The Hon’ble High Court of Karnataka vide order dated 10.07.2020 held that it was absolutely lawful for the Courts to record a compromise on the basis of compromise petitions duly signed by the parties and tendered by their respective Advocates before the Court, even without procuring the personal presence of the parties
Subsequently, the Hon’ble Court also held that the conduct of the proceedings of the petitions filed under Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, for divorce by mutual consent can be conducted via videoconference.
The said order was passed in a suo moto petition issued to address various legal and technical issues arising out of the provisions of the Standing Operating Procedure applicable to the District and Trial Courts in the State under which, the litigants are not permitted to enter the Court premises, in order to prevent the spread of COVID-19.
Taking up the first issue regarding whether it was mandatory for parties to be physically present in court when the Court records compromise in accordance with the Rule 3 of Order XXIII of the Code of Civil Procedure, 1908, the Coram comprising of Chief Justice Abhay Oka and Justice S Vishwajith Shetty simply held that on the face of Rule 3 of Order XXIII of the Code of Civil Procedure, 1908, it was clearly not mandatory for the parties to remain personally present in the Court in case of an agreement in writing or a compromise in writing signed by the parties in accordance with the provisions of Rule 3 of Order XXIII, provided that the Court is satisfied of that the agreement or compromise in writing has been signed by the parties to the suit.
The Hon’ble Coram also held that in case where the compromise petition is signed by a party or by his Advocate and if the party concerned is not present before the Court, if a Court entertains a doubt about the genuineness of the settlement, the Court can always exercise its power under the proviso to Rule 1 of Order III of the Code of Civil Procedure 1908 and direct the parties to appear before the Court in person even through video conferencing, but cannot force the parties for personal appearance.
Considering the next issue regarding the conduct of the proceedings of the petitions filed under Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the Hon’ble High Court held that held that the method of video conferencing hearing cannot be adopted when only one party gives his consent to conduct the conciliation proceedings to bring about a settlement between the parties by video conferencing.
Referring to the Supreme Court judgement in the matter of Sanathini vs Vijaya Venkatesh, it was further held that once the settlement or reconciliation fails, if both the parties gave consent by filing a consent memorandum for hearing of the case through video conferencing and for examination of a witness by video conferencing, the Family Court could take recourse to videoconferencing.
The third issue resolved in the present matter was about the acceptance of sureties in compliance with the condition in the orders of the Criminal Courts, enlarging the accused on bail.
The Hon’ble High Court in the above issue laid down the following procedure:
- Advocate representing the accused can produce the bail bond signed by the surety in prescribed form along with an affidavit of the surety. Along with the bond and affidavit, true copies of the authentic documents of identity such as PAN, Aadhar etc., and documents of address proof as well as the documents showing the property details held by him shall also be produced. The documents shall be self-attested by the surety and his signature shall be identified by the Advocate for the accused.
- The Advocate will have to identify the signature of the surety by signing below the signature of the surety and the concerned Advocate shall mention his registration/enrolment number issued by the Karnataka Bar Council below his signature.
- A recent photograph of the surety shall be affixed on the affidavit and the bond. The affidavit shall bear the signature of the Advocate for the accused recording that he identifies the surety.
- In a given case, the jurisdictional Court can call upon the Advocate to produce the original documents of which the self-attested copies are furnished for the purposes of verification. The jurisdictional Magistrate may himself verify the documents or get the documents verified by the Court officials.
- The affidavit of the surety must contain a statement on oath regarding the description of the property possessed by him, its value etc. A statement recording the correctness of the documents produced along with the affidavit must be incorporated in the affidavit. There shall be a statement in the affidavit to the effect that the person executing the affidavit has signed the surety bond.
- After the aforesaid formalities are completed, the jurisdictional Court may make an enquiry as contemplated by sub-section (4) of Section 441 of the Criminal Procedure Code 1974 and will decide whether the surety is fit and/or sufficient.
- For holding enquiry as contemplated in sub-section (4) of Section 441 of Cr.P.C, personal/physical presence of the surety is not mandatory. However, if the Court entertains any serious doubt about the identity of the surety or the genuineness of the documents produced along with the bond and affidavit, the Court can procure the attendance of the surety by video conferencing.
- Before passing an order after holding enquiry under sub-section (4) of Section 441, the Court must ensure that a declaration on oath in accordance with Section 441-A is furnished by the surety.
Laying down the above procedure, the Hon’ble High Court ordered the advocates to follow the said procedure during the present period of pandemic of COVID-19.
Order: WP 7338 of 2020