same is
admissible in evidence. The general law on secondary evidence under Sec.63
read with Sec.65 of the evidence act has no application in case of secondary
evidence by way of electronic record. The same I wholly governed by Sec.65-A
and 65-B. In state [NCT of Delhi] V.Navjot Sandhu @ Afsan Guru: [2005] 11
SCC 600, the Apex Court while considering the print out of the
computerized records of the call pertaining to the cell phones in view of the
production of electronic record held as follows;
“irrespective of the compliance with the requirement of Sec.65-B, which
is a provision dealing with admissibility of the electronic records, there is no
bar to adducing secondary evidence under the other provisions of the evidence
act, namely, Sec.63 and 65. It may be that that the certificate containing the
details in Sub-Sec [4] of Sec.65-B is not filed in the instance case, but that
does not mean that secondary evidence cannot be given even if the law permits
such evidence to be given in the circumstances mentioned in the relevant
provisos, namely, Sec.63 and 65”.
But the Apex court in Anvar P.V.V.P.K Basheer and Others vide Civil
appeal No.4226 of 2012 while delivering judgment on 18th September, 2014
over ruled the legal position as laid down in Navjot Sandhu case [supra]. Their
Lordships observed, inter alia, that an electronic record by way of secondary
evidence shall not be admitted in evidence unless the requirements U/Sec.65-B
are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be
accompanied by the certificate in terms of Sec.65-B obtained at the time of
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taking evidence, without which, the secondary evidence pertaining to that


electronic record, is not admissible.
The nature and manner of admission of electronic records was one of the
principal issues arising for consideration before the Apex Court in the aforesaid
appeal. The appellant therein admittedly has not produced any certificate in
terms of Sec.65-B in respect of the impugned CDs. Therefore, the same could
not be admitted in evidence. For such reasons, the whole case set up
regarding the corrupt practice using sounds, announcements and speeches fall
to the ground. Above all, be it noted that strict adherence to Sec.65-B of the
Evidence Act is imperative for the proof of electronic evidence.

EVIDENCE CAN BE RECORDED THROUGH VIDEO CONFERENCING:


In a path breaking development, the Supreme Court held that a trial
judge could record evidence of witnesses staying abroad through video
conferencing. Interpreting Sec.273 of C.P.C in the light of technological
advancements, a bench comprising justice S.N.Variava and justice B.N Agrawal
said recording of evidence though vidwo conferencing would beperfectly legal
held in case of state of Maharashtra Vs.Dr.Prafull B.Desai and another: AIR
2003 SC 2053 by the apex court.
The judgment relates to a case in which a Us-based doctor had opined
against operation of a cancer patient through video conferencing. Ignoring the
advice, two Indian doctors operated on the lady, who later passed away.
The patient’s family went to court against the doctors. However, the US-
based doctor, ernest Greenberg, refused to come to India, but expressed
willingness to give evidence through video conferencing. But the Bombay High
Court did not allow the trial court to go ahead citing Sec.273, which lays down
the procedure for recording evidence.
The husband of the deceased, P.C singhi and the Maharashtra
government had appealed against the high court under in the Supreme Court.
The prosecution has alleged that the two Indian doctors-Praful B Desai
and A.K Mukherejee-did not take good care of the patient after the operation as
a result of which she suffered a lot before her death.
“Speaking for the bench, justice Variava Said, ‘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”.
“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”. He said. Referring to the chances of witness
abusing the trial judge during video conferencing, the apex court said, “As a
102

matter of prudence, evidence by video-conferencing in open court should be


accepted only if the witness is in a country which has an extradition treaty and
under whose laws contempt of court and perjury are punishable”.
The court then directed the Mumbai Court to set up a commission and
take help of VSNL in recording Dr.Greenberg’s statement through video
conferencing in the presence of the two accused doctors. It also allowed the
two accused to cross-examine the Us-Based doctor.
Rejecting all arguments about inferior video quality, disruption of link
and other technical problems, the bench said by now science and technology
has progressed enough to not worry about video image/audio interruptions or
disruptions.
The counsel for the two doctors argued that the rights of the accused
Under Article-21 could not be subjected to a procedure involving virtual reality.
Rejecting the argument, the bench said video conferencing has nothing
to do with virtual reality and gave the example of the telecast of the cricket
world cup.
It could not be said that those who watched the world cup on television
were witnessing virtual reality as they were not in the stadium where the
match was taking place, the court pointed out.
“This is not virtual reality, it is actual reality. Video conferencing is an
advancement of science and technology which permits one to see, hear and
talk with someone far away with the same facility as if he is present before you,
that is, in your presence”. The apex court said.
“Recording of evidence by video conferencing also satisfies the object or
providing, in Sec.273, that evidence be recorded in the presence of the
accused”. It said.

CONCLUSION:
The presiding judge or magistrate shall scrutinize evidence led by both
the parties under a reasoned judgment. The force of judgment is derived from
the recording of evidence. As such, the mode of taking and recording evidence
is uncountable and integral feature of criminal trial. Higher Court
[Appellate/Revision Court/ looks at the evidence through the eyes of the trial
judge. Unless a judge is well equipped with legal knowledge and also well
trained in recording evidence, protection of innocent and punishment to the
guilty would be a far-cry.
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Presented by: Sri Beera Srinivasu,


Addl. Junior Civil Judge,
Jaggayyapeta.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

The Indian Evidence Act, 1872 came into force on 1st September1872. Sir
James Fitz James Stephen is the author of this Act. The object of enacting the
Indian Evidence Act is to prevent indiscipline in administration of evidence by
enacting a correct and uniform rule of practice. It applies to all judicial
proceedings in or before any court. The Indian Evidence Act is a procedural
law. It has been divided into three parts, 11 chapters and 167 sections.
The word evidence is derived from the Latin word Evidare which means
to show clearly, to make clearly or to discover clearly.
As per Section 3 of Indian Evidence Act;
“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) all documents including electronics record produced for the inspection
of the Court; such documents are called documentary evidence.
As per section 3 of the Act:
Relevant : One fact is said to be relevant to another when one is said to be
connected with other in any of the ways referred to in the provisions of this Act
relating to the relevancy of facts which are clearly explained in sec 6 to 55 of
this Act.

Introduction:
People have faith and confidence on courts. They come to courts for
justice. The object of a court is to do justice, so to say, to convict the guilt and
to protect the innocent. The main motto of a criminal trial is to search for the
truth as such the duty of a criminal court is to arrive at the truth and subserve
the ends of justice.
For discovery of truth, courts require proper or relevant facts and record
evidence in clear and intelligible manner. When the language of a written
instrument is perfectly plain, no construction will be made to contradict the
language. As such, a Presiding Judge must cease to be a mere recording
machine. He should take a participatory role in the trial. Excercising his
control over the proceedings effectively, he should interfere when irrelevant fact
104

is unnecessarily brought on record so that the ultimate objective i.e; the truth
is arrived at summary on the subject.

Mode of recording evidence:


1. Taking and recording evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence. Section 272 to 283 of the code of criminal
procedure, 1973 read with the rules covered under chapter XIII of the general
rules and circular order (criminal) volume-I would throw light to a presiding
judge or magistrate on mode of taking and recording evidence in criminal
cases.
2. Section 273 mandates to record all the evidence in presence of the
accused. If personal attendance of the accused is dispensed with, the same
must be recorded in presence of his pleader.
3. Section 274 lays down that the magistrate shall record the memorandum
of substance of evidence of a witness in open court and such memorandum
must be signed by him and shall form part of the record so far as summons
case is concerned. In a warrant case, the magistrate shall record the evidence
of a witness by taking down by himself or cause it to be taken down in the
narrating form.
4. Section 275(3) permits the magistrate to record the evidence in the form
of question and answer. In view of the proviso to section 275(1), the evidence of
a witness may be recorded by audio video electronic means in presence of the
advocate of the accused.
5. Section 276 says that recording of evidence before sessions court should
be in the form of narrative. The presiding judge may, in his discretion, take
down or cause to be taken down, any part of such evidence in the form of
question and answer and the evidence so taken down shall be signed by the
presiding judge.
6. Section 278 stipulates that the evidence of a witness when completed
should be read over to him in presence of the accused or his pleader. It should
not be done so at the end of the day after all witnesses have been examined.
When the evidence is read over to the witness or to his pleader, if necessary, it
can be corrected. If the witness denies the correctness of any part of the
evidence, the presiding judge may instead of correcting the evidence, make the
memorandum of the objection raised by the witness and shall add such
remarks as he deems fit. If the evidence is recorded in the language not
understood by the accused or his pleader, it shall be contemplated in the open
court in the language understood to them.
7. Section 280 empowers the presiding judge or the magistrate to record the
remarks, if any, if he thinks material in respect of the demeanor of any witness
105

and he should avoid formulating any opinion on the credibility of the witness
until the whole evidence has been taken.
8. In civil matters, the witnesses are summoned to appear before the court
and adduce evidence under the provisions of section 30, order XVI and order
XVIII of the code of civil procedure 1908.
9. So far as doubtful expression is concerned, the trial court should
actually record the word used by the witness so that its exact signification can
be assessed in the judgment. Assistance of the interpreter may be taken if the
language of the witness is not understood by the accused court, or lawyers.
10. In reference to rule 88, the magistrate or the presiding judge shall
personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct.

Marking of documents:
1. The documents admitted as evidence on behalf of the prosecution shall
be marked with number in the order in which they are admitted. For example
Ext.-P1, Ext-P2 etc.
2. The documents admitted as evidence on behalf of the defence shall be
marked as for example Ext-D1, Ext-D2 etc.
3. When documents admitted at the instance of the court and neither party
is willing to accept them as evidence, they shall be marked as Ext-C1, Ext-C2
etc.
4. When any article or material which is produced and after being proved
and admitted in evidence, it shall be marked with a Roman number. For
example MO-I, MO-II etc.
5. List of articles admitted in evidence shall be prepared by the Bench Clerk
of the court and shall be signed by the judge.

Electronic record:
The evidence consists of three parts. 1. Electronic record 2.Documentary
evidence and 3. Oral evidence. Electronic record is documentary evidence
under section 3 of the Act. Any information contained in an electronic record is
deemed to be a document. An electronic record may be like computer print out,
CD, pen drive, chip etc. The evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence. If an electronic as such is used
as primary evidence under section 62, the same is admissible in evidence. The
general law on secondary evidence under section 63 read with section 65 of the
Act has no application in case of secondary evidence by way of electronic
record. The same is wholly governed by Sections 65-A & 65-B.
106

In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC


600 it was held that strict adherence to section 65-B of the Evidence Act is
imperative for the proof of electronic evidence.

Evidence can be recorded through video conferencing:


Video conference is the conduct of a video conference which allow two or
more locations to communicate by simultaneous two way video and audio
transmissions. It has also been called visual collaboration and is a type of
groupware.
VC enables any person who has an interest in court proceedings to be
involved in a hearing from a remote location. In its simplest form, a witness at
a remote location may give his/her evidence via a video link to the court with
one screen and one camera in the court room.
Giving a boost to the justice delivering system which is afflicted which
delays various reasons , including non availability of witnesses for examination
the supreme court has upheld the recording of deposition through video
conferencing. Several courts in India are video conferencing with prisons to
ensure quicker and safer trials. The technology, which also saving the
exchequer crores of rupees, has revealed more benefits than meets the eye.
In a path breaking development, the Supreme Court held that a trial
Judge could record evidence of witnesses staying abroad through video
conferencing.
Interpreting Section 273 of the Criminal Procedure Code in he light of
technological advancements, a bench comprising Justice S.N.Variava and
Justice B.N.Agrawal said recording of evidence through video conferencing
would be perfectly legal.
The Judgment relates to a case in which a US-based doctor had opined
against operation of a cancer patient through video conferencing. Ignoring the
advice, two Indian doctors operated on the lady, who later passed away.
The patient's family went to court against the doctors. However, the US
based doctor, Ernest Greenberg, refused to come to India, but expressed
willingness to give evidence through video conferencing.
But the Bombay High Court did not allow the trial court to go ahead
citing section 273, which lays down the procedure for recording evidence.
The husband of the deceased, PC Singhi and the Maharashtra
Government had appealed against the High Court order in the Supreme Court.
The prosecution has alleged that the two Indian doctors – Praful B.Desal
and AK Mukherjee- did not take good care of the patient after the operation as
a result of which she suffered a lot before her death.
107

Speaking for the bench, Justice Variava said “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 commissioner 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” he said.
Referring to the chances of witness abusing the trial judge during video
conferencing, the apex court said “As a matter of prudence, evidence by video
conferencing in open court should be accepted only if the witness is in a
country which has an extradition treaty and under whose laws contempt of
court and perjury are punishable.”
The court then directed the Mumbai court to set up a commission and
take help of VSNL in recording Dr.Greenberg's statement through video
conferencing in the presence of the two accused doctors. It also allowed the two
accused to cross examine the US-base doctor.
The Court directed the Maharashtra Government to bear the cost of video
conferencing.
Rejecting all arguments about interior video quality, disruption of link
and other technical problems, the bench said by now science and technology
has progressed enough to not worry about video image/audio interruptions or
disruptions.
The Counsel for the two doctors argued that the rights of the accused
under Article 21 could not be subjected to a procedure involving 'virtual reality”
Rejecting the argument, the bench said video conferencing has nothing
to do with virtual reality and gave the example of the telecast of the cricket
world cup.
It could not be said that those who watched the world cup on television
were witnessing virtual reality as they were not in the stadium where the
match was taking place, the court pointed out.
“This is not virtual reality, it is actual reality. Video conferencing is an
advancement of science and technology which permits one to see, hear and
talk with someone far away with the same facility as if he is present before you,
that is, in your presence” the apex court said.
“Recording of evidence by video conferencing also satisfies the object of
providing in section 273 that evidence be recorded in the presence of two
accused” it said.
108

As per the above judgment of the Hon'ble Supreme Court of India in


State of Maharashrra VS Dr.Praful B.Desai (2003) 4 SEC. 601 held that:
“Video conferencing could be resorted to for the purpose of taking
evidence of a witness. In that case, one party was seeking direction of the court
to take evidence of a witness residing in the United States of America. Though
a lower court had ordered such evidence to be taken with the help of video-
conferencing, the concerned High Court struck down that order on the grounds
that the law required the evidence to be taken in the presence of the accused.
The Appeal Bench of the High Court upheld the said latter order: The Supreme
Court struck down the High Court order by stating that recording of evidence
satisfies the object of section 273 of the code of Civil Procedure that evidence
be recorded in the presence of the accused. In explaining the benefits of video-
conferencing, the Court observed that “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 court room. The can observe his or her demeanour. In fact the
facility to play back would enable better observation of demeanour. They can
hear and rehear the deposition of the witness. Addressing the various
submissions made before it, the Court stated that “Virtual reality is a state
where one is made to feel, hear or imagine what does not really exist. Video
conferencing has nothing to do with virtual reality. The Supreme Court also
laid down the procedure to be followed when recording evidence through video
conferencing. The accused and his legal counsel should be present for video
conference. The accused should be permitted to cross examine the witness and
place documents before the witness. An officer deputed from the Indian
Embassy or consulate, or directly from India, should be present with the
witness in the foreign country during the video conferencing. This officer
should administer oath to the witness and should ensure that the witness is
not being tutored or prompted whilst evidence is being recorded. There should
be nobody, apart from the witness and the deputed officer. The evidence of the
witness should be recorded in the Indian Embassy if possible. If he officer finds
that witness is not answering questions, the officer should make a memo to
this affect. The court should take this fact into consideration when determining
the veracity of the evidence.”

Hon’ble Supreme Court views on video conferencing:


1. Som Prakash Vs State of Delhi 1974 Crl.Lj 784
In this case Supreme Court has rightly observed that “in our
technological age nothing more primitive can be conceived of than denying
discoveries and nothing cruder can retard forensic efficiency than swearing by
traditional oral evidence only thereby discouraging the liberal use of scientific
aids to prove guilt.” Statutory changes are needed to develop more fully a
109

problem solving approach to criminal trials and to deal with heavy workload on
the investigators and judges.”
2. SIL Import, USA V Exim Aides Exporters, Bangalore (1999) 4 SEC 567
In yet another decision in which use of available technology has been
given a real boost, the Supreme Court held that “Technological advancement
like facsimile, Internet, e-mail, etc. were in swift progress even before the bill
for the Amendment Act was discussed by Parliament. So when parliament
contemplated notice in writing to be given we cannot overlook the fact that
Parliament was aware of modern devices and equipment already in vogue.”
3. Grid Corpn. Of Orissa Ltd. V.Corpn. 2002 AIR (SC) 3435
In this the Supreme Court has ruled in favour of technology and it held
that “when an effective consultation can be achieved by resort to electronic
media and remote conferencing it is not necessary that the two persons
required to act in consultation with each other must necessarily sit together at
one place unless it is the requirement of law or of the ruling contract between
the parties.” In this case the contention was that the two arbitrators appointed
by the parties should have met in person to appoint the third arbitrator.

Conclusion:
The presiding judge or magistrate shall scrutinize evidence led by both
the parties under a reasoned Judgment. The force of judgment is derived from
the recording of evidence. As such, the mode of taking and recording evidence
is unconstable and integral feature of a criminal or civil trial. The Appellate/
Revisional court looks at the evidence through the eyes of the trial Judge. So
the trial judge must be well equipped with legal knowledge and also well
trained in recording evidence.
The Indian legal system has recognized and embraced video conferencing
as an extremely effective instrument to collect evidence as it aids in avoiding
unnecessary adjournments of cases and also saves the parties from costs
borne on transportation and other inconveniences that may arise.
It has been witnessed that the advanced facilities available today have
reduced conventional impediments and legal uncertainties surrounding the use
of Information technology, such as cost on procuring equipments, other
technological issues involving data protection, confidentiality of the documents
and evidence adduced during the proceedings and privacy of the parties.
Given its viability and the favorable response in the legal fraternity, the
use of video conferencing in Indian dispute resolution is expected to escalate
tremendously in times to come. It has already given a new dimension to
international commercial arbitration and brought consistency in proceedings,
especially in the institutionalised form of arbitration.
110

Presented by: Sri H. Amara Rangeswara Rao,


Addl. Junior Civil Judge,
Avanigadda.

RECORDING OF EVIDENCE OF WITNESS IN CRIMINAL TRAILS THROUGH


VIDEO CONFERENCE-PERMISSIBILITY

We are in the age of information technology. The globe become a a small


village. We have changed our habits like writing letters to sending messages in
social media, whatsapp messenger, facebook etc. we are sending marriage
invitation cards through them. We are seeing our kith, kin, relatives and
friends, who are staying far away from us at thousands of miles with a small
click on the computer by using video conference like skype . Use of Technology
gadgets become integral part of our daily life. Now the question is whether
these technologies can be used in the courts of law during the trail process.
Especially to record the evidence of a witness who was present far away from
the court, out side India and especially when it will be difficult to secure his
presence immediately. In civil cases we can appoint commissioner to record his
evidence. In criminal cases, if the witnesses was present in country which has
no reciprocal agreement with India for recording evidence of a witness through
a commissioner and where it is not possible to record the evidence of a witness
through a commissioner, whether the court can record the evidence through
the video conference or his physical presence is necessary to record his
evidence is the question for consideration. Whether the Code of Criminal
procedure code and evidence Act permits to record the evidence through
electronic means has to be looked in to.

The procedure governing a criminal trial is crucial to the basic right of


the Accused under Articles 14 and 21 of the Constitution of India. The
procedure for trial of a criminal case is expressly laid down, in India, in the
Code of Criminal Procedure. It lays down specific and express provisions
governing the procedure to be followed in a criminal trial. It was the "procedure
established by law". The Legislature alone had the power to change the
procedure by enacting a law amending it, and that when the procedure was so
changed, that became "the procedure established by law". It any departure
from the procedure laid down by law would be contrary to Article 21. [ see- A.
K. Gopalan versus State of Madras reported in AIR 1950 S. C. 27, Nazir Ahmed
versus Emperor reported in AIR 1936 Privy Council 253 and Siva Kumar
Chadda versus Municipal Corporation of Delhi reported in AIR 1975 S.C. 915.]
111

If the existing provisions of the Criminal Procedure Code permit


recording of evidence by video conferencing, then it could not be said that
"procedure established by law" has not been followed.

Now the question for consideration is, “Whether the Cr.P.C. authorize
and permits a witness to depose evidence through video conference or it
mandates the physical presence of the witness during the trail?” On
examination of all the provisos of code, it is clear that Sec.273 of Cr.P.C
mandates that the evidence of a witness in a trail shall be recorded in the
presence of accused or his pleader. For better understanding it is useful to
reproduce Sec.273 of the code.It provides that

“Sec.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.”

On careful examination of this provision, it is crystal clear that the trail


shall be in the presence of the accused or his pleader. It means that the
evidence shall be recorded in the presence of accused or his counsel. Now the
question for consideration is what is the meaning of presence. Is it physical
presence or the constructive presence like the presence in video-conferencing.
If the answer is affirmative, then the courts are authorized to record the
evidence of a witnesses through video conference.

In this context the Hon'ble Apex courts observations in The State Of


Maharashtra vs Dr. Praful B. Desai 2003(2003) 4 SCC 601 are useful to refer.
Hon'ble Supreme court of India held that:

10. “This Court was taken through various sections of the Criminal
Procedure Code. Emphasis was laid on Section 273, Criminal Procedure Code.
It was submitted that Section 273, Criminal Procedure Code does not provide
for the taking of evidence by video conferencing. Emphasis was laid on the
words "Except as otherwise provided" in Section 273 and it was submitted that
unless there is an express provision to the contrary, the procedure laid down in
Section 273 has to be followed as it is mandatory. It was submitted that
Section 273 mandates that evidence "shall be taken in the presence of the
accused". It is submitted that the only exceptions, which come within the
ambit of the words "except as otherwise provided" are Sections 284 to 290
(those dealing with issue of Commissions); Section 295 (affidavit in proof of
conduct of public servant) and Section 296 (evidence of formal character on
112

affidavit). It is submitted that the term "presence" in Section 273 must be


interpreted to mean physical presence in flesh and blood in open Court. It was
submitted that the only instances in which evidence may be taken in the
absence of the Accused, under the Criminal Procedure Code are Sections 317
(provision for inquiries and trial being held in the absence of accused in certain
cases) and 299 (record of evidence in the absence of the accused). It was
submitted that as Section 273 is mandatory, the Section is required to be
interpreted strictly. It was submitted that Section 273 must be given its
contemporary meaning (Contemporanea exposition est optima et fortissimm -
The contemporaneous exposition is the best and the strongest in law) . It was
submitted that video conferencing was not known and did not exist when the
Criminal Procedure Code was enacted/amended. It was submitted that
presence on a screen and recording of evidence by video conferencing was not
contemplated by the Parliament at the time of drafting/amending the Criminal
Procedure Code. It was submitted that when the Legislature intended to permit
video conferencing, it has expressly provided for it, as is evident from the
Ordinance passed by the State of Andhra Pradesh in December 2000
permitting the use of video conferencing under Sec. 167(2) Criminal Procedure
Code in remand applications. It is pointed out that a similar amendment is
being considered in Maharashtra. It is submitted that Section 273 is analogous
to the Confrontation Clause set out in the VIth Amendment to the US
Constitution. It is submitted that Courts in USA have held that video
conferencing does not satisfy the requirements of the Confrontation Clause.

11. This argument found favour with the High Court. The High Court
has relied on judgments of various High Courts which have held that Section
273 is mandatory and that evidence must be recorded in the presence of the
accused. To this extant no fault can be found with the Judgment of the High
Court. The High Court has then considered what Courts in foreign countries,
including Courts in USA, have done. The High Court then based its decision on
the meaning of the term "presence" in various dictionaries and held that the
term "presence" in Section 273 means actual physical presence in Court. We
are unable to agree with this. We have to consider whether evidence can be led
by way of video-conferencing on the provisions of the Criminal Procedure Code
and the Indian Evidence Act. Therefore, what view has been taken by Courts in
other countries is irrelevant. However, it may only be mentioned that the
Supreme Court of USA, in the case of Maryland vs. Santra Aun Craig [497 US
836], has held that recording of evidence by video-conferencing was not a
violation of the Sixth Amendment (Confrontation Clause).
113

12. Considering the question on the basis of Criminal Procedure Code, we


are of the view that the High Court has failed to read Section 273 properly. One
does not have to consider dictionary meanings when a plain reading of the
provision brings out what was intended. Section 273 reads as follows:

"Section 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.

Explanation : In this section, "accused" includes a person in relation to


whom any proceeding under Chapter VIII has been commenced under this
Code.
Thus Section 273 provides for dispensation from personal attendance. In
such cases evidence can be recorded in the presence of the pleader. The
presence of the pleader is thus deemed to be presence of the Accused. Thus
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. A
plain reading of Section 273 does not support the restrictive meaning sought to
be placed by the Respondent on the word "presence". One must also take note
of the definition of the term 'Evidence' as defined in the Indian Evidence Act.
Section 3 of the Indian Evidence Act reads as follows:

"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) all documents including electronic
records produced for the inspection of the Court;
such documents are called documentary evidence"

Thus evidence can be both oral and documentary and electronic records
can be produced as evidence. This means that evidence, even in criminal
matters, can also be by way of electronic records. This would include video-
conferencing.

13. One needs to set out the approach which a Court must adopt in deciding
such questions. It must be remembered that the first duty of the Court is to do
justice. As has been held by this Court in the case of Sri Krishna Gobe versus
State of Maharashtra [(1973) 4 SCC 23] Courts must endeavour to find the
114

truth. It has been held that there would be failure of justice not only by an
unjust conviction but also by acquittal of the guilty for unjustified failure to
produce available evidence. Of course the rights of the Accused have to be kept
in mind and safeguarded, but they should not be over emphasized to the
extent of forgetting that the victims also have rights.

14. It must also be remembered that the Criminal Procedure Code is an


ongoing statute. The principles of interpreting an ongoing statute have been
very succinctly set out by the leading jurist Francis Bennion in his
commentaries titled "Statutory Interpretation", 2nd Edition page 617:

"It is presumed the Parliament intends the Court to apply to an ongoing


Act a construction that continuously updates its wordings to allow for changes
since the Act was initially framed. While it remains law, it has to be treated as
always speaking. This means that in its application on any day, the language
of the Act though necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as a current law.

In construing an ongoing Act, the interpreter is to presume that


Parliament intended the Act to be applied at any future time in such a way as
to give effect to the original intention. Accordingly, the interpreter is to make
allowances for any relevant changes that have occurred since the Act's passing,
in law, in social conditions, technology, the meaning of words and other
matters.. That today's construction involves the supposition that Parliament
was catering long ago for a state of affairs that did not then exist is no
argument against that construction. Parliament, in the wording of an
enactment, is expected to anticipate temporal developments. The drafter will
foresee the future and allow for it in the wording.

An enactment of former days is thus to be read today, in the light of


dynamic processing received over the years, with such modification of the
current meaning of its language as will now give effect to the original legislative
intention. The reality and effect of dynamic processing provides the gradual
adjustment. It is constituted by judicial interpretation, year in and year out. It
also comprises processing by executive officials. "

15. At this stage the words of Justice Bhagwati in the case of National Textile
Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, at page 256, need to
be set out. They are:
115

"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 move adapting itself to the fast changing
society and not lag behind."

16. This Court has approved the principle of updating construction, as


enunciated by Francis Bennion, in a number of decisions. These principles
were quoted with approval in the case of Commissioner of Income Tax, Bombay
versus M/s Podar Cement Pvt. Ltd. [(1997) 5 SCC 482]. They were also cited
with approval in the case of State versus S. J. Chowdhury [(1996) 2 SCC 428].
In this case it was held that the Evidence Act was an ongoing Act and the word
"handwriting" in Section 45 of that Act was construed to include "typewriting".
These principles were also applied in the case of SIL Import USA versus Exim
Aides Silk Exporters [(1999) 4 SCC 567]. In this case the words "notice in
writing", in Section 138 of the Negotiable Instruments Act, were construed to
include a notice by fax. On the same principle Courts have interpreted, over a
period of time, various terms and phrases. To take only a few examples:- "stage
carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to
include "locomotive"; "telegraph" to include "telephone"; "bankers books" to
include "microfilm"; "to take note" to include "use of tape recorder";
"documents" to include "computer database's".

These principles have also been applied by this Court whilst considering
an analogous provision of the Criminal Procedure Code. In the case of
Basavaraj R. Patil v. State of Karnataka [(2000) 8 SCC 740] the question was
whether an Accused needs to be physically present in Court to answer the
questions put to him by Court whilst recording his statement under Section

313. To be remembered that under Section 313 the words are "for the purpose
of enabling the accused personally to explain" (emphasis supplied). The term
"personally" if given a strict and restrictive interpretation would mean that the
Accused had to be physically present in Court. In fact the minority Judgment
in this case so holds. It has however been held by the majority that the Section
had to be considered in the light of the revolutionary changes in technology of
communication and transmission and the marked improvement in facilities for
116

legal aid in the country. It was held, by the majority, that it was not necessary
that in all cases the Accused must answer by personally remaining present in
Court.

18. Thus the law is well settled. The doctrine "Contemporanea exposition est
optima et fortissimm" has no application when interpreting a provision of an
on-going statute/act like the Criminal Procedure Code.

19. 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 exists. 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 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 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
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 presence of each
other. The submissions of 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
117

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 , Criminal Procedure Code . Recording of such evidence would be
as per "procedure established by law".

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 Court room. They can observe his or her demeanour. In fact the
facility to play back 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 play back 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.

Reliance was then placed on Sections 274 and 275 of the Criminal
Procedure Code which require that evidence be taken down in writing by the
Magistrate himself or by his dictation in open Court. It was submitted that
video conferencing would have to take place in the studio of VSNL. It was
submitted that that this would violate the right of the Accused to have the
evidence recorded by the Magistrate or under his dictation in open Court. The
advancement of science and technology is such that now it is possible to set up
video conferencing equipment in the Court itself. In that case evidence would
be recorded by the Magistrate or under his dictation in open Court. If that is
done then the requirements of these Sections would be fully met. To this
method there is however a draw back. As the witness is now in Court there
may be difficulties if he commits contempt of Court or perjures himself and it is
immediately noticed that he has perjured himself. Therefore as a matter of
prudence evidence by video-conferencing in open Court should be only if the
witness is in a country which has an extradition treaty with India and under
whose laws contempt of Court and perjury are also punishable.”

Therefore, in view of the ratio, it is clear that so long as the Accused


and/or his pleader are present when evidence is recorded by video
118

conferencing, that evidence is being recorded in the "presence" of the accused


and would thus fully meet the requirements of Section 273, Criminal Procedure
Code. Recording of such evidence would be as per "procedure established by
law".

Thus when evidence of a witness appears to be necessary for the ends of


Justice, Courts in India cannot procure his attendance, the efforts to secure
his presence would generally involve delay, expense and/or inconvenience and
it is not permissible to record his evidence through commissioner,
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. Therefore, in cases where the attendance of a witness cannot be procured
without an amount of delay, expense or inconvenience, the Court, in a criminal
trail, can record the evidence by way of video conferencing.
119

Presented by: Sri P. Shiyaz Khan,


Addl. Junior Civil Judge,
Tiruvuru.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

As per Sec.3 the Indian Evidence Act (for shot IE Act), 1872, evidence
means and includes-
(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters or fact under inquiry; such statements are called
evidence;
(2) (all documents including electronic records produced for the inspection of
the Court); such documents are called documentary evidence.
Thus, the oral and documentary evidence adduced and produced before
the Court has to be carefully and cautiously scrutinized to decide which
evidence is admissible, believable, reliable and trustworthy. The public at large
have unclenching faith, trust and high confidence in the Indian Judiciary and
Courts as such the litigant public approach Courts for justice. The main motto
of the Court in conducting the trail is to search for the truth, to meet the ends
of justice and to render justice. In order to find out the truth Courts require
proper or relevant facts and record of evidence in clear and intelligible manner.
The point for discussion is what is mode of recording evidence in Indian
Courts. In the administration of justice taking and recording of evidence
assumes great significance as the good and reasoned judgment solely depends
on clear and admissible evidence. Sections 272 to 283 of the Code of Criminal
Procedure ( for short Cr.P.C), 1973 read with Rules covered under Chapter XIII
of General Rules and Circular Order (Criminal) Volume-I would assist and help
the presiding officers on mode of taking and recording evidence in criminal
cases. The main object of the examinationin- chief and cross-examination
must be related to the facts and to impeach the accuracy, credibility and
general value of the evidence given in chief and to expose the discrepancies.
The courts in general insist for direct evidence and primary evidence.
Execution of a document is proved by admissible evidence. Admissible evidence
is by way of admission by signatory to the document of its execution, by way of
examination of scribe, of an attesting witness and by proof of signature and
handwriting of the person who signed or wrote the document produced, by
proof of digital signature, and by expert’s opinion or by proof as to verification
of digital signature.
Another important aspect is to refer the appropriate provision of law that
mandatorily adhered to for the proof of electronic evidence which is one of the
120

important parts of the evidence as it is considered as documentary evidence


under Sec.3 of the IE Act. Any information contained in electronic record is
deemed to be a document and an electronic record may be like computer print
out. Compact Disc (for short CD), Video Compact Disc (for short VCD), Pen
drive etc.,. In other words, it may be printed on a paper, stored, and recorded
or copies in optical or magnetic media produced by a computer. The Indian
Evidence Act does not contemplate or permit the proof of an electronic record
by oral evidence. If an electronic record as such is used as primary evidence
under Sec.62 of IE Act, the same is admissible in evidence. The general law on
secondary evidence under Sec.63 read with Sec.65 of the IE Act has no
application in case of secondary evidence by way of electronic record. The same
is wholly governed by Sec. 65-A and 65-B. The Hon’ble Supreme Court of India
in Anwar P.V. v. P.K. Basheer and Others, vide Civil Appeals No.4226 of 2012
while delivering judgment o 18th September, 2014 over ruled the legal position
as laid in the case of the State (NCT of Delhi) v. Navjot Sandhu@ Asfan Guru
((2005) 11 SCC 600) wherein their Lordships observed, inter alia, that an
electronic record by way of secondary evidence shall not be admitted in
evidence unless the requirements under Sec.65-B are satisfied. Thus, in the
case of CD, VCD, Chip etc., the same shall be accompanied by the certificate in
terms of Sec.65-B of IE Act obtained at the time of taking evidence, without
which, the secondary evidence pertaining to that electronic record, is not
admissible. Thus, it must be noted that strict adherence to Section 65-B of the
IE Act is imperative for the proof of electronic evidence.
Coming to the core, Video Conference – An emerging trend:
With the insertion of Sections 65A and 65B in the IEA which is a special
and unique provision relating to recording of evidence though electronic record
a new trend is set in the Indian Judiciary. The above provisions explain about
admissibility of electronic records which had been introduced by Information
Technology (I.T) Act, 200 ( Act 21) 2000, w.e.f. 17.10.2000) After the said
amendment Courts have interpreted this proviso to include video conferencing.
There has been a significant rise in the trend to resent to video conference in
civil proceedings especially as a tool for collecting evidence from a within who
resides abroad. It is pertinent to note that after land mark Judgment in State of
Maharashtra V. Dr. Praful B. Desai (2003 (4) SCC 601) wherein the Hon.ble
Supreme Court upheld video conference as a vital tool for collecting evidence
where the witness may not be conveniently or necessarily be examined in the
Court. Similar views can be found in Tuncay Alankus VS. CBI (4th June, 2010
Delhi High Court), Neelalohita, Dasan Nadar VS. State of Kerala (2005) (1)
Kerala LT 481). Thus, Video conference can be used in several cases where the
witness has been unable to attend the Court proceedings. For instance, in
Alcatel India Ltd., Vs. Koshika Leleon Ltd., (2004) case the Court allowed the
121

witness to give evidence through video conference as the witness was


unhealthy. In Amitabh Bagchi (2005), cited suprea, the High Court of Calcutta
opined that a practical outlook ought to be taken by a Court in allowing
electronic video conference as it is a cost effective facility and avoids delay of
justice. Video conference can also be used for examination of a victim who had
been sexually exploited and/or was suffering from post traumatic stress
disorder was allowed to be done via video conference as was held in Sakshi V.
Union of India ( AIR 2004 SC 3566), and Sheeba Abidi Vs. State & Another (
30th October,2004 Delhi High Court). The facility of using electronic evidence
and recording of evidence through video conferencing should be adopted and
used more frequently by the subordinate courts. Very recently one of the
District Court in a session case adopted recording of evidence through video
conferencing and the cases was ended in conviction basing on such evidence.
Where the judicial officer needs to record evidence of under Trial Prisoner such
facility can be availed where there is a serious security problem for production
of accused due to involvement of factionists and for cost effect. In the matter of
Liverpool and London Steamship Protection and Indemnity Association Ltd.,
Vs. M.V. ‘Sea Success’1 & Anor (2005 (4), ALLMR 17) the Bombay High Court
allowed the plea of the plaintiff to depose using video conference as the witness
was staying in U.K. with her two minor children and was unable to come to
India. In the case of Bodala Murali Krishna V. Smt. Badola Prathima (2007 (1)
ALT 237) our Hon’ble High Court of Andhra Pradesh allowed deposition of a
U.S.A. resident witness via video conference. The Court was of the view that
there should not be any plausible objection for resorting to video conferencing
in civil cases as long as the necessary facilities along with assured accuracy co-
exist. In fact the Hon’ble Supreme Court in Dr.Kumar Vs. Dr. Sukumar
Mukharjee (2011), (Dr. Kumar Seha V. DR. Sukumar Mukharjee, Civil Appeal
No.3173 (arising out of SLP (c) No.27071/2010).) which is popularly known as
‘medical negligence’ case, went a step further and ordered recording of
testimonies and cross-examination of the foreign expert witness through inter-
net conferencing instead of video conference. Therefore, the mode of taking and
recording evidence is constable and integral feature of courts. The appellate
courts look at the evidence through the eyes of the trail Judge. Unless
presiding officers are well equipped with knowledge and trained in recording
evidence, including video conferencing. Thus, disposal of oldest cases through
video conferencing escalate confidence, image and trust of the public in the
judiciary and helps to tremendous disposals in times to come.
122

Presented by: Sri M. Rama Krishnam Raju,


Junior Civil Judge,
Vuyyuru.

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING


RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

Section 3 defines “oral” evidence as : “ 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”. Thus, oral
evidence consists of “statements” made by witnesses “before” the Court.
Section 280 of Cr.P.C. requires that, after recording the evidence of a witness,
the Court shall also record such remarks (if any) as it thinks material
respecting the demeanour of such witnesses whilst under examination”. Order
XVIII Rule 12 of CPC also provides that” the Court may record such remarks as
it thinks material respecting the demeanour of any witness while under
examination”.
Order XVIII, Rule 4 of CPC, as amended in 2002, deals with “Recording
of evidence” and provides in Sub-Rule 3 that “(3) The court or the
Commissioner, as the case may be , shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case
may be...” Order XVIII, Rule 4(1) provides that the examination in chief shall be
by affidavits but under Rule 4(2) cross-examination and re-examination should
be taken by the Court or the Commissioner appointed by it.
In Criminal proceedings, Section 281 of Cr.P.C. deals with record of the
examination of the accused and provides:
a) If examined by a Metropolitan Magistrate, he shall make a memorandum
of substance of evidence and sign it;
b) If recorded by any other Magistrate or Sessions Judge, he shall take
down the whole of it including every question and answer in full.’
c) The record shall be read out to the accused who shall be at liberty to
explain or add to the answers
d) The record shall be signed by the accused and the Magistrate and the
Magistrate shall certify that it was taken in his presence and hearing and that
it contains a full and true account of the statement of the accused.

Section 273 of Cr.P.C. requires that all evidence should be taken in the
presence of the accused or his pleader. Regarding record of the examination of
witnesses, Cr.P.C. Provides:
123

a) Section 273: In all summons cases and enquiries, the Magistrate shall
make a memorandum of the substance of the evidence of witnesses. Hence, a
verbatim record is not necessary;
b) Section 275: In warrant cases, the Magistrate shall take down in writing
the evidence of each witness;
c) Section 276: In session cases, the Judge shall take down in writing the
evidence of each witness. It shall ordinarily in the form of a narrative or in the
form of question and answer.
d) The evidence recorded under section 275 or 276, the evidence shall be
read over to the witness in the presence of the accused.
e) In appeals under Chapter XXIX, Section 39(1) provides that “the
Appellate court, if it thinks additional evidence to be necessary, shall record its
reasons and may either take such evidence itself, or direct it to be taken by a
Magistrate, or when the Appellate court is a High Court, by a Court of Session
or a Magistrate” and under clause (3) “the accused or his pleader shall have the
right to be present when the additional evidence is taken.

KINDS AND ORDER OF EXAMINATION OF WITNESSES


Section 137 deal with kinds of examination of witnesses and it reads as under:
“Examination-in-chief – The examination of a witness by the party who calls
him shall be called his examination–in-chief.
Cross-examination – The examination of a witness by the adverse party shall
be called his cross examination.
Re-examination – The examination of a witness, subsequent to the cross-
examination by the party who called him, shall be called his re-examination “.

Section 138 which deals with the order of examination of witnesses reads
as under;
Section 138. Order of examinations – Witnesses shall be first examined-
in-chief, then (if the adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts,
but the cross-examination need not be confined to the facts to which the
witness testified on his examination –in-chief.
Direction of re-examination – The re-examination shall be directed to the
explanation of matters referred to in cross-examination; and, if new matter is,
by permission of the court, introduced in re-examination, the adverse party
may further cross-examine upon that matter.
Under Section 137, the sequence of the examination of a witness is:
1. Examination in chief by the party who called him;
2. Cross-examination by the “adverse” party; and
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3. Re-examination of the witness by the party calling him after he has been
cross-examined.
Examination in chief and the cross examination must relate to
relevant facts but cross-examination need not be confined to facts testified to in
the examination in chief. The reason for this rule is obvious as otherwise the
examination in chief can be conducted so as to shut out facts that may be
supportive of the adverse party. Thus, new relevant facts which are not
touched upon in the examination in chief can be introduced in cross-
examination and the witness will be called upon to respond to them.
Consequently, the party calling the witness is permitted to conduct re-
examination of the witness which “ shall be directed to the explanation of
matters referred to in cross-examination” but not necessarily confined only to
the new matters introduced a cross-examination. The party conducting the re-
examination can introduce new facts only with the permission of the court and
in such a case, the adverse party will get the right to further cross examine the
witness.

Examination-in-chief
As section 137 says, the examination in chief is the examination of a
witness by the party who calls him. It is the Court which, on the petition of the
parties, summons witnesses for the prosecution or the defense in criminal
cases. In a civil proceeding, Order XVI Rule (1) of CPC. says
On or before such date as the Court may appoint, and not later than
fifteen days after the date on which the issues are settled, the parties shall
present in court a list of witnesses whom they propose to call either to give
evidence or to produce documents and obtain summons person for their
attendance in Court.
The examination in chief is the real curtain-raiser and it is the
foundation of the testimony of a witness and provides an opportunity to the
parties to unfold their cases in an objective and convincing manner.
Though Section 138 says that” witness shall be first examined in chief”,
the intention of the drafts man was not that examination in chief of the entire
list of all witnesses must be first conducted and then only all of them can be
cross examined and re-examined. Examination in chief, cross examination and
re-examination of each witness will have to be conducted sequentially in
tandem. The only restriction on the scope of the examination is that it “must
relate to relevant facts”.
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CROSS EXAMINATION
Section 138 says that “Witnesses shall be first examined-in-chief, then (if
the adverse party so desires) cross-examined”. This provision raises two issues:
 Firstly, the question is regarding the use of the term “then” and the
sequence of examination . Section 243(3) Cr.P.C. says that “the Magistrate may
permit the cross-examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any witness for further cross
examination”. For instance, if A, a witness, is examined in chief, his cross
examination can be permitted to be done after another witness B is also
examined in chief. Thus, the use of the term “ then” in Section 138 shows that
cross examination shall follow the examination in chief as a matter of sequence
but that does not mean that cross examination must immediately follows.
 Secondly, the section makes the examination in chief mandatory but the
cross examination is optional and need to be held only if “ the adverse party so
desires”. The Supreme Court in Satwant Singh V.Punjab AIR 1995 SC 1601
held that it was not permissible for the prosecution to “tender” a witness for
cross examination without his being examined in chief and it amounts to giving
up the witness. But, cross examination is the right of the adverse party and it
may choose not to exercise that right depending on the unimpeachable quality
of evidence of the witness in the examination in chief and the circumstances of
the case. What the law says is that the examination of the witness is
incomplete if the adverse party is not given the opportunity to cross examine
him but it is for the adverse party to choose whether to avail or not to avail of
that opportunity. On the other hand, if the witness chooses to avoid or evade
cross examination, his testimony loses all credibility as it has not run the
gauntlet of cross examination.

“ADVERSE PARTY’
Section 137 says that cross examination is the examination of a witness
by “ the adverse party” . In an adversarial legal proceeding two parties are
arraigned against each other and they may be, typically, one plaintiff and one
defendant in a civil case or prosecution and the accused in a criminal case.
But, in some cases there can be plurality of parties on both the sides in a civil
case and several accused in a criminal case as in the case of a joint trial. There
can be cases where there is a conflict of interest among the plaintiffs or the
defendants or the co-accused, Inter se. A witness examined in chief by one of
the plaintiffs or the defendants might have deposed some facts which are
inimical to the interests of co-plaintiffs or co-defendants. Similarly, a witness
appearing for a co-accused might put greater blame on the other co-accused.
In such a case, the multiple parties being arraigned on the same side of the
suit or proceeding are not “adverse” to each other on docket papers but the
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testimony of the witness of one party might, in fact, turn out to be adverse to
the other party on the same side of the suit or proceeding. It is noteworthy that
it may be the testimony of the plaintiff or the defendant or the accused which
may be against his colleagues or it may be the testimony of his witness which
is adverse. Though Section 137 refers to “adverse party”, in a given case, it
could be the testimony of a witness which may be “adverse”. The question in
such a case is whether the co-plaintiff or co-defendant or co-accused, or his
witness, as the case may be, can be cross examined by the other co-plaintiffs
or co-defendants or the co-accused.
In Zahira Habibullah & Anr V.Gujarat & Ors, AIR 2006 SC 1367 the
Supreme Court held that a party has a right to cross examine even a court
witness called under section 311, Cr.P.C. and it is the Evidence Act which gives
“a party the right to cross examine a witness who is not his own witness” and
that a witness called by the court could not be termed a witness of any
particular party”. In that sense a party has a right to cross examine any
witness called by any party other than himself.
Video Recording of Evidence
The questions whether evidence can be recorded by using a tape-recorder or
video conferencing or Internet conferencing have come up for consideration
before the Supreme Court of India and some High Courts. Section 273 of
Cr.P.C. States: “Except as otherwise expressly provided, all evidence taken in
the court of the trial or other proceeding shall be taken in the presence of the
accused, or, when his personal presence is dispensed with, in the presence of
his pleader: In the case of Maharashtra Vs.Dr.Praful B Desai, AIR 2003 SC
2053it was contended that the requirement of Section 273 that “ all evidence...
shall be taken in the presence of the accused” will be violated if evidence is
recorded through video conferencing which is only “virtual reality” and it will in
breach of “procedure established by law” as mandated by Articles 14 and 21 of
the Indian Constitution. Negativing the contention , the Supreme Court said :
.. 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”
The Apex court further elaborated:
“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
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conferencing both parties are in presence of each other. 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.
In Civil cases though there is no express provision for recording of
evidence by video conferencing etc., the Courts relied on the term
“mechanically” in Order XVIII Rule 4 of CPC, as amended in 2002, which deals
with “Recording of evidence” and provides in Sub-Rule 3 that “The court or the
Commissioner, as the case may be, shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case
may be ...”Order XVIII, Rule 4(2) lays down that “the evidence... of the witness
in attendance.. shall be taken either by the Court or by the Commissioner
appointed by it”. In Salem Advocate Bar Association Vs.Union of India, AIR 2003
SC 189 the Supreme Court said:
In this connection, we may refer to Order 18,Rule 4(3) which provides
that the evidence may be recorded either in writing or mechanically in the
presence of the Judge or the Commissioner. The use of the word
“mechanically” indicates that the evidence can be recorded even with the help
of the electronic media, audio or audio visual and in fact whenever the evidence
is recorded by the Commissioner it will be advisable that there should be
simultaneously at least an audio recording of the statement of the witnesses so
as to obviate any controversy at a later stage.
In Twentieth Century Fox Film Corporation and Anr. Vs.NRI Film
Production Associates (P) Ltd, AIR 2003 Kant 148 The Karnataka High court
said:
Audio-Video Link is a technology developed by electronic media to avoid
the physical presence and to avoid the loss in time. It is a speedy method
evolved for the purpose of speedy decision. Even in Audio-Video Link party is
definitely present in person and his presence is reflected on the screen. The
word ‘in attendance’ under order 18, Rule 3(4)(2) is to be understood as the
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person being present and it need not be physical presence. The presence on the
screen is as good as attendance for the purpose of Order 18, Rule 3(4)(2) of the
Rules. After all law only requires the presence of the witness and it does not
matter as to how he is present.. I must also notice at this stage that Order 18,
Rule 3(4)(3) which provides for recording evidence either by writing or
mechanically in the presence of a Judge, Audio-Video Link is a mechanical
process where the party is present on the screen and there is a mechanical
divisor recording the evidence.. If law courts do not permit technological
development in court proceedings, it would be lagging behind compared to
other sectors. Law has to develop and if law is to develop, technology has to be
made as a tool.
In fact, in Dr.Balram Prasad Vs.Dr.Kunal Saha, (2014)1 SCC 384(
medical negligence case), the Supreme court went a step further and admitted
in evidence the recording of testimonies and cross examination of the foreign
expert witnesses through internet conferencing (Skype) instead of video
conferencing. In Bodala Murali Krishna Vs. Bodala Prathima, 2007 (3) ALD
72the High court of Andhra Pradesh held that necessary precautions must be
taken to identify the witness and ensure the accuracy of the equipment being
used. In addition, any party wishing to avail itself of the facility of video
conferencing must meet the entire expense. Thus, the courts in India have
permitted recording of evidence through electronic means in the cases of non
availability of witnesses because of ill health etc. Or they are abroad or of
compelling considerations of security.