Courts Must Be Liberal In Allowing The Recording Witnesses' Evidence By Audio-Video Electronic Means: Karnataka High Court

The Karnataka High Court, Kalaburagi Bench, dismissed a Petition challenging the order of the Trial Court, where the Prosecution Witness (PW 5) was allowed to appear for cross-examination through a video conference call.

The Court observed that it is permissible to record witness testimony via video conference, as outlined in the proviso to Sub-Section (1) of Section 275 of the Criminal Procedure Code (Amendment) Act, 2008 (CrPC). The Court emphasized the need for a liberal approach in allowing audio-video recording of witness evidence.

Justice Venkatesh Naik T observed, “Admittedly, the application filed under Section 311 of Cr.P.C., cannot be dismissed and it has to be allowed frequently, thus, the Court has to follow liberal approach”

“Therefore, in view of the procedures laid down in the aforesaid rules and in the facts and circumstances of the present case, recording of evidence of PW5 through video conferencing is permissible, in view of proviso to Sub-Section (1) to Section 275 of Cr.P.C., (Amendment) Act, 2008. Thus accused fails to establish that PW5 should be appeared in-person for cross-examination before the Court, thus, PW5 may be examined through video conferencing”, the Court noted.

Advocate Ganesh Naik appeared for the Petitioner, and Government Pleader Gururaj V. Hasilkar appeared for the Respondent.

During a dictation session with her stenographer, the JMFC (PW 5) of Vijaypura was confronted by the Accused/Petitioner. The dispute was over an unsigned GIS bill, and the Petitioner insisted on signing it, hurled abuse at the JMFC, and even made criminal threats while she was carrying out her public duty. Based on the Respondent's complaint, the police conducted an investigation and registered a case. The Magistrate took cognisance and charged the Petitioner. During the Prosecution's submission of evidence, testimony from PW 5 was submitted. However, the Petitioner filed an appeal with the Trial Court to recall PW5 for cross-examination in person before the Court. The Trial Court partially granted the application and allowed PW5 to testify via video conferencing for cross-examination. The Petitioner, therefore, filed a Criminal Petition challenging the order of the Trial Court.

The Court noted that the accused was charged under Sections 353, 448, 504, and 506 of the Indian Penal Code (IPC). The records show that the cross-examination of PW5, a judicial officer from Bangalore City, was not completed due to an application filed by the accused under Section 311 of the CrPC. The accused had requested for PW5 to be present in Court for cross-examination. However, due to the long distance, the trial Court rejected the application and instead opted for video conferencing to save time and lessen the Court's workload.

Furthermore, the Court noted that the recording of evidence by video conferencing is allowed under the Code of Criminal Procedure, 1973, as amended by Act 5 of 2009. In this case, the Court observed that the accused wanted to confront some documents to PW5 in person, but the Court rules permit the showing of documents during video conferences. Therefore, recording the evidence of PW5 through video conferencing is permissible, and the accused failed to establish the need for an in-person cross-examination.

“Therefore, the trial Court in order to save the Court time as well as PW5, adopted new scientific method, to mitigate the work load of Courts. Further, if PW5 crossexamined through virtual mode, it does not affect rights of accused”, the Court noted.

Accordingly, the Court dismissed the Petition.

Cause Title: Mahadev v State of Karnataka [NC: 2023:KHC-K:6386]

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