Sri K Lakshmaiah Reddy vs Sri V Anil Reddy
2022 Latest Caselaw 9590 Kant

                             1
                                                         R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 24TH DAY OF JUNE, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.10926 OF 2022 (GM-CPC)

BETWEEN:

SRI K LAKSHMAIAH REDDY
ALSO KNOWN AS K L REDDY
S/O LATE KRISHNAPPA REDDY
AGED 87 YEARS
R/AT NO 4677, ROLLING RIDGE
WEST BLOOMFILED
MICHIGAN-48323, USA
REP BY SPA HOLDER
R SRINIVASA REDDY
S/O LATE A V RAMAIAH
AGED 70 YEARS
SENIOR CITIZEN BENEFIT NOT CLAIMED

                                              ...PETITIONER

(BY SRI.RAJESWARA P N, ADVOCATE)



AND:

1. SRI V ANIL REDDY
S/O K VENAKTARAMANA REDDY
(K V REDDY)
AGED 51 YEARS
PERMANANTLY R/AT NO 2/13
NICHOLAS DRIVE, SANDY BAY
                              2


HOBART 7005, AUSTRALIA
PRESENTLY R/AT NO 45
R V ROAD, BASAVANAGUDI
BENGALURU-560004


2. SMT V ARUNA REDDY
W/O G RAVINDRA REDDY
AGED 52 YEARS
R/AT NO 19, 12TH MAIN ROAD
WILSON GARDEN, BENGALURU-560030

3. SRI L SAMARTH REDDY
S/O LAKSHMAIAH REDDY
(K L REDDY)
AGED 51 YEARS
R/AT NO 6001, VIA VENITAI NORTH
DELRAY BEACH, FLORIDA-33484
USA

4. MISS L AJITHA REDDY
D/O K LAKSHMAIAH REDDY
(K L REDDY)
AGED 48 YEARS
R/AT NO 444, WEST BELMONT RD
UNIT 4B, CHICAGO II-60657, USA

5. SMT.SHARADAMMA
W/O LATE K NARAYANA REDDY
AGED 83 YEARS
R/AT NO 2009, WAMA IBBANI APARTMENTS
KASAVANAHALLI, BENGALURU-560037

6. SMT K N VIJAYALAKSMI
W/O SRI A R SHIVARAM
D/O LATE K NARAYAN REDDY
AGED 65 YEARS
R/AT NO 670, 6TH CROSS
                                3


3RD BLOCK, KORAMANGALA
BENGALURU-560034

7. SRI K N RAVINDRANATH
S/O LATE K NARAYANA REDDY
AGED 60 YEARS
R/AT 2009, WAMA IBBANI APARTMENTS
KASAVANAHALLI, BENGALURU-560037


8. SRI K N MOHAN
S/O LATE K NARAYAN REDDY
AGED 59 YEARS
R/AT NO 446, 28TH MAIN
1ST SECTOR, HSR LAYOUT
BENGALURU-560102


9. SMT. RADHAMMA
W/O LATE K SRINIVASA REDDY
AGED 76 YEARS
R/AT NO 45, KASAVANAHALLI
BENGALURU-560037


10. SRI K S SURESH
S/O LATE K SRINIVASA REDDY
AGED 58 YEARS
RA/T NO 45, KASAVANAHALLI
BENGALURU-560037


11. SRI K S JAGADHEESH REDDY
S/O LATE SRINIVAS REDDY
SINCE DEAD BY LRS

12. SMT P ANITHA
W/O LATE JAGADISH REDDY
AGED 51 YEARS
                             4




13. MISS SANJANA
D/O LATE JAGADISH REDDY
AGED 31 YEARS

14. SRI NISHANTH
S/O LATE JAGADISH REDDY
AGED 29 YEARS

RESPONDENT NOS.11 TO 13
ARE R/AT NO 45, KASAVANAHALLI
BENGALURU-560037


15. SRI K S SATISH
S/O LATE K SRINIVASA REDDY
AGED 51 YEARS
ARE R/AT NO 45, KASAVANAHALLI
BENGALURU-560037


16. SRI A N SUBHAS CHANDRA
S/O LATE A V NARASIMHA REDDY
AGED 71 YEARS
R/AT 1ST FLOOR, BLOCK NO 20
RADIANCE CORPORATE LEISURE
SUN CITY APARTMENTS, IBBALUR VILLAGE
BENGALURU SOUTH TQ
BENGALURU-560034


17. SRI A N LINGA REDDY
S/O LATE A V NARASIMHA REDDY
AGED 69 YEARS
R/AT KOTEMANE, 10TH A MAIN
INDIRANAGAR 2ND STAGE
BENGALURU-560038
                              5


18. SMT Y P HEMAMALINI REDDY
W/O LATE A N RAJA VENKAT REDDY
AGED ABOUT 50 YEARS
R/AT NO 53/18, 2ND CROSS
2ND MAIN, LALJINAGAR
LAKKASANDRA, BENGALURU 560030


19. SMT A N SARASWATHI
D/O LATE SRI A V NARASIMHA REDDY
SINCE DEAD BY LRS
I.E., RESPONDENT NO 15 TO 17

20. MISS S LIKITHA LAKSHMI
D/O K S SURESH
AGED ABOUT 29 YEARS
R/AT NO 45, KASAVANAHALLI
BENGALURU-560037

21. SRI S NIKHIL REDDY
S/O K S SURESH
AGED 25 YEARS
R/AT NO 45, KASAVANAHALLI
BENGALURU-560037

22. M/S SJR BUILDERS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.49, 27TH MAIN ROAD
1ST STAGE, BTM LAYOUT
BENGALURU-560068
REP BY ITS CO-PARTNER
SRI J VIJAY REDDY
AND ALSO AT
M/S SJR ENTERPRISES PVT LTD
HAVING ITS REGISTERED OFFICE AT SJR PRIMUS
7TH FLOOR, 1-KORAMANGALA
INDUSTRIAL ESTATE, BENGALURU-560095
                             6


23. M/S S J R ENTERPRSIES PVT LTD
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
7TH AND 8TH FLOORS
SJR PRIMUS, NO 1, INDUSTRIAL LAYOUT
SEVENTH BLOCK, KORAMANGAL
BENGALURU-560095
REP BY DIRECTORS
1) MR J BOOPESH REDDY
2) MR J VIJAY REDDY


24. M/S SJR PRIME CORPORATION PVT LTD
A COMAPNY INCORPOATED UNDER
THE COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
7TH AND 8TH FLOORS
SJR PRIMUS, NO 1, INDUSTRIAL LAYOUT
SEVENTH BLOCK, KORAMANGALA
BENGALURU-560095
REP BY DIRECTOR
1) MR J VIJAY REDDY


25. BHARATH PETROLEMUM CORPORATION LIMITED (BPCL)
A COMAPNY INCORPROATED UNDER THE
INDIAN COMAPNIES ACT 1913
HAVING ITS TERRITORY OFFICE AT
DU-PARC TRINITY, 7TH FLOOR
17TH M G ROAD, BENGALURU-560001
REP BY TERITORY MANAGER (RETAIL)
MR RAJEEV KUMAR


26. M/S THE KARNATAKA ELECTRICITY
BOARD EMPLOYEES COOPERATIVE SOCIETY LTD
BENGALURU
PRESENTLY KNOWN AS KPTCL
                             7


EMPLOYEES CO-OPERTIVE SOCIETY LTD
HAVING ITS REGISTERED OFFICE AT
ANANDA RAO CIRCLE, RACE COURSE ROAD
BENGALURU-560009
BY ITS DIRECTOR


27. SRI K P CHAMPAKADAMA SWAMY
S/O SRI K S PUTTASWAMY
MAJOR
HON SECRETARY
M/S THE KARNATAKA ELECTIRCITY
BOARD EMPLOYEES CO-OPERATIVE SOCIETY LTD
BENGALURU
PRESENTLY KNOWN AS KPTCL
EMPLOYEES CO-OPERATIVE SOCIETY LTD
HAVINT ITS REGISTERED OFFICE AT
ANAND RAO CIRCLE, RACE COURSE ROAD
BENGALURU-560009


28. M/S GOLDEN GATE PROJECTS
A PARTNESHIP FIRM UNDER THE
INDIAN PARTNERSHIP ACT
HAVING ITS REGISTERED OFFICE AT NO 96
1ST FLOOR, 4TH B BLOCK
KORAMANGALA EXTENSION,
BENGALURU-560034
REP BY ITS PARTNER,
SRI S MARTIN
S/O SRI SANTHIAGO


29. MISS ANUSHA A S
ALSO KNOWN AS ANUSHA A S
KAMATH (ADOPTED DAUGHTER)
AGED 27 YEARS
D/O LATE DR.A N RAJAVENAKATA REDDY AND
                              8


SMT Y P HEMAMALINI REDDY


30. MASTER AKSHAYA A S
ALSO KNOWN AS AKSHAYA PUTTUR KAMATH AS
(ADOPTED SON)
AGED 21 YEARS
S/O LATE DR.A.N RAJAVENKATA REDDY AND
SMT Y P HEMAMALINI REDDY

RESPONDENT NOS.27 AND 28
ARE R/AT 53/18, 2ND MAIN
2ND CROSS, LALJINAGAR
LAKKASANDRA, BENGALURU-560030

                                           ...RESPONDENTS

(BY SRI.SUNIL S.RAO, ADVOCATE FOR R8;
SRI.VENKATESH ARBATTI, ADVOCATE FOR SRI.AKASH.V.T,
ADVOCATE FOR C/R12 & 13;
SRI.GIRISH KUMAR, ADVOCATE FOR R14;
SRI.J.M.RAJANNA SETTY, ADVOCATE FOR R6;
V/O DTD: 09.06.2022 NOTICE TO R1-5, 7, 9-11 &
R15-29 ARE D/W)


    THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 30.05.2022(ANNEXURE-A) PASSED IN OS 66 OF
2016 ON THE FILE OF THE III ADDL.CITY CIVIL AND SESSIONS
JUDGE, BENGALURU AND ETC.,


    THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 09.06.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
                                      9


                                 ORDER

The captioned writ petition is filed by the defendant No.2

questioning the order dated 30.05.2022 passed on memo filed

by the petitioner/defendant No.2. Under the impugned order,

the learned Judge has declined permission sought by the

counsel appearing for the present petitioner/defendant No.2 to

be present at the remote point while recording evidence of

defendant No.2.

2. The present petitioner is a resident of Michigan,

USA and is aged about 87 years and is suffering from various

health issues. Therefore, the petitioner filed applications in

I.A.Nos.27 and 28 under Rule 6 of the Video Conferencing

Rules and also application in I.A.No.36 under Order 18 Rule 16

of CPC to examine the petitioner immediately. The said

applications were allowed by the Trial Court thereby

permitting the present petitioner/defendant No.2 and

defendant No.5 to record their evidence through Video

Conference. The Trial Court accordingly with the consent of

parties to the suit, fixed the date of recording evidence

through video conferencing on 06.06.2022. The petitioner

filed memo on 25.05.2022 requesting the Court to make

further e-mail correspondence towards logistic support and to

inform the remote point coordinator to issue 5 entry passes to

enable the petitioner to have assistance of his Advocate and

also attendants.

3. The contesting defendants filed statement of

objections to the said memo. The learned Judge vide

impugned order at Annexure-A has refused to permit the

petitioner's Advocate to be present at the remote point while

recording evidence of defendant No.2. It is this order which is

under challenge.

4. Learned counsel appearing for the petitioner

reiterating the grounds has raised the following questions:

"1) Whether an advocate representing a party who has been tendered in evidence from a Remote

point can be excluded from the remote point at the time of recording evidence of the witness?

2) Whether a party to the proceedings could be excluded from personal presence at the remote point where evidence of a witness in the case is being recorded at the Remote Point?

3) What order or direction is required to be issued?"

5. Learned counsel would vehemently argue and

contend that Advocate plays a vital role in dispensation of

justice. Referring to the principles of the Hon'ble Apex Court

in the case of Shrimati Jamilabai Abdul Kadar vs.

Shankarlal Gulabchand and Others1, he would point out

that the Hon'ble Apex Court while rendering the above said

judgment was of the view that the lawyer appearing in the

Court is a class by himself and to compare him with an

ordinary agent may be to lose sight of the lawyer as engineer

of the rule of law in society. Referring to the judgment, he

would also point out that the observations made by the

(1975) 2 SCC 609

Hon'ble Apex Court indicating that legal profession is a para-

public institution which deserves special confidence of and

owes greater responsibility to the community at large than the

ordinary run of agency. He would further contend that casting

aspersions on an Advocate is undesirable.

6. The second limb of arguments canvassed by the

learned counsel for the petitioner is in regard to interpretation

of provision of Video Conferencing Rules. Referring to the

Rules, he would point out that said Rules do not specifically

exclude the Advocate when evidence of witness is being

recorded either at the Court point or at the remote point.

Referring to Rule 2(iv) of the Rules, he would contend that the

said definition is an inclusive definition and therefore,

interpreting the above said Rule, learned counsel would

contend that both physical and virtual court are presumed to

be Court for all practical purposes. Therefore, referring to

Rules 2(v) and 2(x) , he would contend that Court point and

remote point together constitute a Court more particularly,

when evidence is being recorded through video conference. It

is in this background, he would counter the defence of the

contesting respondents that the remote point has to be

treated as a witness box or as an arguing counsels desk or as

a commissioners desk. Therefore, he would contend that such

an argument is too narrow a construction. He would submit

that if a coordinator is entitled to be present at the remote

point and if such an argument is accepted, then it would

clearly indicate that even coordinator is deemed to be present

in the witness box and therefore, he would submit that such

an argument would only lead to an absurd construction.

Learned counsel would further contend that remote point is

part of a Court and therefore, he would contend that court

point is a virtual court for the persons present at the remote

point.

7. To buttress his arguments, he has placed reliance

on the decision rendered by the Delhi High Court in the case of

Milano Impex Pvt. Ltd. vs. Egle Footwear Pvt. Ltd. and

Ors.2 and has also referred to the judgment rendered by the

Andhra Pradesh High Court in the case of Sirangai Shoba @

Shoba Munnuri vs. Sirangi Muralidhar Rao3. Referring to

these two judgments, he would contend that the Delhi High

Court and Andhra Pradesh High Court have permitted the

counsel to be present at the time of video conferencing at the

remote point with the witness. Referring to the above two

judgments, he would further contend that Advocate being an

officer of the Court is entitled to be present at court point and

remote point and it is his prerogative right and the same

cannot be deprived. He would further contend that

apprehension of defendants that the presence of Advocate, at

the time of recording of evidence; there is possibility of

witness being hoaxed or assisted to tackle the questions that

would be posed in cross-examination is unfounded.

8. Referring to Entry 9 of Schedule -I of the Rule, he

would bring to the notice of this Court that all the participants

2011 (124) DRJ 668

AIR 2017 Hyd 88

are required to look into the camera and in terms of Rule 8.9

of the Video Conferencing Rules, the Court is better placed to

record the demeanor of the person being examined and

sufficient safeguards are provided under Rule 8.6 of the said

Rules. Therefore, the question of prompting, tutoring, etc.,

are taken care of under the said Rules. He would further

submit that Rule 2.12 which defines 'required person' has

been given an inclusive definition to include an Advocate or a

party-in-person who intends to examine the witness.

Referring to Order 18 Rules 10 and 11 of CPC, he would point

out that an Advocate is required to be present at the time of

examination-in-chief as well as cross-examination. Therefore,

he would contend that his presence is absolutely necessary.

On these set of grounds, he would contend that the impugned

order under challenge is not at all sustainable as the learned

Judge has erroneously applied Rule 8.11.

9. Learned counsel would strenuously argue and

contend that Rule 8.11 does not apply to a party or duly

authorised Advocate and therefore, would contend that

learned Judge has apparently misconstrued the statutory rules

and therefore, the impugned order has virtually taken away

the right of the petitioner to have effective counseling at the

time of recording evidence and therefore, he would contend

that denying permission to the counsel on record to be present

along with defendant No.2 infringes the constitutional right to

have access to justice. He would conclude his arguments by

contending that the respondents' conduct is grossly unfair and

the same has caused the petitioner huge expenditure as he

had already made arrangements for recording evidence

through video conferencing.

10. Per contra, learned counsel appearing for the

respondent No.14 supporting the reasons assigned by the

learned Judge would, however, counter the arguments

addressed by the learned counsel appearing for the petitioner.

He would contend that the remote point has to be, for all

practical purposes, assumed as a witness box and therefore,

the counsel appearing for the present petitioner cannot be

permitted to be present in the witness box along with the

witness. Emphasizing the object of court point and remote

point, he would contend that the Rules framed therein to

record evidence through video conferencing requires

transparency and fairness and therefore, it is not permissible

for a witness to be accompanied by an Advocate. He would

counter the claim made by the petitioner that counsel for the

witness during cross-examination cannot seek physical

presence within the witness box and no satisfactory

explanation is forthcoming as to why petitioner is insisting to

have assistance of his counsel at the remote point. He would

seriously object the presence of counsel for defendant No.2 on

the premise that he is the foster son and therefore, is an

interested party.

11. Taking this Court through Rule 8.11 read with Rule

8.16, he would submit that it is only the coordinator who is

entitled to be present in the room and therefore, he would

contend that an Advocate cannot accompany the witness

inside the remote point especially during recording of

evidence.

12. Learned counsel appearing for the respondent No.8

arguing in the same vein, has serious objections in permitting

the counsel appearing for defendant No.2 to be physically

present at the remote point. Adopting the arguments of

learned counsel for respondent No.14, he has placed reliance

on the following judgments:

1) State of Maharashtra vs. Dr.Praful B.Desai - (2003) 4 SCC 601;

2) Twentieth Century Fox Film Corporation and Another vs. NRI Film Production Associates (P) Ltd., - ILR 2003 Kar 789;

3) Sujoy Mitra vs. State of West Bengal - (2015) 16 SCC 615.

13. Heard Shri Rajeswara P.N., learned counsel for the

petitioner, Shri Sunil S.Rao, learned counsel for respondent

No.8 and Shri Girish Kumar, learned counsel for respondent

No.14. Perused the order under challenge.

14. Before I advert to the controversy involved

between the parties, it would be useful for this Court to refer

to the relevant Rules framed by this Court which is titled as

"Rules for Video Conferencing for Courts". The relevant

definitions are culled out as under:

"2(v) 'Court Point' means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.

2(x) 'Remote Point' is a place where any person or persons are required to be present or appear through a video link.

2(xii) 'Required Person' includes:

a. the person who is to be examined; or b. the person in whose presence certain proceedings are to be recorded or conducted; or c. an advocate or a party in person who intends to examine a witness; or

d. any person who is required to make submission before the Court; or e. any other person who is permitted by the Court to appear through video conferencing."

15. The primary objection raised by the respondents

before the Court below is that except coordinator, no other

person is allowed to be present at the remote point.

Therefore, respondents are relying on Rule 8.11 of the said

Rules. It would be also useful to refer to Rules 8.11 and 8.16

which reads as under:

"8.11 The Coordinator at the Remote Point shall ensure that no person is present at the Remote Point, save and except the person being examined and those whose presence is deemed administratively necessary by the Coordinator for the proceedings to continue.

8.16 Subject to such orders as the Court may pass, in case any party or person authorized by the party is desirous of being physically present at the Remote Point at the time of recording of the testimony, such a party shall make its own arrangement for appearance/representation at the Remote Point."

16. Learned counsel appearing for the contesting

respondents by placing reliance on Rule 8.11, would seriously

object the presence of counsel appearing for the present

petitioner/defendant No.2. Learned counsel appearing for the

respondents would vehemently argue and contend that remote

point is a place where any person/s required to be present or

appear through a video link would not mean a Court point

which is physically convened to hold court proceedings.

Learned counsel for the respondents would also place reliance

on definition of "Required Person" under Rule 2(xii). Referring

to the definition of "Required Person", both counsel would

vehemently argue and contend that "Required Person" would

in no way include a counsel of a party who is supposed to be

cross-examined. Referring to Rule 2(xii)(c), learned counsel

Shri Sunil S.Rao, would contend that it is only an Advocate or

a party-in-person who intends to examine a witness can be

permitted to be present at the remote point and not the

counsel of a party who is supposed to be cross-examined.

Therefore, the respondents have strongly resisted in granting

permission to the counsel on record appearing for the

petitioner herein to be present at the remote point.

17. Interpreting the definition of "Required Person", it

is argued and contended that "Required Person" would be a

person whose presence is indispensable for the purpose of

conducting or recording a proceeding. They would further

contend that other than the witness who is required to be

examined through video conferencing, Rule 5.9 provides and

authorizes a Court to direct the coordinator at the remote

point to provide a translator or an expert in sign language.

Therefore, it is contended that the words "Required Person"

has to be read conjointly with Rule 5.9 of the said Rules and

on account of conjoint reading of "Required Person" along with

Rule 5.9, it is argued that the required person in no way

includes the counsel on record appearing for a party who has

to offer for cross-examination.

18. In the written synopsis, learned counsel appearing

for the respondent No.8 has furnished a tabular column.

Referring to Rule 5.6.3, learned counsel for respondent No.8

has raised an issue that no authorized person can be

permitted to enter the Video conference room. The contesting

respondents have also placed reliance on Rule 5.6.4 which

clearly contemplates that a person being examined shall not

be prompted, tutored, coaxed, induced or coerced in any

manner.

19. The learned Judge has partly rejected the memo

permitting the counsel appearing for the petitioner to join the

recording of evidence by way of a link. The learned Judge has

permitted the counsel appearing for the present petitioner to

conduct examination through video conferencing and has

declined to grant permission to the counsel to be physically

present at the remote point.

20. The COVID-19 pandemic has in fact disrupted the

court operations across the country which prompted the

Courts to postpone non-essential proceedings. It is in this

background, the Courts begun contemplating use of remote

technology. Under compelling situation, remote technology

has been a vital tool for courts in the midst of public health

crisis. But the use of remote technology and its possible

expansion has also raised critical questions about litigants'

rights and their access to justice and its impact, either

positively or negatively. Of course there are conflicting

opinions and some experts have expressed their opinion that

live testimonies, due to face-to-face immediacy, are perceived

as more vivid than video-based testimonies. It is in this

background, Rules are framed as Courts expressed a view that

there cannot be plausible objection for adopting the

technology and if a witness or a party requests that evidence

of a witness may be recorded through video conferencing, the

Courts should be liberal in granting such a prayer. These

Rules are framed by this Court, in all probability, to counter

the increasingly crowded dockets pending before the various

Courts.

21. The respondents are objecting the presence of

counsel at the remote point. The moot question that has to be

examined before this Court is, as to whether the Court is

vested with discretion to permit the counsel on record to be

present at the remote point along with his client?

22. Rule 14 refers to 'Conduct of proceedings'. It

would be useful for this Court to refer to Rules 14.1 and 14.7

which reads as under:

"14.1 All Advocates, Required Persons, the party in person and/or any other person permitted by the Court to remain physically or virtually present (hereinafter collectively referred to as participants) shall abide by the requirements set out in Schedule I.

14.7 The Court shall satisfy itself that the Advocate, Required Person or any other participant that the Court deems necessary at the Remote Point

or the Court Point can be seen and heard clearly and can clearly see and hear the Court."

23. On perusal of Rule 14.1, it is clearly evident that

the said Rule clearly contemplates and enables all Advocates,

required persons, party-in-person either to remain physically

or virtually present who are collectively referred to as

participants. The only rider to the said sub-rule is that the

participants are required to abide by the requirement set out

in Schedule-I to the Rules. Therefore, the "Required Person"

as defined under Rule 2(xii) would not necessarily mean that it

is only the witness, who has to be examined, has to be

physically present at the remote point. This Court is unable to

understand as to how the counsel on record can be denied a

right of audience at the remote point. Rule 14 clearly

contemplates and permits all Advocates including required

persons or party-in-person to be physically present at the

remote point. Further, Rule 14.7 also gives discretion to the

Court in a given case to permit the Advocate or any other

participants that Court deems necessary at the remote point

or Court point.

24. The definition "Required Person" and further

persons who can be permitted to be present at the remote

point as contemplated under Rule 8.11 cannot be so narrowly

construed and interpreted so as to exclude a counsel. If such

a proposition is accepted, that would take away the valuable

rights of a client who is entitled for apt assistance by his

counsel on record. It is an established tradition that a trusting

relationship between a client and Advocate is necessary for

effective representation. Therefore, legal assistance before a

witness is examined or cross-examined plays a vital role. The

counsel appearing for either of the parties are the most

important actors of most court room interactions. The

Advocates on record are the central influence in the court

room. Therefore, personal contact between a counsel and his

client stand together in Court and therefore, is deemed very

important in establishing trust which would ultimately result in

establishing a litigants' faith in the legal system overall and

this trust is often built by the Advocates on record who are

also officers of the Court. Mere presence of Counsel of a

deponent under cross-examination at remote point would

result in either prompting or tutoring the witness.

25. The definition "Required Person" under Rule 2(xii)

coupled with Rule 8.11 authorizing a coordinator at the remote

point to ensure that no person is present at the remote point

cannot be read in isolation. The above said relevant rules

have to be conjointly read along with Rules 14.1 and 14.7. A

witness is entitled for legal assistance even when he is cross-

examined. However, at the time of cross-examination, his

counsel cannot prompt or tutor him. Based on mere

apprehension, the above said rules cannot be narrowly

interpreted so as to exclude the counsel on record who is an

integral part of legal system and plays a vital role in

dispensation of justice. The Advocates admittedly play a role

as an Officer of the Court. His presence at the time of cross-

examination of his witness is further more essential. It is a

common fact that cross-examination often involves a battle of

wits between cross-examiner and witness. At times,

Advocates cross-examining the witness may have to use guile

to expose the unreliability of the witness, as when the latter is

lulled into a false sense of security and does not realise that

he is being trapped or set up for questions which will

effectively challenge him. Advocates often adopt such an

approach which are essential to break the effect created by

the witness in examination-in-chief or in his affidavit of the

evidence in chief. Therefore, it is the counsel appearing for

the witness who is subjected to cross-examination can object

to the questions posed to the witness which are found to be

contrary to ethical rules. In such circumstances, it is the

Advocate who has to meticulously watch the proceedings of

cross-examination and has to be vigilant to see that Advocate

who is cross-examining does not lie or put untruths to the

witness. The essence of the principle here is that the cross-

examiner must not act dishonestly. He must not mislead the

Court as well as the witness who is being cross-examined.

Therefore, the presence of Advocate also plays a vital role

when his witness is being cross-examined at the remote point.

The presence of Advocate at the remote point would create a

sense of security and would help him to face test of cross-

examination. That cannot be misconstrued to such an extent

that it would amount to prompting or tutoring. His mere

presence at the remote point will not violate the Rules.

26. Therefore, in the present case on hand, defendant

No.2 is entitled to seek legal assistance even when he is being

cross-examined by way of video conferencing. Using video

conferencing, the defendant's rights cannot be sacrificed in the

name of procedural efficiency. The adversarial model which is

adopted for several decades cannot be abandoned under the

garb that the Rules relating to video conferencing does not

permit. Adversarialism is a cornerstone of the legal process;

the system is predicated on this tenet. Denial of legal

assistance while recording ocular evidence of a witness

through video conferencing violates fundamental fairness.

27. Looking to the recent trend, video conferencing

does have a place in the legal system. The challenge is not to

exclude it but to use it responsibly. The video conferencing

can produce better results, but at the same time, certain

highlighted issues which may prop up down the line have to be

addressed effectively. The client is entitled to seek assistance

and therefore, the clients interaction with his counsel on

record is quite essential to a fair trial and a person who is

supposed to be cross-examined is entitled to meet his counsel

ahead of time to discuss every anticipated questions, concept

or a piece of evidence. The Rules that are framed by this

Court governing recording of evidence through video

conferencing require all participants to follow the Rules in

terms of Schedule-I which is annexed to the Rules.

28. It is in this background, the proposition floated by

the counsel appearing for the contesting respondents cannot

be acceded to. An Advocate should always be with his client.

The Rules framed by this Court do not intend to support

plaintiffs team or a defence team. The counsel appearing for

respective clients are entitled to stand together and the same

is necessary for an attorney-client relationship to function

properly. A medium that interferes with the court's main

mission should be eliminated.

29. The contesting parties are entitled to have a

discussion with their Advocates on record as they need to

discuss important decisions concerning vital documents, basic

legal strategy prior to appearing in Court. Personal meetings

are better for hastening out case strategies, fact gatherings

and basic legal tactics. Therefore, it is in this context, if the

proposition of respondents is accepted and if counsel

appearing for a witness who is supposed to be cross-examined

is denied a right of audience at a remote point, the

apprehension that the ocular evidence recorded through video

conferencing will not satisfy the prescribed requirements of a

fair trial and the same would create a doubt in regard to

legitimacy of a legal process may turn out to be a hard reality.

Therefore, denial of right of audience to a counsel on record

has its own ramifications and may result in violation of

fundamental fairness and may also have impact on due

process of law.

30. By introducing technology and by bringing in

recording of ocular evidence through video conferencing, an

attempt is made in all good faith to meet the standards of

face-to-face trial. By bringing in new Rules, the Courts have

to meet the established standards and traditions in recording

evidence physically in the open Court. The dignity and ritual

of physical presence in the Court was found to be absolutely

necessary for public perception of justice. A very ceremony of

trial and presence of fact finder may exert a powerful force for

truth telling. The opportunity to judge the demeanor of a

witness face-to-face is accorded great value in our tradition.

Now in a given case, where parties consent to record ocular

evidence through video conferencing has to meet the above

said standards. There is an apprehension that non-verbal

cues are unavailable or harder to read when associated with

video conferencing. Therefore, the presence of counsel of a

witness to be cross-examined at a remote point becomes

further more essential.

31. In the light of the discussions made supra, now let

me see whether the Court is vested with discretion to permit

the counsel appearing for a witness who is supposed to be

cross-examined to be present at the remote point. The

remote point has to be considered as an extended court room.

A Court includes a physical court and a virtual court and if a

Court can have court point at one or more place, then the

Rules clearly prescribe that the counsel on record can be

present at all point either in the Court physically or through a

video link or at a remote point physically. Rule 14.1 clearly

contemplates persons who are entitled to participate in court

proceedings. Rule 14.1 clearly indicates that all Advocates

and required persons are entitled to remain physically or

virtually present. A discretion is also vested with the Court

under Rule 14.7 and it is well within the discretion of the Court

in a given set of facts to permit Advocate, required person or

any other participants that court deems necessary at the

remote point or at the court point. If at all any mischief is

played during the course of recording evidence, the Court is

better placed to hold an enquiry in regard to any mischief that

would be complained.

32. Unlike face-to-face hearing, a Judge has a privilege

of replaying the recording and find out as to whether the

witness is hoaxed or tutored. The court can also examine

whether counsel on record has interfered and assisted the

witness under cross-examination. The guidelines set out in

Schedule-I coupled with Rule 5.6.4 clearly provides adequate

protection. It is in this background, this Court would find that

the apprehension of the respondents and objections raised in

regard to entitlement of counsel on record to be physically

present at remote point appears to be misconceived.

33. If the order under challenge is tested in the light of

the above said discussions made supra, this Court is of the

view that the order under challenge is not at all sustainable.

Mere bald allegations that if the counsel is permitted to be

physically present at remote point, then every possibility of

petitioner getting prompted, tutored or coaxed cannot be

acceded to and such an objection is not at all sustainable. In

fact, Rule 14 which lays down guidelines for conducting

proceedings through video conferencing clearly contemplates

and authorizes all Advocates to be present physically at

remote point. A discretion is also vested with the Court in a

given set of facts to permit the counsel or any other

unconnected participants to be physically present at the

remote point. It is in this background, this Court would find

that the learned Judge erred in not exercising discretion

judiciously. Therefore, the finding of the learned Judge that

counsel appearing for the present petitioner/defendant No.2 is

already present at the remote point and he can join recording

of evidence by joining the link does not satisfy the

requirements of a fair trial. The learned Judge erred in not

exercising judicial discretion by permitting the counsel

appearing for defendant No.2 to be physically present at the

remote point.

34. If a coordinator at the remote point is already

available and if the entire ocular evidence is video recorded,

any slight mischief can be easily taken notice of and the

consequences would follow if the counsel contravenes any of

the courtesies and protocols applicable to a physical Court.

Therefore, I am of the view that the counsel appearing for the

defendant No.2 is entitled to be physically present at the

remote point.

35. For the reasons stated, supra, I pass the following:

ORDER

(i) The writ petition is allowed;

(ii) The impugned order dated 30.05.2022 passed in O.S.No.66/2016 on the file of the III Additional City Civil & Sessions Judge, Bengaluru is set aside. Consequently, the memo dated 25.05.2022 filed by the petitioner/defendant No.2 is allowed;

(iii) The coordinator at the remote point shall ensure that while recording evidence of the petitioner/defendant No.2, the persons who are permitted to be present at the remote point will not indulge in interfering with his cross-

examination;

(iv) Before commencing with the recording of evidence of petitioner/defendant No.2, the Court shall satisfy itself that the counsel appearing on behalf of petitioner/defendant No.2 can be seen and heard clearly at the remote point;

(v) The Court shall also monitor and take all necessary precautions that recording of ocular evidence of petitioner/defendant No.2 is conducted by strictly following the Rules.

Sd/-

JUDGE

CA