Wednesday, 8 April 2020

Whether magistrate can commit session triable case in the absence of accused?

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. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM


Crl.M.C.No. 1883 of 2008

Abraham Willy vs State Of Kerala on 13 May, 2008

PRESENT :
 MR. JUSTICE V.K.MOHANAN

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 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 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

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.

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