Kar HC | In cases of ‘exceptional circumstances’ first remand proceedings can be permitted through video conferencing

Karnataka High Court: While deciding the issue of conducting remand proceedings under Section 167 of Criminal Procedure Code, 1973 by use of Video Conferencing, the Division Bench of Abhay Sreenivas Oka, C.J., and S. Vishwajith Shetty, J., held that in light of the exceptional circumstances created by the spread of Covid-19, and notwithstanding the clear provision of law under Section 167 (2) Proviso (b) of CrPC, first remand proceedings can be permitted through video conferencing and the same shall be in accordance with the directions issued by the Supreme Court in In re, Guidelines for court functioning through video conferencing during Covid-19 pandemic, 2020 SCC OnLine SC 355.

The issue arose due to some recent instances where immediately after the remand proceedings, either the accused or the police personnel were tested positive for Covid-19. Assisting the Court, counsel C.V. Nagesh, highlighted the concerned provisions which deal with the issue at hand; mainly Article 22(2) of the Constitution and Sections 57 and 167 of the CrPC. It was submitted that both Article 22(2) and Section 167 of CrPC require that every person who is arrested and detained in police custody shall be produced before the Magistrate within 24 hours of such arrest. Additionally Section 167 (2) Proviso (b) of CrPC, enumerates various cases where an accused can be produced before a Magistrate through the medium of electronic video linkage. It was further submitted that the principle behind producing the accused before a Magistrate is to give the accused a chance to complain about the ill-treatment meted out to them by the police; however if an accused is produced via video- conferencing, the presence of the police around the accused at the police station may prevent them from making a grievance regarding any ill-treatment.

Perusing the legal provisions and the submissions made by the amicus curiae, the Bench observed that Section 167 (2) Proviso (b) of CrPC, lays down several instances wherein electronic video linkage can be used; however, if any contingency to use video linkage is not covered under Section 167, then such instance may not be lawful. The Court also perused the Guidelines issued by the Supreme Court in In re, Guidelines for court functioning through video conferencing during Covid-19 pandemic and Rule 11.1 of Karnataka High Court Rules for Video Conferencing Hearing framed recently in the light of Covid-19 pandemic. The former clearly instructs the Courts at all levels to encourage social distancing to prevent the spread of coronavirus; and the latter states that in cases of exceptional circumstances police custody remand or judicial custody remand, at the first instance, can be granted through Video Conferencing Hearing. The Court observed that under normal circumstances, Rule 11.1 runs contrary to the provisions of Section 167 (2) Proviso (b) of CrPC and Section 167 would prevail over the Rules to that extent; however, the present scenario, wherein the entire country is battling a deadly virus, comes within the category of ‘exceptional circumstances’. Therefore in the backdrop of the Supreme Court Guidelines in the aforementioned case, the Court held that, “If a Magistrate is of the considered view that there is a serious apprehension that the accused may be infected with COVID 19, 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”. [High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 556 , decided on 15-06-2020]

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