IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.MC.No. 1241 of 2009() ----------------------------------- AGAINST THE ORDER DATED / / IN CMP 384/2009 IN CP.57/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, VADAKARA .................... PETITIONER(S): /ACCUSED ------------------------- 1. FASAR SHAHEEN,S/O.UMMERKUTTY, AGED 27 YEARS,MADATHIL HOUSE, ONCHIYAM AMSOM DESOM. 2. ABDUL KAREEM,S/O.KUNHABDULLA HAJI, AGED 30 YEARS,MADATHIL HOUSE, ONCHIYAM AMSOM DESOM. BY ADV. MR.K.P.SUDHEER RESPONDENT(S): /COMPLAINANT ------------------------------ THE STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, REPRESENTING STATION HOUSE OFFICER, EDACHERY. BY PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1241 OF 2009 ------------------------------------------ Dated 21st May 2009 O R D E R Petitioner is the accused in C.P.57/2008 on the file of Judicial First Class Magistrate, Vatakara. They filed C.M.P.384/2009 before the Magistrate to commit the case in their absence treating the presence of their counsel as their presence. Under Annexure-A2 order learned Magistrate dismissed the application. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 order and to permit the petitioners to appear through their counsel in the committal proceedings. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Learned counsel relying on the decision in Vikraman v. State of Kerala (1986 KLT 1372) submitted that though Section 209 of Code of Criminal Procedure provides for appearance of the accused for the purpose of committing the case to the court of Sessions, accused could appear through their counsel and CRMC 1241/09 2 personal presence of the accused is not to be insisted and therefore learned Magistrate should have committed the case to the Sessions court, even though petitioners are not present, treating appearance of the counsel as their appearance. 4. Learned Public Prosecutor submitted that Section 207 of the Code of Criminal Procedure provides for furnishing copies of statements and records provided therein to the accused and when the accused did not appear, provisions of Section 207 cannot be complied with and as Section 209 provides for appearance of the accused either by their own or as produced by the police, learned Magistrate was justified in not committing the case and dismissing the application. 5. Though Section 209 of Code of Criminal Procedure provides that case is to be committed to the court of sessions by the Magistrate, when the offence is triable exclusively by the court of sessions, when the accused either appears or is brought before the Magistrate, in a case where the accused had already appeared and is represented by a counsel, personal appearance of the accused need not be insisted for the CRMC 1241/09 3 purpose of committal as provided under Section 209 of Criminal Procedure Code. Though Section 209 provides for the appearance of the accused when accused has already appeared earlier and was released and is represented by a counsel, appearance of the counsel is to be treated as the appearance of the accused for the limited purpose of committal as provided under Section 209 of Criminal Procedure Code. This court in Vikraman's case (supra) settled the decision as follows. “A survey of the above 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 CRMC 1241/09 4 Magistrate and is released on bail as per orders of the High Court or court of session, the Magistrate will be within his powers to pass the order of commitment even in the absence of the accused, if the absentee accused can be allowed to be represented by his counsel.” 6. Section 207 of Code of Criminal Procedure provides for furnishing to the accused free of cost copies of police report, first information report recorded under Section 154, statement recorded under 161, confession statement, if any recorded and any other document or relevant extract forwarded to the Magistrate along with the report under Section 173(5). But for that purpose, presence of the accused need not be insisted as the copies could be furnished to their counsel and endorsement can be obtained and it shall be treated as furnishing the copies to the accused. In such circumstances, I find no justification for the Magistrate not to commit the case for the reason that the accused did not personally appear on the date of posting. CRMC 1241/09 5 7. Petition is allowed. Annexure-A2 order is quashed. Judicial First Class Magistrate is directed to furnish copies of the statements and records and documents if any as provided under Section 207 of Criminal Procedure Code to the counsel appearing for the accused and to treat the appearance of the counsel as the appearance of the accused for the purpose of Section 209 and to commit the case to the sessions case. M.SASIDHARAN NAMBIAR, JUDGE. uj.