P. A. Ramachandran vs State Of Kerala

M.R.Anitha, J

The petitioner is the sole accused in Crime No.997/2020 of Medical College Police Station, Kozhikode, which is now pending as CP No.32/2021 on the file of Judicial First Class Magistrate Court, Kunnamangalam, registered for the offence punishable under Sections 376(2)(n) and 506(i) of IPC.

According to the learned counsel for the petitioner, the petitioner is an 81 year old man who has been living alone and is suffering from various ailments.

Heard both sides.

The learned counsel for the petitioner produced Annexure-A5, which is the copy of the discharge summary issued from 'Aster MIMS' from the department of Neurology, which would show that he had been undergoing treatment there from 18.8.2020 to 22.8.2020 for Diabetic neuropathy, Coronary artery disease. Annexure-A6 is the medical certificate issued from Thrikkakara Municipal Co-operative Hospital Society Ltd., Kakkanad. It is certified there in that he had been under treatment from that Hospital from 06.11.2021 to 15 days and advised treatment and rest for 15 days from 06.11.2021. He was also advised not to travel.

The learned counsel for the petitioner submitted that the petitioner is a post graduate in environmental engineering from Prestige University in USA, had worked with the Kerala Public Works Department, Kerala Water Authority, Kerala Pollution Control Board as Regional Engineer, consultant for Ganga Action Plan and had also been the Head of Environment and Safety Department at Dubai Government and senior controller pollution in Ministry of Environment in Oman. The petitioner's wife and daughter are staying in USA. The complaint has been filed by a temporary housemaid.

Annexure-A1 is the copy of the FIR. Annexure-A2 is the copy of the bail order of the Sessions Court, Kozhikode. Annexure-A3 is the copy of the summons issued to the petitioner. Annexure-A4 is the copy of the e-courts proceedings in C.P. No.32/2021 before the Judicial First Class Magistrate Court, Kunnamangalam.

It would show that case has been posted for appearance of accused. Petitioner seeks exemption from personal appearance due to his co-morbidities and permission is sought for appearance through Video Conference.

It is relevant in this context to quote Section 209 of the Code of Criminal Procedure which reads thus:

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 Session, he shall-

(a) commit, after complying with the provisions of section 207 or section 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 Session.

On going through the above provision it is clear that appearance or production of accused before the court is necessary for committal of the case.

The learned Public Prosecutor produced Haji Shafi and Others v. State of U.P. [2001 KHC 1922] of Allahabad High Court and contended that the presence of the accused at the time of committal is necessary. It is also held there in that the accused cannot be committed to the Court of Session, if they are not present in the Court of the committing Magistrate.

The learned Public Prosecutor also brought to my attention that Bhim Singh and Another v. State of Haryana [1992 KHC 1663]. That was a case in which the petitioner sought for quashment of the commitment proceedings since the accused persons were not present on prior hearings. In that context, it was held by the Punjab and Haryana High Court that absence of accused at the time of passing commitment order, is not a material irregularity causing any prejudice.

The learned counsel for the petitioner on the other hand would content that in committal proceedings, Magistrate is not exercising any judicial function but only doing administrative acts and hence the presence of the accused is not necessary. However, by going through the provisions of Section 209 and the dictum laid down in Haji Shafi's case referred above it cannot be approved that the presence of accused is not necessary while committing a case.

However, in the present case, since the petitioner is an old man of 81 years and suffering from various ailments and further in view of the pandemic situation, I am inclined to allow the request of the petitioner for making appearance through Video Conference and the petitioner can file necessary petition for the same before the learned Magistrate upon filing such petition the learned Magistrate can fix a day and time and complete the committal proceedings.

In the result, the Crl.M.C. is disposed of accordingly.