Streamlining The Recording of Victims/Witnesses Testimonies Of Foreign Nationals
Highlighting the importance of efficient recording of witness testimonies in a criminal trial, the Delhi High Court has issued a series of directions for collecting the evidence given by victims/witnesses, who are foreign nationals, in cases of sexual assault.
The Division Bench of Justice Manmohan and Justice Sangita Dhingra Sehgal has issued directions to the Delhi Government, Delhi Police, Delhi High Court, and the trial courts, to make the said process more compliant with the MHA Guidelines of 2019, and a detailed report submitted by Senior Counsel Rebecca John.
The directions were issued by the court while hearing the following Criminal Reference:
“There is no law/guidelines by which the court can seek intervention/ involvement of the MHA and/or concerned Embassy/High Commission/ Consulate for making necessary arrangements for recording of testimony of the victims/witnesses who are foreign nationals in cases of sexual assault even when the victim is very much available and has offered to get her testimony recorded.
There is an urgent need to redress the issue so that the cases involving victims, who are foreign nationals, do not result in imminent acquittal for want of recording of testimony of the victim/witnesses and further that the case does not remain pending in the system inordinately.”
In 2009, the Ministry of Home Affairs had issued ‘Comprehensive Guidelines Regarding Service of Summons/Notices/Judicial Process on Persons Residing Abroad’ that laid down the procedure for the service of summons on witnesses residing abroad, for the purpose of recording their evidence.
It was stated in these guidelines that the MHA on behalf of the Central Government had entered into reciprocal arrangements with foreign governments for service of , in the form of Mutual Legal Assistance Treaties (MLATs), summons/warrants/judicial processes, as required under Section 105 of the Code of Criminal Procedure.
These guidelines were then revised in 2019 to cover issues such as issuance of Letters Rogatory, mutual legal assistance requests, service of summons, notices, judicial processes including request for video conferencing, protection and preservation of data and extradition requests.
In November 2019, Senior Counsel Rebecca John, who was appointed as an Amicus Curiae, had submitted a detailed report which was then sent to the authorities for receiving their comments.
In a reply dated January 17, 2020, the Union of India informed the court that it endorses the observations made by the Amicus Curiae.
One of the recommendations made by Ms John was that the Investigating Officer should collect relevant personal information, including passport and visa details of the witness residing abroad so that the process is immediately commenced for the issuance of summons to such witness as per the MHA Guidelines, 2019 and trial is set into motion.
In its reply, the Delhi Police informed the court that instructions have been issued to all the supervisory and Investigating Officers to ensure strict compliance with the suggestions made by Ms John in her report.
Moreover, in light of the side recommendations of the Amicus Curiae, the court has also directed the Delhi Government to amend the Delhi Criminal Courts (Payments of Expenses to Complainant and Witnesses) Rules, 2015, to incorporate the costs and payments for transmission of summons, notices and judicial processes, payments to witnesses including expert witnesses etc.
The court also relied upon the Amicus report to direct the Delhi High Court to make some changes to the Video Conferencing Guidelines issued by it, to make it more compliant with the MHA Guidelines of 2019.
The court has asked for he following rule to be incorporated in the Video Conferencing Guidelines:
‘In criminal cases, all relevant documents sought to be put to the witness by the Prosecution/Complainant and the Defence, must be scanned, identified and numbered, and translated into a language that the witness is familiar with (if required). The same should be sent to the Coordinator in the Requested Country prior to the hearing, under strict instructions of confidentiality”
The court has asked the same to be placed before its Information Technology Committee.
Directions Issued to Trial Courts
In order to streamline the procedure of issuing summons to victims/witnesses residing abroad, the court has issued the following directions to the trial courts:
- At the time of issuance of summons on a person residing abroad, the order of the Trial Court should also indicate whether evidence is to be recorded through video-conferencing.
- Trial Courts should separately fix an intermediate date between the date of issuance of summons and the date of recording of evidence, to seek confirmation from the prosecuting agency about the service of summons, and to additionally seek details/information regarding the technical coordinator in the Requested Country, along with the details of the technical link for conducting video-conferencing on the date(s) fixed.
- Based on the information received on the intermediate date, the Trial Court should direct its own Coordinator to forthwith establish contact with its counterpart in the Requested Country, conduct a mock test of the video-conferencing link prior to the date of recording of evidence, and submit a report in this regard at least three days prior to the date fixed for recording of evidence.
- On the receipt of the report from Court Coordinator, the documents relied upon by the prosecution and the Defence should be identified, scanned, and numbered, and sent to the Coordinator in the Requested Country, under strict instructions of confidentiality. An identical set of the above documents should be made a part of the Court record.
- Trial Courts should ensure that the date(s) fixed for recording of evidence through video-conferencing are utilised productively. If for some reason the Presiding Judge is unable to hold Court on the date(s) fixed, s/he should ensure, as far as possible, that the evidence is recorded by the Link Judge.
Directions Issued to Delhi Police
While taking note of the status report filed by the Delhi Police, the court found it sufficient to not to issue any more directions to the police.
However, it is directed, that the Investigating Officer of the case must ensure that information regarding service of summons and details pertaining to video-conferencing links are provided to the Trial Court after obtaining the same from the MHA.
In furtherance of the given priority, the court has also recommended training sessions for judicial officers, technical staff, and police officials must be conducted to familiarize them with the procedures contained in the MHA Guidelines, 2019, the Video-Conferencing Guidelines issued by the High Court of Delhi, and the Delhi Criminal Courts (Payment of Expenses to Complainant and Witnesses) Rules, 2015.
In pursuance of the suggestion made by the Amicus Curiae, the court has gone to direct for the uploading of the MHA Guidelines of 2019 on the websites of the High Court as well as of all the trial courts.
