The Karnataka High Court on Monday held that if a Magistrate can authorize the remand of an accused for the first time via video conferencing in exceptional circumstances in the wake of COVID-19 pandemic.
The Court said in the order as follows :
"...in a very exceptional case, 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".
A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty said it will not be necessary for it to lay down with precision which cases will be covered. The reason being that it will depend on the facts of each case. However it said :
"One such very exceptional case can be where an accused who is a resident of containment zone or red zone is sought to be produced or an accused who has symptoms of COVID 19 is sought to be produced or a person infected with COVID 19 is sought to be produced. What is done by a learned Magistrate under such an exceptional circumstances may become lawful, by virtue of a deeming fiction provided in clause (i) of paragraph 6 of the aforesaid directions issued by the Apex Court under Article 142 of the Constitution of India".
The ruling was made during the hearing of a suo-motu petition taken up by the court to address the various legal and technical issues that would be faced by trial courts during the partial functioning, which commenced from June 1.
The court based its finding primarily on Apex court order dated April 6, in suo – motu writ petition, which was initiated by the Apex Court (In Re: Guidelines for Courts functioning through Video Conferencing during COVID 19 pandemic).
In its order the Apex court had said
"All measures that have been and shall be taken by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful; (ii) The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies."
Bar under Section 167(2), proviso(b) CrPC not applicable
Senior Advocate C V Nagesh appearing as amicus curiae in the suo-motu petition before the high court had said, clause (2) of Article 22 of the Constitution of India requires that every person who is arrested and detained in police custody shall be produced before the nearest Magistrate within twenty four hours of such arrest. The same is the requirement of Section 167 of Cr.P.C. He had submitted that clause (b) of proviso to sub-section (2) of Section 167 of Cr.P.C clearly lays down in which cases the accused can be produced before a Magistrate through the medium of electronic video linkage. Production of the accused before a learned Magistrate has to be in person when the learned Magistrate authorizes his detention in the custody of the police. Even the extension of the police custody remand can be granted only on physical production of the accused. Only in case of extension of judicial custody remand, the production of the accused can be made by the medium of electronic video linkage.
In this regard, the court, said :
"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."
The bench has also relied on the 'Rules for Video Conferencing hearing' framed by it on the initiative taken by the E-Committee of the Supreme Court of India.
Rule 11.1 : The Court may, as its discretion, authorize detention of an accused, frame charges in a criminal trial under the Cr.PC by video conferencing. However, ordinarily judicial remand in the first instance or police remand shall not be granted through video conferencing save and except in exceptional circumstances for reasons to be recorded in writing."
The amicus curiae had contented Rule 11.1 of the Video Conferencing Hearing Rules framed by this Court runs contrary to clause (b) of proviso to sub-section (2) of Section 167 of the Cr.P.C to some extent and what will prevail is clause (b) of proviso to sub-section (2) of Section 167 of Cr.P.C.
However, the bench said :
"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. However, Video Conferencing Hearing Rules have been framed by this Court during the exceptional circumstances created by the pandemic of COVID 19. Therefore, in a very exceptional case, where the learned Magistrate is of the considered view that there is a serious apprehension that the accused may be infected with Novel CoronaVirus (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."