Describe the procedure to be adopted by a Magistrate when after the commencement of inquiry or trial he finds that the case should be committed.

Question: Describe the procedure to be adopted by a Magistrate when after the commencement of inquiry or trial he finds that the case should be committed.

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Answer

Section 323 of the Code of Criminal Procedure empowers the Magistrate to commit the case to the Court of Session. Section 323 is as follows:

“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 XVIII shall apply to the commitment so made.”

The bare reading of the aforesaid provision suggests that in a case instituted on a police report or otherwise, if it appears to the Magistrate that the offence is exclusively triable by the Court of Session, then he is required by Section 209 to commit the case to the Court of Session.

In a case apparently triable by a Magistrate if it is found during the course of taking evidence that the offence disclosed by such evidence is one exclusively triable by a Court of Session, the Magistrate would necessarily commit the case under Section 323. However, even in cases where the offence is not exclusively triable by a Court of Session, the Magistrate may, in an appropriate case, invoke Section 323 and commit the case to the Court of Session.

The words “if it appears to him” in the section contemplate the formulation of a judicial opinion. Though the discretion to commit is wide under the section, it has to be exercised judicially and no hard and fast rule can be enunciated as to in what cases committal should be made under this section and in what other cases it should not be made. In view of Section 325, it has been suggested that Section 323 should be resorted to only when the Magistrate opines that the case ought to be tried by a Court of Session for reasons other than the inability of the Magistrate to award an adequate sentence.

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