Supreme Court: Section 323 CrPC - Power Can Be Invoked Even After Deposition/Chief Examination Of Witness

 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.

Dated: AUGUST 28, 2023.

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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