High Court of Orissa

Musa Pradhan and Ors. Vs. State of Orissa

MANU/OR/0916/2017

27.12.2017

Criminal

Magistrate can exercise his discretion suo moto or on an application of any of parties

The Petitioners have filed present application under Section 482 of the Criminal Procedure Code, 1973 (CrPC) for quashing the impugned order passed by the learned Magistrate, in taking cognizance of offence under Section 376 of the Indian Penal Code, 1860 (IPC) and also taking recourse to Section 323 of Cr.P.C. for commitment of the case to the Court of Session. The said case arises out of Case in which chargesheet was submitted under Sections 493, 506 read with section 34 of the Indian Penal Code. The case was instituted on the basis of the first information report lodged by the victim girl.

Law is well settled that, the Magistrate has got power under Section 323 of Cr.P.C. to commit a non-Sessions triable case to the Court of Session, if the counter case is triable by Court of Session. The expression "ought to be tried" in Section 323 of Cr.P.C. includes such offences as are not triable exclusively by the Court of Session. Therefore, any relevant or proper ground on the basis of which it could be said that, the case is one which ought to be tried by the Court of Session could be valid ground for the making of an order of committal under section 323 of Cr.P.C. The Magistrate can exercise his discretion suo moto or on an application of any of the parties. If he exercises power under Section 323 of Cr.P.C. and commits the case to the Court of Session, proceeding before him stands terminated.

It was not necessary on the part of the learned S.D.J.M., Bhanjanagar to submit the case to the Chief Judicial Magistrate after taking cognizance of offence under Section 376 of the Indian Penal Code. He has rightly directed personal appearance of the petitioners on the date fixed for commitment of the case to the Court of Session.

Therefore, on the basis of the evidence of chief examination of witness/witnesses adduced during trial, the Magistrate can take action contemplated under Section 323 of Cr.P.C. in directing commitment of the case to the Court of Session provided that it appears to him at that stage that the case is one which ought to be tried by the Court of Session and he need not wait such evidence to be tested by cross-examination. If the Magistrate waits for cross-examination to be over and then assesses the evidentiary value of the witness/witnesses as contended by the learned counsel for the petitioners, it would amount to pre-judge on the merits of the case on the basis of such evidence which is not permissible at that stage.

Thus, when the learned Magistrate has come to the conclusion that, the offence committed by Petitioner was 'rape' under Section 376 of the Indian Penal Code, he had to, and rightly took the decision for commitment of the case to the Court of Session and the formulation of judicial opinion does not suffer from any perversity or illegality.

It cannot be said that, there was no prima facie evidence before the learned Magistrate against the Petitioner for commission of offence under Section 376 of the Indian Penal Code or decision taken by the Magistrate for commitment of the case to the Court of Session is illegal. Law is well settled that, inherent power of the High Court under Section 482 of Cr.P.C. should to be exercised sparingly, with circumspection and in the rarest of rare cases and not according to whims and caprice in a routine manner. When it is brought to the notice of the Court that, grave miscarriage of justice would be committed, if the impugned order is allowed to remain in force and the accused would be harassed unnecessarily, the High Court can invoke the inherent power to prevent abuse of process of any Court or otherwise to secure the ends of justice. There is no illegality in the impugned order. Application dismissed.

Tags : Cognizance Committal Court of Session

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