IMPORTANT POINT
Powers of Magistrate u/s 323 Cr. P.C. are wide enough & not circumscribed by any extent.

ORDER

Rabin Bhattacharyya, J. - This Criminal Revision is directed against an order, dated 17.5.1989, passed by the Chief Judicial Magistrate, Midnapur in G.R. Case No. 607/81 arose of Kotwali P.S. Case No. 20, dated 13.3.1989.

2. It reveals from the record that the complainant and few others suffered grievous assault by the accused persons inflicted with the aid of deadly weapons for which they were hospitalised. The investigation ensued and on its completion, the case was put up for trial before the learned S.D.J.M. Sadar, who committed the case and the accused to the Court of Sessions to stand trial.

3. Thereafter, the learned Sessions Judge transferred it to the Additional Sessions Judge for disposal who after hearing the parties and consideration of the police report declined to hold the case is exclusively triable by the court of Sessions. As a corollary assumption to the fact, he remitted the case to the Chief Judicial Magistrate with a direction to proceed with the trial after framing charge under Section 228 of the Cr. P.C.

4. The order of the learned Additional Sessions Judge was duly obeyed by the learned Chief Judicial Magistrate who could not exhaust all the witnesses when the prosecution preferred an application under Section 323 of the Cr. P.C. on 21.5.1987 which contained a prayer for commitment of the case, as the case under Section 307, I.P.C. had already been made out, although resisted by the accused. It was canvassed in. the objection that the application under Section 323 proceeds from misconception of law as the Magistrate was directed to carry out order passed by the Sessions Judge. The learned Magistrate heard the application in threadbare and rejected the same against the criminal motion was taken before the Additional Sessions Judge, Midnapur, who reversed the order passed by the Chief Judicial Magistrate, dated 18.7.1987 with a direction for consideration of the application under Section 323 of the Cr. P.C. afresh by him. The learned Chief Judicial Magistrate on 17.5.1989 as directed by the Sessions Judge, heard the matter afresh and gave a detailed reasoning that the ingredients of Section 307 were adequately present, fixing 21.6.1989 for order of commitment under Section 209 of the Cr. P.C. when this revision had spiralled up to this Court.

5. Mr. Partha Sarathi Bhattacharjee, the learned Advocate, appearing in support of the revision is sought to have made capital that the learned Court below is denuded of power to exercise any jurisdiction over the order of another Additional Sessions Judge which directed to proceed with the trial. Besides, according to him, once the proceeding has attained finality by an order of the learned Additional Sessions Judge, the Chief Judicial Magistrate cannot rake up the past. Another side fact has been argued that the order complained of offends the principles of issue estoppel as the self same point was decided against the prosecution by the learned Additional Sessions Judge, Midnapur on 21.2.1982, dismissing the presence of ingredient of the offence under Section 307 of the I.P.C.

6. It has been strongly disputed by Mr. D.P. Sengupta, the learned Advocate, appearing for the State, who has taken me through the order impugned and all the orders passed by the Sessions Judge and Additional Sessions Judge dwelling on the question of commitment in connection with an offence alleged to have been committed under Section 307 of the I.P.C. His claim is overwhelming that whatever order the learned Sessions

Judge or Additional Sessions Judge may have or could have passed was passed not in consideration of Section 323 of the Code of Criminal Procedure. Section 323 is an additional safeguard or power provided or to be exercised by the Court when the Magistrate finds the case should be committed after commencement of enquiry or trial. It is to be borne in the mind that in committal proceeding the Court has no power to record evidence after the introduction of the new Code. If t