Point of Law: Rule 8(23) provides that when a Required Person is unable to reach the Court point or the Remote Point due to sickness or to any genuine reason Court may authorise conduct of proceedings through Electronic Video Linkage.

ORDER :

This petition has been filed under Section 482 of the Code of Criminal Procedure and the petitioner is the sole accused in C.C.No.3/2012 pending before the Special Judge (SPE/CBI)-II, Ernakulam. The petitioner impugns order in Crl.M.P.No.18/2023 in C.C.No.3/2012 sprang up from the common order in Crl.M.P.Nos.18 and 19 of 2023 dated 13.01.2023.

2. Heard the learned counsel for the petitioner as well as the learned Deputy Solicitor General of India (`DSGI' for short hereinafter).

3. Summary of the factual events. Public Prosecutor (CBI) had filed Crl.M.P.Nos.18 and 19 of 2023 before the Special Court and sought examination of the defacto complainant in C.C.No.3/2012 by name Sujesh.P.S, who is the first witness (CW1) in the case, through video linkage on the ground that the first witness has been working in Dubai and his presence for examination could not be secured without delay or expenses. Similarly, the Public Prosecutor (CBI) also filed Crl.M.P.No.19/2023 to examine CW16 through video linkage.

4. The petitioner herein objected Crl.M.P.No.18/2023, where examination of CW1 was sought for through video linkage, while not raising any objection in Crl.M.P.No.19/2023, where CW16 was sought to be examined through video linkage. The objection raised by the petitioner herein before the Special Court was that the accused would be denied and estopped from effectively cross examining CW1, if he could not be examined by securing his physical presence. Further the demeanour and approach of the witness during cross examination were vital and therefore, examination of CW1 in physical form is essential to protect the interest of the accused and to properly defend the case.

5. The learned Special Judge appraised the contentions in view of the objection raised by the petitioner herein regarding examination of CW1 through video linkage. The learned Special Judge found that in the advanced era of technology, a witness could effectively be cross examined even through video linkage and in order to ensure such facility, the Electronic Video Linkage Rules for Courts (Kerala), 2021 was enacted. Accordingly, the objection raised by the petitioner herein was negated and finally the Special Court allowed examination of CW1 through video linkage facility.

6. The learned counsel for the petitioner herein, who challenged the order passed by the learned Special Judge in Crl.M.P.No.18/2023, reiterated the contentions raised before the Special Court mainly on the submission that an effective cross examination of CW1 would be possible only when physical examination would be permitted and the right of the accused to cross examine the witness effectively, would be curtailed by opting the mode of video linkage and the same is detrimental to the interest of the accused.

7. Whereas the learned DSGI zealously opposed this contention and argued that if the apprehension of the petitioner holding the view that effective cross examination will be possible only through physical examination, is appreciated, the very purpose of enactment of Electronic Video Linkage Rules for Courts (Kerala), 2021 would become ineffective and, therefore, the prayer could not be allowed. According to him, the learned Special Judge, rightly negatived the contention in this regard. It is also pointed out by the learned DSGI that cross examination of a witness either through video linkage or through physical mode, would be equally effective and there is no need to discriminate the proceedings in any manner and to make the rules inoperative.

8. While appraising the rival contentions on the issue, Rules 7 and 8 of the Electronic Video Linkage Rules for Courts (Kerala), 2021 notified as on 25.08.2021, assumes significance. Rule 7 provides the mode of service of summons in relation to witnesses proposed to be examined or heard through electronic video linkage and Rule 8 deals with examination of persons. As per Rule 8(25) it has been provided that the examination through Electronic Video Linkage sh