Introduction:

The Delhi High Court has reaffirmed that the use of video conferencing in judicial proceedings can help courts balance the right to a fair trial with the practical difficulties faced by witnesses who are unable to attend court physically. Holding that illness, physical infirmity, undue delay or excessive expense may justify recording a witness’s evidence through video conferencing, the Court allowed an application seeking permission to virtually cross-examine a 71-year-old witness residing in Uttarakhand in a testamentary dispute.

Justice Swarana Kanta Sharma observed that courts should adopt a pragmatic approach when requiring a witness to travel long distances would cause avoidable hardship, particularly where earlier attempts to complete the examination have failed for reasons beyond the witness’s control. At the same time, the Court emphasised that procedural convenience cannot come at the cost of fairness. The opposing party must retain a meaningful opportunity to test the witness’s testimony through cross-examination.

The matter arose in testamentary proceedings before the Delhi High Court, in which the cross-examination of an elderly witness had remained incomplete despite repeated attempts to secure her presence in Delhi. The witness, aged approximately 71 years, resided in Uttarakhand and was stated to be suffering from age-related health issues. Her doctor had advised her to take rest, making further travel to Delhi difficult.

The Court took note of the fact that the witness had already travelled from Uttarakhand to Delhi on three separate occasions for the purpose of cross-examination. However, on none of those occasions could the examination proceed. On the first occasion, an adjournment was sought on behalf of the respondent’s counsel due to illness. On the second occasion, the Court was on leave. On the third occasion, the petitioner’s counsel could not appear because of a bereavement in the family.

Consequently, the witness had undertaken repeated journeys without the intended cross-examination taking place. Given her age and medical condition, requiring her to travel once again from Uttarakhand to Delhi would have imposed an additional burden without any assurance that the examination would be completed as scheduled.

Against this background, an application was moved seeking permission to conduct the witness’s cross-examination through video conferencing. The request required the Court to consider the provisions governing video-conferencing evidence, particularly Rule 13 of the Electronic Evidence and Video Conferencing Rules, 2025.

Rule 13(8) provides for the possibility of examining a person through video conferencing from the place where that person is located when they cannot reach the court or designated place because of sickness or physical infirmity, or where securing their physical presence would involve undue delay or expense. The provision recognises that physical attendance may not always be necessary for effective participation in judicial proceedings.

At the same time, Rule 13(9) preserves the Court’s authority to refuse video-conferencing examination where the nature of the evidence or other circumstances make it impossible to record the testimony effectively through that mode. Thus, the Rules do not create an unconditional right to virtual examination. They require the Court to assess whether the proposed arrangement is appropriate in the circumstances of the particular case.

The dispute therefore raised an important procedural question: whether an elderly witness who had already made repeated unsuccessful journeys to attend court, and whose health made further travel difficult, could be permitted to undergo cross-examination through a designated video-conferencing facility in her home State. The Court had to balance the witness’s health and convenience against the opposing party’s right to conduct an effective cross-examination.

The High Court ultimately found that video conferencing was an appropriate solution. It held that no impediment to effectively recording the witness’s evidence through that mode had been brought to its notice. The application was accordingly allowed, and the Court directed that the cross-examination be conducted through a designated video-conferencing facility in Uttarakhand, subject to appropriate safeguards to protect the fairness of the proceedings.

Arguments of the Parties:

Petitioner’s Arguments

The petitioner sought permission to conduct the cross-examination of the 71-year-old witness through video conferencing rather than requiring her to appear physically before the Delhi High Court. The application was founded on the witness’s age, medical condition and the practical difficulties associated with travelling from Uttarakhand to Delhi.

It was submitted that the witness was suffering from age-related health issues and that her doctor had advised her to rest. In view of this medical advice, undertaking another long journey to Delhi would cause considerable inconvenience and could adversely affect her well-being. The petitioner therefore sought a procedural arrangement that would enable the witness to participate in the proceedings without being subjected to further physical hardship.

An important circumstance relied upon in support of the application was that the witness had already travelled to Delhi on three occasions for cross-examination. Despite her efforts to attend, the examination could not take place on any of those dates. The petitioner pointed out that the first scheduled opportunity was lost because an adjournment was sought by the respondent’s counsel on account of illness. On the second occasion, the Court was on leave. On the third occasion, the petitioner’s counsel was unavailable due to a bereavement in the family.

The petitioner could therefore argue that the delay was not attributable to any unwillingness on the witness’s part to participate in the proceedings. She had made repeated efforts to attend court, but the examination remained incomplete for reasons arising on the respective dates. Requiring her to undertake another journey in these circumstances would impose an avoidable burden on an elderly person who had already demonstrated her willingness to cooperate with the judicial process.

The application also rested on the availability of the legal framework permitting evidence to be recorded through video conferencing. Rule 13(8) of the Electronic Evidence and Video Conferencing Rules, 2025, recognises sickness, physical infirmity, undue delay and expense as circumstances that may justify recording evidence through a virtual arrangement.

The petitioner’s request was therefore not for dispensing with cross-examination or limiting the opposing party’s ability to question the witness. Rather, it sought to change the mode through which the examination would take place. The witness would remain available for questioning, but her participation would be facilitated through a designated video-conferencing facility in Uttarakhand.

This distinction was significant because the relief sought did not involve removing an important procedural safeguard from the proceedings. Cross-examination would still take place, and the opposing party would retain the opportunity to put questions to the witness and challenge her testimony. The proposed arrangement was intended to make the process accessible without compromising its essential purpose.

The petitioner accordingly requested the Court to adopt a practical approach and permit virtual cross-examination so that the testamentary proceedings could move forward without subjecting the witness to further unnecessary travel.

Respondents’ Position and the Need to Preserve Cross-Examination Rights

The respondents were represented by separate counsel, including advocates appearing for the Government of the National Capital Territory of Delhi and other respondents in the testamentary proceedings. The central procedural concern considered by the Court was that allowing the witness to appear virtually should not undermine the respondents’ right to conduct an effective cross-examination.

Cross-examination is a fundamental component of the adversarial process. It enables a party to test the accuracy, reliability and credibility of testimony given by a witness. In testamentary proceedings, where the evidence of a witness may have a bearing on the issues being adjudicated, the opposing parties must have a fair opportunity to question that witness.

The Court therefore had to ensure that the proposed virtual arrangement would not reduce the effectiveness of the examination or create any disadvantage for the party seeking to cross-examine the witness. The mere fact that a witness is elderly or medically unable to travel does not automatically mean that every request for virtual examination must be granted.

Rule 13(9) of the Electronic Evidence and Video Conferencing Rules, 2025, specifically preserves the Court’s discretion to refuse such an arrangement if the evidence cannot be effectively recorded through video conferencing. The provision makes clear that the suitability of virtual examination depends on the circumstances and the nature of the evidence.

The opposing party’s entitlement to question the witness therefore remained an essential consideration. A virtual hearing must allow the witness to hear and understand questions, respond adequately, and participate in a manner that permits the examination to serve its proper evidentiary purpose.

The Court was required to consider whether the video-conferencing facility in Uttarakhand could provide the necessary conditions for a fair and effective examination. It also had to ensure that the witness’s participation would take place in a controlled and appropriate setting, so that the process retained the safeguards ordinarily associated with examination before a court.

The judgment does not record any detailed separate submission by the respondents seeking outright rejection of the application. Nevertheless, the Court expressly recognised the importance of protecting the respondent’s right to test the witness’s testimony. Its decision was therefore not based solely on the witness’s personal hardship; it also involved an assessment of whether virtual cross-examination could preserve the fairness of the proceedings.

Court’s Judgment:

The Delhi High Court allowed the application and held that the elderly witness could be cross-examined through video conferencing from a designated facility in Uttarakhand. Justice Swarana Kanta Sharma found that the circumstances justified adopting a pragmatic approach, particularly because the witness had already travelled to Delhi on three occasions without her cross-examination being completed.

The Court first considered the practical difficulties faced by the witness. At approximately 71 years of age, she was suffering from age-related health issues, and her doctor had advised her to rest. Her residence in Uttarakhand meant that appearing before the Delhi High Court required travel over a considerable distance. In view of her medical condition, requiring her to make another such journey would cause avoidable hardship.

The Court also examined the history of the unsuccessful attempts to conduct the cross-examination. The witness had not simply failed to attend court or avoided participating in the proceedings. She had travelled to Delhi on three occasions, but the examination could not take place because of circumstances arising on each scheduled date.

On the first occasion, an adjournment was sought on behalf of the respondent’s counsel due to illness. On the second, the Court was on leave. On the third, the petitioner’s counsel was unavailable because of a bereavement in the family. The Court took these circumstances into account while considering whether it would be reasonable to insist on another physical appearance.

The significance of this procedural history was that the elderly witness had already borne the inconvenience of travelling to Delhi without obtaining an opportunity to complete the required examination. Requiring another journey, despite her medical difficulties, could prolong the proceedings and impose further hardship that might reasonably be avoided through an alternative mode of participation.

The Court accordingly observed that a “pragmatic approach” was warranted. The expression reflects the need for procedural rules to be applied in a manner that advances the administration of justice rather than creating unnecessary obstacles. While physical attendance remains an important means of recording evidence, it should not be insisted upon where a legally recognised alternative can achieve the same purpose without undermining fairness.

The Court’s approach was not to treat convenience as the only relevant consideration. It recognised that the decision had to account for the interests of both the witness and the parties. The witness’s health and the repeated unsuccessful journeys supported the request for video conferencing, but the opposing party’s right to cross-examine her had to remain fully protected.

Rule 13(8) of the Electronic Evidence and Video Conferencing Rules, 2025

A central part of the judgment concerned Rule 13(8) of the Electronic Evidence and Video Conferencing Rules, 2025. The provision permits a person to be examined through video conferencing from the place where they are located in circumstances where physical attendance at the court or designated place is not reasonably possible.

The Rule recognises that a person may be unable to reach the court because of sickness or physical infirmity. It also takes into account situations in which securing the person’s physical presence would involve undue delay or expense. These grounds reflect a practical understanding that the administration of justice should not depend unnecessarily on physical travel where an effective and fair virtual arrangement is available.

The High Court considered the witness’s medical condition and age-related difficulties within this framework. Her doctor’s advice to rest, combined with the distance between Uttarakhand and Delhi, made repeated physical attendance particularly burdensome. The fact that she had already travelled three times without the examination being completed further strengthened the case for permitting an alternative arrangement.

The Court’s decision demonstrates that Rule 13(8) is intended to facilitate access to judicial proceedings in circumstances where physical attendance would create genuine difficulty. It provides courts with a procedural mechanism to ensure that evidence can still be recorded without imposing unnecessary travel obligations on witnesses who are medically or physically unable to attend.

Importantly, the Rule does not mean that witnesses may choose video conferencing merely because it is more convenient. The circumstances must justify the use of the alternative mode. The Court must consider the reasons for the inability to attend physically and determine whether the proposed arrangement can serve the requirements of the proceedings.

In the present matter, the witness’s age, health condition, medical advice and repeated unsuccessful journeys provided sufficient reasons for the Court to consider virtual cross-examination appropriate.

Rule 13(9): Effectiveness of Virtual Examination Must Be Preserved

The Court also considered Rule 13(9), which empowers the Court to decline examination through video conferencing where the evidence cannot be effectively recorded through that mode.

This provision is an important qualification to the facility provided under Rule 13(8). It ensures that video conferencing is not permitted mechanically in every case involving illness, distance or expense. The Court must remain satisfied that the nature of the evidence and the circumstances of the proceeding allow an effective examination through the proposed technology.

The purpose of cross-examination is not merely to ask questions and receive answers. It allows the party challenging the witness’s testimony to examine the details of the evidence, test inconsistencies, seek clarification and assess the witness’s responses. Any mode of examination must therefore preserve a meaningful opportunity to carry out these functions.

The Court recognised that the respondent’s right to test the witness’s testimony had to remain fully protected. It was not prepared to allow procedural convenience to dilute this essential aspect of a fair adjudicatory process.

However, the Bench noted that no impediment had been brought to its attention to demonstrate that the witness’s evidence could not be effectively recorded through video conferencing. There was no identified reason in the material placed before the Court to conclude that the proposed mode would prevent the respondents from conducting the necessary cross-examination.

Consequently, the restriction contemplated under Rule 13(9) did not provide a reason to reject the application. Since the proposed virtual arrangement could facilitate the examination while preserving the opposing party’s right to question the witness, the Court found it appropriate to grant permission.

The interaction between Rules 13(8) and 13(9) is central to understanding the ruling. The first provision recognises circumstances in which physical attendance may be impractical or unduly burdensome. The second protects the integrity of the judicial process by allowing the Court to refuse virtual examination where it would not be effective. Together, they provide a framework for balancing accessibility and procedural fairness.

Cross-Examination as an Essential Component of a Fair Hearing

Another important aspect of the judgment was the Court’s emphasis on the importance of cross-examination. The Court acknowledged that a party against whom a witness’s testimony is relied upon must have a genuine opportunity to challenge that evidence.

Cross-examination is one of the principal safeguards in an adversarial judicial system. It helps the court assess whether a witness’s account is accurate and reliable. It also allows the opposing party to bring out relevant facts that may not have emerged during the initial examination.

The Court therefore made it clear that permitting virtual cross-examination would not mean relaxing the procedural rights of the respondents. The change concerned the location and mode of participation, not the substance of the examination. The witness would still be required to answer questions, and the opposing party would retain the opportunity to test her testimony.

This distinction is important because video conferencing should not be viewed as an inferior or incomplete form of judicial participation merely because the witness is not physically present in the courtroom. Where the technology and arrangements permit effective examination, the virtual mode can serve the same procedural purpose while addressing genuine difficulties faced by the witness.

At the same time, the Court’s reasoning does not suggest that video conferencing must be allowed in every case. The suitability of the arrangement remains dependent on the facts, the nature of the evidence and the ability to protect the rights of all parties.

The decision therefore reflects a balanced approach: courts should avoid imposing unnecessary hardship on witnesses, but they must also ensure that procedural innovation does not compromise the fairness of the trial or other adjudicatory proceedings.

A Pragmatic Approach to Avoid Unnecessary Delay

The Court also considered the consequences of insisting on another physical appearance. The witness had already made three journeys to Delhi, but the examination had not taken place because of crcumstances that arose on the scheduled dates. Requiring her