Welding Kumar @ Jayakumar @ G. Kumar and Others vs State, by D.S.P., CBI/SIC

Shivappa, J.—There cannot be a committal of the case without there being an accused person before the Court. Section 209 of the Code of

Criminal Procedure contemplates the presence of an accused before the Magistrate before committal and that power to be exercised after

complying with the provisions of Section 207 or 208 Code of Criminal Procedure as the case may be. It is only then the cognizance of the offence

can be said to have been taken properly by the Sessions Court.

In the instant case, the Petitioner is the State, by D.S.P., C.B.I. is seeking for quashing that portion of the committal order dated 22.12.1995 in

C.C. No. 7603 of 1995 passed by the Xth Metropolitan Magistrate, Egmore, committing Welding Kumar (A-1) to the Court of Sessions and for

a further direction to the 10th Metropolitan Magistrate to take up the committal proceedings as regards Welding Kumar and to deal with the

matter according to law. In the final report submitted by the Petitioner A-1 Welding Kumar and his associates A-2 to A-7 are shown as accused

persons, who assaulted Advocate R. Shanmugasundaram with lethal weapons on 30.5.1995 and said to have committed offences punishable u/s

120B, r/w 148, 149, 324, 325, 452 and 307 I.P.C. In the charge sheet the said Welding Kumar was arrayed as A-1. Since he was absconding,

non-bailable warrant was issued from the Xth Metropolitan Magistrate, Madras for arresting him. The Petitioner was unable to execute the warrant

and Welding Kumar was declared as a Proclaimed Offender by the order of the Xth Metropolitan Magistrate, Madras. When he surrendered in

connection with another case, though did not appear in the crime number in which challan has been filed, the learned Magistrate passed an order of

committal to the Court of Session u/s 209 Code of Criminal Procedure and remanded the accused persons who were produced before him for

judicial custody during and until the conclusion of the trial.

The contention of the learned Counsel for the Petitioner is that the learned Magistrate has not complied with the provisions of Section 207 Code

of Criminal Procedure and the said Welding Kumar did not appear before him or was not brought before him as per the provisions of Section 207

Code of Criminal Procedure and as such the order of committal, so far as Welding Kumar is concerned, suffers from patent error. Consequently,

the cognizance also is bad in law.

When an offence is triable exclusively by the Court of Session, the Magistrate, who took cognizance has no option than to commit the case to

the Court of Session, but according to Section 209 Code of Criminal Procedure. The role of the Magistrate is thus to see that the package sent to

the Court of Session is in order, so that it can proceed straight-away with the trial and nothing is lacking in contents as per requirements of Sections

207 and 208 of the Code of Criminal Procedure. In the instant case, though the Petitioner was not brought before him or appeared before him, the

learned Magistrate without complying the requirements of Section 207 Code of Criminal Procedure, has committed the case to the Court of

Session. The object behind 207 Code of Criminal Procedure is to see that all the documents, necessary to give to the accused persons all the

information for the proper conduct of his defence, are furnished to him well in advance to the trial, to prevent any prejudice to the accused and

non-compliance would be a serious infirmity in the order. In the instant case, there is non-compliance of the requirements of Section 209 Code of

Criminal Procedure as envisaged in Section 207 Code of Criminal Procedure. Therefore, the impugned committal order, so far as A-1 Welding

Kumar is concerned, is bad in law and is set aside. Consequently, the cognizance by the Sessions Court, so far as that accused is concerned, the

learned Sessions Judge is directed to remit the case of A-1 Welding Kumar to the 10th Metropolitan Magistrate, Egmore, requiring the Magistrate

to perform his functions u/s 209 of the Code of Criminal Procedure and then to commit the case of Welding Kumar in accordance with law and

thereafter the Sessions Court to try the case of all the accused together. The petition thus stands allowed.

The assistance rendered by learned senior counsel Mr. B. Sriramulu and Mr. V. Padmanabhan during the course of hearing of this petition is

placed on record.