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The Supreme Court has said a magistrate can invoke power under Section 323 of the Criminal Procedure Code to transfer the case to the sessions judge at any stage of the proceedings before signing the judgement.

"Section 323 CrPC gives a discretion to the Court to exercise its power at any stage of the proceeding before signing judgement. It is, evident from the statute that the power under Section 323 CrPC may be invoked by the Magistrate at any stage of the proceeding prior to signing of the judgement," a bench of Justices M M Sundresh and J B Pardiwala said.

Section 323, CrPC dealt with the procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed. It stated 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 judgement that the case is one which ought to be tried by the court of Session, he shall commit it to that court.

In the instant case, the court set aside the Calcutta High Court's order by which it had found fault with the order of the Chief Metropolitan Magistrate in committing the case to the jurisdictional sessions court exercising the powers under Section 323 CrPC. 

The case arose out of matrimonial dispute between the parties.

The CMM had come to the conclusion that the charge under Section 307 of the Indian Penal Code is required to be heard by way of an additional charge. In such view of the matter, the CMM exercised the powers under Section 216 read with 323 CrPC. 

However, the High Court allowed revision petition against the order. 

The High Court directed the 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 prosecution witness number 1, namely, the appellant here. 

The HC had held that a prima facie offence under Section 307 of the Indian Penal Code was premature and consequently set aside the order of the Trial Court and remanding the matter back to the Chief Metropolitan Magistrate.

The bench, however, said, "For exercising such a power, it is not mandatory for the CMM to wait for the completion of the entire evidence of PW 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. The procedure adopted by the High Court in the order is not mandated under Section 216 or 323 CrPC".

The court, pointed out, 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 Magistrate concerned must feel that the case is one which ought to be tried by the Court of Sessions," the bench said.

The court allowed the appeal, holding that the CMM has correctly exercised his jurisdiction.

It restored the order by the CMM and directed him to send the record to the jurisdictional Sessions Court at the earliest.