The Kerala High Court has recently ruled that advocates are permitted to cross-examine witnesses in trial courts through video conferencing.

Justice VG Arun of the Kerala High Court observed that Rule 10 of the Electronic Video Linkage Rules for Courts (Kerala), 2021 permits advocates to present arguments remotely, even without the presence of a coordinator. 

Building on this, the Court held that advocates could also be permitted to cross-examine witnesses through an online medium such as video conferencing. However, it emphasized that such requests are not an absolute right and should be evaluated on a case-by-case basis, ensuring the availability of all necessary facilities.

"If arguments can be advanced from a Remote Point without the co-ordinator being present, conduct of cross-examination can also be permitted. Grant of such permission will be in the interest of justice and would ensure expeditious disposal of cases, by avoiding unnecessary adjournments. Needless to say, permission to conduct cross-examination through video conferencing need not be granted as a right. On the other hand, if valid reasons are stated for seeking such permission, absence of a specific provision in the Rules should not be a fetter. While granting permission, court can insist that all requisite facilities should be available at the remote point and a competent advocate, well-versed with the facts of the case, present in the court for the entire duration of the cross-examination," the Court said.

The Court further instructed the High Court Registrar General to forward a copy of the judgment to the Rules Committee. This would allow the committee to consider whether amendments to the existing rules are necessary to facilitate the cross-examination of witnesses from a remote location.

The Kerala High Court delivered its verdict in a petition filed by a man facing trial before a Special CBI Court. The petitioner sought permission for the Senior Advocate representing him to conduct the cross-examination of prosecution witnesses via video conference, citing the Senior Counsel's poor health and inability to travel. The Special CBI Court had earlier denied this request, prompting the present appeal.

The petitioner argued that the Electronic Video Linkage Rules for Courts (Kerala), 2021, support conducting cross-examinations through video conferencing. However, after reviewing the Rules, the High Court noted that they currently lack provisions explicitly enabling advocates to cross-examine witnesses virtually. The Rules only allow parties or witnesses to request virtual proceedings. The Court viewed this as a critical omission and emphasized the need for amendments to ensure that an accused's right to engage counsel of their choice is not hindered.

Referring to the Supreme Court's decision in State of Maharashtra v. Praful B. Desai, the High Court underscored that examining a witness in court via video conferencing constitutes evidence recorded in the "presence" of the accused, satisfying the requirements of Section 273 of the Code of Criminal Procedure (CrPC) and Section 308 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The Court concluded that trial courts could consider requests from advocates to appear virtually for cross-examinations, subject to the availability of necessary facilities. It allowed the petition and directed the CBI Court to consider similar requests in line with its observations.

Additionally, the High Court directed the Registrar General to forward the judgment to the Rules Committee to evaluate and propose amendments to address the identified gap.

The petitioner was represented by Advocates S Rajeev, V Vinay, MS Aneer, Sarath KP, and KS Kiran Krishnan. Special Public Prosecutor Sreelal N Warrier appeared for the CBI, Senior Public Prosecutor CS Hrithwik represented the State, and Senior Advocate BG Harindranath assisted the Court as amicus curiae.