Video-Conferencing and Electronic Recording of Evidence under the Bharatiya Sakshya Adhiniyam, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023

In 2003 the Supreme Court held that a witness could be examined by video-conferencing, reasoning that the statutory requirement of the accused's presence did not mean actual physical presence. It was then an interpretive advance made in the absence of any provision. Two decades later the position is reversed: the Bharatiya Nagarik Suraksha Sanhita provides in terms that all trials, inquiries and proceedings may be held in electronic mode, and the question is no longer whether it is permissible but how the resulting record is proved.

1. The Decision That Started It

📖 State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601

Facts: A material witness, an expert, was in the United States and unwilling to travel to India. The trial court permitted his evidence to be recorded by video-conferencing; the High Court set that aside.

Held: Evidence can be recorded by video-conferencing. The requirement in the provision corresponding to Section 273 of the Code of Criminal Procedure, 1973 that evidence be taken in the presence of the accused does not mean actual physical presence; recording evidence by video-conferencing satisfies the object and the requirement of that provision.

Video-conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if he were physically present. The accused and his pleader can see the witness as clearly as if he were sitting in court; they can hear and cross-examine him; and the court can observe his demeanour.

The Court observed that the law must keep pace with developments, and that the Evidence Act and the Code, being ongoing statutes, are to be interpreted so as to take in technological advances not contemplated when they were enacted.

Ratio: Evidence may be recorded by video-conferencing, the presence requirement being satisfied by the accused's ability to see, hear and cross-examine the witness.

Two features of the reasoning are worth noting because they still govern. The court insisted on the substance of what the presence requirement protects — the accused's ability to see the witness, to hear him, to instruct his counsel and to have him cross-examined, and the court's ability to observe demeanour. And it treated the statutes as ongoing, to be read so as to accommodate technology, which is the approach the Adhiniyam has since adopted in its own definitions.

2. The Statutory Position Now

Section 530, BNSS, 2023 — Trial and proceedings to be held in electronic mode

All trials, inquiries and proceedings under this Sanhita, including —

(i) issuance, service and execution of summons and warrant;

(ii) examination of complainant and witnesses;

(iii) recording of evidence in inquiries and trials; and

(iv) all appellate proceedings or any other proceeding,

may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

The provision converts what was a judicially developed permission into a statutory one, and it is drafted as widely as possible — 'all trials, inquiries and proceedings', with the four enumerated items being inclusive rather than exhaustive.

It does not stand alone. The Sanhita contains a connected set of provisions, and they should be read together.

Provision	What it does
Section 530	All trials, inquiries and proceedings may be held in electronic mode — the general provision
Section 251(2)	The accused may be present in Court electronically
Section 254	Recording of the deposition of a witness or public servant by audio-video electronic means
Section 336	Evidence of public servants and experts — a successor officer may be examined, and audio-video means used
Section 355	An Explanation provides that the personal attendance of the accused includes attendance through audio-video electronic means
Section 209	Evidence relating to offences committed outside India may be received in electronic form
Section 105	Search and seizure to be recorded by audio-video electronic means, and the recording forwarded to the Magistrate without delay
Section 176(3)	For specified serious offences, a forensic team visits the scene and the process is videographed
Section 183	Recording of confessions and statements, including by audio-video electronic means, with the safeguards the section prescribes
Section 398	The State Government is obliged to prepare and notify a Witness Protection Scheme

⚠ The Adhiniyam supplies no equivalent provision, and does not need to

There is no section of the Bharatiya Sakshya Adhiniyam authorising evidence by video-conferencing, and this puzzles people. The reason is a division of labour: how evidence is recorded is a matter of procedure, governed by the Sanhita; what may be received and how it is proved is a matter of evidence, governed by the Adhiniyam. Section 530 authorises the mode; Sections 61 to 63 and the Explanations to Section 57 govern the record it produces. A practitioner needs both.

3. What the Adhiniyam Contributes

Four features of the Adhiniyam bear directly on evidence recorded electronically.

The definitions are drafted for it. Section 2(1) defines 'document' and 'evidence' to include information in electronic form, and the expression evidence now expressly covers statements, including those given electronically, permitted or required to be made before a court. Evidence given by video-conferencing is therefore evidence in the ordinary sense and not a special category.

The record is an electronic record. A video-recorded deposition is an electronic record, and where it is tendered otherwise than as the output of the device on which it is stored, Section 63 applies — the conditions in sub-sections (2), (3) and (5), and the certificate in the form of the Schedule under sub-section (4), signed by the person in charge of the device and by an expert.

Explanation 3 to Section 57 will frequently make it primary evidence. Where the recording is stored in more than one file, each file is primary evidence, and the certificate question does not arise at all. Court recording systems ordinarily produce and retain multiple copies, which is a point worth establishing rather than assuming.

Section 125 already contemplates videographing. The proviso requires that where a witness is unable to communicate verbally, the court shall take the assistance of an interpreter or special educator and the statement shall be videographed — a mandatory videographing requirement inside the Adhiniyam itself.

4. What Must Be Preserved

Praful Desai permits video-conferencing because the essentials of a fair trial can be preserved through it. A court conducting evidence in that mode must ensure that they are, and five requirements follow.

The oath. The witness must be administered the oath, which requires a person at the remote location authorised to do so, or administration by the court over the link with an officer present to identify the witness.
Identification of the witness. The court must be satisfied that the person deposing is who he claims to be — ordinarily through an officer at the remote end who verifies identity and certifies it.
The accused must be able to see, hear and instruct. He must see the witness, hear the evidence, and communicate with his counsel — which requires the technical arrangement to permit consultation, and a means of interruption.
Effective cross-examination. The witness must be visible and audible throughout, documents must be capable of being put to him, and the link must be of sufficient quality that hesitation and manner are perceptible.
No coaching or prompting. The remote location must be under supervision, the witness must be alone save for the officer, and the court must be able to see enough of the room to satisfy itself. This is the requirement most often neglected and the one most open to attack.

⚠ Demeanour is the contested question

The traditional justification for oral testimony is that the court sees the witness. Praful Desai held that video-conferencing permits this with the same facility as physical presence, and in one respect it is better — the camera shows the face close up, where a witness in a courtroom may be at a distance and turned away. What is genuinely lost is the wider view: the witness's bearing as he enters, his reaction to people in the courtroom, and what is happening just outside the frame. A party objecting should identify what the mode has actually deprived the court of, rather than asserting a general inferiority.

5. Where It Is Most Used

Situation	Why the mode is used
Witnesses abroad	The situation in Praful Desai itself — a witness unwilling or unable to travel
Expert and official witnesses	Doctors, forensic experts and public servants whose attendance is expensive in time; Section 336 of the BNSS expressly contemplates it
Prisoners	Production from custody, avoiding escort and the security risk; now expressly covered by Section 251(2) and the Explanation to Section 355
Vulnerable witnesses	Children and victims of sexual offences, who may be examined without facing the accused — supported by the protective provisions of the special statutes
Protected witnesses	Where identity or location must be shielded; connected with the Witness Protection Scheme under Section 398 of the BNSS
Remote or inaccessible locations	Where attendance would be disproportionately burdensome

The position in matrimonial proceedings has had a more complicated history. In Santhini v. Vijaya Venketesh, (2018) 1 SCC 1 a majority held that video-conferencing was not to be resorted to in transfer petitions arising from matrimonial disputes, emphasising the importance of physical presence to the statutory duty of attempting reconciliation. The practice has since moved considerably: the Supreme Court's directions on the functioning of courts through video-conferencing during the pandemic, and the video-conferencing rules adopted by the High Courts under them, established the mode as ordinary across the system. A practitioner in a matrimonial matter should therefore check the position under the rules of the High Court concerned rather than rely on the earlier decision alone.

6. Electronic Recording of Other Stages

Video-conferencing is one application. The Sanhita requires or permits electronic recording at several earlier stages, and each produces material that later has to be proved under the Adhiniyam.

Stage	The provision	What it produces
Search and seizure	Section 105, BNSS	An audio-video recording of the search, forwarded to the Magistrate without delay
Scene of crime — serious offences	Section 176(3), BNSS	Videography of the forensic team's collection of evidence at the scene
Confessions and statements	Section 183, BNSS	A recorded statement or confession, with the safeguards the section prescribes
Statement of a witness unable to communicate verbally	Proviso to Section 125, BSA	A videographed statement recorded with an interpreter or special educator
Deposition of a witness or public servant	Section 254, BNSS	A deposition recorded by audio-video electronic means

The evidentiary consequence is uniform and is worth stating once. Every one of these produces an electronic record, and each must be proved under Sections 61 to 63 — or, where the Explanations to Section 57 apply, tendered as primary evidence without a certificate. The commonest failure in practice is to assume that a recording made under a statutory mandate proves itself. It does not: it is evidence like any other, and the chain of custody, the integrity of the file and the hash value all remain in issue.

⚠ A mandatory recording that was not made

Where a statute requires a process to be recorded and it was not, two questions arise and they are different. First, what is the effect on the process — is the search or the statement vitiated, or is the defect curable? That is a question of criminal procedure and depends on the provision. Second, what is the evidentiary consequence — the absence of a recording that the law required invites the inference under illustration (g) to Section 119 that the material, if produced, would have been unfavourable. A defence taking the point should take both, and a prosecution answering it should explain the absence rather than ignore it.

7. Objecting to Evidence Recorded Electronically

Five grounds recur and they should be kept distinct, because they are answered differently.

The mode was impermissible — rarely available now, Section 530 being drafted so widely.
The oath was not properly administered, or the witness was not properly identified at the remote end.
The accused could not effectively participate — he could not see or hear, or could not consult his counsel.
Cross-examination was impaired — the link failed, documents could not be put, or the quality was inadequate.
The remote location was not supervised, so that prompting or the presence of others cannot be excluded.

A sixth ground is about the record rather than the proceeding: that the electronic record of the deposition has not been proved as Sections 61 to 63 require. This is a different objection, taken at a different time, and it is the one most often overlooked — a deposition validly recorded by video-conferencing still produces a file that must be proved if it is tendered as a record.

8. Practical Points

Cite Section 530 of the BNSS, not Praful Desai alone. The permission is now statutory and the decision supplies the reasoning.
Arrange for identification and the oath at the remote end, and have it certified by an officer present there.
Establish that the remote location was supervised, and record who was present.
Ensure the accused can consult his counsel, and record that the facility existed.
Have documents ready to be put in a form that can be shown over the link, and mark them contemporaneously.
Preserve the recording properly, with the hash value computed at the time, since the file will have to be proved if tendered.
Consider Explanation 3 to Section 57 before assuming a certificate is needed; multiple stored files make each of them primary evidence.
Where a statutorily required recording was not made, take both points — the effect on the process, and the adverse inference under illustration (g) to Section 119.

9. The Position Stated Shortly

Praful Desai held that evidence may be recorded by video-conferencing, the presence requirement not meaning actual physical presence.
Section 530 of the BNSS now provides expressly that all trials, inquiries and proceedings may be held in electronic mode.
The Adhiniyam contains no equivalent provision and needs none — the Sanhita governs the mode, the Adhiniyam governs proof.
Five essentials must be preserved — the oath, identification, the accused's participation, effective cross-examination, and an unsupervised witness.
A video-recorded deposition is an electronic record and must be proved under Sections 61 to 63 if tendered.
Explanation 3 to Section 57 will often make it primary evidence, removing the certificate question.
The BNSS mandates electronic recording at several stages — search, the scene of serious offences, and statements under Section 183.
A recording made under a statutory mandate does not prove itself, and its absence may attract an adverse inference.

10. Related Topics and Provisions

Topic or provision	Connection
Electronic and Digital Evidence — Sections 61 to 63	How the resulting record is proved
Electronic or Digital Record as Primary Evidence	Explanation 3 to Section 57, and when no certificate is needed
The Section 63 Certificate and the Schedule	The form, the hash value and the expert signature
Audio and Video Recordings as Evidence	The Ram Singh conditions on authenticity and accuracy
Chain of Custody of Digital Evidence	Preserving the integrity of a recording
Competency and Privilege of Witnesses — Sections 124 to 139	The proviso to Section 125, requiring videographing
Examination of Witnesses — Sections 140 to 168	The examination conducted over the link
Bharatiya Nagarik Suraksha Sanhita, 2023	Sections 105, 176(3), 183, 251(2), 254, 336, 355, 398 and 530