The Author, Gaurav Thote is an Advocate practising in Bombay High Court.
Recently, the Karnataka High Court held that although an arrestee has to be produced before a Magistrate in first remand cases, the Magistrate may authorise the remand of such person to custody via video conferencing in exceptional cases. It was clarified that this finding was in line with the directions issued by the Apex Court on April 6, 2020 in backdrop of the COVID-19-pandemic.
It was observed that the Video Conferencing Hearing Rules(“VCH Rules”) framed by the Court would run contrary to clause (b) of proviso to sub-section (2) of Section-167 of the Cr.P.C. to some extent, but the VCH Rules were framed during exceptional-circumstances created by the pandemic of COVID-19 and hence would prevail in exceptional-circumstances 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. While arriving at this finding the Court observed-
“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.”
Clause (b) of proviso to sub-section (2) of Section-167 of Cr.P.C is formulated pursuant to Article 22(2) of the Constitution of India. Article 22 (2) of the Constitution deals with protection against arrest and detention enumerating in sub-clause (2) that a person arrested and detained in custody must be produced before the nearest Magistrate within a period of twenty-four-hours of such arrest excluding the time necessary for the journey from the place of arrest to the Magistrate’s Court and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
Proviso to Section 167(2)(b) states that a Magistrate shall not authorise detention of the accused in Police-Custody u/s. 167 of Cr.P.C., unless the accused is produced before him in-person for the first time and subsequently every-time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial-custody on production of the accused either in person or through the medium of electronic video linkage. Further, an explanation is provided in context with clause (b) of Section-167 which enumerates-
“If any question arises whether an accused person was produced before the Magistrate as required under clause-(b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.”
It can be summarized beyond-doubt that an “arrested person” must be produced “in person” before a Magistrate, each-time, until the arrestee remains in custody of Police. The underlying essence of this provision is to keep a check on third-degree measures/torture inflicted on an arrested accused during interrogation, whilst in Police-Custody.
The Apex Court and High Courts, in a catena of judgments, have issued guidelines pursuant to protection of persons arrested and detained in custody.
In Sheela Barse v. State of Maharashtra[i], the Apex Court while highlighting incidents of custodial violence against prisoners confined in police lockups, observed the need for issuing guidelines in the form of directions to provide legal assistance to prisoners in jail. The Court held-
“(vii) We would direct that the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in police custody and inform him that he has right under Section-54 of the Code of Criminal Procedure 1973 to be medically examined. We are aware that Section-54 of the Code of Criminal Procedure 1973 undoubtedly provides for examination of an arrested person by a medical practitioner at the request of the arrested person and it is a right conferred on the arrested person. But very often the arrested person is not aware of this right and on account of his ignorance, he is unable to exercise this right even though he may have been tortured or maltreated by the police in police lock up. It is for this reason that we are giving a specific direction requiring the magistrate to inform the arrested person about this right of medical examination in case he has any complaint of torture or mal-treatment in police custody. We have no doubt that if these directions which are being given by us are carried out both in letter and spirit, they will afford considerable protection to prisoners in police lock ups and save them from possible torture or ill-treatment.”
Again, in D.K.Basu v. State of West-Bengal[ii], guidelines were issued in cases of arrest and detention, given the rise of deaths occurring in Police-Custody. The Court observed-
“Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article-21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen.”
In CBI v. Anupam Kulkarni[iii] the Apex Court held that police detention could be allowed only in special circumstances by a Magistrate for reasons judicially scrutinised. The Court observed-
“The detention in police custody generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only be a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section-167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article-22(2) of the Constitution of India and Section-57 of Cr.P.C give a mandate that every-person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24-hours of such arrest excluding the time necessary for the journey from the place of the arrest to the court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate.”
In Joginder Kumar v. State of U.P.[iv], the Apex Court held it to be the duty of the Magistrate to scrupulously protect the rights of arrested-persons inhering under Articles 21 and 22 of the Constitution and issued guidelines mandating the Magistrate to ensure satisfactory compliance of such guidelines.
The sole purpose of referencing the judgments above is to perceive legal factors pertaining to “arrest and detention” of an accused.
It would be apposite to refer to few relevant-lines in Sarwan Singh v. State of Punjab[v] wherein the Apex Court, while discarding the confession given by Accused for want of ascertaining its voluntariness, overturned the decision of the Lower-Courts as they failed to perceive that the Magistrate had recorded the confession of accused despite the fact that the Accused was previously in Police-Custody and had sustained injuries prior to recording of his Confession. The relevant-lines read-
“The evidence of the Magistrate also shows that, soon after the statement was finished, the Sub-Inspector went to the Magistrate's room again. The person of the accused showed some injuries and yet the learned Magistrate did not enquire how the accused came to be injured. It is in the light of these circumstances that the question falls to be considered whether the confession made by the accused can be regarded as voluntary.”
While discarding the confession, the Apex Court inferred that the injuries inflicted on the Accused could have been the result of custodial violence before recording of his confession: An aspect that was completely ignored by the Magistrate/Lower Courts!
CONCLUSION
When a person is arrested and brought before the Magistrate, the Magistrate is to apply his judicial mind, record his findings as to compliance of guidelines and examine the mental/physical condition of the arrested person along-with the papers pertaining to arrest and remand. Only then can such Magistrate proceed to consider authorising remand of the arrestee to Police Custody. It is not a mechanical process. For that purpose, compliance of provisions enumerated would be mandatory.
Given that Courts have not adapted to the concept of Videoconferencing, material aspects could be overlooked for various reasons like internet speed, bandwidth-issues, pixelated video quality.etc. Although the COVID-19 situation is exceptional, applying the VCH-Rules while remanding an arrestee to Police Custody could amount to suspension of guidelines issued in the above-mentioned judgments and non-compliance of such guidelines could infringe fundamental rights of an arrested-person.
References:
[v] 1957 SCR 95
Pic Source Financial Express
