Title: Vinod Kumar & Anr. versus State (NCT of Delhi) & Anr.
+ CRL.M.C. 9100/2023 & Crl. M.A. 33976/2023
Decided on: 22.12.2023
CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
Facts of the case:
The petitioner, a U.S. citizen, filed a complaint with the Senior Superintendent of Police in Dharamshala, Himachal Pradesh, alleging rape and theft. The incident occurred in Delhi, where she missed her flight, encountered individuals posing as taxi drivers, and was subsequently assaulted and deceived. The accused were arrested, and a charge sheet was filed. The prosecutrix’s testimony was delayed, with the court exploring video-conferencing options due to her unresponsiveness. After multiple attempts, she finally testified via video-conferencing from Chicago. The trial progressed, and the petitioners were granted bail. The court continued its efforts to contact the prosecutrix for additional statements.
Earlier the petitioners sought the physical presence of the prosecutrix for her examination in court, challenging the use of video conferencing. The trial court rejected their application, stating that the accused had not objected to previous orders for video conferencing and emphasized that the court lacked the power to recall its orders. The court also highlighted the potential harassment and financial burden on the prosecutrix if compelled to travel from the USA for trial. The court affirmed the convenience of recording testimony through video conferencing without compromising the accused’s right to a fair trial. The petitioners, dissatisfied with this decision, have now approached the Court.
Laws Involved:
Rule 5.3.11 of the Delhi High Court Video-Conferencing Rules 2021= Notwithstanding the provisions of Clause 5.3.1, where witness examination is to take place in a criminal case of a person located outside the country, the provisions of the “Comprehensive Guidelines for investigation abroad and issue of Letters Rogatory (LRs) / Mutual Legal Assistance (MLA) Request and Service of Summons / Notices/ Judicial documents in respect of Criminal Matters will be followed to the extent they comport with the provisions of the CrPC and the Evidence Act. Furthermore, before the Court employs its discretion to carry out witness examination via video conference, it will obtain the consent of the accused.
Rule 8.6 of the Delhi High Court Video-Conferencing Rules 2021= The Court would be at liberty to record the demeanour of the person being examined.
Issues framed by the court:
- WHETHER THE IMPUGNED ORDER VIOLATES THE MANDATE OF “HIGH COURT OF DELHI RULES FOR VIDEO CONFERENCING FOR COURTS 2021”?
- WHETHER PERMITTING THE PROSECUTRIX TO TESTIFY VIA TWO-WAY VIDEO-CONFERENCING WILL VIOLATE THE ACCUSED‟S RIGHT TO FAIR TRIAL?
Courts Judgement and Analysis:
On issue no. 1 the petitioner argued that the directions given by the Trial Court for video-conferencing violated Rule 5.3.11 of the Delhi High Court Video-Conferencing Rules 2021, as no consent of the accused had been obtained. Rule 5.3.11 mandates obtaining the accused’s consent when recording evidence of a witness located overseas via video-conferencing.
The Court examined the rules and noted that Rule 5.3.11 indeed requires the consent of the accused when recording evidence of a witness overseas through video-conferencing. However, the Trial Court had argued that there was implied consent from the accused, as it had been issuing directions for the production of the prosecutrix through video-conferencing, and no objection had been raised until a later date.
The Court reviewed the Trial Court’s orders and found that detailed directions for video-conferencing had been issued in the presence of the accused and their counsel on multiple occasions. The Trial Court, in its orders, had directed the examination of the prosecutrix through video-conferencing, and no objections were raised until a later application.
The Court concluded that the Trial Court did not commit any error, as the accused and their counsels had not objected to the court’s previous directions for video-conferencing. Additionally, the Court invoked Rule 18 of the Delhi High Court Video-Conferencing Rules 2021, which allows the court to relax or dispense with specific rules when strict application may cause undue hardship or injustice. The Court decided that, considering the circumstances, the prosecutrix could be allowed to testify through video-conferencing, even though the accused had objected, and the Trial Court’s decisions were upheld.
On issue no. 2 the court observed and held that advancements in technology have led to modifications in the fundamental laws related to open court hearings and witness presence in criminal trials. The adoption of vulnerable witness schemes across the country, including the option of using technology for examining witnesses, is acknowledged by the court.
The court emphasized the advanced state of technology, asserting that witness testimony can be recorded electronically without compromising fundamental principles of criminal law and justice. It noted that the use of video-conferencing facilities, as outlined in the ‘Guidelines for Recording of Evidence of Vulnerable Witnesses in Courtrooms,’ is accepted by the Supreme Court, particularly in cases involving sexual assault victims.
The court explained the history and purpose behind employing different procedures, such as the use of vulnerable witness rooms and video-conferencing, to avoid face-to-face confrontations between victims and accused during trials.
Regarding the concern about assessing the credibility of a witness when testifying via video-conferencing, the court held that physical demeanor alone is not the sole criterion. It emphasized that the judge, defense counsel, and prosecutor can observe the demeanor of the witness on the screen during video-conferencing. The court cited the “High Court of Delhi Rules for Video Conferencing for Courts 2021,” Rule 8.6, which allows recording the demeanor of the person being examined.
The court referred to the case of Dr. Praful B. Desai and highlighted that evidence recorded via video-conferencing may actually provide a better view of the witness for the accused compared to a traditional courtroom setting. The court concluded that the ability of the trial court to assess and appreciate the evidence of the witness will not be negatively affected by the use of video-conferencing, as long as the necessary legal procedures are followed, including the examination-in-chief and cross-examination by the defense counsel. The credibility, reliability, and quality of the evidence will be determined based on these factors and other considerations relevant to adjudicating a criminal case.
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Written by- Aditi
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