‘Accused can be produced before magistrate via videoconference first time after arrest’

The High Court of Karnataka has empowered judicial magistrates to authorise presenting of accused persons through videoconferencing even for the first time after their arrest in exceptional circumstances like the COVID-19 pandemic, if there exists an apprehension that the accused may be infected.

“In a very exceptional case, where the magistrate is of the view that there is a serious apprehension that the accused may be infected with 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, authorise the production of accused through videoconferencing,” the court observed.

A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice S. Vishwajith Shetty passed the order while hearing a PIL petition, suo motu initiated by the court, on legal and technical issues which cropped up owing to video conferencing hearings due to COVID-19 norms.

Exceptional case

“One such very exceptional case can be where an accused, who is a resident of a 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,” the Bench said.

The production of accused through videoconferencing from the prison after their remand to judicial custody is already authorised by law. However, the issue of legality of production of accused through video conferencing for the first time after the arrest cropped up due to the pandemic and the recently-notified Video Conferencing Hearing (VCH) Rules, which said that magistrates, in exceptional circumstance, can pass first remand orders on production of accused through video conference.

Senior counsel C.V. Nagesh, acting as amicus curiae, had pointed out that the legality of the VCH Rules could be questioned as Section 167(2(b) of Cr.PC mandates that accused will have to be produced in person before the magistrate for the first time after the arrest and subsequent extension of police remand.

‘Deemed to be lawful’

Relying on recent judgement of the apex court declaring as lawful the measures taken by the High Courts to ensure functioning of courts in terms of social distancing guidelines and best public health practices, and to ensure robust functioning of the judicial system through videoconferencing technologies, the Bench said the action of the magistrate, under exceptional circumstances authorising production through videoconferencing, would be “deemed to be lawful”.

“It is the duty of the court to ensure that they function in such a manner that the possibility of spread of virus is reduced to minimum,” the Bench said, while referring to recent instances of closure of courts and quarantine of staff, magistrates, public prosecutors, and advocates after a few accused and escorting police personnel tested positive for COVID-19 after production of accused before the magistrate.

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