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 witness[3]; (iv) cross examination of victims of sexual crimes, particularly, child witnesses;[4] (v) conflicting schedules of expert witnesses[5].

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 Desai[6]. 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[7] and 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 Venketesh[11], 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.

Author:
Pooja Kshirsagar, Senior Associate

End Notes:
[1] Universal Ferro and Allied Chemicals Ltd vs. Vipkon Property Development Co. Ltd 2015 SCCOnline Bom 7328, Stemcor (S.E.A) Vs Mideast Intergrated Steels Limited 2018 SCC Online Bom 1179,
[2] The State of Maharashtra vs. Chandrabhan Sudam Sanap Order passed by Bombay High Court dated December 20, 2018 in Confirmation Case No. 3 of 2015
[3] Sat Pal Dhawan and Ors. vs. Davinder Singh Aulakh and Ors. (2017)185PLR166
[4] Mahender Chawla and Ors. vs. Union of India (UOI) and Ors.  2018(15)SCALE497
[5] The State of Maharashtra vs. Chandrabhan Sudam Sanap Order passed by Bombay High Court dated December 20, 2018 in Confirmation Case No. 3 of 2015
[6] (2003) 4 SCC601
[7] Liverpool and London Steamship Protection & Indemnity Association Ltd. 2005 (6) Bom CR 278, Milano Impex Private Limited vs. Egle Footware Pvt. Ltd 2011(124) DRJ 668, Universal Ferro and Allied Chemicals Ltd vs. Vipkon Property Development Co. Ltd 2015 SCCOnline BOM 7328, International Planned Parenthood Federation (IPPF) vs. Madhu Bala Nath AIR 2016 Del 71, unreported judgment of Delhi High Court dated May 2, 2011, in the case of (CS (OS) No. 1350/1995) Gurnam Kaur vs. Pritam Singh Bhatia, Twentieth Century Fox Film Corporation and Anr. vs. NRI Film Production Associates (P) Ltd. AIR2003Kant148
[8]Malay Kumar Ganguly  vs. Sukumar Mukherjee and Ors. AIR2010SC1162, Nipun Saxena and Ors. vs. Union of India (UOI) and Ors.  (2019)2SCC703
[9] Order of Bombay High Court dated September 20, 2010 in  Confirmation Case No.2 of 2010
[10] R. Sridharan Vs. R. Sukanya 2011 (2) MWN (Civil) 324
[11] AIR2017SC5745