Extension of remand cannot be refused by Magistrate merely on account of non-production of accused

High Court of Karnataka: In its recent judgment, a Division Bench comprising H. G. Ramesh and John Michael Cunha, JJ. held that non-production of the accused does not grant the right to seek release on bail to the accused.

In the case present before the Court neither was the accused was produced before the Magistrate on time as mandated under Section 167(2)(b) and Section 209 of the Code of Criminal Procedure, 1973 nor was an express order passed remanding the accused to custody by the Magistrate. The petitioner contended that the remand order made under Section 309(2) of the Code expired and his remand thereafter was illegal. With regards to this argument, the Court observed that it was sufficient if the accused was in custody, it need not be a “lawful” one. It further observed that the accused couldn’t be released on bail merely because he was not present when the remand order was passed.

The Court clarified that non-production of the accused was only an exception, and must be applied only when the physical production of the accused is not possible on account unavoidable reasons, provided that the Investigating Officer makes necessary requisition supported by genuine documents for the extension of the remand. It added that though production of the accused for the purpose of extending the remand is not an empty formality, the extension could not be refused by the Magistrate merely on account of non-production, and the Magistrate must apply his discretion while executing the powers granted by the Code. [D. Gundappa v. State of Karnataka, 2017 SCC OnLine Kar 1149, judgment dated 05-06-2017]

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