Point of Law: Section 323 Cr.P.C reads as procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.

ORDER :

The petitioners are accused Nos.1 to 8 in C.P.No.14 of 2020 on the file of the Chief Judicial Magistrate Court, Payyannur, which is now pending as S.C. No.165 of 2020 on the file of the Sessions Court, Thalassery.

2. The prosecution case is that on 05.03.2013, one Mammu, hurled an explosive towards the SNDP office at Prappoyil, Kannur District, within the then Peringome Police Station limit and one K.R.Santhosh informed this fact to the police. Infuriated by this, the said Mammu assaulted the said Santhosh and attempted to commit murder and thereby committed offences under sections 324, 506 (i)(ii) and Section 308 IPC and the police registered the case as Crime No.128 of 2013 of Peringome Police Station. As a counter blast, it is submitted that the 2nd respondent herein, the wife of said Mammu filed a private complaint before the Judicial First Class Magistrate Court Payyannur as evident by Annexure A1. After Section 202 Cr.P.C enquiry, the case was numbered as C.C. No.417 of 2014 and the Magistrate issued summons to the petitioners and they entered appearance. The case was proceeded as a warrant case. The evidence under Section 244 Cr.P.C was permitted to be adduced and four witnesses were examined on the side of prosecution. Thereafter, a charge was framed under Sections 141, 142, 146, 148, 354, 294(b) 324, 423, 341, 447 and 506(ii) read with Section 149 IPC. Even though an offence under Section 391 IPC was alleged in Annexure A1 complaint, learned Magistrate has not taken cognizance is the submission. It is also submitted that the order not taking cognizance under Section 391 IPC was not challenged by the 2nd respondent complainant, is the further submission. After framing charge, the 2nd respondent was cross examined and Annexure A3 is the certified copy of the deposition. Thereafter, the remaining available witnesses were also cross examined and the prosecution evidence was closed and the case was posted for the examination of the accused under Section 313 Cr.P.C. The accused were questioned under Section 313 Cr.P.C. and posted the case for defence evidence. Thereafter, the matter was heard on 07.02.2020. But on 18.02.2020, the learned Magistrate, as per Annexure A4, the B Diary proceedings, recorded that the offence under Section 391 IPC is also made out. Hence, the learned Magistrate decided to invoke Section 323 Cr.P.C. Annexure A5 is the order passed by the learned Magistrate by which the powers under Section 323 Cr.P.C was invoked. Aggrieved by the same, this Crl.M.C is filed.

3. Heard counsel for the petitioner and the Public Prosecutor.

4. The short point to be decided in this case is whether the order passed by the learned Magistrate invoking the powers under Section 323 Cr.P.C is correct or not. Section 323 Cr.P.C reads as follows:

“323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.- 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.”

5. As per Section 323 Cr.P.C, if it appears to the Magistrate at any stage of the inquiry into an offence or a trial before signing the judgment that the case ought to be tried by the court of session, he shall commit it to that court. Annexure A5 is the order passed by the learned Magistrate. It will be better to extract the relevant portion of Annexure A5 order:

“3. Originally this case was taken in to file CC-417/14 even though there is an offence U/s 391 IPC. Moreover that the matter was proceed as if it is warrant trial case otherwise than on police case. At the time of arguments, it is noticed that this matter ought to have been taken as CP instead of CC. Hence I am of the view that section 323 of CrPC can b