Judgment :- 1. Whether a Magistrate can permit the accused to appear in his court through counsel when he commits the case to the Court of Session? Answer to the above question will resolve the conundrum created by frequent absence of a few among many accused in a committal proceeding. 2. Two committal proceedings are pending in the Court of the Judicial Magistrate of the 1st Class. In one case there are altogether thirty four accused and in the other case there are ten accused. Petitioners are only some among them. All or most of the accused were released on bail and there is no dispute about their first appearance in Court. Though committal proceedings commenced early in June, 1985, the cases have not yet been committed to the Court of Sessions despite many postings. What happened is that atleast some of the accused will be absent in Court during each posting date, though they would be represented by their counsel. The Magistrate required the presence of all the accused together to pronounce the order of commitment. Such a situation did not happen in the case and so the Magistrate did not pass the committal order hitherto. The consequence is that those accused who are regular in attending the Court are put to much hardships. The grievance of the petitioners is highlighted by them in the following sentences: "The petitioners are residents of Sivakasi. on every posting date they have been appearing before the learned Magistrate for the case to be committed. On all these days they bring their sureties also to execute fresh bonds for appearance before the Sessions Court, in case it is so directed by the learned Magistrate. Since the petitioners and the sureties are residents of Sivakasi, they have to start from their home on the previous day of the posting date and they could reach home only on the next day of the posting date. For their travelling, stay and for other expenses they incur large amounts. This causes considerable extent of hardships to the petitioners, and their family members are also very much affected by this." 3. The learned Magistrate in his remarks expressed his difficulty in the matter. For their travelling, stay and for other expenses they incur large amounts. This causes considerable extent of hardships to the petitioners, and their family members are also very much affected by this." 3. The learned Magistrate in his remarks expressed his difficulty in the matter. Though, he is also anxious to commit the case to the Court of Sessions at the earliest, he could not do it on account of the absence of some of the accused on some dates and some other accused on other dates and so on. The accused are on bail and when they were absent in court applications were filed by their counsel. The Magistrate pointed out that petitions were filed by the counsel for exempting the absentee accused from personal appearance. According to the learned Magistrate, "petitions for excusing the absence of the accused had been allowed only on convincing grounds." However, the learned Magistrate seeks to justify the long delay in committing the case to the Court of Sessions on the ground that "when the case is committed to the Sessions Court, normally the accused have to be bound over to that court for which their personal attendance is a must". 4. The learned counsel contended that the above view of the Magistrate is not correct. According to the counsel, a Magistrate can commit the case to the Court of Sessions without binding over the accused, if he is already on bail pursuant to orders of the superior court. He also contended that in such cases physical presence of the accused in court need not be insisted on when the court passes the committal order, and the counsel can be allowed to represent him in Court. 5. Chapter XVI of the Code of Criminal Procedure (for short 'the Code') deals with commitment to the Court of Sessions when the offence is triable exclusively by it. S.207 enjoins that the Magistrate shall furnish the documents referred to therein to the accused free of cost, in cases instituted on police report. S.208 is the corresponding provision for cases instituted otherwise than on police report. S.209 is the important Section. It reads: "209. Commitment of case to Court of Session when offence is triable exclusively by it. S.207 enjoins that the Magistrate shall furnish the documents referred to therein to the accused free of cost, in cases instituted on police report. S.208 is the corresponding provision for cases instituted otherwise than on police report. S.209 is the important Section. It reads: "209. Commitment of case to Court of Session when offence is triable exclusively 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 Sessions, he shall (a) commit, after complying with the provisions of S.207 or S.208, as the case may be, the case to the Court of Session, and subject to 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, remand the accused to custody during, and until the conclusion of, the trial; (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 Public Prosecutor of the commitment of the case to the Court of Sessions. 6. The Section shows that the Magistrate has to conform to certain formalities, after the appearance of the accused. Firstly, he shall furnish to the accused the documents referred to in the preceding sections. The next is that Magistrate shall remand the accused to custody, which course need be adopted subject to the provisions relating to bail. Then, the Magistrate has to send the records and articles involved to the Court of Session. The last is that the Magistrate shall notify the Public Prosecutor of the commitment of the case to the Court of Session. No duty is cast on him to forward the accused to the Court of Session. 7. Chapter XXXIII of the Code relates to provisions as to bail and bonds. S.439(1) empowers the High Court or Court of Session to direct that any person accused of an offence and in custody be released on bail. The sub-section empowers the High Court or Court of Session to direct that any person who has been released on bail be arrested and commit him to custody. S.439(1) empowers the High Court or Court of Session to direct that any person accused of an offence and in custody be released on bail. The sub-section empowers the High Court or Court of Session to direct that any person who has been released on bail be arrested and commit him to custody. S.438 empowers the High Court or Court of Session to direct that a person shall be released on bail in the event of his arrest on an accusation of having committed a non-bailable offence. When a person is released on bail by the order of the High Court or Court of Session, the Magistrate cannot order his rearrest or his commitment to custody unless it is on account of forfeiture of the bond envisaged in S.446 of the Code. S.317 enables the Magistrate to dispense with the personal attendance of the accused in Court. If he is represented by a pleader, the Section provides the Magistrate with power to proceed with the inquiry in the absence of the accused. 8. 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 Session, 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 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. 9. A single judge of the Allahabad High Court in Onkar Singh & others v. State (1976 Crl. L.J. 1774) has pointed out that S.209 was intended to prevent passing of committal order in cases where the accused was absconding and was never brought before court. In that case the accused was in jail on the day the committal order was passed and he was not produced in court. Of course, he was brought before the Magistrate at the initial stage of the inquiry. In that case the accused was in jail on the day the committal order was passed and he was not produced in court. Of course, he was brought before the Magistrate at the initial stage of the inquiry. When the commitment order passed by the Magistrate was challenged, the learned judge held that there is nothing illegal in it. In K. Chinna Reddy and others v. N. Vidyasagar Reddy and another (1982 Crl. L.J. 2183), a single judge of the Andhra Pradesh High Court pointed out that "the committing Magistrate is not permitted to cancel the bail of an accused person and to remand him to custody at the time of the committing the case to Sessions Court for trial if he has been bailed out by an order of the High Court or of the Court of Session, unless the order passed by the High Court or the Court of Session is of a temporary nature and permits the Magistrate to reconsider the matter at some subsequent stage in the proceedings." The Supreme Court in Free Legal Aid Committee, Jamshedpur v. State of Bihar (1983 S.C.C. (Cri) 53) dealt with a case where an accused was required by the Magistrate to appear before the court once is 14 days, though he was released on bail. The Supreme Court found that such practice would cause considerable inconvenience to the accused. The following guideline was therefore laid down by the Supreme Court: "It would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case maybe, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session. Therefore, in cases triable by Sessions Court the practice followed by the Magistrates granting bail only during the pendency of the enquiry before them must be discontinued, for, the result of such bail is that when the case is committed to the Sessions Court, the accused is rearrested and brought before that court when he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned." The aforesaid observations lend support to the view expounded by me above. 10. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned." The aforesaid observations lend support to the view expounded by me above. 10. R.76 of the Criminal Rules of Practice, Kerala, 1982, enjoins on a Magistrate a duty to commit the cases triable by Sessions Courts "with the least practicable delay." If the time taken by the Magistrate between receipt of the charge sheet and the date of committal order exceeds three weeks, he is required to furnish explanation for the delay. The said rule is incorporated with a view to provide speedy progress in committal proceedings. 11. In the light of the foregoing discussion, I direct the learned Magistrate to complete the committal proceedings without further delay, by following the guidelines mentioned above, if not already completed. The Crl.M.Cs. are disposed of accordingly.