IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 13TH MAY 2008 / 23RD VAISAKHA 1930 Crl.MC.No. 1883 of 2008 --------------------------------- CP.4/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI ........................................... PETITIONER: ACCUSED ------------------------------------ ABRAHAM WILLY, AGED 27 YEARS, S/O.JOY, ARAKKAL VEEDU, S.CHELLANAM DESOM, GUNDUPARAMBU MUTHAKUPURAM BHAGOM, CHELLANAM VILLAGE. BY ADV. SRI.ASHIK K.MOHAMMED ALI RESPONDENTS: ----------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE,KANNAMALY POLICE STATION, THORUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. M.S.BREEZE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. K.MOHANAN, J. -------------------------------- Crl.M.C.No. 1883 of 2008 -------------------------------- Dated this the 13th day of May, 2008. O R D E R Petitioner, who is the accused in CP No. 4 of 2006 pending before the Judicial First Class Magistrate Court-I,Kochi, approached this Court by filing the above petition under Section 482 Cr.P.C with a prayer to set aside the order dt.12.03.2008 of the court below by which the bail bond of the accused was forfeited and registered MC No.87 of 2008. It is also prayed that a direction be issued to commit the case to the Sessions Court, Ernakulam in the light of the decision in Vikraman v. State of Kerala [ 1986 KLT 1372]. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. The learned counsel for the petitioner submitted that the petitioner accused was regularly attending the court on all posting days and on 12.03.2008, in fact, the presence of the accused was not necessary, since the matter was posted on that day for committal. It is also submitted that due to the leg fracture, the CRMC No. 1883 OF 2008 2 petitioner was unable to attend the court and therefore an application was filed showing the reason, but the same was dismissed and the bail was cancelled. 4. Going by Annexure A it can be seen that, on 25.01.2008, though the accused was absent, his application was allowed. From the proceedings it can be seen that, the case was posted on several dates for want of chemical analysis report and the accused was warning to be present on the committal date. It is also not clear that whether the accused was present on 21.02.2008, 27.02.2008 and on 06.03.2008. On those posting dates it can be seen that the court below has strictly directed the accused to be present for committal. From the proceedings it can be seen that, on 06.03.2008, the accused was specifically directed to be present on 12.03.2008, which is the next posting date for the purpose of committal. But, in spite of such direction, the accused was absent on 12.03.2008, and on that date his bail bond was forfeited. Counsel submits that there was no willful latches or negligence from the part of the petitioner-accused from appearing before the court on 12.03.2008, but due to leg fracture CRMC No. 1883 OF 2008 3 he could not appear before the court below. Nothing brought over this court to show that the petitioner's absence was due to his ailment. Counsel submits that for the purpose of committal, the presence of the accused is not necessary in the light of the decision reported in Vikraman v. State of Kerala [ 1986 KLT 1372]. Of course, in exceptional cases, the presence of the accused is not necessary for committal but, it cannot be taken as a general rule. As per the normal procedure, committal can be done in the presence of the accused and the committal court has to comply with the directions contained in Section 209 of the Cr.P.C before the committal. Of course, in exceptional cases, in the absence of the accused the case can be committed. But in the present case no special reason is made out to commit the case in the absence of the accused. Therefore, I cannot find any fault with the order of the learned Magistrate, but at the very same time, the Magistrate can have adjourn the case for procuring the presence of the accused for committal instead of forfeiting the bail bond. 5. Having considered the entire facts and circumstances of CRMC No. 1883 OF 2008 4 the case, I am of the view that, this petition can be allowed on terms. Accordingly, this Crl.M.C is disposed of directing the petitioner to appear before the court below with a prayer to recall the warrant and for bail and the court below is directed to consider the same in favour of the petitioner on condition that the petitioner shall pay a sum of Rs.1,500/- to the court below. With the above observation and direction, this Crl. M.C is disposed of. V.K.MOHANAN, JUDGE. ttb