The Kerala High Court opined that to invoke Section 323 Cr.P.C, it should appear to the Magistrate that the case ought to be tried by the Sessions Court. Further, that when a Magistrate invokes the powers under Section 323 Cr.P.C, the reason for the same should be recorded.
The Court held that 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.
Brief Facts:
The prosecution alleged that one of the Accused is liable for hurling an explosive and then on informant informing about the said incident, the said Accused attempted to commit murder.
Hence, a case was registered under Sections 324, 506 (i) (ii) and Section 308 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
Thereafter, as a counterblast the Respondent No.2 filed a private complaint before the JM 1st Class. The case was proceeded as a warrant case.
It was alleged that charges were framed under Sections 141, 142, 146, 148, 354, 294(b) 324, 423, 341, 447 and 506(ii) read with Section 149 of the IPC. Further, Even though an offence under Section 391 IPC was alleged in the complaint, the Magistrate did not take cognizance.
After the matter was posted for defence evidence, the Magistrate noted that offence under Section 391 IPC was also made out and hence, invoked Section 323 of the Code of Criminal Procedure, 1973.
Thus, the present matter.
Contentions of the Petitioner:
It was argued that the Section 391 was excluded at the time of cognizance and was not even challenged by the Complainant, therefore it became final.
Observations of the Court:
The issue was whether the order passed by the learned Magistrate invoking the powers under Section 323 Cr.P.C was correct or not.
The Bench opined that to invoke Section 323 Cr.P.C, it should appear to the Magistrate that the case ought to be tried by the Sessions Court. Further, that when a Magistrate invokes the powers under Section 323 Cr.P.C, the reason for the same should be recorded.
The Court held that 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.
The decision of the Court:
The order of the Magistrate was set aside as it was not a speaking order.
Case Title: Kuthiralamuttam Saji & Ors. v. State of Kerala & Anr.
Case No.: CRL.MC. No. 4045 of 2021
Coram: Hon’ble Justice P.V.Kunhikrishnan
Advocate for Petitioners: Adv. C.P.PEETHAMBARAN
Advocate for Respondents: Adv. Sreeja. V
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