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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,
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,
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.
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.