In the case of Salim Khan vs. The State of M.P., the four detainees against whom provisions of National Security Act have been imposed were Salim, Javed, Samir and Imran, all residents of Indore.
The four detainees, against whom provisions of National Security Act have been imposed, are all residents of Indore. Javed and Salim have been shifted to Jabalpur Central Jail and, Sameer and Imran both have been sent to Satna Central Jail. Javed, Sameer and Imran have tested positive for COVID-19 disease. It was pleaded before the court that these detainees be shifted to Indore Central Jail because of better medical facilities available at Indore.
The family members of the 4 prisoners had all filed writ petitions together, seeking to transfer the detainees – Imran, Sameer, Salim and Javed to Indore Central Jail. The significance of this case was that this discussion was to be conjointly done through videoconferencing in the presence of the family members. Shri Purushendra Kaurav, the State’s counsel was also present through video conferencing.
The State’s advocate has submitted that the entire staff which has transported the detainees initially to Jabalpur and Satna and the staff which is going to transport them back to Bhopal or to Indore, shall also be tested for infection and shall also be kept under quarantine.
Understanding the necessity of the situation as three of them have been tested positive and as there are dedicated hospitals at Indore and Bhopal, the State Government was directed to ensure that all four detainees be shifted immediately to Bhopal where there is a dedicated hospital, ie., the Government Medical College Hospital which has been now been designated exclusively to deal with COVID patients.
They were also to be transported in safe ambulances by maintaining proper distances between them and the staff accompanying them shall also be kept under quarantine and shall be extended all possible facilities of check-up and other requirements as may be needed from time to time.
It was made clear that as three of them have tested positive, the jail staff at Jabalpur and Satna with whom they have interacted or with whom they were having any contact be also tested.
In the future, the State Government will not transfer the prisoners to other Districts without the leave of this court because of the position at Indore where the largest number of COVID cases have been reported in Madhya Pradesh.
There are certain districts where there are no patients and therefore, in case any necessity arises in future for transfer of any prisoner the State Government shall obtain the leave of this Court. A detailed reply was also to be filed within 4 weeks.
National Practices For Video-Conferencing
In India, courts in the last decade have been proactive in embracing advancement in technology. One such pioneering step is the use of video conferencing for the recording of evidence. In the Indian legal system, the evidence is collected under the Indian Evidence Act 1872. In criminal proceedings, Subsections 230-234 of the Code of Criminal Procedure (Cr PC) 1973 specify the procedure of collecting evidence and the Court has the power to compel the witness to appear before it to give evidence.
In civil matters, the witnesses are summoned to appear before the court and adduce evidence under the provisions of Section 30, Order XVI and Order XVIII of the Code of Civil Procedure (CPC) 1908. Indian statutes do not have specific provisions for recording evidence via video conference and it is the Indian judiciary that has, through various landmark decisions, laid down the framework and parameters for the use of video conferencing facilities to record evidence.
Mindful of the circumstances in which the physical presence of a person cannot be obtained, Indian courts have held that the physical presence of a person can be dispensed with. In several cases, such as Amitabh Bagchi v Ena Bagchi  it was held that ‘presence’ does not necessarily mean actual physical presence in the court. By the amendment in the Evidence Act and insertion of Subsections 65A and 65B, a special provision as to evidence relating to electronic record and admissibility of electronic records had been introduced. Courts have interpreted this provision to include video conferencing. Video conferencing has been used in several cases where the witness has been unable to attend the court proceedings, for instance, in Alcatel India Ltd v Koshika Telecom Ltd & Ors.  the Court allowed the witness to give evidence through video conferencing, as the witness was unhealthy.
In Amitabh Bagchi, the High Court of Calcutta opined that a practical outlook ought to be taken by a court in allowing electronic video conferencing as it is a cost-effective facility and avoids the delay of justice. The courts have on several occasions also resorted to using this technology, based on compelling facts and circumstances. Example, the examination of a victim who had been sexually exploited and/or was suffering from post-traumatic stress disorder was allowed to be done via video conferencing.
The facility has also been used by the subordinate courts, where the judicial officer needs to record evidence of under-trial prisoners for security reasons. In the matter of Liverpool and London Steamship Protection and Indemnity Association Ltd v MV ‘Sea Success I’ & Anr. , the Bombay High Court allowed the plea of the plaintiff to depose using video conferencing, as the witness was staying in the UK with her two minor children and was unable to come to India. In the case of Bodala Murali Krishna v Smt Badola Prathima , the Andhra Pradesh High Court similarly allowed disposition of a USA resident witness via video conferencing. The Court was of the view that there should not be any plausible objection for resorting to video conferencing in civil cases as long as the necessary facilities along with assured accuracy co-exist.
Recently, the Supreme Court in Dr Kunal Saha v Dr Sukumar Mukherjee  (medical negligence case), went a step further and ordered the recording of testimonies and cross-examination of the foreign expert witnesses through internet conferencing instead of video conferencing. Administrative steps have been taken by the Indian Supreme Court since early March 2020 and followed by the High Courts and the lower courts, show how proactive the court administration has been. By only allowing urgent matters to be listed when the Coronavirus concerns first started to be raised while following social distance norms and staggered timings, to immediately enabling hearings through video-conference after stricter government restrictions were brought in after March 23 on to the movement of persons, the Court has adapted itself to the new norm.
As the present COVID situation didn’t get better by 13th April 2020, then one must consider whether the Court should allow online hearings through video-conference for certain regular cases. Those could be hearings that are time-bound and preceded by written submissions and set out within strict time-slots so that on its conclusion and a suitable gap, the next hearing can commence. An advantage is that judges of the bench may sit at different locations of their choosing and conduct the hearings while hearing the lawyers and litigants sitting at a place of their choosing. None of these places can be/need to be either the traditional courtrooms or even a part of the court precincts.
This court (Justice S.C. Sharma and Justice S. Shukla) passed this order through video conferencing, Shri Kuldeep Singh, Chief Principal System Analyst, High Court of M.P. Jabalpur who was in touch with the Supreme Court shall ensure that the order passed by this court is uploaded in the website and that a physical copy of the order passed by this court would be kept in the file for future reference.
It was clarified that Sameer and Imran are at Satna and both of them have detected positive and Salim and Javed who are at Jabalpur and out of them Javed were detected positive. As all of them were together for a considerable time, Salim would also be quarantined and subjected to retest at Bhopal.
It is made clear that this order is being passed under extraordinary circumstances and such order would not be liable to be objectively followed in future in respect of other detainees in the State. The State was also directed to strictly follow the protocol formulated by ICMR (Indian Council of Medical Research) for the purpose.
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