The Karnataka High Court has observed that mere non-production of the accused from time to time and failure of the Magistrate to pass express order remanding the accused to custody do not vitiate the proceedings, nor does it confer a right on the accused to seek for his release on bail.
The Bench comprising Justice H.G. Ramesh And Justice John Michael Cunha however clarified that the production of the accused before the Magistrate as mandated in section 167(2)(b) and section 209 CrPC is a rule and non-production of the accused is only an exception and it is only when the physical production of the accused is not possible on account of his hospitalization or such other unavoidable reasons, the Magistrate cannot refuse to extend the remand merely on ground of non-production of the accused.
In such event, it is incumbent on the Investigating Officer to make necessary requisition supported by genuine documents for the satisfaction of the learned Magistrate so as to extend the remand of the accused, the Court observed.
The Court was considering a plea challenging a sessions court order which had held that, on the day when a remand order is made under section 309(2) of the Criminal Procedure Code, it is not necessary that the accused must have been in "lawful" custody, that it is sufficient if he was in custody and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail.
The Court depreciating the “practice of mechanical remand” observed that production of the accused for the purpose of extending the remand is not an empty formality as the law requires the Magistrate to apply his mind even while further extending the remand of the accused to judicial custody.
Read the Order here.