Law Web: Karnataka HC: Court can record statement of accused U/S 313 of CRPC through video conferencing during Covid19

Under Rule 11.2 of the Video Conferencing Rules, it is

specifically provided that in exceptional circumstances, for the

reasons to be recorded in writing, the Courts can record the

statement of the accused under Section 313 of Cr.P.C through

Video Conferencing.

16. The Court in its discretion can take recourse to subsection

(5) of Section 313 of Cr.P.C and permit the accused to

file his written statement with reference to the questions

formulated. The questions can be sent to Jail and the accused

can be directed to file his written statement duly signed by him

before the Jailor or the Superintendent of Jail. The Court can

always direct the Jail authorities to allow the Advocate of the

accused to meet the accused for the purposes of preparation of

written statement. If accused is on bail, he can be called upon

to answer the questions in writing by handing over the same to

his Advocate by directing that written statement of the accused

shall be countersigned by him by identifying the signature of his

client. The other option is of recording the statement by

procuring presence of the accused by Video Conferencing

Hearing. The concerned Jail superintendent or the officer-incharge

of the prison will be the coordinator at the remote point of

the prison. Before recording the statement and in the midst of

recording the statement, the learned Judge can put questions to

the accused to ascertain whether he is clearly audible and

whether the accused understood the questions posed to him.

The learned Judge may record this in the statement to that

effect. If the signature of the accused is required, a copy of the

written statement recorded can be sent by e-mail to the Jail

authorities with an instruction to the Jail authorities to obtain

signature of the accused on the statement and then forward the

statement to the Court. In case of accused on bail, similar

procedure can be followed. The only difference being a fit and

proper person appointed by the Court will be the coordinator at

the remote point where the accused is sitting.

17. We must note here that we are deciding the issue only in

the context of an exceptional situation created in which due to

spread of COVID-19, the Courts are not able to function

normally. As observed by the Apex Court in suo motu Writ

Petition (Civil) No. 5 of 2020, it is the duty of every Court to

ensure that the Court premises do not contribute to the spread

of virus. Moreover, in suo motu Writ Petition (Civil) No. 1 of

2020, the Apex Court has categorically directed that in the

present situation, the presence of all the undertrial prisoners

before the Courts must be stopped forthwith and recourse to

Video Conferencing Hearing must be taken for all purposes.

This direction issued by the Apex Court will have to be read with

the directions issued on 6th April, 2020 in suo motu Writ Petition

(Civil) No. 5 of 2020. The course adopted by the Courts while

recording the plea of the accused and recording the statement

of the accused under Section 313 of Cr.P.C through video

conferencing hearing will be a step taken to reduce the physical

presence of the stakeholders in the Courts precincts to meet the

exceptional situation and to secure the functioning of the Courts

by following the best possible health practice. Therefore, such

a course adopted by the Courts shall be deemed to be lawful, in

view of the directions contained in clause (i) of paragraph-6 of

the aforesaid order dated 6th April, 2020 issued in suo motu Writ

Petition (Civil) No.5 of 2020. The directions of the Apex Court

in paragraph 6 are specifically under Article 142 of the

Constitution of India, which will apply during the epidemic of

COVID-19.

IN THE HIGH COURT OF KARNATAKA

W.P. No. 7338/2020

Decided On: 19.06.2020

High Court of Karnataka Vs. The State of Karnataka

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, C.J. and S. Vishwajith Shetty,

By this order, we are firstly dealing with the issue of

framing charge by procuring presence of accused through Video

Conferencing (through electronic video linkage). There are two

specific situations with which we are dealing. The first situation

is where the accused is in judicial custody and the second

situation is when accused is on bail. The second issue is

whether the examination of the accused under Clause (b) of

sub-section (1) of Section 313 can be recorded by procuring the

presence of the accused by Video Conferencing. We are

examining these issues in the context of situation prevailing due

to pandemic of Covid-19.

2. Firstly, we deal with the issue of framing charge. Section

228 of the Code of Criminal Procedure 1973 (in short ‘Cr.P.C’)

deals with framing of charge in a trial before a Court of

Sessions. Section 228 read thus:

“228. Framing of Charge.- (1) If, after such

consideration and hearing as aforesaid, the Judge is

of opinion that there is ground for presuming that the

accused has committed an offence which2

(a) is not exclusively triable by the Court of

Sessions, he may, frame a charge against

the accused and, by order, transfer the

case for trial to the Chief Judicial

magistrate or any other Judicial Magistrate

of the first class and direct the accused to

appear before the Chief Judicial Magistrate,

or, as the case may be, the Judicial

Magistrate of the first class, on such date

as he deems fit, and thereupon such

Magistrate shall try the offence in

accordance with the procedure for the trial

of warrant-cases instituted on a police

report;

(b) is exclusively triable by the Court, he shall

frame in writing a charge against the

accused.

(2) Where the Judge frames any charge under

clause (b) of sub-section (1), the charge shall be

read and explained to the accused and the accused

shall be asked whether he pleads guilty of the

offence charged or claims to be tried.”

(Underline added)

3. As regards warrant cases, the relevant provision is

Section 240Cr.P.C., which reads thus:

“240. Framing of Charge. – (1) If, upon such

consideration, examination, if any, and hearing, the

Magistrate is of opinion that there is ground for

presuming that the accused has committed an

offence triable under this Chapter, which such

Magistrate is competent to try and which, in his

opinion, could be adequately punished by him, he

shall frame in writing a charge against the accused.

(2) The charge shall then be read and

explained to the accused, and he shall be asked

whether he pleads guilty of the offence charged or

claims to be tried.”

(Underline supplied)

4. In summons triable cases, it is not necessary to frame a

formal charge. However, Section 251 Cr.P.C is material which

reads thus:

“251. Substance of accusation to be stated. –

When in a summons-case the accused appears or is

brought before the Magistrate, the particulars of the

offence of which he is accused shall be stated to

him, and he shall be asked whether he pleads guilty

or has any defence to make, but it shall not be

necessary to frame a formal charge.”

5. As far as the trial before the Court of Sessions and trial in

warrant triable cases is concerned, if Sections 229, 230, 241

and 242 of Cr.P.C. are read with the provisions of Section 228

and 240 of Cr.P.C, it is crystal clear that in the Sessions triable

cases and warrant triable cases, the charge framed by the

learned Judge has to be read over and explained to the accused

and the accused is required to be asked whether he pleads

guilty or claims to be tried. The accused may plead guilty or he

may claim to be tried. The accused may or may not plead

anything after the charge is read over and explained to him or

may refuse to plead. When the accused does not plead guilty,

in all other contingencies, both in Sessions triable cases and

warrant triable cases, a date for recording of evidence is

required to be fixed. In case of both the categories of trials, the

plea of the accused after charge is read over and explained is

required to be recorded. In a summons triable cases, though it

is not necessary to frame a charge, the particulars of the offence

alleged shall be stated to the accused and he shall be asked

whether he pleads guilty or whether he has a defence to the

same. In summons triable cases, there is a specific provision in

Section 252 mandating that in the event the accused pleads

guilty, the Magistrate shall record the plea as for as practicable

in the words used by the accused.

6. Thus, it follows that in case of all three categories of trials,

plea of the accused is required to be recorded. In summons

triable case, the plea is to be recorded after explaining the

offence and in two other category of cases, after framing the

charge and after reading over and explaining the charge to the

accused, the plea has to be recorded. It means that for

recording plea, the presence of the accused before the Court is

necessary. Now, the question is whether such presence can be

procured through Video Conferencing. This issue need not

detain us in view of the law laid down by the Apex Court in the

case of State of Maharashtra v. Dr. Praful B. Desai(2003) 4 Supreme Court Cases 601. The Apex Court considered Section 273 of Cr.P.C which mandates that all evidence taken in the Courts

shall be taken in the

presence of the accused. The issue was whether the words ‘the

presence’ is used in the sense of physical presence. In

paragraphs 19 and 20 of the decision, the apex Court resolved

controversy. The Apex Court held thus:

“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 videoconferencing.

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.

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 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 videoconferencing

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 videoconferencing

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 crossexamining

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.”

(Underline supplied)

7. The Video Conferencing Rules (in short ‘Video

Conferencing Rules’), framed by this Court, a copy of which is

annexed to the petition, lay down the procedure for recording of

evidence by Video Conferencing. Rule 8 contemplates the

examination of persons including the witnesses through Video

Conferencing. Rule 11 indicates that in certain circumstances,

even for remand, an accused can be produced before the

learned Magistrate through Video Conferencing. Rule 11.2

specifically permits recording of statement under Section 164 of

Cr.P.C read with Rule 5 of Chapter 5 of Karnataka Criminal

Rules of Practice 1968 (in short ‘the Rules of Practice’) by Video

Conferencing. Rule 11.2 specifically permits recording of a

statement of the accused under Section 313 through Video

Conferencing. Thus, at the time of framing of charge and at the

time of recording of plea, the presence of the accused before

the Court can be procured through Video Conferencing. By

procuring the presence of the accused through Video

Conferencing in case of Sessions triable cases and in case of

warrant triable cases, the charge can be read over and

explained to the accused and his plea can be recorded. Rule 5

of the Video Conferencing Rules will apply for recording of the

evidence by Video Conferencing. If the accused is in Judicial

Custody, Video Conferencing facility can be provided at the

prison and in such case, the remote point coordinator within the

meaning of Rule 5.3 will be the Jail Superintendent or the officer

in-charge of the prison. In case the accused is on bail, any fit or

proper person will have to be appointed as the coordinator to

ensure that proceedings are conducted in a fair, impartial and

independent manner.

8. Though there is no specific provision in Cr.P.C to that

effect, there is a practice followed by various Courts of taking

the signature of the accused on the plea. If by way of abundant

precaution, the learned Judges desire that the signature of the

accused is necessary on the plea, in case of accused in judicial

custody, a copy of the charge framed and plea recorded

thereon can be send by e-mail to the coordinator who will be an

officer of the concerned prison. He can be directed to down

load the same, take print and obtain the signature of the

accused in his presence and send it to the Court. In case of an

accused on bail, the coordinator can be directed to follow the

same procedure. While recording the plea, the Judicial Officer

will be well advised to record a statement of the accused that

the Judge was clearly audible and visible to him while the

charge was read over and explained to him and while his plea

was recorded.

9. As far as the examination of the accused under Clause (b)

of sub-section (1) of Section 313 Cr.P.C is concerned, it is

necessary to make a reference to Section 313 which reads thus:

“313. Power to examine the accused - (1) In every

inquiry or trial, for the purpose of enabling the

accused personally to explain any circumstances

appearing in the evidence against him, the Court –

(a) may at any stage, without previously

warning the accused put such questions to

him as the Court considers necessary;

(b) shall, after the witnesses for the

prosecution have been examined and

before he is called on for his defence,

question him generally on the case:

Provided that in a summons-case, where the

Court has dispensed with the personal attendance of

the accused, it may also dispense with his

examination under clause (b).

(2) No oath shall be administered to the

accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable

to punishment by refusing to answer such questions,

or by giving false answers to them.

(4) The answers given by the accused may be

taken into consideration in such inquiry or trial, and

put in evidence for or against him in any other inquiry

into, or trial for, any other offence which such

answers may tend to show he has committed.

(5) The Court may take help of Prosecutor

and Defence Counsel in preparing relevant

questions which are to be put to the accused and the

Court may permit filing of written statement by the

accused as sufficient compliance of this section.”

(underlines supplied)

10. Sub-section (5) provides for filing of written statement of

the accused which will be treated as sufficient compliance of the

requirements under Section 313 of Cr.P.C.

11. On this aspect, it is necessary to refer to the decision of

the Apex Court in the case of Basavraj R. Patil and others v.

State of Karnataka and others(2000) 8 SCC 740. It is a decision by a Bench of

three Hon’ble Judges. The majority decision was rendered by

Thomas, J., for himself and Variava, J. The question arose

before the Apex Court is recorded in the majority decision, which

reads thus:

“2. When a criminal Court completes

prosecution evidence (other than in summons cases)

is it indispensably mandatory that the accused

himself should be questioned? Cannot the Court

allow the advocate to answer such questions on

behalf of the accused at least in some exigent

conditions?”

12. The Apex Court considered the object of examination of

accused under Section 313 of Cr.P.C. In paragraph 19, it was

held that the provision is mainly intended to benefit the accused

and it also helps the Court in reaching the final conclusion. In

paragraph 21, the Apex Court held thus:

“21. But the situation to be considered now is

whether, with the revolutionary change in

technology of communication and transmission and

the marked improvement in facilities for legal aid in

the country, is it necessary that in all cases the

accused must answer by personally remaining

present in court. We clarify that this is the

requirement and would be the general rule.

However, if remaining present involves undue

hardship and large expense, could the court not

alleviate the difficulties. If the court holds the view

that the situation in which he made such a plea is

genuine, should the court say that he has no

escape but he must undergo all the tribulations and

hardships and answer such questions personally

presenting himself in court. If there are other

accused in the same case, and the court has

already completed their questioning, should they

too wait for long without their case reaching finality,

or without registering further progress of their trial

until their co-accused is able to attend the court

personally and answer the court questions? Why

should a criminal court be rendered helpless in

such a situation?”

(underline supplied)

The issue is answered in paragraphs 24 to 27, which read thus:

“24. We think that a pragmatic and

humanistic approach is warranted in regard to

such special exigencies. The word “shall” in clause

(b) to Section 313(1) of the Code is to be

interpreted as obligatory on the court and it should

be complied with when it is for the benefit of the

accused. But if it works to his great prejudice and

disadvantage the court should, in appropriate

cases, e.g., if the accused satisfies the court that

he is unable to reach the venue of the court,

except by bearing huge expenditure or that he is

unable to travel the long journey due to physical

incapacity or some such other hardship, relieve

him of such hardship and at the same time adopt a

measure to comply with the requirements in

Section 313 of the Code in a substantial manner.

How could this be achieved?

25. If the accused (who is already exempted from

personally appearing in the court) makes an

application to the court praying that he may be

allowed to answer the questions without making

his physical presence in court on account of

justifying exigency the court can pass appropriate

orders thereon, provided such application is

accompanied by an affidavit sworn to by the

accused himself containing the following matters:

(a) A narration of facts to satisfy the court of

his real difficulties to be physically

present in court for giving such answers.

(b) An assurance that no prejudice would be

caused to him, in any manner, by

dispensing with his personal presence

during such questioning.

(c) An undertaking that he would not raise

any grievance on that score at any stage

of the case.

26. If the court is satisfied of the genuineness of

the statements made by the accused in the said

application and affidavit it is open to the court to

supply the questionnaire to his advocate

(containing the questions which the court might

put to him under Section 313 of the Code) and fix

the time within which the same has to be returned

duly answered by the accused together with a

properly authenticated affidavit that those answers

were given by the accused himself. He should affix

his signature on all the sheets of the answered

questionnaire. However, if he does not wish to

give any answer to any of the questions he is free

to indicate that fact at the appropriate place in the

questionnaire (as a matter of precaution the court

may keep photocopy or carbon copy of the

questionnaire before it is supplied to the accused

for an answer). If the accused fails to return the

questionnaire duly answered as aforesaid within

the time or extended time granted by the court, he

shall forfeit his right to seek personal exemption

from court during such questioning.

27. In our opinion, if the above course is adopted

in exceptional exigency it would not violate the

legislative intent envisaged in Section 313 of the

Code”.

13. In the present situation created by the pandemic, the Apex

Court in Suo Motu Writ Petition (C) No. 1 of 2020 (In Re:

Contagion of Covid 19 Virus in Prisons) 2020 SCC Online SC 344, has issued a

direction which reads thus:

“xxx Taking into consideration the possibility of

outside transmission, we direct that the physical

presence of all the undertrial prisoners before

the Courts must be stopped forthwith and

recourse to video conferencing must be taken

for all purposes. Also, the transfer of prisoners

from one prison to another for routine reasons must

not be resorted except for decongestion to ensure

social distancing and medical assistance to an ill

prisoner. Also, there should not be any delay in

shifting sick person to a Nodal Medical Institution in

case of any possibility of infection is seen”.

(emphasis added)

The aforesaid direction is issued in exercise of powers under

Article 142 of the Constitution of India, which is binding on all the

Courts. Therefore, no undertrial prisoner can be produced before

the Court for recording his plea and for recording his

examination under clause (b) of sub-section (1) of section 313 of

Cr.P.C. during the period of pandemic.

14. Another suo motu Writ Petition (Civil) No. 5 of 2020 was

initiated by the Apex Court (In Re: Guidelines for Courts

functioning through Video Conferencing during COVID 19

pandemic). There is an order dated 6th April, 2020 passed in

the said case which is relevant. Paragraph-5 of the said order

reads thus:

“5. Faced with the unprecedented and

extraordinary outbreak of a pandemic, it is

necessary that Courts at all levels respond to the

call of social distancing and ensure that court

premises do not contribute to the spread of

virus. This is not a matter of discretion but of

duty. Indeed, Courts throughout the country

particularly at the level of the Supreme Court and the

High Courts have employed video conferencing for

dispensation of Justice and as guardians of the

Constitution and as protectors of individual liberty

governed by the rule of law. Taking cognizance of

the measures adopted by this Court and by the

High Courts and District Courts, it is necessary

for this Court to issue directions by taking

recourse to the jurisdiction conferred by Article

142 of the Constitution.”

(emphasis added)

Clauses (i) and (ii) of paragraph 6, which are the part of the

directions, specifically issued under Article 142 are material

which read thus:

“6(i) All measures that have been and

shall be taken by this Court and by the High

Courts, to reduce the need for the physical

presence of all stakeholders within court

premises and to secure the functioning of

courts in consonance with social distancing

guidelines and best public health practices

shall be deemed to be lawful;

(ii) The Supreme Court of India and all

High Courts are authorized to adopt

measures required to ensure the robust

functioning of the judicial system through the

use of video conferencing technologies; and”

(emphasis added)

15. Under Rule 11.2 of the Video Conferencing Rules, it is