ONKAR SINGH Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the order of the Judicial Magistrate, Ghaziabad dated 1-12-1975 committing the applicants to the Court of Session for trial in case under Section 302, I. P. C. By this commitment order four persons were committed to the Court of Session, namely, Ranvir, Rishipal, Onkar and Brijpal, Ranvir alone was present in court on the date of commitment. Rishipal was absent but his attendance had been exempted through counsel. Onkar and Brijpal were in jail. They were not brought before the Magistrate on the date of commitment. The commitment order has been challenged by Onkar Singh and Brijpal only who were in jail.

(2.) LEARNED Counsel for the applicants has argued that under Section 209, Cr. P. C. , it is mandatory that the accused should either appear or be brought before the Magistrate and only then he can commit the accused to stand their trial before the Court of Session. Section, 209, Clauses (a) and (b) of the Cr. P. C. are as follows:

(3.) LEARNED Counsel for the applicants has argued that in the case of Kamlesh Kumar Dikshit v. State (Habeas Corpus Petition No. 3643 of 1975 decided on 5-8-1975) (All) a Division Bench of this Court had held that detention of the accused in that case was illegal as he had appeared before the court only once and was then sent to jail, and further remands were granted under Section 167, Cr. P. C. without his being brought before the court and he was ultimately committed under Section 209, Cr. P. C. without having been brought before the court when he was in jail. His argument is that the same provision will apply with regard to the commitment order under Section 209, Cr. P. C. in the absence of the accused when they were in jail and were not brought before the Magistrate. I have carefully perused the judgment in that case. The Division Bench mainly considered the provisions of Section 167, Cr. P. C. Proviso (b) to Sub-section (2) of Section 167, Cr. P. C. is as follows: