A division bench of the Apex Court held as follows:
From Paras 11 and 12,
11. This argument found favour with the High Court. The High Court has relied on judgments of various High Courts which have held that Section 273 is mandatory and that evidence must be recorded in the presence of the accused. To this extant no fault can be found with the Judgment of the High Court. The High Court has then considered what Courts in foreign countries, including Courts in USA, have done. The High Court then based its decision on the meaning of the term “presence” in various dictionaries and held that the term “presence” in Section 273 means actual physical presence in Court. We are unable to agree with this. We have to consider whether evidence can be led by way of video-conferencing on the provisions of the Criminal Procedure Code and the Indian Evidence Act. Therefore, what view has been taken by Courts in other countries is irrelevant. However, it may only be mentioned that the Supreme Court of USA, in the case of Maryland vs. Santra Aun Craig [497 US 836], has held that recording of evidence by video-conferencing was not a violation of the Sixth Amendment (Confrontation Clause).
12. Considering the question on the basis of Criminal Procedure Code, we are of the view that the High Court has failed to read Section 273 properly. One does not have to consider dictionary meanings when a plain reading of the provision brings out what was intended.
From Para 19 (Important),
State of Maharashtra Vs Dr. Praful B. Desai on 01 Apr 2003
Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.
Citations : [2003 SCALE 3 554], [2003 SCC 4 601], [2003 SCR 3 244], [2003 AIR SC 2053], [2003 AIR SC 1885], [2003 CRIMES SC 2 237], [2003 CRLJ SC 2033], [2003 SCC CRI 815], [2003 MHLJ SC 2 868], [2003 MPLJ SC 2 434], [2003 SUPREME 3 19], [2003 BOMCR CRI SC 1495], [2003 ALT CRI 2 118], [2003 RD 95 158], [2003 CTC 2 787], [2004 UD 2 60], [2003 UC 2 1011], [2003 ACR SC 2 1269], [2003 ALD CRI 1 848], [2003 ALR 51 436], [2003 CGLJ 2 86], [2003 UJ 2 769], [2003 RLW SC 2 268], [2003 GLH 2 447], [2003 RCR CRIMINAL 2 770], [2003 AIR SCW 1885], [2003 JT SC 3 382]