Karnataka HC
Karnataka HC
Litigation News

[Breaking] Personal presence of petitioners in family court, NI Act cases not required if advocate acts as authorized agent: Karnataka HC

Rintu Mariam Biju

The Karnataka High Court today held that it is not necessary for family courts to insist on personal presence of petitioners, provided they are represented by an advocate who acts as an authorized agent on their behalf.

This direction was passed by the Court while hearing a suo motu PIL to address the various legal and technical issues that may arise before the District and Trial Courts when it resumes limited functioning amid the COVID-19 crisis.

The Bench headed by Chief Justice Abhay Shreeniwas Oka further clarified that the aforesaid principles shall also apply in cases of joint petitions filed for divorce by mutual consent before family courts, as both husband/wife will be in position of petitioners.

In this regard, the order reads,

"There is no legal basis for the practice adopted by some of the family Courts in the state, when they insist on personal presence of the petitioner/s at the time of filing cases. The personal presence is not required when the petition is presented by advocate as authorised representative of the petitioner or petitioners. In the same way when notice of proceedings filed in Family Court is issued, it cannot insist on personal presence of the respondent on the returnable date if the respondent enters appearance through a legal practitioner as an authorized agent."

Karnataka High Court

Similarly, the Court held that when a written complaint is filed Section 190 (1) (a) of the Code of Criminal Procedure (CrPC) and when the complainant is represented by an advocate, Magistrates cannot insist upon the presence of the complainant at the time of filing the complaint.

On the point of complaints filed under Section 138 of the Negotiable Instruments Act, the Court held the following,

"In case of a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act is concerned, it is not necessary for the magistrates, in every case to insist upon personal presence of the complainant for examining him as contemplated by Section 200, if complainant is accompanied by an affidavit of the complainant or his authorized representative. After perusing the affidavit and other documents, if any, if the Magistrate is satisfied, he can order an issue of summons."

Karnataka High Court

Another issue the Court noted was pertaining to judicial deposits and payment of amounts by litigants. This issue arises in many cases such as motor vehicles compensation cases, money suits, monthly maintenance cases, and especially in matrimonial cases etc.

While passing an order on payment of maintenance, the Court proposed that it may be possible for judicial officers to take into account details of the person to whom maintenance is payable on record and direct the person liable to pay maintenance to directly transfer the amount to the beneficiary.

In this regard, the Court directed the Registrar (Computers) to prepare an exhaustive report dealing with both legal and technical issues on the aforesaid suggestion.

First Remand: Video conferencing or Physical presence?

During the hearing, the Bench extensively heard the parties on the issue of mandatory requirement of personal production of the accused before judicial magistrates at the time of first remand and police custody remand.

The main issue before the Court was how to ensure the protection of the judicial magistrate and other officers when the accused is produced before them amid the COVID-19 pandemic.

Senior Advocate CV Nagesh pointed out to the Court that under Section 167 (b) of CrPC, first remand on arrest before the magistrate has to be in person. This is a mandatory requirement, he stated.

He went on to contend that otherwise it may not be possible for the prisoner to vent his grievances such as harassment, torture before the Court. Every accused prisoner is entitled to this under Article 21 of the Constitution, he added.

However, after remand, from time to time, the prisoner may be presented before magistrate by means of video conferencing. That is not an issue, he stated.

Responding to this, Senior Advocate Uday Holla referred to a Madras High Court judgment and said that in exceptional cases, an extension of remand may be considered and granted. Holla also said that if the accused is produced before the magistrate at his residence, then the practice of social distancing may not be possible.

Taking these contentions into account, the Court observed that some mechanism needs to be worked out to ensure social distancing when the accused is produced before the magistrate. Some open area needs to be identified in the Court premises as far as production of the prisoner is concerned, the Court highlighted.

In this regard, the High Court asked the state to take instructions from the Home Ministry on whether certain arrangements could be made in a public hall for the magistrate to take up first remand matters only.

Advocate Vidyulatha, appearing for the Karnataka State Legal Authority, suggested for a "glass chamber" between the magistrate and the accused, in order to ensure the protection of the former.

Therefore, the Court directed the Additional Advocate General Dhyan Chinnappa to get instructions from the state government and police on certain "procedural aspects".

The matter will be next heard on June 5.

Last week, the Karnataka High Court had directed the Registrar General to register a suo motu PIL to address the various legal and technical issues that may arise before the District and Trial Courts from June 1.

Bar and Bench - Indian Legal news