Prakash Agrawal v. The State Of Madhya Pradesh

allowed. It is further submitted that since there was no remote person appointed, therefore the evidence of respondent no. 9 who is holding the post of Superintendent of Police at Ratlam through video conferencing could not have been allowed as it is dehors the Rules of 2020. Reliance is placed on the judgment of the Supreme Court in the case of Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 and referring to paragraph 56, it is submitted that the Supreme Court has held that "Therefore, we are disposed of to think that once a settlement fails and if both the parties give consent that a witness can be examined in videoconferencing, that can be allowed. That apart, when they give consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for video conferencing. That much of discretion, we are inclined to think can be conferred on the Family Court. Such a limited discretion will not run counter to the legislative intention that permeates the 1984 Act. However, we would like to add a safeguard. A joint application should be filed before the Family Court Judge, who shall take a decision."

Thus, it is submitted that unless there is a concurrence of the other party, no examination can take place through video conferencing. Reliance is also placed on the judgment of the Supreme Court in the case of Guidelines for Court Functioning through VideoConfereincing During Covid-19 Pandemic, In Re (2020) 6 SCC 686 and reading from para 6.7, it is pointed out that without the mutual consent of both the parties, no

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evidence can be recorded through video conferencing. Thus, pointing out several lacunas and non-compliance of the Rules of 2020, it is pointed out that the impugned order having failed to take into consideration the finesse of the Rules will not be a good order and, therefore, a prayer is made to direct the witnesses to appear in person rather than appearing through video conferencing.

After hearing learned counsel for the petitioner and going through the record, certain facts needs to be put in a straight jacket manner as have been recorded by the learned trial court. Suit for damages is pending for last ten years and allegation of the petitioner is that on certain date, he was handcuffed resulting in violation of his dignity.

After closure of the evidence of the plaintiff, an application under Order 16 Rule 1 was filed on behalf of the defendants making a request for permitting them to lead evidence. Thereafter, since respondent no. 9 Shri Rakesh Khaka is posted as Superintendent of Police, District Ratlam, he was permitted to lead evidence through video conferencing.

As far as the reply to the application under Order 16 Rule 1 read with Section 151 is concerned, in this reply, there is a cursory reference to the District Courts of Madhya Pradesh Video Conferencing and Audio Visual Electronic Linkage Rules, 2020 and while drafting the reply, no specific instance of violation of specific provision is made in the reply. Even otherwise, the judgment of 2020 in para 6.7 on which a lot of emphasis is placed by Shri R.K. Sanghi provides that "Until appropriate rules are framed by the High Courts, videoconferencing shall be mainly employed for hearing

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arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by videoconferencing."

Thus, this judgment of the Hon'ble Supreme Court is binding but there is a caveat that no evidence can be recorded without consent of both the parties by video conferencing until appropriate rules are framed by the concerned High Court.

In the present case, rules have been framed and these, rules have been cited by Shri R.K. Sanghi, learned counsel for the petitioner. Shri Manas Mani Verma, learned Government Advocate informs that these rules came into force on 5/11/2020, therefore, once the rules have come into force, then the field of use of video conferencing will be governed by the Rules and to that extent, it cannot be said that the judgment of 2020 has been violated while passing the impugned order.

The judgment of 2018 too cast certain amount of discretion upon the court to record evidence through video conferencing.

When we go through the preamble of the Rules of 2020, then preamble reads as under :-

"With intent to avoid delay in judicial proceeding due to non- availability of parties, counsels, witnesses and accused, there is an urgent need for a user-friendly video conferencing facility and other modes of audio-visual electronic linkage for the purpose of hearing of the cases as well as recording of evidence of witnesses unable to attend the Court. The information technology is a good tool for speedy trial and speedy justice."

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Thus, it is evident that the preamble of the Rules of 2020 makes it abundantly clear that the purpose is to avoid delay in judicial proceedings and that has been precisely noted by the learned X^thDistrict Judge, Jabalpur that the case is pending for last ten years and it is one of the twenty five oldest cases to be disposed of.

Petitioner has failed to show any prejudice being caused to him on account of recording of evidence through video conferencing and, therefore, in the absence of any prejudice being brought on record, it appears to be an attempt to linger on the litigation rather than sort it out during the life time of the petitioner who is said to be of about 73 years of age and it is somewhere mentioned in the order or the reply that he is suffering from some enabling diseases.

Thus, when we examine the background of the case and factual matrix is taken into consideration, then this court is of the opinion that the impugned order when tested does not suffer from any infirmity. For the speedy trial, it is the object of the Rules of 2020, consent of the other party has not been made mandatory. No rule has been brought to the notice of this court to show that consent of the other party is necessary to record evidence through video conferencing and, therefore, in the absence of the aspect of consent as has been mentioned in the judgment of 2018 and 2020, this court is of the opinion that in the ends of justice, if evidence is being recorded through video conferencing, then that cannot be said to be arbitrary or illegal or beyond the purview of the Rules of 2020.

Therefore, when tested, the impugned order does not call for any

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(VIVEK AGARWAL)

JUDGE

interference. It is within the realm of the Rules and, therefore, the petition deserves to fail and is dismissed.

It is made clear that without giving any further adjournment, evidence be recorded promptly and case be decided promptly.

Thus, the petition fails and is dismissed.

vy

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