IMPORTANT POINT
The omission to specify the exact offence in a committal order is not fatal if the evidence clearly supports the need for a Sessions trial.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short), challenging Annexure A6, viz. order in CMP No. 3946/2017 dated 06.06.2017 on the files of Judicial First Class Magistrate, Chalakkudy, in C.C. No. 2254/2013 arose out of Crime No. 245/2013 of Koratty Police Station, Thrissur, by the accused.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents, including Annexure-A6 order.

3. It is submitted by the learned counsel for the petitioner that even though Section 323 of the Code of Criminal Procedure (‘Cr.P.C’ for short) permits a Magistrate to commit a case if it appears to the Magistrate at any stage of the proceedings before signing the judgment in any inquiry into an offence or a trial before the Magistrate, the order of committal should be self-speaking to justify the mandate of Section 323 of Cr.P.C. but the said procedure was not specifically followed in this matter. According to the learned counsel for the petitioner, in the instant case, going by the order impugned, the learned Magistrate relied on the evidence of PW1 to find that the accused strangulated the victim with intention to cause her death and she was rescued by a neighbour. But the learned Magistrate failed to specify as to which is the alleged offence attracted in the present case, triable only by the Court of Sessions, to justify Annexure A6 order. It is further submitted that there is no offence made out so as to commit the case before a Court of Sessions opting the Procedure of Committal after renumbering the same as C.P. No. 53/2017. Accordingly, the learned counsel for the petitioner sought reversal of Annexure A6 order.

4. Strongly opposing the contentions raised by the learned counsel for the petitioner, the learned Public Prosecutor submitted that power under Section 307 of Cr.P.C. was rightly invoked by the learned Magistrate. On reading the evidence tendered by PW1, the same would suggest that offence punishable under Section 307 of the Indian Penal Code (‘I.P.C.’ for short) is made out and no interference is warranted in the impugned order committing the case to the Court of Sessions. He also submitted that mere omission to specify the offence by the Section is of no serious consequence as the offence is well discernible from the order.

5. Now the questions arise for determination are:

(i) What is the legal mandate to be satisfied by the Magistrate to commit a case by invoking power under Section 323 of Cr.P.C. or under Section 362 of BNSS?

(ii) Whether mere omission to specify the Section of the Sessions offence would be fatal to an order of committal?

6. In this connection it is profitable to refer Section 323 of Cr.P.C. the same reads as under:

“323: Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed: If, in any enquiry 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.”

7. Section 362 of BNSS is corresponding to Section 323 of Cr.P.C. and the same reads as under:

“362: Procedure when after commencement of inquiry or trial, magistrate finds case should be committed: 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 XIX shall apply to the commitment so made.”

In fact, there is no substantial difference in the wordings of Section 323 of Cr.P.