Section 323 CrPC - Power Can Be Invoked Even After Deposition/Chief Examination Of Witness: Supreme Court

The Supreme Court observed that the power under Section 323 CrPC may be invoked by the Magistrate even after the deposition or the examination-in-chief of a witness.

The key requirement for the invocation of the power under the Section 323 is that the learned Magistrate concerned must feel that the case is one which ought to be tried by the Court of Sessions, the bench of Justices MM Sundresh and JB Pardiwala observed.

Section 323 deals with the procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. It reads as follows: 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.

In this case, the Calcutta High Court directed the Magistrate to undertake the exercise of committal in pursuant to a decision to be taken as to whether a charge can be added under Section 307 IPC only after the conclusion of the entire evidence of prosecution witness.

Disagreeing with this view, the Apex Court observed that the procedure adopted by the High Court in the order is not mandated under Section 216 or 323 Cr.P.C. The court said that it is not mandatory for the Magistrate to wait for the completion of the entire evidence of the Prosecution Witness, which is inclusive of crossexamination.

"Section 323 Cr.P.C. gives a discretion to the Court to exercise its power at any stage of the proceeding before signing judgment. It is, evident from the statute that the power under Section 323 Cr.P.C. may be invoked by the learned Magistrate at any stage of the proceeding prior to signing of the Judgment. Thus, it is a settled provision of law that the said power may be invoked even after the deposition or the examination-in-chief of a witness. The key requirement for the invocation of the power under the Section 323 is that the learned Magistrate concerned must feel that the case is one which ought to be tried by the Court of Sessions."

The bench therefore set aside the High Court order.

Archana vs State of West Bengal | 2023 LiveLaw (SC) 742 | CrA 2655 OF 2023

Code of Criminal Procedure, 1973 ; Section 323 - High Court directed the Magistrate to undertake the exercise of committal in pursuant to a decision to be taken as to whether a charge can be added under Section 307 IPC only after the conclusion of the entire evidence of prosecution witness - It is not mandatory for the Magistrate to wait for the completion of the entire evidence of the Prosecution Witness, which is inclusive of crossexamination - Section 323 Cr.P.C. gives a discretion to the Court to exercise its power at any stage of the proceeding before signing judgment - The power under Section 323 Cr.P.C. may be invoked by the Magistrate at any stage of the proceeding prior to signing of the Judgment -The said power may be invoked even after the deposition or the examination-in-chief of a witness. The key requirement for the invocation of the power under the Section 323 is that the learned Magistrate concerned must feel that the case is one which ought to be tried by the Court of Sessions.

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