Reduce Physical Production Of Undertrials In Courts: Lawyer's Plea In Supreme Court After Rohini Court Shooting

In the backdrop of recent gun firing and killing of jailed gangster Jitender Gogi inside Delhi's Rohini Court hall, a lawyer has moved the Supreme Court seeking directions to prevent the various Trial Courts across India from insisting on presence of undertrials on each and every date as a matter of routine practice.

A PIL has been filed by Advocate Rishi Malhotra on Tuesday arguing that ordering requirement of an undertrial accused from prisons as matter of routine not only endangers the safety of public and judicial officers but also facilitated the opportunity of hardcore prisoners from escaping from the police custody.

The petitioner has further argued that even if the Trial Court deems fit that accused be present before it in a particular case, the same can be ordered through Video Conferencing from jails especially in the cases of Gangsters to ensure public safety and security of the judicial officers on one hand and balancing rights of an accused on the other.

The petitioner has stated that apart from the recent Rohini Court incident, 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 plea has submitted that as per the provisions of the 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 upto the discretion of a Trial Judge to dispense the presence of an undertrial as it deems fit being proper and necessary.

According to the petitioner, the following provisions of the Code of Criminal Procedure has provided powers to the concerned Court to dispense the personal presence of undertrial from jails during normal trial proceedings:

• Sec 205 Cr.P.C: This 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.
• Section 267 Cr.P.C: This deals with the power of the Trial Court to require attendance of a prisoner from jail and gives discretion to a Trial Judge (word used is May) to order attendance of a prisoner from Jail. Therefore it is not obligatory for a Trial Judge to call the concerned undertrial prisoner every time when a date is fixed.
• Section 268 Cr.P.C: This provision 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.
  
• Section 273 Cr.P.C: The section 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.
  
• Section 317 Cr.P.C: This section gives 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.
  

Case Title: Rishi Malhotra vs Union of India