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The Madras High Court on Friday directed the State to move towards implementing audio-visual recording of witness statements in criminal cases, particularly in in cases involving heinous offences. While certain difficulties were raised regarding the implementation of such measures, the High Court opined,
“Practical difficulties that are pointed out by the prosecution cannot be a ground to stop the implementation of these provisions. At some stage, the audio-video electronic means must be used widely during investigation and it has been effectively implemented in many foreign countries.”
The Court proceeded to give the State three months time to appraise the Bench of the measures taken by it to implement to audio-visual recording of witness statements. In this regard, the order states,
“This Court wants to give three months time to the prosecution to place a report before this Court giving a definite action plan to implement the provision for using audio-video electronic means during the course of investigation.“
Further, relying on the Supreme Court’s directions, the Bench of Justices S Vaidyanathan and Anand Venkatesh has also issued the following guidelines to be adhered to by investigating officers:
Before parting with the case, the Bench emphasised that the State Government should implement the witness protection scheme, as already directed by the Supreme Court. The Court observed,
“… it is the law of the land as on today. Unless, the witness protection scheme is implemented, the audio-video electronic means cannot be effectively brought into force, since it may expose the witnesses to a larger threat. The Hon’ble Supreme Court has directed the scheme to be implemented within a period of one year, i.e., by the end of 2019. The State Government is directed to implement this scheme as per the directions given by the Hon’ble Supreme Court and a status report shall also be filed in this regard.
Earlier this month, the Court had called for such measures to curb the proclivity of witnesses to turn hostile in criminal cases. As noted in Friday’s order as well,
“This exercise is being carried out by this Court, since this Court was astonished at the manner in which witnesses were turning hostile and accused persons were going scot-free in many murder cases. The whole exercise is to find out as to whether the audio-video electronic means can be effectively used in the process of investigation and some sort of accountability can be brought in for witnesses, who were turning hostile at the drop of the hat and dislodging the entire case of the prosecution.”
The Bench had noted that although Sections 161 and 164 of CrPC enable the authorities to electronically record witness statements and confessions, these provisions have remained a dead letter for the past decade. It had, therefore, invited the views of the Bar and inputs by the police to examine ways to implement such measures.
During two hearings held earlier this month, the Court heard the concerns and opinions raised by lawyers and the Police. The prosecution apprised the Court that there are practical difficulties involved in implementing the measure, apart from apprehensions that recorded statements would be tampered in the absence of centralised protection of such data. The Court however, pointed out that,
“Only if the provision is implemented, it can be fine tuned and made perfect over a period of time. Any new method to start with will have its own problems in implementation and that should not deter the prosecution to start the process. Law has to update itself according to the changing times and it cannot remain static.”
Another concern raised was the possibility of such recordings leaking on social media, thereby making witnesses more vulnerable and harming witness protection schemes. Therefore, the prosecution informed the Court that it would prefer to carry out such measures in a phased manner. For now, the prosecution submitted that the practice of electronically recording statements could be carried out in the investigation of serious crimes, crimes against women and children etc.
The Bench took note that the Supreme Court has already attempted to issue detailed guidelines on the use of audio-visual/electronic means of recording in investigations in the case of Shafhi Mohammad v. The State Of Himachal Pradesh. Since the matter is still pending before the Supreme Court, the Madras High Court has refrained from issuing mandatory directions on the issue, opting to wait for the Supreme Court’s final decision in the case.
In the meanwhile, however, the Court has asked the State to prepare a report on its proposal to begin recording statements in a phased manner. The Court proceeded to highlight that the police should adhere to the guidelines already issued by the Delhi High Court in Ramesh Kumar v. State of Delhi and the Supreme Court in Doongar Singh and Others v. The State of Rajasthan, in implementing the audio-visual recording of statements.
The case has been posted to be taken up next in April next year.