Observing that if the Magistrate at any stage of the inquiry into an offence or a trial before signing the judgment feels that the case ought to be tried by the court of session, he shall commit it to that court, the Kerala High Court held that a speaking order is necessary before invoking the powers under Section 323 CrPC.

A Single Judge Bench of Justice P. V. Kunhikrishnan observed that “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.”

Advocate C. P. Peethambaran appeared for the Petitioner whereas Advocate Sreeja. V appeared for the Respondent.

The brief facts of the case were that the second respondent’s husband was allegedly accused of assaulting and attempting to commit murder and a crime was registered against him. To avenge filing criminal case against her husband, his wife- the second respondent filed a private complaint against the petitioners before the Judicial First-Class Magistrate Court Payyannur and the case was numbered, and a summons was issued to the petitioners. The respondent alleged commission of dacoity under Section 391 of IPC in the private complaint. The Magistrate did not take cognizance of it and the case proceeded as a warrant case and charges were framed. But during arguments, the Magistrate recorded that the offence of dacoity under Section 391 IPC was also made out. The Magistrate invoked powers under Section 323 CrPC and committed the case to Sessions Court. Hence, the Petitioner approached the Bench while challenging the Magistrate’s order.

After considering the submission, the Bench noted from the perusal of Section 323 CrPC that 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.

The Bench found that it was petitioner’s case 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”, added the Bench.

Thus, the Bench observed that the Magistrate has not complied with the condition precedent before committing the case invoking the powers under Section 323 CrPC.

Further, the Bench clarified that before invoking Section 323 CrPC, it should appear to the Magistrate that the case ought to be tried by the Sessions Court.

Therefore, emphasizing that the order passed by the Magistrate is not a speaking order stating the reason for thinking that the case ought to be tried by the Sessions Court, the High Court directed the Magistrate to reconsider the matter as to whether Section 323 CrPC should be invoked or not.

Cause Title: Kuthiralamuttam Saji and Ors. v. State of Kerala and Anr. [Neutral Citation: 2023/KER/64242]

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Kerala High CourtJustice P.V. KunhikrishnanSection 323 CrPC

Pankaj Bajpai