Académique Documents
Professionnel Documents
Culture Documents
INDEX SHEET
Sl.
Name of the Judicial Officer Page Nos.
No.
Sri E. Bhimarao,
1. VII-Addl. District Judge, 2 - 19
Vijayawada
Sri N. Ramesh Babu,
2. XII-Addl. District Judge, 20 – 29
Vijayawada
Smt Sattaru Rajani,
Additional District Judge/
3. 30 – 36
Chairman Permanent Lokadalat,
Machilipatnam
Sri V.S.Srivivasa Sarma,
4. Prl. Senior Civil Judge, 37 – 48
Machilipatnam
Sri Shaik Madar,
5. Senior Civil Judge, 49 – 52
Nandigama
Sri Mohd. Abdul Rafi,
6. I-Addl. Chief Metropolitan Magistrate, 53 – 61
Vijayawada
Sri G.Venkateswarlu,
7. III-Addl. Chief Metropolitan Magistrate, 62 – 84
Vijayawada
Smt U. Indira Priyadarshini,
8. IV-Addl. Chief Metropolitan Magistrate, 85 – 93
Vijayawada
Smt L. Thejovathi,
9. Prl. Junior Civil Judge, 94 – 95
Nuzvid
Smt K. Aruna Kumari,
10. Prl. Junior Civil Judge, 96 – 102
Gudivada
Sri Beera Srinivasu,
11. Addl. Junior Civil Judge, 103 – 109
Jaggayyapeta
Sri H. Amara Rangeswara Rao,
12. Addl. Junior Civil Judge, 110 – 118
Avanigadda
Sri P. Shiyaz Khan,
13. Addl. Junior Civil Judge, 119 – 121
Tiruvuru
Sri M. Rama Krishnam Raju,
14. Junior Civil Judge, 122 – 128
Vuyyuru
2
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.
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.
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.
So also sections 130 to 134 of Indian Evidence Act has to bare in mind
while recording evidence.
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.
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.
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.
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.
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
7
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.
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.”
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.
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.
9
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:
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.
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.
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:
14
(i) in writing by, or in the presence and under the personal direction
and superintendence of, the Judge, or,
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.
15
The Court may record such remarks as it thinks material respecting the
demeanour of any witness while under examination.
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.
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.
(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.
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.
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.
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."
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
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:
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.
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
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:
“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”.
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
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
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.
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.
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
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
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.
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
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.
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.
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.
(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.
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.
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 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.
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.
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
The learned Judge may also impose such other conditions as are
necessary in a given set of facts.
The expenses and the arrangements are to be borne by the applicant who
wants this facility.
The above judgment extensively deals with the manner in which the
evidence should be recorded through video conference. If the above referred
provisions of Indian Evidence Act and the ratio of the above referred judgments
are kept mind, while adjudicating a case relying on electronic evidence, then
certainly there would no scope to receive inadmissible evidence and or commit
error.
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”.
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:
* 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
INTRODUCTION:
People have faith and confidence on courts. They come to court for
justice. The duty of the court is to arrive at the truth and sub-serve the ends of
justice. Taking and recording of evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence. Judicious scrutiny of facts proved by admissible
evidence culminating into a reasoned judgment are the integral features of a
trial. A trial must be conducted with utmost care and sensitivity so as to
protect the rights of the parties. The Appellate Court looks at the evidence
through the eyes of the trial judge. Therefore, clear and correct recording
evidence assumes great significance.
ORAL EVIDENCE:
For proof of a fact, evidence is required to be adduced. The Indian
Evidence Act regulates production of evidence. According to Sec.3 of the
Evidence Act, Evidence means and includes oral evidence and documentary
evidence. The idea of best evidence is of the person, who has actually
perceived something by that sense by which it is capable of perception. This
becomes clear from Sec.60 of Indian Evidence Act. 1st part of Sec.60 refers to
Eye witnessing. 2nd part of Sec.60 refers to hearsay. It can be said that
hearsay evidence is not admissible to prove truthfulness of the heard
statement. Still Sec.60 of I.E.Act says that hearsay evidence is admissible, but
for certain purpose and that is, to prove something heard which is not actually
seen. (Balaram Prasad Agrawal Vs State of Bihar and others reported in
AIR 1997 SC 1830). 3rd part of Sec.60 of I.E.Act relates to oral evidence,
which is direct referring to a fact, which could be perceived by any other sense.
Any other sense means by smell, search, gait, timbre voice etc. 4th and last
part of Sec.60 of I.E Act refers to an opinion or to the grounds on with that
opinion is held by the person. Parties to a suit or other civil proceeding at
liberty to examine as many as witnesses as they choose to produce in support
of their respective claims or contentions. Sec.134 of the I.E Act says that no
particular number of witnesses shall be required for proof of any fact. It is
entirely for the parties to decide how many witnesses are necessary or required
to prove particular fact or document. Courts will not generally place any
54
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)
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.
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.
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
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.
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".
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 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
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.
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
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.
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
19. At this stage we must deal with a submission made by Mr. Sundaram. It
was submitted thatvideo-conferencing could not be allowed as the rights of
an accused, under Article 21 of the Constitution of India, cannot be subjected
to a procedure involving "virtual reality". Such an argument displays ignorance
of the concept of virtual reality and also of video conferencing. Virtual reality
is a state where one is made to feel, hear or imagine what does not really
exists. In virtual reality one can be made to feel cold when one is sitting in a
hot room, one can be made to hear the sound of ocean when one is sitting in
the mountains, one can be made to imaging that he is taking part in a Grand
Prix race whilst one is relaxing on one sofa etc. Video conferencing has
nothing to do with virtual reality. Advances in science and technology have
now, so to say, shrunk the world. They now enable one to see and hear events,
taking place far away, as they are actually taking place. To take an example
today one does not need to go to South Africa to watch World Cup matches.
One can watch the game, live as it is going on, on one's TV. If a person is a
sitting in the stadium and watching the match, the match is being played in
his sight/presence and he/she is in the presence of the players. When a person
is sitting in his drawing-room and watching the match of TV, it cannot be said
that he is in presence of the players but at the same time, in a broad sense, it
can be said that the match is being played in his presence. Both, the person
sitting int eh stadium and the person in the drawing-room, are watching what
is actually happening as it is happening. This is not virtual reality, it is actual
reality. One is actually seeing and hearing what is
happening. Video conferencing is an advancement in science and technology
which permits one to see, hear and talk with someone far away, with the same
facility and ease as if he is present before you i.e. in your presence. In fact
he/she is present before you on a screen. Except for touching one can see,
78
In Liverpool And London Steamship ... vs M.V. "Sea Success I" And Anr. on
16 June, 2005.
80
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
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
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.
State of Bihar & others (AIR 1997 SC 1830), the Hon'ble Apex Court
referred to the observations of the Privy Council as:
o Documentary evidence –
vi) By opinion as to, or comparison of, signature, writing or seal with other
admitted or proved document; (Ss. 45, 47 or 73) &
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
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]
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.
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
IV. Section 2(t) of the Information Technology Act, 2000 defines “electronic
record” as:
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.
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.
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
i. Alcatel India Ltd v Koshika Telecom Ltd & ors [2004] the Court
allowed the witness to give evidence through video conferencing, as the witness
was unhealthy.
ii. Amitabh Bagchi, the High Court of Calcutta opined that a practical
outlook ought to be taken by a court in allowing electronic video conferencing
as it is a cost-effective facility and avoids delay of justice.
91
While the courts have held that recording of evidence through video
conferencing is permissible in law, they have also cautioned that necessary
precautions must be taken, both as to the identity of the witnesses and
accuracy of the equipment used for the purpose. Certain guidelines have been
indicated in the judgments discussed above, which are summarised below:
92
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 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
The Supreme Court held that video-conferencing could be resorted to for the
purpose of taking evidence of a witness. In that case, one party was seeking
direction of the court to take evidence of a witness residing in the United States
of America. Though a lower court had ordered such evidence to be taken with
the help of video-conferencing, the concerned High Court struck down that
order on the grounds that the law required the evidence to be taken in the
presence of the accused. The Appeal Bench of the High Court upheld the said
latter order. The Supreme Court struck down the High Court order by stating
that recording of evidence satisfies the object of Section 273 of the Code of Civil
Procedure that evidence be recorded in the presence of the accused. In
explaining the benefits of video-conferencing, the Court observed that “In fact
the Accused may be able to see the witness better than he may have been
able to if he was sitting in the dock in a crowded Court room. They can
observe his or her demeanour. In fact the facility to play back would
enable better observation of demeanour. They can hear and rehear the
deposition of the witness.” Addressing the various submissions made before
it, the Court stated that “Virtual reality is a state where one is made to feel,
hear or imagine what does not really exist. Video-conferencing has nothing to
do with virtual reality. The Supreme Court also laid down the procedure to be
followed when recording evidence through video conferencing. The accused and
his legal counsel should be present for video conference. The accused should
be permitted to cross-examine the witness and place documents before the
witness. An officer deputed from the Indian Embassy or Consulate, or directly
from India, should be present with the witness in the foreign country during
the video conferencing. This officer should administer oath to the witness and
should ensure that the witness is not being tutored or prompted whilst
evidence is being recorded. There should be nobody, apart from the witness
and the deputed officer. The evidence of the witness should be recorded in the
Indian Embassy if possible. If the officer finds that witness is not answering
questions, the officer should make a memo to this affect. The Court should
take this fact into consideration when determining the veracity of the evidence.
96
Introduction:
Taking and recording evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence.
For discovery of the truth, courts require proper or relevant facts and
record evidence in clear and intelligible manner. When the language of a
written instrument is perfectly plain, no construction will be made to contradict
the language. As such, a Presiding Judge or Magistrate must cease to be a
mere recording machine. He should take a participatory role in the trial.
Exercising his control over the proceedings effectively, he should interfere when
irrelevant fact is unnecessarily brought on record so that the ultimate objective
i.e., the truth is arrived at summary on the subject.
Sections 272 to 283 of the Code of Civil Procedure, 1973 read with rules
covered under Chapter XIII of General Rules and Circular Order [Criminal]
Volume-1 would throw light to a presiding Judge or Magistrate on mode of
taking and recording evidence in criminal cases.
Section 273 mandates to record all the evidence in presence of the
accused. If personal attendance of the accused is dispensed with, the same
must be recorded in presence of his pleader.
Section 274 lays down that the Magistrate shall record the memorandum
of substance of evidence of a witness in open court and such memorandum
must be signed by him and shall form part of the record so far as summons
case is concerned. In a warrant case, the magistrate shall record the evidence
of a witness by taking down by himself or cause it to be taken down in the
narrating form.
Section 275[3] permits the magistrate to record the evidence in the form
of question and answer. In view of the proviso to section 275 [1], the evidence
of a witness may be recorded by audio video electronic means in presence of
the advocate of the accused.
Section 276 says that recording of evidence before Sessions court should
be in the form of narrative. The presiding judge may, in his discretion, taken
down or cause to be taken down, any part of such evidence in the form of
question and answer and the evidence so taken down shall be signed by the
presiding judge.
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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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EXAMINATION OF WITNESSES:
Examination in chief and cross-examination must relate to relevant
facts. The objects of cross-examination are to impeach the accuracy, credibility
and general value of the evidence given in chief, shift the facts already stated
by witnesses, to detect and expose discrepancies, to elicit suppressed facts
which will support the case of cross-examining party.
Repetition of questions is prohibited in view of the ratio laid down by the
Bombay High Court in deciding a criminal appeal in 485 of 2006 [date of
judgment:06-05-11].
The cross-examiner should be asked to repeat the question, if the
witness is unable to understand. This minor precaution can prevent improper
and incorrect recording of evidence. Ordinary witness should not be asked
regarding legal provisions. At times legal questions may relevant to an expert
witness.
While recording omission and contradictions, the presiding officer must
verify the previous statement. When the omissions relate to the natural part of
the statement, it should be specifically recorded to that effect.
Unless documents are properly filed on record, they should not be
permitted to refer in cross-examination.
Handwriting or signature may be proved by the person who wrote or
signed, who acquainted with the handwriting or signature or by the court itself
by means of comparison or though opinion of expert.
If a document is duly proved but mechanically or otherwise is not
exhibited, still it can be read in evidence. Courts take judicial notice of public
document. All official documents are also public documents. Certified copies
of public documents are treated to be genuine unless contrary is proved. Truth
of contents of certified copies of private documents like sale deed, gift deed,
leased deed, etc., are required to be proved by independent evidence.
Court insists for direct evidence and primary evidence. Execution of a
document is proved by admissible evidence Admissible evidence is by way of
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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.
CONCLUSION:
The presiding judge or magistrate shall scrutinize evidence led by both
the parties under a reasoned judgment. The force of judgment is derived from
the recording of evidence. As such, the mode of taking and recording evidence
is uncountable and integral feature of criminal trial. Higher Court
[Appellate/Revision Court/ looks at the evidence through the eyes of the trial
judge. Unless a judge is well equipped with legal knowledge and also well
trained in recording evidence, protection of innocent and punishment to the
guilty would be a far-cry.
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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
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is unnecessarily brought on record so that the ultimate objective i.e; the truth
is arrived at summary on the subject.
and he should avoid formulating any opinion on the credibility of the witness
until the whole evidence has been taken.
8. In civil matters, the witnesses are summoned to appear before the court
and adduce evidence under the provisions of section 30, order XVI and order
XVIII of the code of civil procedure 1908.
9. So far as doubtful expression is concerned, the trial court should
actually record the word used by the witness so that its exact signification can
be assessed in the judgment. Assistance of the interpreter may be taken if the
language of the witness is not understood by the accused court, or lawyers.
10. In reference to rule 88, the magistrate or the presiding judge shall
personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct.
Marking of documents:
1. The documents admitted as evidence on behalf of the prosecution shall
be marked with number in the order in which they are admitted. For example
Ext.-P1, Ext-P2 etc.
2. The documents admitted as evidence on behalf of the defence shall be
marked as for example Ext-D1, Ext-D2 etc.
3. When documents admitted at the instance of the court and neither party
is willing to accept them as evidence, they shall be marked as Ext-C1, Ext-C2
etc.
4. When any article or material which is produced and after being proved
and admitted in evidence, it shall be marked with a Roman number. For
example MO-I, MO-II etc.
5. List of articles admitted in evidence shall be prepared by the Bench Clerk
of the court and shall be signed by the judge.
Electronic record:
The evidence consists of three parts. 1. Electronic record 2.Documentary
evidence and 3. Oral evidence. Electronic record is documentary evidence
under section 3 of the Act. Any information contained in an electronic record is
deemed to be a document. An electronic record may be like computer print out,
CD, pen drive, chip etc. The evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence. If an electronic as such is used
as primary evidence under section 62, the same is admissible in evidence. The
general law on secondary evidence under section 63 read with section 65 of the
Act has no application in case of secondary evidence by way of electronic
record. The same is wholly governed by Sections 65-A & 65-B.
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Speaking for the bench, Justice Variava said “In cases where the
attendance of a witness cannot be procured without an amount of delay,
expense or inconvenience, the court could consider issuing a commissioner to
record evidence by way of video conferencing.
“Normally a commission would involve recording of evidence at the place
where the witness is. However, advancement in science and technology has
now made it possible to record such evidence by way of video conferencing in
the town/city where the court is” he said.
Referring to the chances of witness abusing the trial judge during video
conferencing, the apex court said “As a matter of prudence, evidence by video
conferencing in open court should be accepted only if the witness is in a
country which has an extradition treaty and under whose laws contempt of
court and perjury are punishable.”
The court then directed the Mumbai court to set up a commission and
take help of VSNL in recording Dr.Greenberg's statement through video
conferencing in the presence of the two accused doctors. It also allowed the two
accused to cross examine the US-base doctor.
The Court directed the Maharashtra Government to bear the cost of video
conferencing.
Rejecting all arguments about interior video quality, disruption of link
and other technical problems, the bench said by now science and technology
has progressed enough to not worry about video image/audio interruptions or
disruptions.
The Counsel for the two doctors argued that the rights of the accused
under Article 21 could not be subjected to a procedure involving 'virtual reality”
Rejecting the argument, the bench said video conferencing has nothing
to do with virtual reality and gave the example of the telecast of the cricket
world cup.
It could not be said that those who watched the world cup on television
were witnessing virtual reality as they were not in the stadium where the
match was taking place, the court pointed out.
“This is not virtual reality, it is actual reality. Video conferencing is an
advancement of science and technology which permits one to see, hear and
talk with someone far away with the same facility as if he is present before you,
that is, in your presence” the apex court said.
“Recording of evidence by video conferencing also satisfies the object of
providing in section 273 that evidence be recorded in the presence of two
accused” it said.
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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.
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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
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
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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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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
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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.
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."
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.
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.”
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
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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.
Section 138 which deals with the order of examination of witnesses reads
as under;
Section 138. Order of examinations – Witnesses shall be first examined-
in-chief, then (if the adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts,
but the cross-examination need not be confined to the facts to which the
witness testified on his examination –in-chief.
Direction of re-examination – The re-examination shall be directed to the
explanation of matters referred to in cross-examination; and, if new matter is,
by permission of the court, introduced in re-examination, the adverse party
may further cross-examine upon that matter.
Under Section 137, the sequence of the examination of a witness is:
1. Examination in chief by the party who called him;
2. Cross-examination by the “adverse” party; and
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3. Re-examination of the witness by the party calling him after he has been
cross-examined.
Examination in chief and the cross examination must relate to
relevant facts but cross-examination need not be confined to facts testified to in
the examination in chief. The reason for this rule is obvious as otherwise the
examination in chief can be conducted so as to shut out facts that may be
supportive of the adverse party. Thus, new relevant facts which are not
touched upon in the examination in chief can be introduced in cross-
examination and the witness will be called upon to respond to them.
Consequently, the party calling the witness is permitted to conduct re-
examination of the witness which “ shall be directed to the explanation of
matters referred to in cross-examination” but not necessarily confined only to
the new matters introduced a cross-examination. The party conducting the re-
examination can introduce new facts only with the permission of the court and
in such a case, the adverse party will get the right to further cross examine the
witness.
Examination-in-chief
As section 137 says, the examination in chief is the examination of a
witness by the party who calls him. It is the Court which, on the petition of the
parties, summons witnesses for the prosecution or the defense in criminal
cases. In a civil proceeding, Order XVI Rule (1) of CPC. says
On or before such date as the Court may appoint, and not later than
fifteen days after the date on which the issues are settled, the parties shall
present in court a list of witnesses whom they propose to call either to give
evidence or to produce documents and obtain summons person for their
attendance in Court.
The examination in chief is the real curtain-raiser and it is the
foundation of the testimony of a witness and provides an opportunity to the
parties to unfold their cases in an objective and convincing manner.
Though Section 138 says that” witness shall be first examined in chief”,
the intention of the drafts man was not that examination in chief of the entire
list of all witnesses must be first conducted and then only all of them can be
cross examined and re-examined. Examination in chief, cross examination and
re-examination of each witness will have to be conducted sequentially in
tandem. The only restriction on the scope of the examination is that it “must
relate to relevant facts”.
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CROSS EXAMINATION
Section 138 says that “Witnesses shall be first examined-in-chief, then (if
the adverse party so desires) cross-examined”. This provision raises two issues:
Firstly, the question is regarding the use of the term “then” and the
sequence of examination . Section 243(3) Cr.P.C. says that “the Magistrate may
permit the cross-examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any witness for further cross
examination”. For instance, if A, a witness, is examined in chief, his cross
examination can be permitted to be done after another witness B is also
examined in chief. Thus, the use of the term “ then” in Section 138 shows that
cross examination shall follow the examination in chief as a matter of sequence
but that does not mean that cross examination must immediately follows.
Secondly, the section makes the examination in chief mandatory but the
cross examination is optional and need to be held only if “ the adverse party so
desires”. The Supreme Court in Satwant Singh V.Punjab AIR 1995 SC 1601
held that it was not permissible for the prosecution to “tender” a witness for
cross examination without his being examined in chief and it amounts to giving
up the witness. But, cross examination is the right of the adverse party and it
may choose not to exercise that right depending on the unimpeachable quality
of evidence of the witness in the examination in chief and the circumstances of
the case. What the law says is that the examination of the witness is
incomplete if the adverse party is not given the opportunity to cross examine
him but it is for the adverse party to choose whether to avail or not to avail of
that opportunity. On the other hand, if the witness chooses to avoid or evade
cross examination, his testimony loses all credibility as it has not run the
gauntlet of cross examination.
“ADVERSE PARTY’
Section 137 says that cross examination is the examination of a witness
by “ the adverse party” . In an adversarial legal proceeding two parties are
arraigned against each other and they may be, typically, one plaintiff and one
defendant in a civil case or prosecution and the accused in a criminal case.
But, in some cases there can be plurality of parties on both the sides in a civil
case and several accused in a criminal case as in the case of a joint trial. There
can be cases where there is a conflict of interest among the plaintiffs or the
defendants or the co-accused, Inter se. A witness examined in chief by one of
the plaintiffs or the defendants might have deposed some facts which are
inimical to the interests of co-plaintiffs or co-defendants. Similarly, a witness
appearing for a co-accused might put greater blame on the other co-accused.
In such a case, the multiple parties being arraigned on the same side of the
suit or proceeding are not “adverse” to each other on docket papers but the
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testimony of the witness of one party might, in fact, turn out to be adverse to
the other party on the same side of the suit or proceeding. It is noteworthy that
it may be the testimony of the plaintiff or the defendant or the accused which
may be against his colleagues or it may be the testimony of his witness which
is adverse. Though Section 137 refers to “adverse party”, in a given case, it
could be the testimony of a witness which may be “adverse”. The question in
such a case is whether the co-plaintiff or co-defendant or co-accused, or his
witness, as the case may be, can be cross examined by the other co-plaintiffs
or co-defendants or the co-accused.
In Zahira Habibullah & Anr V.Gujarat & Ors, AIR 2006 SC 1367 the
Supreme Court held that a party has a right to cross examine even a court
witness called under section 311, Cr.P.C. and it is the Evidence Act which gives
“a party the right to cross examine a witness who is not his own witness” and
that a witness called by the court could not be termed a witness of any
particular party”. In that sense a party has a right to cross examine any
witness called by any party other than himself.
Video Recording of Evidence
The questions whether evidence can be recorded by using a tape-recorder or
video conferencing or Internet conferencing have come up for consideration
before the Supreme Court of India and some High Courts. Section 273 of
Cr.P.C. States: “Except as otherwise expressly provided, all evidence taken in
the court of the trial or other proceeding shall be taken in the presence of the
accused, or, when his personal presence is dispensed with, in the presence of
his pleader: In the case of Maharashtra Vs.Dr.Praful B Desai, AIR 2003 SC
2053it was contended that the requirement of Section 273 that “ all evidence...
shall be taken in the presence of the accused” will be violated if evidence is
recorded through video conferencing which is only “virtual reality” and it will in
breach of “procedure established by law” as mandated by Articles 14 and 21 of
the Indian Constitution. Negativing the contention , the Supreme Court said :
.. it is clear that so long as the accused and /or his pleader are present when
evidence is recorded by video conferencing that evidence is being recorded in
the “presence” of the accused and would thus fully meet the requirements of
section 273 of the Criminal Procedure Code. Recording of such evidence would
be as per “procedure established by law”
The Apex court further elaborated:
“This is not virtual reality it is actual reality. One is actually seeing and
hearing what is happening. Video conferencing is an advancement in science
and technology which permits one to see, hear and talk with someone far away,
with the same facility and ease as if he is present before you i.e., in your
presence. In fact he/she is present before you on a screen. Except for touching,
one can see, hear and observe as if the party is in the same room. In video
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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.