Report No. 198

Chapter IX

Two-Way Closed-Circuit Television for Examining The Victim and Witnesses During Trial In The Sessions Court

We shall now refer to the procedure of closed circuit television or video link, to which we have referred to earlier. That procedure can be followed at the trial by the Sessions Court in respect of witnesses or victims who have earlier obtained witness protection orders during investigation or inquiry or before commencement of recording of evidence at the trial.

So far 'screening or closed-circuit television' is not part of the Code of Criminal Procedure, 1973 or special Acts:

Screening or closed-circuit television methods are not contained in the Code of Criminal Procedure, 1973 nor in the special Acts referred to in the earlier chapters.

We have noticed in Chapter III that the TADA 1987 did deal with procedure for witness protection in section 16. Neither 'screening' nor 'closed circuit television' were mentioned in section 16. section 16 mentioned in camera proceedings. section 16(3)(c) merely stated that the Court may issue 'any directions for securing that the identity and addresses of the witnesses are not disclosed'.

In the POTA 2002, section 30(1) referred to 'in camera' proceedings and section 30(2)(c) was in the same language as section 16(3)(c).

In Kartar Singh's case (1994) (3) SCC 569 which dealt with section 16 of the TADA, there is no reference to 'screening' or 'closed-circuit television'.

In PUCL v. Union of India, 2003 (10) SCALE 967, which dealt with section 30 of the POTA, the Supreme Court observed (para 62) (at p. 994):

"It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of the witness secret."

For the first time, before the Law Commission when it was preparing the 172 nd Report (2000) (as stated earlier) in the case of child abuse or sexual offences there was a request for incorporating provisions such as

(i) video taped interview of the child,

(ii) via closed-circuit television testimony or giving evidence from behind a screen.

But the Law Commission accepted the 'screening' method. In the draft amendment, it however, did not use the word 'screening' but proposed insertion of a general proviso in section 273 which stated:

"Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may take appropriate measures to ensure that such person is not confronted by the accused at the same time ensuring the right of cross-examination of the accused."

When the 172nd Report came up before the Supreme Court in Sakshi v. Union of India, 2004 (6) SCALE 15, the Supreme Court referred to the argument of the NGO, (Sakshi) before the Law Commission as stated earlier. The Supreme Court accepted as admissible video-conferencing method for purpose of hearing the victim or witnesses. Recording by way of video-conferencing was accepted in view of the earlier judgment of the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai: 2003 (4) SCC 601(see para 31).

It was stated that this was consistent with section 273 of the Code. However, in the final directions, the Supreme Court suggested the method of using a 'screen' or 'some such arrangement' (see para 32). The Court also referred to the need for in camera proceedings as stated in section 327 of the Code.

Praful B. Desai's case was not a criminal case but was a civil case in which one party wanted to examine a foreign medical expert. While permitting video-conferencing, the Supreme Court relied upon Maryland v. Craig (1990) 497 US 836 (which was a criminal case) to say that videoconferencing evidence is admissible in evidence.

In a case arising under the Consumer (Protection) Act, 1986 the Supreme Court in J.J. Merchant v. Shrinath Chaturvedi: AIR 2002 SC 2931 stated that under that Act, the Commission could examine witnesses on commission under section 13(4)(v) and that cross-examination could take place by video-conferencing. The Supreme Court stated that affidavits could be initially filed and,

"if the cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by experts including doctors on affidavits. In case where stakes are very high and still party intends to cross-examine such doctors or experts, there can be video-conferences or asking questions by arranging telephone conference and at the initial stage, this cost should be borne by the person who claims the video-conference. Further crossexamination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time."

In sum, so far as the criminal jurisdiction is concerned, there is, at the moment, no provision in the Code of Criminal Procedure, 1973 which permits 'screening' or 'closed-circuit television'. In Sakshi, the Supreme Court referred to screening and video-conferencing as acceptable procedures but in the ultimate directions given by it, it used the words 'screening' or 'some other arrangement' and followed Praful B. Desai case. Praful B. Desai followed Maryland v. Craig.

The Maryland Rules on closed-circuit television:

As the Supreme Court in Praful Desai's case referred to Maryland v. Craig: (1990) 497 US 836, we shall refer to the Rules applicable to Maryland Courts which were interpreted in Maryland v. Craig. There, under the procedure contained in the Maryland Courts & Judicial Procedure Code, 1989 (section 9-102(a)(i)(ii)) the child aged six years, who was allegedly sexually abused would be at a distant place and would be examined in chief and also cross-examined while the Judge, Jury and the accused would remain in the Courtroom, where the testimony would be displayed on a video-screen by using a closed-circuit television.

In Maryland v. Craig, the Supreme Court rejected Craig's objection that the use of one-way closed-circuit procedure violated the confrontation clause contained in the Sixth Amendment. The Court held that if there was direct confrontation between them in the Courtroom, the child victim and other witnesses would suffer serious emotional distress which they would not be able to express.

The Supreme Court held that the purpose of the Sixth Amendment was to ensure the reliability of the evidence against an accused by subjecting the witness to rigorous testing in an adversarial proceeding before the trial Court and that purpose is served by the combined effects of confrontation, physical presence, oath, cross-examination and observation of demeanour by the trial Court. Although face to face confrontation formed the core of the Sixth Amendment, it was not an indispensable element of the confrontation right.

If it were, the Sixth Amendment would abrogate virtually every hearsay exception, a result rejected as unintended and too extreme (Ohio v. Roberts) (448 US 50). The Amendment must be interpreted in a manner sensitive to its purpose and to the necessities of trial and adversary process (Kirby v. US: 174 US 47). Nonetheless, the right to confront accusatory witnesses may be satisfied absent a physical, face to face confrontation or trial only where denial of such confrontation is necessary to further an important public policy and only where the testimony's reliability is otherwise answered (Coy v. Iowa).

A State's interest in the physical and psychological well-being of child-abuse victims may be sufficiently important to outweigh, at least in some cases, an accused's right to face his or her accusers in Court. The Court will use the video-procedure only if it is satisfied that the child would otherwise be traumatized. Maryland v. Craig has been approved by our Supreme Court in Praful B. Desai's case (2003 (4) SCC 601).

The same reasoning applies to cases of witnesses who, in the case of serious offences, are likely to suffer danger to their lives or properties, or where victims suffer emotional distress and the need to allow them to give evidence fearlessly outweighs the rights of the accused for face to face cross-examination.

Victim's evidence procedure under Maryland Rules:

Maryland's rule deals with child abuse cases and procedure at trial and Title 11, dealing with 'Victims and Witnesses' and section 11.303, is in 4 clauses:

(a) scope of section;

(b) in general;

(c) preliminary determination by Court (whether to allow the child victim to testify by closed circuit television);

(d) procedure during testimony.

It contemplates a preliminary hearing before regular trial.

As to (a), scope of section, it is said that the section applies to a case of child-abuse under Title 5, Subtitle 7 of the Family Law Article or section 3.601 or section 3.602 of the Criminal Law Code.

As to (b), 'in general', it refers (i) to the preliminary hearing i.e. when a Court decides if evidence in Court can result in the victim suffering such emotional distress which will make the victim not reasonably communicate and (ii) to the evidence taken during the proceedings (i.e. regular proceeding).

Clause (c) is important. It refers to 'determination by Court' i.e. the preliminary hearing procedure. It contains sub-clause (1)(i) and (ii) and sub-clause (2)(i) and (ii). Under sub-clause (1)(i), the Court may observe and question the child victim inside or outside Courtroom and under subclause (1)(ii), the Court may hear testimony of a parent or guardian and the person who has dealt with the child in a therapeutic setting.

Under subclause (2), it is stated that when the Court decides the issue 'whether to allow a child victim to testify by closed-circuit television, (i) each accused can have one attorney in the Court along with the victims' attorney and the prosecuting agency (i.e. neither victim nor the accused), and (ii) if the Court decides to observe or question the child victim, the Court may not allow the accused but the counsel for accused and the prosecuting agency and one attorney for the victim will be present.

Hence, under those Rules, at the preliminary hearing, the accused will not be physically present though the counsel for accused will be present, wherever the Court wants to observe or question the child victim. If the Court decides in the preliminary hearing to use of closed-circuit television, then under (d), the following procedure had to be followed:

(1) Where the victim is present, the prosecutor, the attorney for accused and attorney for victim and the operators of the closed-circuit equipment, and any other person whose presence, according to the Court, contributes to the well-being of the child, including the person who dealt with the child in therapeutic setting shall be present.

(2) In the Courtroom, the Judge, the accused shall be present.

In addition, there would be a two-way audio connection between the room where the victim and lawyers are stationed and the Courtroom where the Judge and accused are present.