With the surge in cases of COVID-19 early this month, a new Standard Operating Procedure (SOP) came into force for subordinate courts in the city, which permits testimony of witnesses by virtual mode in trials. The mode, however, is rarely used, with both the prosecution and defence lawyers not preferring it, due to technical as well other more serious issues.
A common concern of the defence is whether the witness is being prompted by the prosecution to give answers that support their case if they are not physically present before the court. Says Sharif Shaikh, a defence lawyer who has handled many a terror case, that credibility of the deposition is in question in such a mode of conducting the examination. “The witness is either sitting at the police station or with the police. We are expecting an answer from the witness. It doesn’t work if there is an interested person possibly hinting at the witness.” This is the reason that though many courts urge to conduct an examination of witnesses in virtual mode, defence lawyers like Shaikh insist on the physical presence of witnesses.
Technical issues such as quality of video and audio as well as lack of good bandwidth in some courts is another issue. “Many times the witness cannot understand what we ask,” says Shaikh, who has conducted virtual mode examinations several times in the past.
The new SOP is decided by the administrative committee of the Bombay High Court headed by its Chief Justice. Due to the pandemic situation, the SOP also mentions that courts may not pass adverse orders due to the absence of advocates, parties, witnesses or accused persons. As a result, courts cannot mandate the physical presence of a witness as in other times. The SOP that came into effect from Jan 10, will be in force till Jan 28.
For prosecutors, issues are different. Most point out that they cannot show documents or articles to the witness, if the witness is supposed to identify their signature on a document to prove its veracity or identify, for instance, any weapon related to a crime.
The situation leads to a further pile-up of cases in an already overburdened judiciary. There are some voices in support of the virtual mode too. Senior prosecutor Pradeep Gharat is one such voice.
He too says there are issues, for instance, not all courts are fully equipped for the purpose in terms of infrastructure. Also, changes in procedure can help make the process easier, Gharat says.
A witness from another district or state is presently required to go to the local police station or court of that area, for which correspondence has to be made between the court conducting the trial and the local court or police station where the witness resides.
He suggests that the link be directly shared with the witness, so that they can access it from their own device, given that most people have smartphones. Since the pandemic began, he has examined many witnesses through the virtual mode and calls it convenient and comfortable, despite poor connectivity issues that could sometimes disrupt the proceedings.
