-@ HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Misc. Petition No.860 of 2010 1. Uttam Kumar Ambast, S/o Late Jaishankar Prasad, aged about 38 years, R/o E.W.S.0714, Vaishali Nagar, Supela Bhiiai, District Durg (C.G.) _ , Smt. Raina Prasad, W/o Amodchandra, aged about 4O years, R/o 153-A, Satva Fioor, Shikhar Apartment Junwani Road, Smriti Nagar, Bhiiai, District Durg (C.G.) Smt. Kanakiata Devi, W/o Late Jaishankar Prasad, aged about 63 years, R/o E.W.S.O714, Vaishaii Nagar, - Supela Bhiiai, District Durg (C.G.) x Versus State of Chhattisgarh, Through the Poiice Station Supela, District Durg (C.G.) {Petition under Section 482 of the Code of Criminal Procedure, 1973} RESPONDENT: Present: Mr. Rajnish Singh Baghei, counsei for the petitioners. Miss Sunita Jain, PaneirLawyer for the State/respondent. Single Bench: Hon’ble Mr. T.P. Sharma_, J ORAL ORDER (24-1 —201 1) ; By this petition. under Section'482 of the CrPC, the petitioners have challenged legality and propriety of the order dated 25-9—2010 passed by he 11‘“ Additionai Sessions Judge (FTC), Durg, in Criminal Revision No.95/2010, affirming the order dated 3—4-2010 passed by the Judicial Magistrate First Class, Durg in Criminal Case No.87l2010, whereby earned Judicial Magistrate First Class has committed the case-to the. Court of Sessions under Section 209 of the CrPC. , i have heard learned counsei for the parties, perused the petition and the order impugned. earned counsel for the petitioners submits that in terms of Section 209 f the CrPC, at the time of committai presence of’accused is sine qua .yi w PETITIONERS: t . . L o I l 2 /@ non and in absence of accused, the committal Court is not compete’nf to commit the case to the Court of Sessions. Vide order dated 3-4-2010, the trial Court has committed the case to the Court of Sessions on the ground that the case is exclusively triable by the Court of Sessions, but as per the order of the trial Court, one accused Smt. Ratna was not personally present, she was represented through her counsel,‘ andother accused were in custody and were not brought up before the Court at the” time of such committal order. Learned counsel placed reliance in the matter of Tuneshwar Pvrasad Singh and another v.‘_State of Bihar (AIR 1978 Patna 225) in which the Patna High Court has held that at the time of committing the case, the Magistrate can remand accused to custody. ‘ Learned counsel further placed reliance in the matter of Bismilla ldrisi v. State of U.P. and others (2001 Cri.L.J. 331) in which the Allahabad High Court’has held that presence of accused is'must for committal. V On the other hand, learned State counsel opposes the petition and submits that presence of ‘accused as envisaged in Section 209,0f the"'*“‘ - CrPC means appearance of accused before the committing Court before committal proceeding and not presence of accusediat the time of passing such order ofcommittal. L Before passing the order dated 3-4-2010, as per the order impugned, all - the accused persons have made their appearance before the trial Court, some were in custody and lone accused was on bail, thereafter, at the time of passing committalorder, one accused was represented through her counsel and other accused were in custody, their warrant Was produced before the trial Court. Provisions of Section 209 of the‘CrPCw ,v read as follows:.'— “209. Commitment of case to Courtvof Session > where offence is triable exclusive 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 Session he shall— (a)commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subjectto 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, n the ccused to custod ring an until he onclsion of e rial; . . remad a y du, d t cu th t ' 3 (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 Pubic Prosecutor of the commitment of the case to the Court of Session.” 6. Section 209 of the CrPC empowers the Magistrate to commit'the case to the Court of Sessions after complying with the provisions of Sections 207 '& 208 of the CrPC. After appearance of the accused or after bringing of the accused before the Magistrate, as per the provisions of Section 209 of the CrPC, before passing the committal order, appearance of accused before the committal court is sine qua non, but not at the time .of passing such order. . ln the present case, after making appearance one accused was represented through counsel and others were in custody, they were custodiai aegis in the present case. By committing the case to the Court of Sessions, the trial Court has not committed any illegality. . In the matter of Bismilla ldrisi (supra), the accused personshad not made their appearance before the committal court. In the present case, all the accused have made their appearance before the committal Court. The case of Bismilla ldrisi (supra) is distinguishable on facts to'that of the present case. .-While passing the order dated 3-4—2010 the trial Court and while dismissing the revision vide ,order dated 25-9—2010 the revisional Court have not committed any jurisdictional error warranting any interference in exercise of extra ordinary inherent jurisdiction Under Section 482 of the CrPC. 10.Consequently, the petition is dismissed. 11.l.A.No.1 stands disposed o‘f. Sdl- ’ T.P. Sharma judge