ARCHANA (APPELLANT) Vs. THE STATE OF WEST BENGAL & ANR. (RESPONDENTS)
CRIMINAL APPEAL No.2655 OF 2023
(2JB, (M.M. SUNDRESH and J.B. PARDIWALA JJ.)
Facts: 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 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 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.
Issue: 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 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?
Arguments on behalf of counsel for appellant:
It is submitted 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. 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 cross examination. In other words, such a subjective satisfaction would depend upon the materials available before the Court whatever may be its nature.
Held: The court allowed the present appeal and set aside the impugned order by the high court, holding that the learned CMM has correctly exercised his discretion. The court thereby restored the order passed by learned CMM.
The court observed that, “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.”
