ORDER

M.P. Chinnappa, J- The petitioner herein has questioned the proceedings in S.C. No. 63/90 on the file of the Addl. Sessions Judge, Bangalore Rural Distt for the offences under Sections143,147,148,341,342,353,506, 307 and 427 IPC in so far as it relates to "the petitioner.

2. The brief facts of the case are that the Circle Inspector of Police, Magadi Police Station submitted charge sheet against the accused for the offences punishable under sections referred to above in C.C. No. 224/1985 on the file of the J.M.F.C at Magadi. The learned Magistrate passed an order on 4-8-1990 under Section 209 committing the entire case to the Court of Sessions on the ground that offence under Section 307 is exclusively triable by the Court of Sessions, as against the A-1 to A-106 as per the separate list enclosed to the order. This order is questioned by the petitioner here in. Though petitioner has raised several contentions in this petition at the time of the arguments it is restricted to only one question as to whether the committal order passed under Section 209 is valid or not.

3. Learned counsel for the petitioner submitted that from the perusal of the order it is clear that only accused Nos. 2,5,6,7,8,9,11-13,15,17.18. 20,21,22,23,24,26.27,30,33,35,38,39,40,41,47,48,50,51,55,57,59,60,61,62,63,66,70,71,7375,76,78,79,80,81,86,94,99, 100 were present and all other accused persons were absent including the petitioner. In view of this, learned counsel for the petitioner submitted that it is incumbent on the Magistrate to secure the presence of all the accused persons before passing the committal order. To substantiate his argument, he has drawn my attention to Section 209 of Cr. P.C, which reads as follows:

"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 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, arid 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 Pubiic Prosecutor of the commitment of the case to the Court of Session."

4. From the perusal of the impugned order passed by the learned Magistrate, it is clear that he had followed all other conditions which are contemplated under Section 209 except securing the presence of all the accused persons. In the similar circumstance Patna High Court in a decision reported in 1993 (2) Crimes 5381, held unless a particular accused appears or is brought before the committing Magistrate his case cannot be committed to the Court of Session. It is a condition precedent for trial of an accused before Sessions Court that he should be present himself before Magistrate-His appearance before Sessions Court as an accused in Sessions Case directly, by passing" provisions of Sections 207 & 209 Cr. P.C. shall not be deemed to be his appearance before Sessions Court Impugned order of Sessions Court whereby opp. party "vas ordered as he appeared before Sessions Court as an absconding accused, is liable to be" set asidc".

5. It is true that as many as 106 accused persons who are named in the charge sheet. It is also necessary to mention here that Accused 13, Accused 87, A-54, A-84, A-29, A-67 and A-32, A-102 are one at the same persons and their names are being repeated in the charge sheet. Even this aspect was also brought to the notice and he has not taken any action. I t also appears that A-72 is dead but his name was also not