Recording of evidence (through examination-in-chief of a witness and cross examination) is a crucial stage in any proceeding. Post 2002, the recording of the examination in chief of witness(es) is done through affidavits in all civil cases, including arbitrations. However, cross-examination continues to be conducted orally and a witness is still required to appear before the court / commissioner / arbitrator for the recording of the cross examination.
With technological advancement, witnesses have often requested courts/ arbitrators to waive the requirement of their physical presence and to instead record evidence through a video-conference (“VC”). The Courts have in past held that recording of evidence via VC could be allowed on grounds of (i) witness residing abroad 1; (ii) avoiding cost of travel and stay 2; (iii) poor health of witness3; (iv) cross examination of victims of sexual crimes, particularly, child witnesses;4(v) conflicting schedules of expert witnesses5.
One of the first instances, in which evidence was allowed to be recorded by the Supreme Court through VC, was in the 2002 criminal case of State of Maharashtra vs. Dr. Praful Desai6. Under Section 273 of the Criminal Procedure Code, 1973 (“CrPC”), evidence is to be recorded in the presence of the accused. While allowing the recording of evidence of a witness based in the USA by VC, the SC held section 273 was satisfied since the accused and his pleader could see the witness as if he was sitting before them. The playback option available in the VC recording was noted to be an added advantage enabling better observation of the witness’ demeanor.
Thereafter, several courts followed the judgment of Dr. Praful Desai (supra) and allowed recording of evidence through VC in civil 7and criminal 8 cases. Dealing with a potential security risk of transporting the 26/11 terror attack accused, Ajmal Kasab, from prison to Court for hearings, the Bombay High Court allowed Kasab to attend the hearings by VC.9 However, in a rare instance the Madras High Court 10 after referring to the case of Dr. Praful Desai (supra), rejected the prayer for cross-examination by VC, inter alia, holding that the party had relied upon voluminous documents and the cross-examination would be more effective if done in open court.
Courts have generally considered the nature and stage of proceedings to be relevant while considering such requests of evidence through VC, which were generally granted. However, in matrimonial cases, post a three-judge SC bench decision in Santhini vs. Vijaya Venketesh11, the Court held that in matrimonial cases presence of both parties before the Court is necessary for an effective trial, especially for endeavoring a settlement/reconciliation. However, if the matter proceeds to trial, both parties must consent to conducting the evidence though VC.
Courts appear to be increasingly inclined to allow the use of technology to overcome difficulties in the conduct of proceedings. Modernization of infrastructure and a boost to technical expertise would help better harness this expedient facility in courts across the country. In the Indian arbitration space, evidence through VCs are also becoming popular and expedient, particularly in light of the strict timelines prescribed under the Arbitration Act.