The court ruled that a preliminary enquiry into a witness's competency is not required before video examination; this is to be assessed by the Magistrate during examination.

JUDGMENT

The Prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows:-

“i) Set aside Ext.P3 order passed by the Hon’ble Magistrate Court – II, Haripad, in the interest of justice.

ii) Direct the trial court to conduct an enquiry as regarding the competency of CW1 to attend the court and give evidence.

iii) dispense with the translation of documents produced in the Vernacula Language.

iv) Issue such other order or direction which this Hon’ble Court may deem fit and proper on the facts and circumstances of the case and in the interest of justice.”

2. The challenge in this Original Petition is to the order dated 05.12.2025 in CMP No.1735/2025 in C.C.No.159/2021 on the file of the Judicial First Class Magistrate Court – II, Haripad. The petitioner is the Charge Witness No.4 in C.C.No.159/2021.

3. The Trial Court ordered the examination of CW1, an aged lady, through video conferencing, as she was reported to be laid up 4. The prosecution case is that the accused in this case dishonestly induced CW1 to execute a Sale Deed with respect to her property without paying sale consideration and committed cheating and criminal breach of trust. The petitioner/CW4 filed a petition insisting to conduct a preliminary enquiry to ascertain the competency of CW1 to be examined through video conferencing.

The learned Magistrate dismissed the application.

5. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

6. The learned for the petitioner, relying on Rule 55 of the Criminal Rules of Practice , submitted that when a witness appears to be under a disability, the Court may hold a preliminary enquiry as to his competency to give evidence. According to the learned counsel, before examining CW1 through video conferencing, a preliminary enquiry as to her competency has to be conducted.

7. The learned Public Prosecutor relying on Rule 8(23) of the Electronic Video Linkage Rules for Courts (Kerala),2021 , contended that when a witness is unable to reach the Court point or the Remote Point due to sickness or physical infirmity, the Court may authorise the conduct of the proceedings through Electronic Video Linkage from the place where the witness is situated. The learned Public Prosecutor further submitted that the competency of the witness is a matter to be considered by the Court at the time of the examination. The question that now arises for consideration is whether it is permissible to examine the witness through video conferencing.

8. Rule 8(23) of the Electronic Video Linkage Rules for Courts (Kerala),2021 , says that when a Required Person is unable to reach the Court point or the Remote Point due to sickness or physical infirmity or due to any genuine reason which the Court may decide, or the presence of the Required Person cannot be secured without undue delay or expenses, the Court may authorise the conduct of the proceedings through Electronic Video Linkage from the place where the Required Person is situated.

9. Rule 55 of the Criminal Rules of Practice refers to the competency of a witness to be examined as a witness. I am of the considered view that before directing examination of a witness through video conferencing, no preliminary enquiry as referred to in Rule 55 is to be conducted.

10. The learned Magistrate is an experienced and competent Judicial Officer. I have no doubt that, at the time of examination, if the witness appears to be under a disability, the learned Magistrate will look into her competency to give evidence.

Therefore, the Original Petition lacks merit and it stands dismissed.

Sd/-