State of Maharashtra v. Dr. Praful B. Desai

It is described in this paper as a landmark, and for a practical reason: it makes it possible to take the evidence of a witness who is crucial to a just decision but who cannot come to the court. Every discussion of virtual courts in this module begins here.

The question was whether evidence in a criminal trial may be recorded by video conferencing consistently with s. 273, which requires evidence to be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.

Evidence can be both oral and documentary, and electronic records can be produced as evidence; evidence even in criminal matters can therefore be by way of electronic records, and this includes video conferencing. Video conferencing permits one to see, hear and talk with someone far away with the same facility and ease as if he were present. So long as the accused or his pleader is present when evidence is recorded by video conferencing, that evidence is recorded in the presence of the accused and fully meets the requirements of s. 273. Such recording is in accordance with the procedure established by law.

Two practical directions follow. The advancement of science and technology is such that the equipment can be set up in the court itself, in which case the evidence would be recorded by the magistrate or under his dictation in open court. And, as a matter of prudence, evidence by video conferencing in open court should be taken only where the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable.

Step one — identify the statutory value. Section 273 protects the accused's ability to see and confront the witness against him. That is the interest the word presence serves.

Step two — ask whether the technology serves that value. Video conferencing lets the accused see, hear and confront the witness in real time. The protection is delivered, not diluted.

Step three — identify the residual risk. The witness is not physically within the court's reach, so there is a drawback: difficulty if the witness commits contempt or perjures himself.

Step four — answer the risk with a condition, not a prohibition. Hence the prudential limit of an extradition treaty and punishable contempt and perjury, rather than a rule against the practice.

It opens: Discuss the use of technology in the justice delivery system — and it is the one case in this group about the conduct of the trial itself.

State the safeguards, not just the result. A weak answer says video conferencing is allowed. A strong one gives the presence condition, the open-court method, and the extradition-treaty caution, because those are the points the examiner can mark.

Group it with SIL Import on electronic notice and with Basavaraj R. Patil, where the majority held that an accused need not in all cases answer personally in court, the section falling to be considered in the light of the revolutionary changes in the technology of communication and transmission and the marked improvement in legal aid; the same reasoning suggests that a witness in a remote area should give evidence by video conferencing rather than be called to travel.

Name the current statute. The 1973 Code has been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023; cite the corresponding provision on the recording of evidence in the presence of the accused, and note that the reasoning of this case has since been given statutory recognition in the new procedural scheme.

It does not decide how the electronic record of such evidence is to be proved if its authenticity is disputed — for which see Anvar P.V. v. P.K. Basheer and the certificate requirement, now in the Bharatiya Sakshya Adhiniyam, 2023.