[S.323 CrPC] Magistrate Should Record Reasons For Committing Case To Sessions Court: Kerala High Court

Justice P.V. Kunhikrishnan observed,

“Since the words “it appears to him at any stage ..............” is used in Section 323 CrPC, it is clear that when a Magistrate invokes the powers under Section 323 CrPC, the reason for the same should be recorded. In other words, the Magistrate is required to give reason for thinking that the case ought to be tried by the Sessions Court, while invoking Section 323 CrPC. Therefore, according to me, a speaking order is necessary before invoking the powers under Section 323 CrPC.

The Court was considering the correctness of the order passed by the Magistrate invoking powers under Section 323 CrPC. Section 323 CrPC provides the procedure when, after Commencement of inquiry or trial, Magistrate finds that the case should be committed and tried by Sessions Court. Section 323 CrPC reads thus: “If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.”

The second respondent’s husband was allegedly accused for assaulting and attempt to committing murder and crime was registered against him. To avenge filing criminal case against her husband, his wife- second respondent filed private complaint against the petitioners before the Judicial First-Class Magistrate Court Payyannur and the case was numbered, and summons was issued to the petitioners.

The respondent alleged commission of dacoity under Section 391 of IPC in the private complaint. The Magistrate did not take cognizance of it and the case was proceeded as a warrant case and charges were framed. But during arguments, the Magistrate recorded that the offence of dacoity under Section 391 IPC was also made out. The Magistrate invoked powers under Section 323 CrPC and committed the case to Sessions Court. This Order of the Magistrate was challenged by the petitioners in the High Court.

The Court found that the Magistrate initially did not take cognizance of dacoity under section 391 of IPC and proceeded as a warrant case. It noted that during the course of arguments, the Magistrate invoked powers under Section 323 CrPC and committed the case observing that the matter ought to have been taken as committal proceedings instead of calendar case.

The Court found that as per Section 323 CrPC, a Magistrate can commit a case when it appears to the Magistrate that the case ought to be tried by the Sessions Court. The Court on examining Section 323 CrPC noted that Magistrate has to record its reasons by way of a speaking order before committing the case. Thus, the Court noted that the Magistrate has not complied with the condition precedent before committing the case by invoking its powers under Section 323 CrPC.

The Court found that the order issued by the Magistrate was not in compliance with Section 323 CrPC as it was not a speaking order. On the above observations, the Court set aside the order passed by the Magistrate committing the case to the Sessions Court. It further directed the Magistrate Court to reconsider whether provisions of Section 323 CrPC was to be invoked or not.

“A perusal of Annexure A5 order would show that the order passed by the learned Magistrate is not a speaking order stating the reason for thinking that the case ought to be tried by the Sessions Court. Therefore, I am of the considered opinion that Annexure A5 order is to be set aside and the learned Magistrate is to be directed to reconsider the matter as to whether Section 323 Cr.P.C should be invoked or not.”

Counsel for the Petitioners: Advocate C.P. Peethambaran

Counsel for the Respondents: Public Prosecutor Sreeja V

Citation: 2023 LiveLaw (Ker) 590

Case title: Kuthiralamuttam Saji v State of Kerala

Case number: CRL.MC NO. 4045 OF 2021

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