topic – ii mode of treating and recording evidence, including ...

TOPIC – II

MODE OF TREATING AND RECORDING EVIDENCE, INCLUDING

RECORDING EVIDENCE THROUGH VIDEO CONFERENCING

INDEX SHEET

Sl. No.

Name of the Judicial Officer Page Nos.

1.

Sri E. Bhimarao,

VII-Addl. District Judge,

Vijayawada

2 - 19

2.

Sri N. Ramesh Babu,

XII-Addl. District Judge,

Vijayawada

20 – 29

3.

Smt Sattaru Rajani,

Additional District Judge/

Chairman Permanent Lokadalat,

Machilipatnam

30 – 36

4.

Sri V.S.Srivivasa Sarma,

Prl. Senior Civil Judge,

Machilipatnam

37 – 48

5.

Sri Shaik Madar,

Senior Civil Judge,

Nandigama

49 – 52

6.

Sri Mohd. Abdul Rafi,

I-Addl. Chief Metropolitan Magistrate,

Vijayawada

53 – 61

7.

Sri G.Venkateswarlu,

III-Addl. Chief Metropolitan Magistrate,

Vijayawada

62 – 84

8.

Smt U. Indira Priyadarshini,

IV-Addl. Chief Metropolitan Magistrate,

Vijayawada 85 – 93

9.

Smt L. Thejovathi,

Prl. Junior Civil Judge,

Nuzvid

94 – 95

10.

Smt K. Aruna Kumari,


Gudivada

96 – 102

11.

Sri Beera Srinivasu,

Addl. Junior Civil Judge,

Jaggayyapeta

103 – 109

12.

Sri H. Amara Rangeswara Rao,


Avanigadda

110 – 118

13.

Sri P. Shiyaz Khan,


Tiruvuru

119 – 121

14.

Sri M. Rama Krishnam Raju,

Junior Civil Judge,

Vuyyuru

122 – 128

2

Presented by: Sri E. Bhimarao,

VII-Addl. District Judge,

Vijayawada.


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.


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


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





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


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

31

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.

32

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

33

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


34

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


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.

35

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.

36

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.

37

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.

38

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

39

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

40

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

41

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.

42

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





evidence.”

43

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

44

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


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


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 [email protected]

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


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.



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;


was submitted that video- conferencing could not be allowed as the rights of



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



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


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



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


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


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


as effective, if not better. The facility of playback would give an added



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



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


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



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



so long as the Accused and/or his pleader are present


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









as effective if not better. The facility of play back would give an added



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


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.

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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

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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.

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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:

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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.

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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.

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Presented by: Smt L. Thejovathi,


Nuzvid.



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


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,


Gudivada.



Introduction:

Taking and recording evidence would assume great significance in


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



Section 274 lays down that the Magistrate shall record the memorandum

of substance of evidence of a witness in open court and such memorandum


case is concerned. In a warrant case, the magistrate shall record the evidence


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



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




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

99

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

100

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


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

101

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


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



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



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.

103

Presented by: Sri Beera Srinivasu,


Jaggayyapeta.



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


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.




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


case is concerned. In a warrant case, the magistrate shall record the evidence


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



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




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


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



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



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


in a crowded court room. The can observe his or her demeanour. In fact the


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,


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).

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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:

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"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

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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.


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



so long as the Accused and/or his pleader are present when evidence is

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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








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



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

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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.

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Presented by: Sri P. Shiyaz Khan,


Tiruvuru.



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.

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Presented by: Sri M. Rama Krishnam Raju,

Junior Civil Judge,

Vuyyuru.



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:

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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

126

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


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.