Online Witness Examination, Remand Via VC And More: Gauhati High Court Notifies Rules For Electronic Communication & Hearings

The Gauhati High Court recently (June 20) notified the Rules for use of Electronic Communication and Audio-Video Electronic Means, to avoid delay in judicial proceeding due to non-availability of parties, advocates, witnesses and accused physically.

Significant to note that Section 530 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides that all trials, inquires and proceedings including examination of complainant and witnesses, recording of evidence in inquiries and trials and all appellate proceedings or any other proceeding, may be held in electronic mode.

The Court thus framed the Rules in exercise of its powers conferred by Article 227 of the Constitution and all other enabling sections of the BNSS.

Important Features:

Rule 4.1 of the above-mentioned Rules provides that all trials, inquiries, and proceedings may be conducted electronically, including: Examination of complainants and witnesses, Recording of evidence. Appellate and other judicial proceedings.

Rule 5 provides that subject to the provisions hereinafter contained, video conferencing and other modes of audio-visual electronic communication may be used at all stages of judicial proceedings and proceedings conducted by the Court, where a person is required to be present or appear is not physically present in Court room.

Rule 6 states that The person defined in Rule 2 (1)(r) shall provide an identity proof as recognized by the Government of India or State Government to the Court point coordinator by electronic communication. In case, identity proof is not readily available, the Court may, upon satisfaction allows such person to participate in proceedings without production of identity proof.

Rule 9 (1) notes that there shall be a Coordinator both at the Court Point and at the designated place from where any required person is to be examined or heard or is directed to remain present. However, coordinator may be required at the remote point only when a witness or a person accused of an offence is to be examined.

Rule 11 observes as follows:

11. Request for appearance (SCHEDULE- II) through video conferencing and other modes of audio-visual electronic communication:

(1) In criminal cases, any party to the proceedings or witness, save and except where proceedings are initiated at the instance of the Court or on request of public prosecutor, may move a request for presence and proceedings through video conferencing.

(2) In civil cases, the Court may, as its discretion or on request of any of the parties, initiate process for hearing of any case through video conferencing and other modes of audio-visual electronic communication.

(3) While allowing a request for video conferencing the Court may also fix the schedule for convening the video conferencing.

(4) An advocate may request for appearing” from advocate's remote point for making submissions or for examination of witnesses.

(5) Where video conferencing proceedings are conducted for making oral submissions, the order may require the advocate or party in person to submit written arguments and precedents, if any, in advance.

Rule 16 provides that the Court may authorize detention in judicial custody, of any person accused of an offence, by video conferencing or other modes of audio-visual electronic communication as per the provisions of section 187 BNSS: Provided that if the accused is already in judicial custody, whether of same Court or some other Court or is undergoing sentence, the Court may further remand him during inquiry or trial under section 346(2) of the BNSS through video conferencing or other modes of audio-visual electronic communication.

Rule 23: Costs of Video Conferencing:

In the absence of Rules prescribed by the concerned Court, the Court may take into consideration the following circumstances when determining and/or apportioning the costs of video conferencing:

a. In criminal cases, the expenses of the video conferencing facility including expenses involved in preparing soft copies / certified copies of the Court record and transmitting the same to the Coordinator at the Remote Point, and the fee payable to the translator / interpreter / special educator, as the case may be, as also the fee payable to the Coordinator at the Remote Point, shall be borne by such party as directed by the Court.

b. Besides the above, the Court may also make an order as to expenses as it considers appropriate, taking into account the Rules/instructions regarding payment of expenses to the complainant and witnesses, as may be prevalent from time to time.

c. It shall be open to the Court to waive the costs as warranted in a given situation.

Rule 24: Access to Legal Aid Clinics/Camps/Lok Adalats/Jail Adalats:

a. In conformity with the provisions of the Legal Services Authorities Act, 1987 and the laws in force, in proceedings related to Legal Aid Clinics, Camps, Lok Adalats or Jail Adalats, any person who at the Remote Point is in Jail or Prison shall be examined by the Chairman/Secretary of the District Legal Service Authority or Members of Lok Adalats before passing any award or orders as per law.

b. Such award or order shall have the same force as if it was passed by the regular Lok Adalat or Jail Adalat.

c. Copy of the award or order and the record of proceedings shall be sent to the Remote Point.

The Rules further provides for two Schedules and a format of Information form for Video Conference.

Click Here To Read Rules