In the matter of Gopal C v Central Bureau of Investigation the Bench of Justice A Badharudeen of the Kerala High Court has held that the Examination of the Witness through an online mode is permitted under Electronic Video Linkage Rules for Courts (Kerala), 2021 (2021 Rules) and it does not affect the rights of the accused person.
Court added that Electronic Video Linkage Rules for Courts give permission to the person to present at a distant point while recording the evidence, if he so desires, though he has to make the arrangements at his own cost.
“The examination of the witness either through physical mode or through video linkage, the same makes no difference as far as the right of the accused to cross-examine the witness is concerned,” the Court said.
Case Brief:
In the said case, in the year 2012, the accused filed a case challenging Special Court orders to allow the witness to appear online/ virtually for examination. The public prosecutor of the Central Bureau of Investigation (CBI) had filed an application before the special court seeking examination of the defacto complainant who is the first witness in the case, through video conference. The first witness was working in Dubai
The Counsel Member of the petitioner argued that the physical presence of a person is necessary to ascertain the demeanour of the witness. To protect the interest of the accused, the physical presence of the de facto complainant is imperative, it was further submitted.
The Court didn't agree with the petitioner on the ground that the 2021 Rules allow the physical presence of witnesses under every circumstance. The Court noted that Rule 8(25) of the said Rules allows witness examination through video conference.
The Court also noted that Rule 8(23), stipulates that may authorize the conduct of the proceedings through video conference from the place where the required person is situated if such person's presence cannot be secured without undue delay or expenses, or for any other genuine reason. Therefore, the High Court refused to interfere with the order of the special judge that permitted the examination of the de facto complainant through video conferencing
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