Prima facie compromises fair trial: Delhi on LG notification over virtual relay of evidence

New Delhi, Sep 10 (PTI) The Delhi High Court on Wednesday said the notification issued by Lieutenant Governor allowing police officials to virtually present evidence in courts from police stations "prima facie compromised the concept of fair trial".

A bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela said LG has a right to identify designated places and the court was not questioning the powers but the question loomed over specifically choosing police stations.

"What is fair trial? Whether this right of fair trial of an accused is not being compromised by permitting the prosecution witnesses making their depositions from their own places? We can understand there is some some difficulty in formal witnesses, IOs etc. You have the right to identify designated place, no difficulty in that. We are not challenging your powers to designate a place but why police stations? That's the only question,” the bench told Additional Solicitor General Chetan Sharma.

The court said LG could designate a place which was neutral and added the provision of recording prosecution witness' deposition in the presence of an accused was made to ensure fairness.

"You could designate a place which is neutral to your seat, which is away from your seat. Why is this provision that every deposition by the prosecuting witness has to be made in the presence of the accused? Just to ensure fairness. So that accused knows that whatever material is being relied upon, or it is being sought to be relied upon in support of the charge, he comes to know. He has an opportunity to rebut all that," the court said.

The bench went on, "You have to maintain neutrality. And conducting trial is also your responsibility. You have to create an environment where any accused gets an opportunity to face fair trial. This perhaps prima facie compromises the concept of fair trial. These are the concerns." Sharma offered to take instructions by the next date of hearing following which the court posted matter for December 10 along with another similar plea.

The bench was hearing a PIL filed by Raj Gaurav, an advocate, challenging the notification on the ground that it undermined the fairness and neutrality of criminal trials by allowing examination and cross examination of witnesses "within executive controlled premises".

The court also asked the petitioner, who appeared in person, whether the August 13 notification was being acted upon as on date.

The lawyer said the notification was "partially acted upon", noting time and again various circulars were being issued by Delhi Police on the issue.

He said one of his prayers would be satisfied if it came on record that the notification wouldn't come into force.

The petitioner said the larger issue the PIL raised was the proviso of BNSS which created this notification.

"It is not about the notification. It is actually about Section 266 sub section 3 proviso 2," he said.

The bench ruled out entertaining views or creating any right.

"The proviso you have challenged, it may be right or wrong, its validity has to be tested on the touchstone of testing the legislations," the court said.

The petitioner said while the deposition of police personnel would be done at police stations, examination of other accused and witnesses would be done in court -- an unequal situation.

“The policemen have an edge when they are being cross examined in the police station. They have an edge over other witnesses examined in the courts… It compromises upon the transparency of the trial. Some policeman deposing on a mobile phone with a screen on behind or if I ask some crucial question and he might not know the answer then he might switch off the video conference,” he argued.

The notification declared all police stations "designated places" in the capital for deposition of police officers/ personnel through video-conferencing. PTI SKV SKV AMK AMK