Advocates can appear via video conference to cross-examine witnesses: Kerala High Court

The Kerala High Court recently held that advocates can appear via video conference to cross-examine witnesses present in trial court [Alex C Joseph v. State of Kerala & Ors.].Justice VG Arun noted that Rule 10 of the Electronic Video Linkage Rules for Courts (Kerala), 2021 enables advocates to address arguments from a remote point, without the presence of the co-ordinator. The Court reasoned that it follows that advocates can also be allowed to cross-examine witnesses remotely ie. via online medium like video conference. However, it clarified that requests for the same need not be allowed as a right but can be considered by courts on a case-by-case basis, ensuring that all requisite facilities are available. "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 also directed the High Court Registrar General to provide a copy of the judgment to the Rules Committee so that it can consider whether any amendments are required to enable courts to permit cross-examination of witnesses from a remote point..The very objective behind introduction of the Electronic Video Linkage Rules is to make courts more accessible and the proceedings, more expeditious.Kerala High Court.The order was passed on a petition moved by a man who is facing trial before a Special CBI court. During trial, he filed a petition seeking permission for the Senior Advocate appearing for him to conduct cross- examination of the prosecution witnesses through video conference. The Senior counsel's poor health and consequent inability to travel to the CBI court was cited as reasons for the request.However, the CBI court rejected the petition prompting the present petition before the High Court. It was argued that the Electronic Video Linkage Rules for Courts (Kerala), 2021 (the Rules) is intended to enable, among other things, cross-examination through video conferencing as well..After going through the Rules, the Court noted that there are no provisions enabling witness examination by advocates appearing virtually. Moreover, only parties to the proceedings or witnesses can move applications seeking virtual proceedings.The Court, however, opined that this is an obvious omission in the Rules and that it should be rectified so that that there is no impediment to the right off the accused to avail the services of a counsel of their choice. .Moreover, going by the decision of the Supreme Court in State of Maharashtra v. Praful B.Desai, the Court observed that when a witness present in court is examined by video conferencing, it amounts to recording of evidence in the 'presence' of the accused, thereby meeting the requirements of Section 273 of the Code of Criminal Procedure (CrPC) and Section 308 of Bharatiya Nagarik Suraksha Sanhita (BNSS)..Therefore, High Court held that courts can consider requests to enable advocates to appear virtually and cross-examine witnesses. .Accordingly, it allowed the petition and directed the CBI Court to consider any request for remote cross-exaination in light of the observations and findings of the Court in this judgment..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 and Senior Public Prosecutor CS Hrithwik appeared for the State.Senior Advocate BG Harindranath assisted the Court as amicus curiae. .[Read Order]