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2024 DIGILAW 1213 (KER)

BENNY S/O JOHNY v. STATE OF KERALA

2024-09-24

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short), challenging Annexure A6, viz. order in CMP No. 3946/2017 dated 06.06.2017 on the files of Judicial First Class Magistrate, Chalakkudy, in C.C. No. 2254/2013 arose out of Crime No. 245/2013 of Koratty Police Station, Thrissur, by the accused. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents, including Annexure-A6 order. 3. It is submitted by the learned counsel for the petitioner that even though Section 323 of the Code of Criminal Procedure (‘Cr.P.C’ for short) permits a Magistrate to commit a case if it appears to the Magistrate at any stage of the proceedings before signing the judgment in any inquiry into an offence or a trial before the Magistrate, the order of committal should be self-speaking to justify the mandate of Section 323 of Cr.P.C. but the said procedure was not specifically followed in this matter. According to the learned counsel for the petitioner, in the instant case, going by the order impugned, the learned Magistrate relied on the evidence of PW1 to find that the accused strangulated the victim with intention to cause her death and she was rescued by a neighbour. But the learned Magistrate failed to specify as to which is the alleged offence attracted in the present case, triable only by the Court of Sessions, to justify Annexure A6 order. It is further submitted that there is no offence made out so as to commit the case before a Court of Sessions opting the Procedure of Committal after renumbering the same as C.P. No. 53/2017. Accordingly, the learned counsel for the petitioner sought reversal of Annexure A6 order. 4. Strongly opposing the contentions raised by the learned counsel for the petitioner, the learned Public Prosecutor submitted that power under Section 307 of Cr.P.C. was rightly invoked by the learned Magistrate. On reading the evidence tendered by PW1, the same would suggest that offence punishable under Section 307 of the Indian Penal Code (‘I.P.C.’ for short) is made out and no interference is warranted in the impugned order committing the case to the Court of Sessions. He also submitted that mere omission to specify the offence by the Section is of no serious consequence as the offence is well discernible from the order. He also submitted that mere omission to specify the offence by the Section is of no serious consequence as the offence is well discernible from the order. 5. Now the questions arise for determination are: (i) What is the legal mandate to be satisfied by the Magistrate to commit a case by invoking power under Section 323 of Cr.P.C. or under Section 362 of BNSS? (ii) Whether mere omission to specify the Section of the Sessions offence would be fatal to an order of committal? 6. In this connection it is profitable to refer Section 323 of Cr.P.C. the same reads as under: “323: Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed: If, in any enquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.” 7. Section 362 of BNSS is corresponding to Section 323 of Cr.P.C. and the same reads as under: “362: Procedure when after commencement of inquiry or trial, magistrate finds case should be committed: Magistrate finds case should be committed: If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XIX shall apply to the commitment so made.” In fact, there is no substantial difference in the wordings of Section 323 of Cr.P.C. or Section 362 of BNSS. Thus it is discernible that Section 323 of Cr.P.C. and Section 362 of BNSS deal with the procedure after commencement of inquiry or trial, when the Magistrate finds that the case should be committed. Thus it is discernible that Section 323 of Cr.P.C. and Section 362 of BNSS deal with the procedure after commencement of inquiry or trial, when the Magistrate finds that the case should be committed. Scanning the legal provisions, there must be a finding by the Magistrate at any stage after commencement of inquiry or trial, before signing a judgment by the Magistrate that, the case is one which ought to be tried by the Court of Sessions, and the same is the legal mandate to be satisfied by the Magistrate to commit a case before the Court of Sessions. Needless to say, that this power is available to the Magistrate acting on the evidence tendered during trial of a case also. 8. Coming to the order under challenge, the FIR was registered alleging commission of offence punishable under Section 498A of IPC and on investigation, final report also was filed alleging the said offence. During trial, by invoking the power under Section 319 of Cr.P.C. the 2nd accused also got impleaded. Thereafter, the defacto complainant was examined as PW1. During examination of PW1, she deposed that the 1st accused strangulated her with intention to cause her death. In paragraphs 4 and 5 of the order impugned, the learned Magistrate assigned reasons to justify Annexure-A6 order of committal and the same read as under: “4. PW-1 when examined before the court deposed that on 29.05.2012 first accused tied her limbs with a bed sheet. Then, he stuffed a cloth in her mouth. Thereafter, the accused strangulated her using pillow. On seeing the same her child called the neighbour. Her neighbour one Mr.Jose rescued her. Otherwise, the accused would have caused her death. This is the evidence deposed by PW1 before this court. The above said Jose is a prosecution witness. In the statement before the police also (FIS) PW1 stated that on 29.05.2012 the accused attacked her and stuffed cloth in her mouth. The wound certificate produced by the prosecution also shows that there was an injury over the neck of the victim. The same is in tune with the evidence deposed by PW1 before court. The learned counsel for the accused further pointed out that learned Asst.Public Prosecutor filed present petition as the accused is involved in a Sessions case and the allegations in the above case was that he caused death of his own child. 5. The same is in tune with the evidence deposed by PW1 before court. The learned counsel for the accused further pointed out that learned Asst.Public Prosecutor filed present petition as the accused is involved in a Sessions case and the allegations in the above case was that he caused death of his own child. 5. It is to be noted that the intention on the part of accused can only be gathered from the circumstances. PW1 deposed that accused strangulated her and she was rescued by a neighbour. According to her, the intention on the part of the accused was to cause her death. The circumstances pointed out above also show that the case deposed by PW1 is not fully incorrect. At any rate whether the accused had the intention to cause the death of the victim is a matter to be ascertained from the circumstances involved in the case. We cannot expect direct evidence in this regard. There is evidence to show that the offence alleged is one exclusively triable by court of Sessions. Hence this petition is only to be allowed. Re-numer the case as C.P. 53/2017.” 9. Perusal of the evidence discussed as that of PW1 by the Magistrate, while passing Annexure-A6 order, the evidence of PW1 to the effect that the accused strangulated her and attempted to cause her death, is the base on which Annexure-A6 order was passed. But the order doesn’t say specifically the offence triable by the Sessions Court which would attract in the present case, so that trial should be carried out by a Sessions Judge. Even though there is omission to name Section 307 of IPC as the offence made out from the evidence of PW1, the order would show that the Sessions offence found by the learned Magistrate is the attempt of the accused persons to cause death of the defacto complainant, ie. attempt to commit murder. Thus mere omission to specify the Section of the offence triable by a Sessions Court is not at all fatal, if the offence is made out by the materials discussed, though it is more accurate and advisable to mention the Section of the Sessions offence also in the order of committal with certainty. Therefore, the order of committal under challenge could not be found as illegal, so as to interfere with the same. 10. Hence this Crl. Therefore, the order of committal under challenge could not be found as illegal, so as to interfere with the same. 10. Hence this Crl. M.C. must fail and is accordingly dismissed. 11. Registry shall forward a copy of this order to the jurisdictional court for information and further steps.