STATE OF KERALA Vs. JOHN

JUDGEMENT

(1.) This reference arises in connection with P. E. 11 of 1974 on the file of the Judicial Magistrate, II Class, Thodupuzha and Sessions Case No. 80 of 1974 on the file of the Additional Sessions Judge, Ernakulam Eight accused persons were charge sheeted by the police for offences triable exclusively by a Court of Session. Accused 1 to 6 alone were apprehended. The Judicial Magistrate, 2nd Class, Thodupuzha did not wait for the apprehension of accused Nos 7 and 8 and with them on record committed accused 1 to 6 for trial before the Court of Session, Ernakulam, apparently under S.209 of the Code of Criminal Procedure. Though it was mentioned that accused and 8 were absconding, the case against them bad not been split up. The Sessions Judge without noticing the irregularity registered the case against all the 8 accused The mistake was found out later on and the names of the two absconding accused were deleted After the trial of accused 1 to 6, a copy of the judgment was sent by the Court of Session to the Chief Judicial Magistrate for necessary action as against accused 7 and 8. The Chief Judicial Magistrate reported that S.209(a) and S.299 of the Code of Criminal Procedure, 1973 (to be referred to as the new Code) envisage a procedure different from what was provided in S.207A(10) and S.512 of the Code of Criminal Procedure, 1898 and under the new Code, the splitting up of the case has to be done by the Court of Session. As the Sessions Judge did not agree with the above view, this reference under S.395(2) is made to this court.

(2.) The learned Chief Judicial Magistrate points out that under the new Code the Magistrate is to commit the case to the Court of Session whereas under S.207A(10) of the Code of 1898, it was the accused who was to be committed to the Court of Session. Again under S.239(1) of the new Code, if it is proved that an accused person has absconded and there is no immediate prospect of arresting him, the court competent to try such person may in his absence examine the witnesses, it any, produced on behalf of the prosecution and record their depositions. The corresponding provision of the Code of 1898 empowered both the court competent to try the case and the court competent to commit for trial to record the evidence in the absence of the accused. In the opinion of the Chief Judicial Magistrate, in the light of the above changes the whole case has to be committed for trial and the Sessions Judge alone is competent to split up the case as against the absconding accused.

(3.) The above reasoning does not appear to be correct. It is true that there is some difference between the language of S.209 of the new Code and the language of S.207A of the repealed Code. But S.209 of the new Code opens with the words "When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate ........" It follows that the order of committal is to be made only alter the apprehension of the accused. In other words, the appearance of the accused is a condition precedent for passing an order of commitment. R.36 of the Criminal Rules of Practice (Travancore-Cochin) enables the Magistrate to proceed with the committal of those accused who have appeared. It directs that as regards the accused who have not appeared, the Magistrate should give the case a new number and enter it in the register of cases received. The above procedure is not inconsistent with the provisions of the new Code.