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The Delhi High Court on Wednesday (September 10) heard a PIL challenging an earlier notification issued by the Lieutenant Governor, allowing police officers to depose through video conferencing from their police stations.
The bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela observed that Article 21 (right to protection of life and liberty) guarantees the right to a fair trial, and ensures “fairness” by deposing witnesses in front of the accused. This is to allow the accused an opportunity to rebut evidence placed against him, and the onus is on the police to “create an environment where any accused gets an opportunity for a fair trial.”
Hearing a PIL filed by Advocate Raj Gaurav, the court said, “The argument would be right to fair trial emanates from Article 21 and your power to assign designated places is not in question, but why to designate place at the police station? State is the prosecutor, state is the investigating agency and thus, some neutrality at the time… because cross-examination and deposition is part of trial. It is not the part of prosecution or investigating process. This is the problem which we could see prima facie.”
This comes after the Delhi police on September 8 ordered all its officers to physically appear in courts for depositions of evidence, weeks after lawyers went on strike over the issue. Lawyers kept away from courtrooms for six days in August in opposition to the notification by the LG. They said that it struck at the very heart of the criminal justice system.
Here is what to know.
What did the L-G’s notification say?
The August 13 order described video conferencing rooms in police stations as “designated places” for recording evidence of police personnel, in a bid to speed up the trial process. It marked a shift from previous official orders.
A July 17, 2024, notification of the Delhi Home Department had identified certain locations, including the district courts, as approved by the Delhi High Court for recording evidence under judicial supervision. It did not include police stations.
Another advisory last year by then Home Secretary, Ajay Bhalla, stated that “police stations or places under the control of the Police Department may not be designated” as sites for electronic evidence recording. The rationale was to prevent executive control over a judicial function.
What does the law say on evidence collection?
The Bharatiya Nyaya Suraksha Sanhita, 2023, allows evidence to be gathered through audio-video modes. Section 265 allows examination of prosecution witnesses via electronic means at designated places notified by the state government. Section 266 extends the same to defence witnesses. Both aim to reduce delays during trial, but are also subject to safeguards.
Section 308, on the other hand, states that the evidence must be recorded in the presence of the accused, under the supervision of the presiding judge. The Delhi High Court’s own rules on electronic evidence reinforce this, with “designated places” defined as facilities where communication is connected to a “court point” or a vulnerable witness centre.
In practice, this has meant that the testimony is usually recorded in a space within judicial supervision, not in an executive-related location.
What is the lawyers’ argument?
Bar associations argued that police stations are not neutral venues and that permitting testimony from there erodes the fairness of trials as prescribed by Article 21 of the Constitution (right to protection of life and liberty).
Lawyers said that since police stations are controlled environments, such testimonies reduce scrutiny and accountability, as the defence, whose role is to test and challenge the state’s evidence, faces a witness in an environment shaped by the state itself.
The Bar Council of India condemned the order, stating that it was issued without consulting “major stakeholders in the justice system”. The Supreme Court Advocates-on-Record Association said the order created “a perception of institutional imbalance” as the branch involved in the investigation “is permitted to intrude upon and influence the solemn process of judicial proof.”
The debate hinges on how evidence is presented in criminal trials, where the prosecution’s witnesses, particularly police personnel, play a role in shaping the facts of the case before a judge.
When the space for such testimony shifts from under judicial supervision to a police station, lawyers argue that the balance tilts. A public interest litigation case was filed in the Delhi High Court by Adv. Kapil Madan, through Adv. Gurmukh Singh Arora and Adv. Ayushi Bisht on the subject.
It added that the notification allows police witnesses the convenience of remote testimony from their workplaces, which other witnesses do not have. This, it said, was violative of equal treatment under Article 14 of the Constitution (right to equality). The PIL filed by Adv. Raj Gaurav is now listed for December 10.
Another issue is that the investigation, which falls under the executive domain, and adjudication, which lies with the judiciary, are demarcated spheres. By allowing police stations to become spaces for recording testimony virtually, the executive extends its reach into the judicial space.
Lawyers argued that courtrooms are more neutral than a police station. Moreover, it also risked setting a precedent where the convenience of state functionaries is given more importance than the integrity of judicial proceedings.
Concerns about the practical implications were also raised. If testimony from police stations is permitted as a rule, monitoring for bias or corruption becomes difficult. The Prevention of Corruption Act, which often involves police witnesses, depends on rigorous cross-examination and confrontation of records. Lawyers argued that such safeguards would be ineffective if the very space of testimony favoured one side.
What has happened now?
Days after the lawyers’ strike began in August, the police chief’s office issued a statement saying that “the Union Home Minister would meet representatives of the Bar to discuss the issue with an open mind”. “In the meantime, the operation of the said notification on the ground would only be carried out after hearing all stakeholders,” it had added.
The eventual meeting saw an assurance being given for a reasonable resolution. As a result, the lawyers called off their strike on August 28. However, in a new circular issued on September 4, the commissioner’s office stated that according to a Delhi High Court notification dated August 4, “designated places for recording of evidence” included prisons, forensic departments, prosecution offices, and police stations. The circular also allowed formal witnesses to testify via video conferencing.
Members of the legal fraternity said the communication was “contrary to the assurance given by the Union Home Minister”. Their coordination committee threatened agitation “against the arbitrary and illegal notification, which is not only against the concept of free and fair trial but is anti-public and curtails the right of an accused”. After Monday’s circular, the protest call was withdrawn.
