HAJI SHAFI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Charge-sheet in Crime No. 178 of 1998 for offences under Sections 147, 148 and 302, I.P.C. has been submitted against the applicants regarding which Case No. 4448 has been registered in the Court of C.J.M., Rampur. The applicants were summoned. They moved an application to commit them to the Court of sessions through counsel in their absence. The said application has been rejected by the impugned order dated 17-8-2000 by the C.J.M., Rampur. Aggrieved by it, the present revision has been preferred.

(2.) I have heard Sri Dharmendra Singhal, learned counsel for the applicants and the A.G.A.

(3.) It is contended that the presence of the accused at the time of committal is not necessary. The learned counsel for the applicants in support of the argument, has referred to the case of "Kamlesh Kumar Dixit v. State, 1981 ACC 238 : (1981 Cri LJ (NOC) 92)". I have gone through the judgment and is of the view that it is of no help to the applicants. In this case the accused was committed in his absence to the Court of session. The trial ultimately resulted in conviction. Against the conviction, criminal appeal was filed and it was argued that the accused was committed to the Court of session in his absence, which is not permissible under Section 209, Cr. P.C. That, therefore, the trial as well as conviction are illegal. This contention was repealed by Hon'ble P. N. Goel, J., who decided the appeal and held that it is only irregularity which does not vitiate the trial. It was further observed that no prejudice has been caused to the appellant for the reason that he was committed to the Court of session in his absence. Therefore, the decision is not an authority on the point that the accused can be committed to the Court of session in absence through counsel. On the other hand, the law laid down in this case is against the arguments of the learned counsel for the applicants.