While so very rightly according paramount importance to fairness, probity, accountability and transparency, the Kerala High Court has in a most learned, laudable, landmark, logical and so also latest judgment titled Kuthiralamuttam Saji vs State of Kerala in Crl.MC No. 4045 of 2021 against the order/judgment CP 14/2020 of Judicial Magstrate of First Class, Payyannur and cited in 2023 LiveLaw (Ker) 590 and so also in Neutral Citation No.: 2023/KER/64242 that was pronounced after much deliberation as recently as on October 16, 2023 has held in no uncertain terms that the power under Section 323 CrPC to commit a case to the Sessions Court after commencement of inquiry/trial may be invoked by the Magistrate only after recording its reasons by way of a speaking order.
To put it differently, we thus see that the Court on examining Section 323 CrPC noted that the Magistrate has to record its reasons by way of a speaking order before committing the case. It must be noted here that the Court was considering the correctness of the order passed by the Magistrate invoking powers under Section 323 CrPC. Thus, the Court very rightly observed that the Magistrate has not complied with the condition precedent before committing the case by invoking its powers under Section 323 CrPC. No denying it.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice PV Kunhikrishnan of the Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that:
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.
To put things in perspective, the Bench envisages in para 2 that:
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.
Needless to say, the Bench then states in para 3 that:
Heard counsel for the petitioner and the Public Prosecutor.
As it turned out, the Bench then enunciates in para 4 that:
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.
Be it noted, the Bench notes in para 5 that:
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 be invoked. Hence the above CC.No.417/14 converted into CP-14/2020.
Finally and far most significantly, the Bench then mandates in para 6 holding most unequivocally that:
It is the case of the petitioner that Section 391 IPC was excluded at the time of taking cognizance and that part of the order is not challenged by the complainant and that became final. Thereafter, the learned Magistrate, invoking the powers under Section 323 Cr.P.C, committed the case observing that the matter ought to have been taken as committal proceedings instead of calendar case. I am of the opinion that the learned Magistrate has not complied with the condition precedent before committing the case invoking the powers under Section 323 Cr.P.C.
To invoke Section 323 Cr.P.C, it should appear to the Magistrate that the case ought to be tried by the Sessions Court. Since the words it appears to him at any stage ………….. is used in Section 323 Cr.P.C, it is clear that when a Magistrate invokes the powers under Section 323 Cr.P.C, 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 Cr.P.C. Therefore, according to me, a speaking order is necessary before invoking the powers under Section 323 Cr.P.C. 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.
Therefore, this Crl.M.C is disposed of in the following manner:
- Annexure A5 order dated 20.02.2020 of the Judicial First Class Magistrate Court, Payyannur in C.P. No.14 of 2020 is set aside including the order committing the case to the Sessions Court.
- The Judicial First Class Magistrate Court, Payyannur is directed to reconsider whether Section 323 Cr.P.C is to be invoked in the light of the observations in this order.
In a nutshell, we thus see for ourselves quite distinctly that the upshot of the above discussion that has been done so much exhaustively and extensively on this most commendable, cogent, convincing, and creditworthy judgment by the Single Judge Bench comprising of Hon’ble Mr Justice PV Kunhikrishnan of the Kerala High Court is that it has been made indubitably clear that the power as enshrined under Section 323 of the CrPC to commit a case to the Sessions Court after commencement of the inquiry/trial may be invoked by the Magistrate only after recording its reasons by way of a speaking order. Of course, there can certainly be no gainsaying that there is just no single valid reason as to why the Magistrates should not comply in totality with what the Kerala High Court has directed so very clearly, cogently and convincingly in this leading case and act accordingly as directed! There can definitely be just no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
