Physical presence of the accused in court may not be necessary when committing the case to the Court of Session, provided the accused has appeared and is represented by counsel.

1. Whether a Magistrate can permit the accused to appear in his court through counsel when he commits the case to the Court of Session? Answer to the above question will resolve the conundrum created by frequent absence of a few among many accused in a committal proceeding.

2. Two committal proceedings are pending in the Court of the Judicial Magistrate of the 1st Class. In one case there are altogether thirty four accused and in the other case there are ten accused. Petitioners are only some among them. All or most of the accused were released on bail and there is no dispute about their first appearance in Court. Though committal proceedings commenced early in June, 1985, the cases have not yet been committed to the Court of Sessions despite many postings. What happened is that atleast some of the accused will be absent in Court during each posting date, though they would be represented by their counsel. The Magistrate required the presence of all the accused together to pronounce the order of commitment. Such a situation did not happen in the case and so the Magistrate did not pass the committal order hitherto. The consequence is that those accused who are regular in attending the Court are put to much hardships. The grievance of the petitioners is highlighted by them in the following sentences: "The petitioners are residents of Sivakasi. on every posting date they have been appearing before the learned Magistrate for the case to be committed. On all these days they bring their sureties also to execute fresh bonds for appearance before the Sessions Court, in case it is so directed by the learned Magistrate. Since the petitioners and the sureties are residents of Sivakasi, they have to start from their home on the previous day of the posting date and they could reach home only on the next day of the posting date. For their travelling, stay and for other expenses they incur large amounts. This causes considerable extent of hardships to the petitioners, and their family members are also very much affected by this."

3. The learned Magistrate in his remarks expressed his difficulty in the matter. Though, he is also anxious to commit the case to the Court of Sessions at the earliest, he could not do it on account of the absence of some of the accused on some dates and some other accused on other dates and so on. The accused are on bail and when they were absent in court applications were filed by their counsel. The Magistrate pointed out that petitions were filed by the counsel for exempting the absentee accused from personal appearance. According to the learned Magistrate, "petitions for excusing the absence of the accused had been allowed only on convincing grounds." However, the learned Magistrate seeks to justify the long delay in committing the case to the Court of Sessions on the ground that "when the case is committed to the Sessions Court, normally the accused have to be bound over to that court for which their personal attendance is a must".

4. The learned counsel contended that the above view of the Magistrate is not correct. According to the counsel, a Magistrate can commit the case to the Court of Sessions without binding over the accused, if he is already on bail pursuant to orders of the superior court. He also contended that in such cases physical presence of the accused in court need not be insisted on when the court passes the committal order, and the counsel can be allowed to represent him in Court.

5. Chapter XVI of the Code of Criminal Procedure (for short 'the Code') deals with commitment to the Court of Sessions when the offence is triable exclusively by it. S.207 enjoins that the Magistrate shall furnish the documents referred to therein to the accused free of cost, in cases instituted on police report. S.208 is the corresponding provision for cases instituted otherwise than on police report. S.209 is the important Section. It reads: "209. Commitment of case to Court of Session when offence is triabl