In other words, such a subjective satisfaction would depend upon the materials available before the Court whatever may be its nature. The procedure adopted by the High Court in the impugned order is not mandated under Section 216 or 323 Cr.P.C. 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.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.2655 OF 2023
ARCHANA Vs THE STATE OF WEST BENGAL & ANR.
1. Leave granted.
2. The short issue involved in the instant appeal is as to
whether the approach adopted by the High Court in the impugned
order in its revisional jurisdiction on an application under
Section 323 of the Code of Criminal Procedure, 1973 (for short
Cr.P.C.) holding thereby a prima facie offence under Section 307 of
the Indian Penal Code was premature and consequently setting aside
the order of the learned Trial Court and remanding the matter back
to the learned Chief Metropolitan Magistrate is correct or not?
3. The case has a chequered history. The matrimonial discord
between the parties has reached a different level culminating into
a criminal case. The question for consideration, as stated, is
with respect to the remittal order passed by the High Court in the
impugned order finding fault with the exercise of power by the
learned Chief Metropolitan Magistrate (for short, ‘CMM’) in
committing the matter to the jurisdictional Sessions Court after
exercising the powers under Section 323 Cr.P.C. in coming to the
conclusion that the charge under Section 307 of the Indian Penal
Code, 1860 (for short, `IPC’) is required to be heard by way of an
additional charge. In such view of the matter, the learned CMM
exercised the powers under Section 216 read with 323 Cr.P.C.
4. Heard learned Senior Counsel appearing on behalf of the
appellant as well as learned counsel appearing on behalf of the
respondents and carefully perused the material placed on record.
5. We find force in the submission made by learned Senior
Counsel for the appellant that the procedure adopted by the High
Court in the impugned order is not correct. The High Court directed
the learned CMM 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
P.W.1 namely, the appellant before us. For exercising such a power,
it is not mandatory for the learned CMM to wait for the completion
of the entire evidence of P.W.1, which is inclusive of crossexamination.
In other words, such a subjective satisfaction would
depend upon the materials available before the Court whatever may
be its nature. The procedure adopted by the High Court in the
impugned order is not mandated under Section 216 or 323 Cr.P.C.
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.
6. In such view of the matter, we are inclined to set aside
the impugned order passed by the High Court as we find that the
learned CMM has correctly exercised his discretion.
7. In view of the above, the impugned order passed by the
High Court is set aside and the one passed by the learned CMM is
restored.
8. The appeal stands allowed to the extent indicated above.
9. We make it clear that we have not expressed any opinion
on the merits of the case and it is open to the Sessions Court to
proceed further in the matter.
10. Learned CMM is directed to send the record to the
jurisdictional Sessions Court at the earliest.
11. As a sequel to the above, pending interlocutory
applications stand disposed of.
..............…….........J.
(M.M. SUNDRESH)
..............…….........J.
(J.B. PARDIWALA)
NEW DELHI;
AUGUST 28, 2023.
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