The Kerala High Court recently observed that the examination of a witness through video linkage does not affect the rights of the accused. The Court supported the concept of virtual hearings.

A Single Bench of Justice A. Badharudeen held, “… 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 learned Special Judge rightly allowed the petition with a view to secure examination of CW1, whose presence could not be secured without undue delay or expenses, through video linkage and with bona fide intention to dispose of a case of the year 2012, pending for the last 11 years, without further delay.”

The Bench dismissed the petition filed against the Central Bureau of Investigation (CBI) for seeking the physical presence of the witness for effective cross-examination.

Advocate Vinod Vallikappan appeared for the petitioner while Senior Public Prosecutor Rekha. K appeared for the respondent.

In this case, the petitioner was an accused in a matter pending before the Special Judge. The CBI had filed a case before the Court and sought an examination of the complainant who was the first witness through video linkage on the ground that the witness was working in Dubai and that his presence for examination could not be secured without any delay or expenses.

The petitioner objected to such a virtual hearing but the Special Court negated his contention and allowed the examination of the witness through a video linkage facility. The Court said that a witness could effectively be cross-examined even through video linkage as per the Electronic Video Linkage Rules for Courts (Kerala), 2021.

After hearing the counsel's arguments, the High Court asserted, “… the Court may direct the use of portable Video system. The authority for the same shall be given by the Court to the concerned Co-ordinator or any other person deemed fit by the Court. Thus going by Rule 8(23), it has been stipulated that for 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.”

The Court noted that the Special Judge allowed the petition to avoid further delay in examining the crucial witness.

“Since the purpose of enactment of Electronic Video Linkage Rules for Courts (Kerala), 2021 itself is to examine the witnesses whose presence could not be secured without undue delay or expenses and for other reasons stated in Rule 8(23), a person who has been employed in Dubai whose presence could not be secured without delay and also without spending travelling and other expenses when allowed to be examined through video linkage, in terms of the rules, in such a case the petitioner has no right to say that cross examination by video linkage is not effective and as good as physical mode and, therefore, such examination should not be permitted”, the Court further noted.

The Court said that the framers of the Rules vigilantly implemented Rule 8(24) and the dread persuasion of the petitioner could be addressed by resorting to the same.

“… if the submissions of the learned counsel for the petitioner is accepted, the same is akin to make the Electronic Video Linkage Rules for Courts (Kerala), 2021 redundant. The principles governing interpretation do not permit interpretation of a provision of law or an enactment to make the same as redundant”, observed the Court.

The Court, therefore, directed that the Special Judge can go on with the examination of the witness through a video linkage facility.

Accordingly, the Court dismissed the petition and confirmed the order of the Special Court.

Cause Title- Gopal C. v. Central Bureau of Investigation

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