Ramanand Gauro and Others vs The State of Bihar

Ghanshyam Prasad, J.—Heard. This application u/s 482 of the Cr. P.C. has been filed for quashing the order dated 8.5.2003 passed by the learned 7th Additional Sessions Judge, West Champaran, Bettiah by which non-bailable warrant of arrest has been issued against the petitioners as well as the order dated 26.8.92 by which the case of the petitioners was committed to the court of sessions.

It is submitted by learned counsel for the petitioners that the case of these petitioners were committed by the court below to the court of Sessions in their absence. Prior to commitment, the petitioners were on police bail. No summons were issued against them before commitment. It is further submitted that even no summons and warrants were issued to the petitioners after commitment. They had no knowledge about the commitment of their case or about issuance of summons or warrants against them by the court of Additional Sessions Judge. In support of his contention, reliance has been placed on a decision of this court reported in 2004(4) PLJR 350.

The case is committed to the court of sessions under the Provisions of Section 209 of the Cr.P.C. Section 209 runs as follows:

"Commitment of case to Court of Sessions 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 Sessions.

From bare perusal of Section 209 Cr. P.C. it is quite clear that at the time of commitment of the case, the appearance of accused persons is mandatory. The court has no power to commit the case to the court of Sessions in absence of the accused persons.

This view has also been expressed in the above decision of this Hon''ble Court in paragraph 16 of the judgment. It has been held follows:--

"From reading of section 209 it follows that in absence of an accused no commitment order can be passed. Since the order of commitment has been passed in absence of petitioner no: 2 in that case so far impugned order is concerned with respect to petitioner No. 2 is quashed."

In view of the above decision and law, the order of commitment dated 26.8.92 is hereby, quashed and consequently all orders passed by the Sessions Judge, after commitment are also hereby deemed to be quashed.

The court below will fix a date for passing an order of commitment in respect of these petitioners in their presence. The petitioners are also directed to remain physically present on the date of commitment and if so advised, they may also file a petition for bail. In that event, the court below shall consider the prayer for bail and pass an order in accordance with law.

It is submitted that the petitioner Nos. 4, 7, 17, 18, and 32 have already been arrested and their case have been re-committed to the court of Sessions. Therefore, above named petitioners are not required to re-appear before the court below. With the aforesaid directions and observation, this application is allowed.