satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the accused. The
accused and his pleader can see the witness as clearly as
if the witness was actually sitting before them. In fact the
accused may be able to see the witness better than he
may have been able to if he was sitting in the dock in a
crowded courtroom. They can observe his or her
demeanour. In fact the facility to playback would enable
better observation of demeanour. They can hear and
rehear the deposition of the witness. The accused would
be able to instruct his pleader immediately and thus
cross-examination of the witness is as effective, if not
better. The facility of playback would give an added
advantage whilst cross-examining the witness. The
witness can be confronted with documents or other
material or statement in the same manner as if he/she was
in court. All these objects would be fully met when
evidence is recorded by video-conferencing. Thus no
prejudice, of whatsoever nature, is caused to the accused.
Of course, as set out hereinafter, evidence by videoconferencing
has to be on some conditions.
Procedures have been laid down to facilitate dispensation of
justice. Dispensation of justice entails speedy justice and justice
rendered with least inconvenience to the parties as well as to the
witnesses. If a facility is available for recording evidence through
video conferencing, which avoids any delay or inconvenience to the
parties as well as to the witnesses, such facilities should be resorted to.
Merely because a witness is traveling and is in a position to travel
does not necessary imply that the witness must be required to come to
Court and depose in the physical presence of the court.
We are not for a moment laying down that a witness can never
be called to Court. There may be circumstances or situations where
physical presence of a witness may be necessary and required by the
Court, in such situations it would be obligatory on the witness to be
present in Court. Where a witness or a party requests that the
evidence of a witness may be recorded through video conferencing,
the Court should be liberal in granting such a prayer. There may be
situations where a witness even though within the city may still want
the evidence to be recorded through video conferencing in order to
save time or avoid inconvenience, the Court should take a pragmatic
view.
16. In the present case, the application was premised on the ground
that the witness holds an important position in her organization and
has to travel world over. We do not feel that such a request was
unreasonable. Furthermore, the appellant/defendant has contended
that the expenditure entailed for travel of the witness, who is a lady of
over 54 years of age and her stay in Delhi would be a financial burden
on the appellant. This, in our view is a factor that the learned single
judge should have taken into account. We are of the view that the
learned Single Judge erred in dismissing the application.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 07th January, 2016
FAO(OS) 416/2015 & CM No.13475/2015 (stay)
INTERNATIONAL PLANNED PARENTHOOD
FEDERATION (IPPF)
versus
MADHU BALA NATH
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
1. The present appeal impugns the order dated 02.07.2015
whereby the application of the defendant/appellant under Order XVIII
Rules 3 & 4 of the Code of Civil Procedure (hereinafter referred to as
the „Code‟) for permitting the recording of the statement of a witness
through video conferencing was rejected. FAO(OS) 416/2015 Page 2 of 21
2. The application was filed by the appellant for permission to
record the testimony of the sole appellant‟s witness through audio and
video link on the ground that the sole witness is based at London and
is unable to travel to Delhi for her cross-examination. It was
contended that the appellant is a charitable organization and is not in a
position to afford the substantial expenditure required to be incurred
for travel and stay of the sole witness to Delhi and further the
presence of the said witness was necessary for various official
commitments as she is the Head of the Human Resource which entails
numerous responsibilities and the sole witness being female aged 54
years would have to suffer a lot of inconvenience to travel for her
testimony to Delhi. In these circumstances, the application was filed
for permission to record the deposition through audio and video
conferencing.
3. The learned Single Judge has dismissed the application holding
as under:-
“2. I have completely failed to understand the application
because the averments in the application leave this Court
to believe (that a witness who is a resident of U.K simply
feels that witness need not come to India in a judicial
proceedings for recording of evidence. This is an
unacceptable practice, more so when admittedly the
witness as per the statement made today before this Court
on behalf of counsel for the defendant is travelling over
the world to many countries/locations. Also, no financial FAO(OS) 416/2015 Page 3 of 21
statements of the respondent-organization have been filed
before this Court for this Court to appreciate and believe
that the respondent-organization does not have monies
for travel and stay of its witness to/in India. I may also
note that counsel for the plaintiff is partially correct in
arguing that the cost of video conferencing itself possibly
will be a very substantial cost though the high cost issue
is sought to be urged for the witness not to come to Delhi
and depose. In any case, in my opinion cost of video
conferencing is immaterial once the witness is otherwise
travelling to various countries in the world and there is
no handicap in any manner in this witness in coming to
India and deposing in the case. World is really now a
global village.”
4. We are unable to accept the view taken by the learned Single
Judge for rejecting the application. The learned Single Judge has erred
in not noticing the development of law and technology that has taken
place over the years. The Code is a procedural Code and procedures
are subservient to justice. With the development of law and
technology, the Courts have to use procedure, which facilitates the
Courts in dispensing speedier justice. If a facility is available to the
Court for the purposes of expediting the trial then every opportunity is
to be taken by the Court to make use of such technology so as to
further the process of dispensation of justice. The learned Single
Judge, in the impugned order, has taken a very narrow view of the
matter. Merely because a witness is travelling over the world and/or
may have the financial resources to travel to India does not FAO(OS) 416/2015 Page 4 of 21
necessarily imply that the Court must insist upon the witness
personally coming to the Court for the purpose of deposing before the
Court and/or her cross-examination.
5. There may even be a situation where the witness may be
available within the city where the Court is located, however, on
account of the nature of work or physical condition of the witness, it
may not be possible or viable for the witness to travel to Court. The
role of a witness is paramount in the justice system of any country. By
deposing in a case, they assist the court in discovering the truth.
According to Bentham, "witnesses are the eyes and ears of justice".
Witnesses are the real backbone of the proceedings. It is the testimony
of the witnesses that enables the Court to arrive at the truth.
Witnesses have to be treated with due respect and are not to be put to
any inconvenience merely because they agree to testify. It is common
knowledge that when a witness travels to Court for the purpose of
deposition, a witness has to spend several hours in Court and at times
major part of the time spent in Court is in waiting for the case to reach
and the proceedings to commence. In these circumstances, to insist
on the witness travelling to Court and waiting for hours may not be
judicious. FAO(OS) 416/2015 Page 5 of 21
6. The learned Single Judge has erred in not noticing several
decisions of this court as well as the Supreme Court. As far back as
in the year 2003 in the case of State of Maharashtra v. Dr Praful B.
Desai: AIR 2003 (4) SCC 601, the Supreme Court in the context of
the Criminal Procedure where it is mandated that evidence shall be
take in the presence of the accused, interpreted the term „presence‟
not to mean actual physical presence in Court. The Supreme Court
noticing the technological advancements held that presence could be
through video conferencing. The Supreme Court held as under:-
“14. It must also be remembered that the Criminal
Procedure Code is an ongoing statute. The principles of
interpreting an ongoing statute have been very succinctly
set out by the leading jurist Francis Bennion in his
commentaries titled Statutory Interpretation, 2nd Edn., p.
617:
“It is presumed Parliament intends the court to
apply to an ongoing Act a construction that
continuously updates its wordings to allow for
changes since the Act was initially framed. While
it remains law, it has to be treated as always
speaking. This means that in its application on any
day, the language of the Act though necessarily
embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as
a current law.
* * *
In construing an ongoing Act, the interpreter is to
presume that Parliament intended the Act to be
applied at any future time in such a way as to give FAO(OS) 416/2015 Page 6 of 21
effect to the original intention. Accordingly, the
interpreter is to make allowances for any relevant
changes that have occurred since the Act's passing,
in law, in social conditions, technology, the
meaning of words and other matters…. That today's
construction involves the supposition that
Parliament was catering long ago for a state of
affairs that did not then exist is no argument against
that construction. Parliament, in the wording of an
enactment, is expected to anticipate temporal
developments. The drafter will foresee the future
and allow for it in the wording.
* * *
An enactment of former days is thus to be read
today, in the light of dynamic processing received
over the years, with such modification of the
current meaning of its language as will now give
effect to the original legislative intention. The
reality and effect of dynamic processing provides
the gradual adjustment. It is constituted by judicial
interpretation, year in and year out. It also
comprises processing by executive officials.”
15. At this stage the words of Justice Bhagwati in the
case of National Textile Workers' Union v. P.R.
Ramakrishnan [(1983) 1 SCC 228 : 1983 SCC (Tax) 2 :
1983 SCC (L&S) 72] , at SCC p. 255, para 9 need to be
set out. They are:
“We cannot allow the dead hand of the past to
stifle the growth of the living present. Law cannot
stand still; it must change with the changing social
concepts and values. If the bark that protects the
tree fails to grow and expand along with the tree, it
will either choke the tree or if it is a living tree, it FAO(OS) 416/2015 Page 7 of 21
will shed that bark and grow a new living bark for
itself. Similarly, if the law fails to respond to the
needs of changing society, then either it will stifle
the growth of the society and choke its progress or
if the society is vigorous enough, it will cast away
the law which stands in the way of its growth. Law
must therefore constantly be on the move adapting
itself to the fast-changing society and not lag
behind.”
16. This Court has approved the principle of updating
construction, as enunciated by Francis Bennion, in a
number of decisions. These principles were quoted with
approval in the case of CIT v. Podar Cement (P)
Ltd. [(1997) 5 SCC 482] They were also cited with
approval in the case of State v. S.J. Choudhary [(1996) 2
SCC 428 : 1996 SCC (Cri) 336] . In this case it was held
that the Evidence Act was an ongoing Act and the word
“handwriting” in Section 45 of that Act was construed to
include “typewriting”. These principles were also applied
in the case of SIL Import, USA v. Exim Aides Silk
Exporters [(1999) 4 SCC 567 : 1999 SCC (Cri) 600] . In
this case the words “notice in writing”, in Section 138 of
the Negotiable Instruments Act, were construed to
include a notice by fax. On the same principle courts
have interpreted, over a period of time, various terms and
phrases. To take only a few examples: “stage carriage”
has been interpreted to include “electric tramcar”; “steam
tricycle” to include “locomotive”; “telegraph” to include
“telephone”; “banker's books” to include “microfilm”;
“to take note” to include “use of tape recorder”;
“documents” to include “computer databases”.
17. These principles have also been applied by this
Court whilst considering an analogous provision of the FAO(OS) 416/2015 Page 8 of 21
Criminal Procedure Code. In the case of Basavaraj R.
Patil v. State of Karnataka [(2000) 8 SCC 740 : 2001
SCC (Cri) 87] the question was whether an accused
needs to be physically present in court to answer the
questions put to him by court whilst recording his
statement under Section 313. To be remembered that
under Section 313 the words are “for the purpose of
enabling the accused personally to explain”. (emphasis
supplied) The term “personally”, if given a strict and
restrictive interpretation would mean that the accused had
to be physically present in court. In fact the minority
judgment in this case so holds. It has, however, been held
by the majority that the section had to be considered in
the light of the revolutionary changes in technology of
communication and transmission and the marked
improvement in facilities for legal aid in the country. It
was held, by the majority, that it was not necessary that
in all cases the accused must answer by personally
remaining present in court.
19. At this stage we must deal with a submission made
by Mr Sundaram. It was submitted that videoconferencing
could not be allowed as the rights of an
accused, under Article 21 of the Constitution of India,
cannot be subjected to a procedure involving “virtual
reality”. Such an argument displays ignorance of the
concept of virtual reality and also of video-conferencing.
Virtual reality is a state where one is made to feel, hear or
imagine what does not really exist. In virtual reality, one
can be made to feel cold when one is sitting in a hot
room, one can be made to hear the sound of the ocean
when one is sitting in the mountains, one can be made to
imagine that he is taking part in a Grand Prix race whilst
one is relaxing on one's sofa etc. Video-conferencing has
nothing to do with virtual reality. Advances in science
and technology have now, so to say, shrunk the world.
They now enable one to see and hear events, taking place
far away, as they are actually taking place. To take an
example, today one does not need to go to South Africa
to watch World Cup matches. One can watch the game,
live as it is going on, on one's TV. If a person is sitting in
the stadium and watching the match, the match is being
played in his sight/presence and he/she is in the presence
of the players. When a person is sitting in his drawing
room and watching the match on TV, it cannot be said
that he is in the presence of the players but at the same
time, in a broad sense, it can be said that the match is
being played in his presence. Both, the person sitting in
the stadium and the person in the drawing room, are
watching what is actually happening as it is happening.
This is not virtual reality, it is actual reality. One is
actually seeing and hearing what is happening. Videoconferencing
is an advancement in science and
technology which permits one to see, hear and talk with
someone far away, with the same facility and ease as if
he is present before you i.e. in your presence. In fact
he/she is present before you on a screen. Except for
touching, one can see, hear and observe as if the party is
in the same room. In video-conferencing both parties are
in the presence of each other. The submissions of the
respondents' counsel are akin to an argument that a
person seeing through binoculars or telescope is not
actually seeing what is happening. It is akin to submitting
that a person seen through binoculars or telescope is not
in the “presence” of the person observing. Thus it is clear
that so long as the accused and/or his pleader are present
when evidence is recorded by video-conferencing that
evidence is being recorded in the “presence” of the
accused and would thus fully meet the requirements of
Section 273 of the Criminal Procedure Code. Recording
of such evidence would be as per “procedure established
by law”.
20. Recording of evidence by video-conferencing also
satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the accused. The
accused and his pleader can see the witness as clearly as
if the witness was actually sitting before them. In fact the
accused may be able to see the witness better than he
may have been able to if he was sitting in the dock in a
crowded courtroom. They can observe his or her
demeanour. In fact the facility to playback would enable
better observation of demeanour. They can hear and
rehear the deposition of the witness. The accused would
be able to instruct his pleader immediately and thus
cross-examination of the witness is as effective, if not
better. The facility of playback would give an added
advantage whilst cross-examining the witness. The
witness can be confronted with documents or other
material or statement in the same manner as if he/she was
in court. All these objects would be fully met when
evidence is recorded by video-conferencing. Thus no
prejudice, of whatsoever nature, is caused to the accused.
Of course, as set out hereinafter, evidence by videoconferencing
has to be on some conditions.
24. In this case we are not required to consider this
aspect and therefore express no opinion thereon. The
question whether commission can be issued for recording
evidence in a country where there is no arrangement, is
academic so far as this case is concerned. In this case we
are considering whether evidence can be recorded by
video-conferencing. Normally, when a commission is
issued, the recording would have to be at the place where
the witness is. Thus Section 285 provides to whom the
commission is to be directed. If the witness is outside
India, arrangements are required between India and that
country because the services of an official of the country
(mostly a judicial officer) would be required to record the
evidence and to ensure/compel attendance. However,
new advancement of science and technology permit
officials of the court, in the city where videoconferencing
is to take place, to record the evidence.
Thus where a witness is willing to give evidence an
official of the court can be deputed to record evidence on
commission by way of video-conferencing. The evidence
will be recorded in the studio/hall where the videoconferencing
takes place. The court in Mumbai would be
issuing commission to record evidence by videoconferencing
in Mumbai. Therefore the commission
would be addressed to the Chief Metropolitan Magistrate,
Mumbai who would depute a responsible officer
(preferably a judicial officer) to proceed to the office of
VSNL and record the evidence of Dr Greenberg in the
presence of the respondent. The officer shall ensure that
the respondent and his counsel are present when the
evidence is recorded and that they are able to observe the
demeanour and hear the deposition of Dr Greenberg. The
officers shall also ensure that the respondent has full
opportunity to cross-examine Dr Greenberg. It must be
clarified that adopting such a procedure may not be
possible if the witness is out of India and not willing to
give evidence.
26. To be remembered that what is being considered is
recording evidence on commission. Fixing of time for
recording evidence on commission is always the duty of
the officer who has been deputed to so record evidence.
Thus the officer recording the evidence would have the
discretion to fix up the time in consultation with VSNL,
who are experts in the field and who will know which is
the most convenient time for video-conferencing with a
person in USA. The respondent and his counsel will have
to make it convenient to attend at the time fixed by the
officer concerned. If they do not remain present, the
Magistrate will take action, as provided in law, to compel
attendance. We do not have the slightest doubt that the
officer who will be deputed would be one who has
authority to administer oaths. That officer will administer
the oath. By now science and technology has progressed
enough to not worry about a video image/audio
interruptions/distortions. Even if there are interruptions
they would be of temporary duration. Undoubtedly, an
officer would have to be deputed, either from India or
from the Consulate/Embassy in the country where the
evidence is being recorded who would remain present
when the evidence is being recorded and who will ensure
that there is no other person in the room where the
witness is sitting whilst the evidence is being recorded.
That officer will ensure that the witness is not
coached/tutored/prompted. It would be advisable, though
not necessary, that the witness be asked to give evidence
in a room in the Consulate/Embassy. As the evidence is
being recorded on commission that evidence will
subsequently be read in court. Thus no question arises of
the witness insulting the court. If on reading the evidence
the court finds that the witness has perjured himself, just
like in any other evidence on commission, the court will
ignore or disbelieve the evidence. It must be remembered
that there have been cases where evidence is recorded on
commission and by the time it is read in court the witness
has left the country. There also have been cases where a
foreign witness has given evidence in a court in India and
then gone away abroad. In all such cases the court would
not have been able to take any action in perjury as by the
time the evidence was considered, and it was ascertained
that there was perjury, the witness was out of the
jurisdiction of the court. Even in those cases the court
could only ignore or disbelieve the evidence. The officer
deputed will ensure that the respondent, his counsel and
one assistant are allowed in the studio when the evidence
is being recorded. The officer will also ensure that the
respondent is not prevented from bringing into the studio
the papers/documents which may be required by him or
his counsel. We see no substance in this submission that
it would be difficult to put documents or written material
to the witness in cross-examination. It is now possible, to
show to a party, with whom video-conferencing is taking
place, any amount of written material. The officer
concerned will ensure that once video-conferencing
commences, as far as possible, it is proceeded with
without any adjournments. Further, if it is found that Dr
Greenberg is not attending at the time(s) fixed, without
any sufficient cause, then it would be open for the
Magistrate to disallow recording of evidence by videoconferencing.
If the officer finds that Dr Greenberg is not
answering questions, the officer will make a memo of the
same. Finally, when the evidence is read in court, this is
an aspect which will be taken into consideration for
testing the veracity of the evidence. Undoubtedly, the
costs of video-conferencing would have to be borne by
the State.”
(underlining supplied)
7. As far back as in the year 2003, the Supreme Court in Dr
Praful B. Desai (supra) noted the advancement in science and
technology and the fact that the law was ever developing and evolving
and was to be utilized for the purposes of quicker dispensation of
justice. The Supreme Court has held that advances in science and
technology have now, so to say, shrunk the world. They now enable
one to see and hear events, taking place far away, as they are actually
taking place. Video-conferencing is an advancement in science and
technology which permits one to see, hear and talk with someone far
away, with the same facility and ease as if he is present. In fact he/she
is present before one on a screen. Except for touching, one can see,
hear and observe as if the party is in the same room. In videoconferencing
both parties are in the presence of each other. The
demeanour of the witness can be observed. In fact, the facility to
playback would enable better observation of demeanour. The
deposition of the witness can be heard and reheard. The facility of
playback would give an added advantage whilst cross-examining the
witness. The witness can be confronted with documents or other
material or statement in the same manner as if he/she was in court.
8. The judgment of the Supreme Court in Dr Praful B. Desai
(supra) has also been followed by various High Courts. Even our
High Court has followed the same in several cases. In fact, the
facility of video conferencing has been utilized for the purposes of
recording testimony of witnesses and the said facility has shown its
merit. Not only has the evidence being recorded expeditiously,
experience has shown that it has facilitated, not only the witnesses but
also the lawyers as well as the Court.
9. As far back as the year 2005, a learned Single Judge of this
Court in the case of Tuncay Aluncas v. Central Bureau of
Investigation: 2005 (3) AD (Del) 682 relying on the decision of the
Supreme Court in Dr Praful B. Desai (supra) held that recording of
evidence by video conferencing is permissible. The learned Judge
further held that the necessary corollary is that the law is deemed to
assimilate changes in technology, and progress in society, so as to be
in tune with reality of the times. The Constitution and existing laws
have to be looked into for discerning challenges thrown up due to
emerging technological innovations. They have to be interpreted
keeping this dynamic in mind.
10. Another Single Judge of this Court in Milano Impex Private
Ltd. v. Egle Footwear Pvt. Ltd.: 2012 (188) DLT 202 extensively
examined the decisions of various High Courts i.e. (i) Twentieth
Century Fox Film v. NRI Film Production, AIR 2003 Karnataka
148; (ii) Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11 (iii) Mrs.
Gurnam Kaur v. Pritam Singh Bhatia, CS(OS) No.1350/1995 order
dated 2nd May, 2011 and permitted recording of evidence using the
facility of video conferencing. FAO(OS) 416/2015 Page 16 of 21
11. Another Single Judge of this Court in Zaishu Xie & Anr. vs.
The Oriental Insurance Company Ltd.& Ors.: 2014 (207) DLT 289
following the decision of Milano Impex Private Ltd. (supra)
permitted recording of video conferencing.
12. A Division Bench of this Court in Court on its own motion v.
State: 2007 (8) AD (Delhi) 531 laid down guidelines for sensitizing
the concerns associated with criminal justice system about their
protective role to prevent further victimization of child victims. One
such measure directed to be followed by the Trial Court was that
wherever possible the Court should resort to recording of statement
through video conferencing.
13. The learned Single Judge, in the impugned order, has not
noticed the judgments referred to above and several others of this
court where evidence has been permitted to be recorded using the
facility of video conferencing. The Supreme Court has laid down the
need and importance of advancing with technology.
14. Procedures have been laid down to facilitate dispensation of
justice. Dispensation of justice entails speedy justice and justice
rendered with least inconvenience to the parties as well as to the
witnesses. If a facility is available for recording evidence through
video conferencing, which avoids any delay or inconvenience to the
parties as well as to the witnesses, such facilities should be resorted to.
Merely because a witness is traveling and is in a position to travel
does not necessary imply that the witness must be required to come to
Court and depose in the physical presence of the court.
15. We are not for a moment laying down that a witness can never
be called to Court. There may be circumstances or situations where
physical presence of a witness may be necessary and required by the
Court, in such situations it would be obligatory on the witness to be
present in Court. Where a witness or a party requests that the
evidence of a witness may be recorded through video conferencing,
the Court should be liberal in granting such a prayer. There may be
situations where a witness even though within the city may still want
the evidence to be recorded through video conferencing in order to
save time or avoid inconvenience, the Court should take a pragmatic
view.
16. In the present case, the application was premised on the ground
that the witness holds an important position in her organization and
has to travel world over. We do not feel that such a request was
unreasonable. Furthermore, the appellant/defendant has contended
that the expenditure entailed for travel of the witness, who is a lady of
over 54 years of age and her stay in Delhi would be a financial burden
on the appellant. This, in our view is a factor that the learned single
judge should have taken into account. We are of the view that the
learned Single Judge erred in dismissing the application.
17. In view of the above, the impugned order is set aside. The
application IA No.7927/2015 is allowed. The Appellant is permitted
to record the testimony and cross-examination of its witness Ms
Rosalind Miller through audio video conferencing subject to the
following conditions:-
(i) Evidence of the witness Ms Rosalind Miller shall
be recorded through video conferencing between Delhi,
India and London, U.K..
(ii) In Delhi, the video conferencing shall be
conducted in the facilities available in the Annexe Block
of the Delhi High Court.
(iii) Mr. Girish Sharma, Registrar (Computers) of this
court is appointed as the coordinator with regard to the
technical aspects of video conferencing in India.
(iv) The Indian High Commissioner at London shall
nominate a senior officer not below the rank of Deputy
Secretary of India to facilitate video conferencing. The
officer nominated by the Indian High Commission shall
co-ordinate the video conferencing arrangements in
London and shall remain present at the time of recording
of the evidence of the witness Ms Rosalind Miller.
(v) The officer nominated by the Indian High
Commissioner in terms of the direction at serial no.(iv)
above shall ensure that apart from his own presence, only
counsel for the Appellant/Defendant is present at the time
of video conferencing. He shall ensure that no manner of
prompting by word or signs or by any other mode is
permitted.
(vi) The officer nominated by the Indian High
Commission shall verify the identity of the witness
before commencement of her examination.
(vii) As soon as the identification part is complete, oath
will be administered by the Joint Registrar (J.R.) through
the media as per Oaths Act, 1969.
(viii) The witness shall be examined during working
hours of Indian Courts. The plea of any inconvenience on
account of time difference between India and London
shall not be allowed. However, the convenience of the
Indian High Commission in London shall be taken into
consideration in fixing the time and schedule.
(ix) The cross-examination, as far as practicable, be
proceeded without any interruption and without granting
unnecessary adjournments. However, discretion of the
Court (J.R.) shall be respected.
(x) The Court (J.R.) may record any material remarks
regarding the demeanor of the witness while on the
screen and shall note the objections raised during
recording of evidence.
(xi) The deposition of the witness shall be signed
immediately in the presence of the nominated officer of
the Indian High Commission. The said officer shall
certify/attest the signatures of the witness.FAO(OS) 416/2015 Page 20 of 21
(xii) The audio and visual shall be recorded at both the
ends and copies thereof shall be provided to the parties at
the expense of the Appellant.
(xiii) The appellant shall bear the cost/expenses of the
video conferencing. The expenses for the video
conferencing to be undertaken in London shall be
informed to the appellant through counsel by the Indian
High Commissioner. However, in case of any difficulty,
the same may be communicated to the Registrar
(Computers) of this Court by e-mail, who shall
communicate the same to the appellant's lawyer in India.
(xiv) The officer of the Indian High Commission to be
nominated by the Indian High Commissioner shall be
paid a lump sum amount of Rs. 50,000/- as honorarium.
(xv) The appellant shall deposit an amount of Rs.
10,000/- as cost of preparation of the certified copies
with the Registry of this Court in the present case within
two weeks from today. The Registry shall thereafter
prepare certified copies of the entire record of the case,
which shall be sent in separate folders clearly marked as
order sheets; pleadings; applications; plaintiff's
documents and defendant's documents. The same shall be
forwarded to the office of Indian High Commissioner
with the assistance of Ministry of External Affairs.
(xvi) This record shall be made available to the officer
nominated by the Indian High Commissioner for the
purpose of undertaking the video conferencing as it
would be necessary for recording the statement and cross
examination of the witness.
(xvii) In case, the respondent is desirous of being
physically present in London at the time of recording of FAO(OS)
the evidence, it shall be open for her to make
arrangements on her own cost for appearance and her
representation. The respondent shall ensure that prior
intimation in this regard is filed in the Registry of this
Court giving full particulars of the names of the persons
as well as enclosing documents of authority in respect of
the persons, who shall be representing them in the
proceedings. The intimation in this regard as well as
documents shall also be furnished to Indian High
Commission in London.
18. The appeal is allowed as above, leaving the parties to bear their
own costs.
SANJEEV SACHDEVA, J
BADAR DURREZ AHMED, J
JANUARY 07, 2016
st
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