IMPORTANT POINT
At the time of committing the accused the Magistrate has no right to cancel. The bail or anticipatory bail granted by the Sessions Judge or the High Court or by himself and remand the accused. Bail once granted could be cancelled only under the provisions of section 437(5) or 439(2) of the Code as the case may be for proper reasons.

JUDGMENT

S. Padmanabhan, J. - Both are petitions filed under sections 438, 439 and 482 of the Code of Criminal Procedure. Petitioners in Crl. M.C. 959 are accused in committal proceedings 2 of 1985 and petitioners in Crl. M.C. 964 of 1985 are accused in committal proceedings 4 of 1985 both pending before the Judicial First Class Magistrate, Pattambi.

2. In C.P. No. 2 of 1985 out of the 36 accused 28 were granted anticipatory bail from the Sessions Court, Palghat and the remaining accused were enlarged on bail by the Magistrate himself. In the other case all the accused were granted anticipatory bail by the Sessions Judge at the investigation stage. After final report they were granted regular bail by the Magistrate himself. Thus all the accused in both the cases are now on bail.

3. Both cases now stand posted for committal to the Court of Sessions. It is said that the Magistrate directed all the accused to appear in person before him for being remanded to custody, apparently as provided under section 209(a) and (b) of the Code of Criminal Procedure. The Magistrate is of the view that on completing the committal proceedings he is bound to remand all the accused to custody as provided under the aforesaid section. Petitioners, therefore, pray for directions under sections 438, 439 and 482 to the Magistrate to admit the petitioners on bail in the event of the cases being committed to the Court of Session, Palghat.

4. I have heard the counsel for the petitioners and the Public Prosecutor. After having beard both sides, I feel that the view expressed by the Magistrate is incorrect and if implemented it will amount to abuse of process of court resulting in miscarriage of justice.

5. Section 209 of the Code reads:

"Commitment of case to Court of Session when offence is triable exclusively by it - when in a case instituted on a public 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, be 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) motify the Public Prosecutor of the commitment of the case to the Court of Session.

6. It is true that the protracted commitment inquiry under the provisions of Chapter XVIII of the Code of 1808 has been completely done away with. That does not mean that the present committal proceeding which is more or less of a summary nature involving no detailed consideration of facts cannot be termed an inquiry. Section 209 of the new Code shows that it must appear to the Magistrate that the offence is exclusively triable by the Court of Session. That implies formation of an opinion by the Magistrate on the materials on record for which judicial application of mind is necessary. The term 'inquiry' as defined in section 2(g) bas a very wide connotation under the Code and it includes every inquiry other than a trial. A proceeding under section 209 is such an inquiry. It involves application of the mind to ascertain what offence is made out on the facts alleged and whether such offences are exclusively triable by the Court of Session. The provisions of section 209(2) read with section 209 shows that after taking cognizance and before committal of the case to the Court of Sessions, the Magistrate is fully empowered to remand the accused to custody. The question that bas to be considered in those two cases is only whether that power of remand is unfettered or only qualified.

7. Section 209(a) authorises the Mag