Unnecessary Physical Production of Undertrials Must Be Avoided: Lawyer Files Plea in Supreme Court: Post Rohini Court Shootout.

(Judicial Quest News Network)

 In the wake of shootout inside Rohini Court in Delhi, killing a gangster Jitender Gogi, a plea has been filed in Supreme Court by a Advocate Rishi Malhotra seeking directions to prevent the various trial courts across India from insisting on presence of undertrials om each and every date as a matter of routine practice.

It is submitted that it not only endangers the safety of public as well as judicial officers but also facilitating the opportunity of hardcore prisoners from escaping from the custody of the police.

The petitioner has stated that

 Apart from this there have been various instances all across the Trial Courts in India where during the normal usual course of appearances before the Trial Court by an undertrial, either the public safety has been put to danger or the said undertrial has fled from the custody of the police.

The petitioner has further argued that the idea behind the above-mentioned scheme of the code is that it is not obligatory that an accused or an undertrial has to be produced each and every time before the Trial Court to face the proceedings and it is only up to the discretion of a Trial Judge as to dispense the presence of an undertrial as it deems fit being proper and necessary.

The plea has submitted that as per the provisions of code of Criminal procedure, it is not obligatory that an accused or an undertrial has to be produced each and every time before the Trial Court to face the proceedings and it is only up to the discretion of a trial judge to dispense the presence of an under trial as it deems fit being proper and necessary.

The following provisions of the Code of Criminal Procedure has provided the concerned court to dispense the personal presence of undertrial from jail during normal trial proceedings.

Sec.205 Cr.P.C. though gives power to a Magistrate issuing summons to dispense a personal attendance of an accused and further permits him to appear through his pleader. Further, sec.205(2) Cr.P.C. further provides that at any stage of a case, if the Magistrate desirous that the personal attendance of an accused is necessary, he can pass orders enforcing such attendance.

Sec.267 Cr.P.C. which deals with the power of the Trial Court to require attendance of a prisoner from jail gives discretion to a Trial Judge (the word use is ‘may’) to order attendance of a prisoner from Jail. Meaning thereby, it is not obligatory for a concerned Trial Judge to call the concerned undertrial prisoner every time when a date is fixed before the Trial Court and it is upto the concerned Trial Judge as and when he desires to call the prisoner before the court for the purposes of the case.

Moreover, sec.268 Cr.P.C. gives an overriding power to a State Government wherein it can direct that any class of prisoner shall not be removed from the prison despite an order passed by the

Court u/s 267 Cr.P.C. Of course the parameters while exercising powers u/s 268 Cr.P.C. are three folds namely the nature of the offence by which the accused is confined in jail, the likelihood of the disturbance of public order if that prisoner is allowed to be removed from the prison and lastly the, public interest generally.

Sec.273 Cr.P.C. though provides that all evidence taken in the course of the Trial shall be taken in the presence of the accused but there is an exception carved out that the court can still dispense the personal attendance of that undertrial provided his pleader is present.

Lastly sec.317 Cr.P.C. gives ample power to a concerned Court to dispense the personal attendance of an accused before the Court provided for the reasons to be recorded that such attendance before the Court is not necessary in the interest of justice. Moreover, the said section also provides that if the accused is duly represented by a pleader, such presence of the accused can be dispensed with and the concerned Court may at any subsequent stage of the proceedings direct the personal attendance of such accused if thinks proper and necessary.