[COVID-19] In first remand cases, accused to be produced in person before Magistrate; Video conference in exceptional cases: Karnataka HC
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[COVID-19] In first remand cases, accused to be produced in person before Magistrate; Video conference in exceptional cases: Karnataka HC

Rintu Mariam Biju

Even as COVID-19 cases in the state see an upswing, the Karnataka High Court on Monday held that accused in first remand cases shall only be produced before the Magistrate in person and not via video conferencing.

However, the Court added that in certain exceptional cases, first remand cases may be permitted through video conferencing and same shall be in line with the directions issued by the Apex Court on April 6, 2020.

The order was passed in a suo motu PIL registered by the Karnataka High Court seeking to address the various legal and technical issues posed by the COVID-19 pandemic that may arise before the district and trial courts from June 1.

The order passed by a Bench headed by Chief Justice Abhay Shreeniwas Oka states,

"Thus, notwithstanding the clear provision of law under clause (b) of proviso to sub-section (2) of Section 167 of Cr.P.C that the order of first remand whether in respect of police custody or judicial custody and the subsequent extension of police custody remand can be made only by producing the accused in person before the learned Magistrate, some very exceptional cases where first remand is permitted through video conferencing will be covered by the directions issued by the Apex Court in clause (i) of paragraph 6 of the order dated 6th April, 2020. Therefore, the same shall be deemed to be lawful..."

Karnataka High Court

Assisting the Court, Senior Advocate C V Nagesh had pointed out that as per Article 22(2) of the Constitution of India, every person who is arrested and detained in police custody shall be produced before the nearest Magistrate within twenty-four hours of such arrest. This is the same principle that has been envisaged in Section 167 of the Code of Criminal Procedure (CrPC).

He also submitted that Section 167 (2) (b) CrPC clearly laid down the cases in which the accused could be produced before a Magistrate through video conference.

Nagesh argued that the production of the accused before a Magistrate has to be in person when the Magistrate authorizes his detention in the custody of the police, as provided in sub-section (2) of Section 167 of the Code.

Even the extension of the police custody remand can be granted only on physical production of the accused, Nagesh pointed out.

The Senior Advocate further contended that if the accused is produced via video conference, the presence of the police personnel at the police station may prevent him from disclosing his ill-treatment at the hands of the police.

After considering Nagesh's arguments and taking into account the Madras High Court's decision in K Anandan v. K Manoharan, the Bench opined,

"Thus, clause (b) to proviso to sub-section (2) of Section 167 of Cr.P.C lays down that a Magistrate is empowered to authorize detention of the accused in the custody of police only when the accused is produced before him in person. As clause (b) of the proviso to sub-section (2) of Section 167 specifically lays down the contingency in which the production of the accused can be made through electronic video linkage, its use in the contingency not covered by clause (b) may not be lawful.

If a statute provides that a particular act should be done in a particular manner, the same shall be done in the same manner and in no other manner."

At this juncture, the Bench also referred to the Video Conferencing Hearing Rules framed by itself. These had been modelled after the initiative taken by the E-Committee of the Supreme Court, which had come out with rules regarding hearing of cases amid the lockdown.

The High Court noted that Rule 11.1 specifically provided that in exceptional circumstances, police or judicial custody remand at the first instance, can be granted through video Conferencing hearing. This means that the production of the accused before the Magistrate can be by Video Conferencing Hearing even at the time of seeking first remand.

On this issue, the Bench concurred with Nagesh's argument that Rule 11.1 is contrary to Section 167 (2) (a) of the CrPC to some extent. In this regard, what will prevail is clause (b) of proviso to sub-section (2) of Section 167 of Cr.P.C, the Court held.

"Therefore, the second part of Rule 11.1, in the normal course, may be attacked on the ground that it is vulnerable being in violation of the express statutory provisions."

Karnataka High Court

Nonetheless, the Court opined that since the VC rules were framed in view of the COVID-19 pandemic, in exceptional cases where an accused is a resident of containment zone/red zone or has symptoms of COVID 19, the Magistrate may authorize the production of accused through video conferencing.

"......where the learned Magistrate is of the considered view that there is a serious apprehension that the accused may be infected with Novel Corona Virus (COVID 19) and therefore, for the purpose of following the best health practice, physical production of the accused for the first time before the Court should be avoided, he can for the reasons specifically assigned, authorize the production of accused through video conferencing."

[Read order here]

First Remand.pdf
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