The Advent of the Concept of Video Conferencing in Criminal Trials: Need and Benefits

The Advent of the Concept of Video Conferencing in Criminal Trials: Need and Benefits

By Vidhan Maheshwari

National Law University, Bhopal.

The law must keep pace with scientific developments and other contemporary changes in the society. Keeping this in mind the Supreme Court in the case of Som Prakash v. State of Delhi[1] rightly observed that “in our technological age nothing more primitive can be conceived of than denying discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific aids to prove guilt.” Statutory changes are needed to develop more fully a problem solving approach to criminal trials and to deal with heavy workload on the investigators and judges. One example of such kind of change is the introduction of the concept of Video Conferencing in Indian Criminal Justice system. 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. The concept as a tool has been utilized in two ways i.e. firstly for taking evidences in special circumstances and secondly for producing the undertrials before the Court for the purposes of extension remand or otherwise from the prison itself. In India also the Courts have applied a purposive interpretation to allow video conferencing.

Use of Video Conferencing for taking evidences:

The Court in the case of State of Maharashtra v. Dr. Praful B. Desai[2] justified the use video linkage system for taking evidences. The Court observed that Section 273 of the Cr.P.C. provides that evidence to be taken in presence of accused, except as otherwise expressly provided, all evidence taken in the course of trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. It was argued before the Court that the term ‘presence’ in Section 273 must be interpreted to mean physical presence in flash and blood in open Court. It was also contended that video conferencing was not known and it did not exist at the time when Cr.P.C. was enacted/amended and the presence on a screen and recording of evidence video conferencing was not contemplated by the parliament at the time of drafting or amending the Cr.P.C. Rejecting all the contentions the Court observed that it is presumed that the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to construe in accordance with the need to treat it as a current law. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment and it is constituted by judicial interpretation, year in and year out.[3]

The Court came to the conclusion that so long as the accused 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 satisfy the requirements of Section 273 of the Code. Recording of such evidence would be as per “procedure established by law”.

The ratio of the Apex Court judgment is that ‘presence’ does not necessarily mean actual physical presence in the Court. Further Section 3 of the Evidence Act, also indicates that in the Court physical presence of a person may not be required for the purpose of adducing evidence. Evidence includes video conferencing. It is also to be remembered that by virtue of an amendment and insertion of Sections 65A and 65B of the evidence act a special provision as to evidence relating to electronic record and admissibility of electronic records has been introduced with effect from 17^th October, 2000. Therefore there is no bar of examination of witness by way of video conferencing being essential part of electronic method. Further if it appears that electronic video conferencing is not only much cheaper but also facilitates the Court and avoids delay of justice, a practical outlook is to be taken by the Court. In such circumstances, Court may dispense with such attendance and issue a Commission for examination of the witness.

Thus also in cases where the presence is necessary under Order 18 Rule 4(3) of the Code of Civil Procedure, it does not necessarily mean physical presence. Rule 4(3) provides for recording evidence either by writing or mechanically in the presence of judge.

In India there is no express, constitutionally protected right to confront the witnesses like in America. In America, the Courts have held that video conferencing violates the Confrontation Clause set out in the VI^th Amendment to the American Constitution.[4] In case of Valenzuela Gonzalez v. US DC of Arizona[5] the Court in America has reiterated the right of the accused to a confrontation, so as to ensure the integrity of the fact finding process.

In case of Dharmand Pant v. State of U.P.[6] the Court held that evidence against the accused should be recorded in his presence and in open Court so that the accused may have an opportunity to effectively cross-examine the witness, and the presiding officer may hear the witness and observe his demeanour. Video Conferencing satisfies all these objects sought to be achieved by requiring the witness to be physically present. The accused is not prejudiced in any way whatsoever by video conferencing. The accused and his pleader can see the witness as clearly as if the witness is actually present before them. The judge and the defence will be able to observe the witness’s demeanour. In fact, the facility of play back in video conferencing, which permits the Court and the parties to hear and rehear the evidence, would enable better observation of demeanour and better cross examination of the witness. Furthermore, the witness can be confronted with documents and other materials in the same manner as if he was in Court.

The Court in Praful Desai case also laid down the procedure to be followed when recording evidence through vide 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.

Use of Video Conferencing for Prison and Court Linkage:

The production of remand prisoners before the Courts is the responsibility of the prison officials and they can discharge the responsibility by making necessary arrangements with the police. So in a country where 75% of the prison population is undertrial remand prisoners, the production of them before the Courts is a daunting task. Other than this the threat to public safety in the event of escape of prisoner is always there. There are many reported instances where the undertrials were murdered during their custody. Besides all these, the finances involved in producing undertrials are also huge. To overcome all these problems and also to administer speedy justice to undertrials, a relatively new concept of penal reform has been accepted providing a video linkage between prisons and Courts. The concept is similar to the concept of adducing evidences through video conferencing as discussed in the earlier part. Many states including Madhya Pradesh, Andhra Pradesh, Karnataka and Tamil Nadu have amended Section 167 Cr.P.C so as to provide for production of the accused persons to the magistrate through electronic video linkage for the purpose of remand.[7]

Following the state amendments studios have been setup in many central prisons and the Courts. On each working day at a specified hour the video-linkage is activated and the undertrial prisoner is presented before the camera within the jail premises. The Judge at the other end can see and listen to the prisoner and take a decision on the extension of remand or otherwise.

This innovative penal reform has been successful in many Courts and has many advantages like, the expenditure involved on deploying the police force for checking and as escorts to the undertrials is saved and the chance of the escape of prisoners is no more. Also the judiciary can dispose the cases of remand prisoners in short time and can concentrate on the trail cases.

A large number of men are held for minor offences which even when proved will attract punishment of less than a year, without even being sure of the day of the commencement of the trial under the label ‘under trials’.

Conclusion:

It is not to say that law needs to progress in all manners with science and technology. Video conferencing is much needed since it saves the time of the Court and also of undertrials and ultimately helps in administration of justice. The advent of the concept will enable recording of evidence and do away with the risk in moving the high-risk prisoners who face trial in different Courts across the country. This will also enable recording of evidence of experts and also witnesses who reside abroad without incurring the enormous cost of bringing them to the trial Court. It is the need of the complexities of the modern times that the law also keeps on amending with the pace of the technology. The concept of video conferencing would definitely be a boon for justice as it would help Judges to be as correct as possible and understand the case with the help of all video recordings. These innovative methods of linking prison and Court through video linkage will ensure speedy trial and remove the hardships of the undertrials. It should also be kept in mind that if the Law Courts do not permit technology development in the Court proceedings it would be bagging behind compared to other sectors.

[3] Francis Bennion, Statutory Interpretation, 2^nd Edn., Page 617; the principles of updating construction as enuciated by Francis Bennion has been approved by he Court in plethora of cases, Commissioner of Income Tax, Bombay v. Podar Cement Pvt. Ltd., State v. S.J Choudhury, Basavaraj R. Patil v. State of Karnataka.

[4] The Confrontation Clause in the American Constitution, read with rules 10 and 43 of the Fedral Rules of Criminal Procedure (USA), provide that in all criminal prosecutions, the accusd shall have a right to be confronted with the witnesses against him.

[5] 915 Federal Republic 2d. 1276. Also in case of John Avery Coy v. Lowa, 487 US 1012

[7] For example the State of Andhra Pradesh, in section 167, sub-section (2)(i) to clause (b), added the following at the end, namely- “either in person or through the medium of electronic video linkage;”