IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 Crl.MC.No. 4022 of 2008() ----------------------------- CP.31/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... PETITIONER(S): ACCUSED ----------------------------- K.V.MUBASH, S/O.ABUTTY, AGED 27 YEARS, SHAHALAS, KUTTIKKAKUR EDAKKAD.PO, KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): COMPLAINANT ------------------------------------- 1. THE S.I.OF POLICE,EDAKKAD POLICE STATION 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.M.C. NO. 4022 OF 2008 =========================== Dated this the 15th day of December,2008 ORDER The question to be considered in this petition is whether presence of the accused in person is mandatory at the stage of committal under section 209 of Code of Criminal Procedure and whether the Magistrate can commit the case, if the accused is represented by a counsel. 2. Petitioner is the first accused in Crime No.363/2004 of Edakkad Police Station. The offence alleged against the accused was that they committed offences under section 143,147,148, 341,323, 324 read with section 149 IPC and Section 3 and 4 of Explosive Substance Act. The case was posted for appearance of the accused on 9.9.2008. Petitioner was absent. He was permitted to be represented by a counsel. As the petitioner did not appear on the next posting date also, Magistrate issued non- bailable warrant and posted the case for CRMC 4022/2008 2 committal. The said order is challenged in this petition contending that when petitioner was permitted to be represented by a counsel his physical presence shall not be insisted for committing the case to Sessions Court. A report was called for from Additional Chief Judicial Magistrate, Thalassery. The report shows that the case as against the other accused were committed as per order dated 17.11.2008 and as first accused was absent the case as against him was not committed. The question is whether presence of an accused is to be insisted for the purpose of committing the case under section 209 of Code of Criminal Procedure. 3. A learned single Judge of this Court (as His Lordship then was) in Vikraman v. State of Kerala (1986 KLT 1372)had occasion to consider the very same question. After analysing the earlier decisions it was held:- “8. A survey of the above CRMC 4022/2008 3 provisions indicates that it is not necessary to insist on the physical presence of the accused in court when the case is committed to the Court of Sessions, provided the accused has already appeared and is represented by a counsel. Thus the Magistrate has the power to proceed with the enquiry and commit the case even in the absence of the accused in court in certain cases. In a case where the accused made his appearance, or is brought before the Magistrate and is released on bail as per orders of the High Court or Court of Sessions, the Magistrate will be within his powers to pass the order of commitment even in CRMC 4022/2008 4 the absence of the accused, if the absentee accused can be allowed to be represented by his counsel.” A Magistrate can commit the case to the Sessions Court, even if the accused was not physically present on the date of committal if he had earlier appeared and was released on bail. In such a case accused can be permitted to be represented by the counsel for the purpose of committal as has been held in Vikram's case.(supra) Crl.M.C is disposed directing Additional Chief Judicial Magistrate, Thalassery to commit the case against the petitioner to Sessions Court if he had appeared earlier and was released on bail,and appears through his counsel, eventhough he is not physically present on the date of order of committal. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006