AV-recording witnesses fraught

IN PERSPECTIVE

Witness testimony

The Karnataka Director General and Inspector General of Police has recently sent a proposal to the state legal department to implement a new procedure under which witness statements will now be audio-video (AV) recorded before magistrates. This move, ostensibly under Section 164 of the Code of Criminal Procedure (CrPC), is apparently being implemented as per a two-judge bench order of the Supreme Court in Doongar Singh vs State of Rajasthan (2017). This technological intervention in criminal trials, the first of its kind in the entire country, is being heralded as a big boost to reverse the trend of the prosecution losing cases on account of witnesses turning hostile.

There are three reasons why this proposal needs a thorough re-examination.
First, a preliminary hurdle to the proposal is posed by Section 164 of the CrPC itself. The proviso to Section 164(1), inserted through CrPC Amendment Act, 2008, provides for AV recording of confession or statement of the ‘person accused of the offence’ in the presence of a lawyer. Therefore, the bedrock of this proposal – Section 164 of the CrPC —does not provide for AV recording of witnesses at all. The SC judgment that is referred to (Doongar) has unfortunately missed this distinction while directing recording of eye-witness statements under Section 164. On this point, the judgment needs to be re-examined by a larger bench to clarify the correct reading of the section.

In fact, any confusion regarding the scope of the proviso to Section 164(1) becomes amply clear when compared with the proviso added to Section 275(1) of the CrPC by the same Amendment Act. In the latter, which deals with recording witness statements in warrant cases, express provision has been made to record ‘evidence of a witness’ by ‘audio-video electronic means in the presence of the advocate of the person accused of the offence’. This suggests that the legislature has applied its mind to not allow for AV recording of witness statements under Section 164, given the pitfalls elaborated below.

Second, the proposal will face implementation hurdles given the current lack of clarity on admissibility of electronic evidence. Will the prosecution submit a compact disc containing AV recording of witness statements during trials or will the court have direct access to such statements internally? Who will certify the veracity of these electronic records? How will this be stored and for how long? These concerns need to be addressed through well-thought out procedures which will require amendments both to the CrPC and the Evidence Act, 1872. In fact, apart from implementation, the larger policy concerns of data security and privacy that this move is bound to raise requires much wider consultation, and not just with prosecutors.

Third, and most important, the end-goal sought to be achieved — increasing conviction rates — is problematic and perverse to the very idea of right to fair trial. This move is bound to be welcomed by the prosecutors; however, the government needs to be mindful of possible infringement of interests and rights of the accused persons on trial. For instance, it is unclear how the State will ensure the presence of the accused’s advocate while AV recording witness statements as required by Section 164, especially in cases where the identity of the accused may still be unknown.

In fact, an unintended consequence might be that the witnesses will increasingly choose to remain absent during trial, thereby robbing the accused of her right to cross-examine the witnesses. Therefore, on account of both substantive and procedural law, the proposed measure is likely to fall flat.

It is acknowledged that witnesses turning hostile and remaining absent during trial is a pressing concern. However, any reform measure should balance the interests of both the prosecution and the accused persons on trial.

Technology design and implementation is dictated by the object sought to be achieved and here, the State is clearly misguided in identifying its objective as increasing conviction rates, as opposed to ensuring robust mechanisms for a fair and speedy trial.

Audio-Video recording of witness and accused statements have obvious benefits. However, it would be better to invest the State’s limited time and resources in implementing the Witness Protection Scheme, 2018, which is yet to receive funding and support from the state in the form of Rules. By addressing witnesses’ fears and protecting them from threats from the accused, the State is more likely to achieve the goal of justice than the present proposal.

(The writer is an advocate and Senior Resident Fellow, Vidhi Centre for Legal Policy)

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