VIKRAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) WHETHER a Magistrate can permit the accused to appear in his court through counsel when he commits the case to the Court of Session? answer to the above question will resolve the conundrum created by frequent absence of a few among many accused in a committal proceeding.

(2.) TWO committal proceedings are pending in the Court of the Judicial Magistrate of the 1st Class. In one case there are altogether thirty four accused and in the other case there are ten accused. Petitioners are only some among them. All or most of the accused were released on bail and there is no dispute about their first appearance in Court. Though committal proceedings commenced early in June, 1985, the cases have not yet been committed to the Court of Sessions despite many postings. What happened is that atleast some of the accused will be absent in Court during each posting date, though they would be represented by their counsel. The Magistrate required the presence of all the accused together to pronounce the order of commitment. Such a situation did not happen in the case and so the Magistrate did not pass the committal order hitherto. The consequence is that those accused who are regular in attending the Court are put to much hardships. The grievance of the petitioners is highlighted by them in the following sentences: "the petitioners are residents of Sivakasi. on every posting date they have been appearing before the learned Magistrate for the case to be committed. On all these days they bring their sureties also to execute fresh bonds for appearance before the Sessions Court, in case it is so directed by the learned Magistrate. Since the petitioners and the sureties are residents of Sivakasi, they have to start from their home on the previous day of the posting date and they could reach home only on the next day of the posting date. For their travelling, stay and for other expenses they incur large amounts. This causes considerable extent of hardships to the petitioners, and their family members are also very much affected by this. "

(3.) CHAPTER XVI of the Code of Criminal Procedure (for short 'the Code') deals with commitment to the Court of Sessions when the offence is triable exclusively by it. S. 207 enjoins that the Magistrate shall furnish the documents referred to therein to the accused free of cost, in cases instituted on police report. S. 208 is the corresponding provision for cases instituted otherwise than on police report. S. 209 is the important Section. It reads: "209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or, otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall (a) commit, after complying with the provisions of S. 207 or S. 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions.