Adv. Shraddha Sunil

In a carefully calculated decision that reconciles technological reality with procedural safeguards, the Karnataka High Court has eased formalities for recording testimony overseas while underscoring strict checks to prevent misuse. The judgement in Richa Mishra v. State of Karnataka &Anr permitted a complainant who resides in the United States to give evidence from her secure residence without routing it mandatorily through an Indian Embassy or Consulate, by invoking the High Court’s power to relax the video Conferencing Rules, 2020. At the same time, the Court imposed express conditions (undertakings, connectivity safeguards and a firm “forfeiture” consequence for disconnection) to preserve the accused’s right to a fair trial.

This very particular approach is an important jurisprudential development for three reasons. First, it resolves a repeating procedural deadlock that has frustrated criminal trials and civil proceedings where witnesses or parties are abroad and consular timings or logistics make embassy- facilitated recording impractical. Second, it reasserts that the High court and not the subordinate courts is the proper forum to exercise the Rule-relaxation power in exceptional cross-border situations. Third, it provides a pragmatic template of safeguards that other courts can emulate when balancing accessibility of justice with procedural integrity.

WHAT WERE THE RULES AND WHERE WAS THE CLOG?

The Karnataka Rules for Video Conferencing for Courts (2020) were promulgated under the High Court’s administrative powers to govern remote proceedings. Among their core prescriptions is Rule 5.3.1, which provides that evidence given by a deponent located outside India should ordinarily be recorded via the Indian Embassy or Consulate, with a designated remote- point coordinator ensuring identity verification, orderly recording and secure transmission. The object is obvious: to ensure authenticity, chain of custody, and uninterrupted recording.

But in practise, Rule 5.3.1 has and will produce a procedural hiccup. Embassies operate in their own local working hours that rarely match court sittings in India; consular resources are limited and time-zone differences make the participation at the same time difficult without Embassy cooperation. The result then is that critical evidence gets delayed, trials stall, or parties are forced to undertake expensive and sometimes impossible travel. In Richa Mishra, the High Court found compliance with embassy routing to be “practically impossible” and thus ripe for remedial judicial intervention.

WHO CAN RELAX THE RULE AND WHY? THE LEGAL HOLDING

The pivotal legal point decided is jurisdiction: Rule 18 of the video Conferencing Rules vests the power to relax the Rules in the High Court. Justice Sachin Shankar Magadum held that this power is not conferred on subordinate trial courts. That settles a recurring procedural controversy, whether a magistrate or trial judge may locally waive formalities by vesting the discretion centrally in the High Court, which can assess systematic implications and set uniform safeguards. The court also emphasised that Rule 18 rather than expect a trial court to disapply a rule whose non- observance may have wider ramifications.

HOW WILL THE RELAXATION EASE OVERSEAS TESTIMONY IN ACTUAL PRACTICE?

The decision eases five practical obstacles:

1. Timing: Witnesses who live abroad can be examined without waiting for consular office hours that clash with court sittings.

2. Cost & delay: Parties can now potentially avoid the expense and delay of consular coordination or international travel merely to record evidence.

3. Security & convenience: Victims (especially in sensitive cases like sexual offences) can give testimony from a secure location without exposing themselves to travel or publicity.

4. Continuity of trials: Courts can prevent trials from grinding to a halt because a single witness is overseas.

5. Predictability: A High Court ruling creates a precedent and predictable framework for other subordinate courts to seek similar relief where necessary.

But the relaxation is NOT a free pass to ad hoc digital evidence. The Court approved the exception only subject to express safeguards which we shall discuss going forward and made clear that a breach (ex: an intentional disconnection) could lead to dramatic consequences, even discarding evidence and favouring acquittal.

WHAT DID THE COURT REQUIRE AND WHY IT MATTERS!

The judgement is notable for the granular conditions attached when permitting direct overseas VC testimony without embassy supervision. Key Safeguards include:

• Real- time monitoring and continuity protocols: Courts should insist on robust, court-approved VC platforms, pre-trial test connections, backup lines, and an independent recording run by the court or court -appointed technical officer.

• Identity verification: verifiable ID must be shown on camera, with pre-filed identity documents (passport, Aadhaar, etc.) produced and recorded; the remote setting may be required to show the physical environment to rule out coached testimony.

• Logging and metadata capture: courts should capture electronic metadata, IP address, device identifiers, timestamps and preserve the recording with cryptographic hashes to protect against later tampering claims.

• Opportunity for cross-examination: the accused’s counsel must be afforded full cross-examination facilities and the court must permit adjournments if the connectivity or time-zone issues impede meaningful testing of the evidence.

• Discrete welfare considerations: when the deponent is a vulnerable witness (sexual offence, domestic violence), the court must balance open-court ideals with privacy, permitting closed sessions, anonymised identifiers, or protective orders as needed.

These safeguards attempt to reproduce, as far as possible, the integrity of in-person testimony. The court’s insistence on an unequivocal undertaking and the “forfeit if disconnect” rule is meant to deter strategic absences or staged communications.

GAPS IN THE JUDGEMENT

The decision is progressive, but it also exposes areas where law and practice require further clarification:

• Evidentiary authentication: Video recordings and screen captures remain electronic records. Courts must develop standard procedures for digital authentication (hashes, signature certificates) and for rendering such records admissible under applicable evidence law. The present order is pragmatic but does not lay down a technical standard for admissibility.

• Cross-border enforcement and sovereignty: When a court permits testimony from a foreign jurisdiction without consular involvement, it accepts that local authorities in the foreign state will not be engaged, which may complicate service, coercive process or follow-up (ex: to secure documents or custodial evidence abroad).

• Data privacy and storage: The hosting and archival of recordings raise privacy and data- protection issues. Courts should prescribe secure retention, restricted access, and deletion protocols consistent with national privacy norms.

• Uniformity across Jurisdictions: The decision vests discretion in the High Court of Karnataka; other High Courts may take varied approaches. A harmonised national practice (or model rule) would reduce forum shopping and uncertainty.

• Abuse by hostile counsel or state: The relaxed route could be misused in politically sensitive cases if remote testimony is coerced or staged. Judicial vigilance and thorough identity and environment checks are necessary.

THE EVOLVING JURISPRUDENCE OF DIGITAL TESTIMONIES

Although the Karnataka high Court judgement is a breakthrough, it took its own sweet time to get where it is today. After a history of judgements both rejecting and allowing overseas testimonies, the Karnataka High Court judgement is yet another feather added to the debate as to whether such discretionary powers shall be granted to all courts or such powers shall exist at all.

In CBI v. AD Naval Officers, 2022[1] the Delhi High court denied the request for U.S. – based witness to depose via VC (video call). Court insisted deposition must be from an Indian Consulate as it was concerned about identity, secrecy, and reliability. Delhi High Court went onto reverse the Trial Court’s order. In R. Sridharan v. Sukanya, 2019, [2] the family court refused VC testimony, citing to observe demeanour and risk to cross-examination integrity. There have been rejections based on strict interpretation of VC Rules by various trial courts.[3] Such as in Kerala have rejected similar applications, all citing technical objections, lack of consular supervision, or inability to authenticate oath-taking.

Now if we look into cases where it was allowed such State of Maharashtra v. Dr. Praful B. Desai, (2003)[4] where the Supreme Court held that “Evidence” under CrPC includes video-conference testimony and that presence can be virtual presence if identity and oath safeguards exist. Hence, this judgement being the Constitutional foundation for all VC jurisprudence. In Anitha v. State of Kerala, 2022 SCC and Baby v. Saji, 2021 SCC, the High Court repeatedly allowed VC testimony from abroad when the witness had employment issues abroad, could not travel for medical reasons, or had childcare restraints. Punjab and Haryana High Court have allowed testimony from the US, UAE and Canada, through Zoon/ Webex without consular involvement.[5]

If one were to ask what is the difference or even progressive about the Karnataka High Court judgement it would be that it held that only the High Court, not trial courts, can relax the requirement that overseas witnesses depose from a consulate or Embassy and this was particularly based on the Karnataka High Court Video Conference Rules, 2020- Rule 18, and that no other High Court judgement has interpreted Rule 18 so precisely. The Karnataka HC held that the purpose is to ensure authenticity and not to force physical presence in Consulates. Alternative safeguards can fulfil the same purpose. This modernises the law beyond the earlier precedents by the Delhi or Kerala Courts, which merely permitted exceptions; Karnataka HC systematised the exceptions. The court laid down structured safeguard protocol, harmonisation with Praful Desai. Earlier courts invoked Dr. Praful Desai inconsistently but the Karnataka HC explicitly applied the Praful Desai case[6] and the Karnataka VC Rules, 2020 (Relaxation Clause).

RECOMMENDATIONS FOR A ROBUST FRAMEWORK

• Digital Forensic Certification: Require a short chain-of-custody and hash certification appended to the recording by a court technical officer, similar to section-style certifications used for electronic evidence.

• Local Commissioner Power: Consider empowering local commissioners or designated officers (appointed by courts) who can remotely verify identity and authenticate the setting, thereby replicating the function that embassies historically served.

• Training & Infrastructure: Invest in court technical infrastructure and training for judges and court staff to manage remote hearings reliably.

• Privacy Safeguards: Adopt clear policies for retention, limited access and secure deletion of recordings.

A PRAGMATIC BRIDGE BETWEEN ACCESS AND INTEGRITY

Karnataka High Court’s ruling is both progressive and cautious. It recognises that technological and geographic realities cannot be allowed to stall justice- especially where the evidence is time- sensitive or the witness is vulnerable. At the same time, it underlines that relaxed access must be matched with robust procedural armour: identity checks, uninterrupted recording, metadata preservation, and stern consequences for deliberate abuse.

If adopted prudently across courts, this ruling can shackle needless procedural barriers, speed up trials, and humanise access to justice for those beyond India’s borders, while keeping the fundamental protections of a fair trial intact. The judgement should therefore be read not as an abandonment of protocol, but as a jurisprudence blueprint: enablement with accountability.

About the Author:

Shraddha Sunil is a legal researcher and advocate deeply committed to advancing human rights and constitutional justice in India. She holds an LL.M. in Human Rights, where her dissertation examined India’s inconsistency with its treaty obligations under CEDAW, focusing on the non-criminalisation of marital rape and the State’s positive obligations under international law. Her academic and professional work reflects a strong intersectional approach, engaging with issues of gender, surveillance, and digital rights.

Footnotes

[1] CBI v. M/s Vectra Advanced Engineering Pvt. Ltd., 2022 SCC

[2] R. Sukanya v. R. Sridharan, 2019 SCC

[3] State of Kerala v. Rasheed, 2021 SCC

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

[5] Jaspal Singh v. State of Punjab, 2020 SCC OnLine P&H 1525.

[6] Praful Desai (2003) 4 SCC 601