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.