Audio/video recording of witness statements should be implemented to deter hostile witnesses: Madras HC seeks views of the Bar

A Division Bench of the Madras High Court has sought the assistance of the bar in finding ways to implement provisions for the audio/video recording of witness statements and confessions in criminal cases..Sitting at the Madurai Bench, Justices S Vaidyanathan and N Anand Venkatesh passed an order to this effect on Friday, with a view to curb the tendency of witnesses to turn hostile..“In our tenure, for the last two months, we noticed that in lots of cases, the list of hostile witnesses is getting bigger and bigger, resulting in acquittals. If this trend is allowed to be continued, people will lose faith in the Criminal Justice System”, the Bench observed..The Bench proceeded to highlight that the recording witness statements through electronic means would aid in maintaining the integrity of such statements..“Recording the examination of witnesses by Police by audio/video electronic means will make it easier for the prosecution to confront witnesses before the Court when the witness wriggles out of the earlier statement and is treated to be hostile. It will bring in an element of deterence and make the witness think twice before he disowns the statement given to the Police. This will also enable the witness to substantiate before the Court that the statement shown before the Court was not actually given by him and it was a creation of the Police. Therefore, it will be of use both to the witness as well as to the prosecution and it will enable the Court to properly appreciate the evidence of such witness in dock.”.Law governing the audio-visual recording of witness statements remains on paper.It was further observed that the law already provides for allowing the audio and video recording of witness statements, from 2009 onwards. In this regard, the Court made reference to the proviso to Section 161 of the Criminal Procedure Code (CrPC) which allows the police to record witness statements by audio/video electronic means. Further, a similar proviso is also added to Section 164, CrPC which deals with recording of confessions and statements by the Metropolitan Magistrates or Judicial Magistrates. However, the Court pointed out that these provisions continue to remain “in the book.“.“… for the last ten years and not once it has been resorted to“, the Court remarked..Whereas POCSO courts may use such electronic means to record the victim’s statement in child sexual assault cases, the Court took critical note that it was no regular practice in ordinary courts. In this backdrop, the Court opined,.“… it is important to put to use audio/video electronic means to record the statements on a regular basis, so that the witness who disowns such a statement can be confronted by showing the audio/video recording and it will help the Court to impeach the credit of the witnesses under Section 155 of the Indian Evidence Act and also to take appropriate action for perjury.”.While this is the case, the Court called for the regular use of electronic means to record witness statements and confessions, more so in view of the deterrent value underlying such measures..“Unless an element of deterence is brought in the minds of witnesses, witnesses turning hostile is only going to continue and acquittals are going to pile up and it will ultimately end up in complete break down of the Criminal Justice System. We are living in era where the science has grown so much and it is high time that electronic means is used extensively in the investigation and the effectiveness and quality of the investigation is substantially improved.”.The matter has been posted to be taken up next on November 13, when the State Public Prosecutor and the Additional Public Prosecutor are expected to appear. Both law officers have been directed to obtain necessary instructions from the police. A higher level police officer may also appear before the Court, if required, the order adds, so that the Court may be assisted on questions concerning the practicality of implementing the measures discussed..Further, bar associations at Madurai have also been invited to offer their views on the matter. To this end, a copy of the order has also been sent to the Madurai Bench of Madras High Court Bar Association, Madurai(MMBA), the Madurai Bench of Madras High Court Advocate Association (MBHAA), Madurai and the Women Advocates Association, Madurai.