IMPORTANT POINT
The court affirmed that cross-examination via video conferencing is permissible under the Electronic Video Linkage Rules, enhancing access to justice.

ORDER :

1. Petitioner is the accused in C.C. No. 1 of 2016 pending before the Court of Special Judge, CBI, Thiruvananthapuram. During trial, a petition was filed seeking permission for the Senior Counsel appearing for the petitioner to conduct cross-examination of the prosecution witnesses through video conferencing. Permission was sought citing health reasons and the counsel’s inability to travel up to Thiruvananthapuram. The learned Sessions Judge having rejected the petition, this Crl. M.C. is filed.

2. Learned counsel for the petitioner contended that, Electronic Video Linkage Rules for Courts (Kerala), 2021 (‘the Rules’ for short) is intended to enable, among other things, cross-examination through video conferencing also. In support of the argument, attention is drawn to the definitions of the words ‘Advocate’, ‘Court Point’, ‘Court User,’ ‘Remote Point’, ‘Remote User’ and ‘Required Person’ in Rule 2, the Principles laid down in Rule 3, the procedure for Examination of Persons contained in Rule 8 as well as Rule 10, intended to ensure seamless electronic video linkage. Relying on the Apex Court decision in State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, it is contended that courts should accept and adopt the changes brought about with the progress in technology.

3. Learned Standing Counsel for the CBI submitted that examination of the two witnesses, for the cross-examination of whom permission was sought, is over. It is further submitted that, if at all permission to conduct cross-examination through video conferencing is granted, it should be ensured that a responsible lawyer, capable of aiding the court and answering queries, is physically present during the cross-examination.

4. The short and interesting question arising for consideration is whether, cross-examination of witnesses present in court can be done from a remote point. In order to answer the question, it is essential to understand the meaning of the following expressions, as defined in Rule 2:

“(a) ‘Advocate’ means an advocate entered in any roll under the provisions of the Advocates Act, 1961 (Act 25 of 1961) and shall also include Government Pleaders/ Advocates and officers of the prosecuting agencies.

(e) ‘Court Point’ means the courtroom or other place where the Court sits or the place where the Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.

(f) ‘Court User’ means a user participating in the Court proceedings through Electronic Video Linkage at a Court Point.

(i) ‘Electronic Video Linkage’ means a connection enabling a Person to communicate audio-visually from a Remote point and Court point.

(l) ‘Live Link’ means a live television link, audio-video electronic means or other arrangements whereby a witness, a required person or any other person is permitted to remain present, while physically absent from the Courtroom but is nevertheless virtually present in the Courtroom by remote communication using technology to give evidence and be cross-examined.

(m) ‘Remote Point’means a place where any person or persons are required to be present or appears, through a video link.

(n) ‘Remote User’ means a user participating in Court proceedings through Electronic Video Linkage at a Remote Point.

(o) ‘Required Person’ includes:

(i) the person who is to be examined.

(ii) the person in whose presence certain proceedings are to be recorded or conducted.

(iii) an Advocate or a party in person who intends to examine a witness.

(iv) any person who is required to make submissions before the Court.

(v) any other person who is permitted by the Court to appear through Electronic Video Linkage.”

5. A conjoint reading of the above expressions reveals that, an Advocate, who intends to examine a witness, can be permitted to be virtually present in the court room by remote communication using technology. Going by Rule 3(1), Electronic Video Linkage facilities can be used at all stages of judicial proceedings. As per sub-rule (2) of Rule 3,