3. Magistrate who is not empowered to

3. Proceedings at the wrong place (Sec. 462) 4.

Irregularity in recording confessions and admissions (Sec. 463) 5. Effect of omission to frame charge, or error in the charge. (Sec. 464) 6. Court’s order, when reversible due to error, omission or irregularity (Sec.

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465) 7. Legality of attachment (Sec. 466)

1.

Irregularities which do not vitiate proceedings (Sec. 460)

This Chapter deals with the effect of irregularity in proceedings before Criminal Courts. S. 460, which deals with irregularities which do not vitiate proceedings, cures nine kinds of irregularities, provided they are done in good faith.

It provides that if any Magistrate who is not empowered to do any of the following nine things, erroneously and in good faith, does that thing, his proceedings are not to be set aside, merely on the ground of his not being empowered to do so. These nine cases of irregularities are as follows: (i) Issuing a search warrant under S. 94; (ii) Ordering the Police to investigate an offence under S. 155; (iii) Holding an inquest under S. 176; (iv) Issuing process under S. 187, for the apprehension of a person within his jurisdiction, for his having committed an offence outside the limits of such jurisdiction; (v) Taking cognizance of an offence under S.

190(1) (a) or S. 190(1) (b); (vi) Making over a case under S. 192(2); (vii) Tendering a pardon under S. 306; (viii) Recalling a case and trying it himself under S. 410; (ix) Selling property under S. 458 or S. 459.

The Calcutta High Court has held that apart from the requirement of good faith (which is expressly specified in the section), there is also an implied requirement that such irregularity should not occasion a failure of justice. (Lalit Chandra,—1911 39 Cal. 119)

2. Irregularities which vitiate proceedings (Sec. 461)

S. 461 enumerates seventeen kinds of irregularities which vitiate the proceedings.

It lays down if any Magistrate who is not empowered to do so, does any of the following things, his proceedings shall be void. This will happen when a Magistrate who is not empowered to do so,— (i) Attaches and sells property under S. 83; (ii) Issues a search-warrant for a document, parcel or other things in the custody of a postal or telegraph authority; (iii) Demands security to keep the peace; (iv) Demands security for good behaviour; (v) Discharges a person lawfully bound to be of good behaviour; (vi) Cancels a bond to keep the peace; (vii) Makes an order for maintenance; (viii) Makes an order as to a local nuisance under S. 133; (ix) Prohibits the repetition or continuance of a public nuisance under S. 143; (x) Makes an order under Part Ñ or Part D of Ch. X (i.

e. regarding urgent cases of nuisance or apprehended danger or as regards disputes as to immovable property); (xi) Takes cognizance of an offence under S. 190(1) (c); (xii) Tries an offender; (xiii) Tries an offender summarily; (xiv) Passes a sentence under S. 325 on proceedings recorded by another Magistrate; (xv) Decides an appeal; (xvi) Call for proceedings under S. 397; (xvii) Revises an order passed under S. 446.

If any of the above irregularities exists, the proceedings are void, and no question of good faith arises. Such proceedings have no existence in the eyes of law, and need not be set aside by a Superior Court. (Husein,—1884 8 Bom. 307)

3. Proceedings at the wrong place (Sec. 462):

As regards proceedings taking place at a wrong place, it is provided (by S. 462) that no finding, sentence or order of any Criminal Court can be set aside merely on the ground that the inquiry, trial or other proceedings took place in a wrong sessions divisions, district, subdivision or other local area, unless it appears that such error has, in fact, occasioned a failure of justice. Thus, the key-note of this section is failure of justice, and if that is not occasioned, a trial will not be set aside only on the ground that it took place in a wrong Court.

Thus, where a member of the Bihar Military Police was tried at Patna for the offence of deserting in Kashmir, the Supreme Court held that the trial at Patna was not vitiated, as there was no failure of justice on this ground, there being even no allegation to that effect. (Nassiruddin,—A.I.R. 1973 S.C. 186) Similarly, when an appeal was presented at the right place, but was heard by the Presiding Judge at a place where he had no jurisdiction, it was held that the irregularity was cured by S. 462.

(Fazal, 1894 1 All. 36)

4. Irregularity in recording statements and confessions (Sec. 463):

As statements and confessions occupy an extremely delicate position in criminal law, the law has deliberately provided adequate safeguards for their recording and use in criminal trials, in the shape of S. 164 and S. 281 of the Code. Non-observance of such requirements may result in having a statement or confession ruled out of evidence.

S. 463. therefore, provides that even if the Magistrate finds that such requirements of the law have not been complied with, he may, despite S. 91 of the Indian Evidence Act, take evidence as regards such non-compliance, and if he is satisfied that such non-compliance has not injured the accused in his defence on the merits, and that he had, in fact, duly made the statement recorded, the Magistrate may admit such a statement. The provisions of S. 463 (above) also apply to Courts of appeal, reference and revision.

5.

Effect of omission to frame charge, or error in the charge (Sec. 464):

S. 464 lays down that no finding, sentence or order of a competent Court is to be deemed to be invalid, merely on the ground that no charge was framed, or on the ground of any error, omission or irregularity in the charge (including misjoinder of charges), unless in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has, in fact, been occasioned thereby. If, however, such Court is of the opinion that a failure of justice has, in fact, been occasioned thereby, it may— (a) In the case of an omission to frame a charge, —order that a charge be framed, and the trial be re-commenced from the point immediately after the framing of the charge; (b) In the case of an error, omission or irregularity in the charge, — direct a new trial to be had upon a charge framed in a manner it thinks fit.

If, however, in such a case, the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it must quash the conviction.

6. Court’s order, when reversible due to error, omission or irregularity (Sec. 465):

S. 465 provides that, subject to the provisions of this Chapter discussed above, no finding, sentence or order of the competent Court can be reversed or altered by a Court of Appeal, confirmation or revision, on account of any error, commission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or order proceeding before or during the trial, or in any inquiry or other proceedings under the Criminal Procedure Code, or any error or irregularity in any sanction for prosecution, unless, in the opinion of the Court, a failure of justice has, in fact, been occasioned thereby. In determining whether any such error, omission or irregularity has occasioned a failure of justice, the Court must have regard to the fact whether the objection could, and should, have been raised at an earlier stage in the proceedings. Once again, the key-note of this section also is failure of justice. This expression does not merely mean an erroneous decision.

When the prescribed procedure, which would have given the affected person a better opportunity to clear the position, has not been followed, it would be a case of failure of justice. (K. Nagayya,—1969 2 Cr. L.

J. 719) The Privy Council has expressly laid down that the bare fact of an omission or irregularity, unaccompanied by any probable suggestion of any failure of justice, is not enough to quash a conviction, which may be supported by the curative provisions of Ss. 464 and 465. (Abdul Rehman,—29 B.

L.R. 813) As observed by the Madras High Court, it is not a universal rule that omission to comply with an express provision of the Code must always vitiate the trial, irrespective of any question of prejudice to the accused or the other party.

The impugned procedure must be one that is not only prohibited by the Code, but one which also works an actual injustice to the party. (Ramaraja,—1930 53 Mad. 937) The Supreme Court has held that when a search is made in contravention of S. 15 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the trial cannot be said to be illegal, in the absence of any prejudice caused by such non-compliance. (Bai Radha,—A.I.R. 1970 S.

C. 1396) As explained by the Bombay High Court, a mere irregularity in procedure is not ordinarily sufficient to vitiate a trial. There are always chances for honest errors or innocent irregularities to creep in, at any trial or proceeding. These are quite innocuous, if they do not occasion any failure of justice, i.e., if they are only of form, and not of substance. (Appa Sabhana,—1884 8 Bom.

200) It may, however, be noted that S. 465 applies only where something irregular takes place at a regular trial. It has no application if the trial itself is not valid from start to finish.

(Lilabati, — 1966 Cr. L.J. 88) Whether serious irregularity can be waived or consented to by accused’s Pleader.—The Bombay High Court has held that no serious defect in the mode of conducting a trial can be justified or cured by the consent of the advocate of the accused. (Abdul Rehman,—29 B.L.R.

813) It has also been held that in a criminal trial, consent or waiver on the part of the accused’s Pleader cannot deprive the accused of his legal rights. If the procedure adopted is illegal, then even if no prejudice is caused to him, the illegality will not be cured by such consent. But, if there is only an irregularity, then the consent of the Pleader, or his failure to raise an objection, is an element which may be taken into consideration to determine whether any prejudice has thereby been caused to the accused. (Mustaffa,—49 B.L.

R. 144) Instances of Irregularities: The following are a few instances where the irregularities were held to be curable under S. 465: (i) The failure to examine the complainant on oath; (ii) The pronouncing of a sentence before writing the judgment; (iii) The omission to record relevant facts observed by the Magistrate at a local inspection under S. 310; (iv) The omission to sign the date of a judgment at the time of pronouncing it in open Court; (v) The reading and recording of evidence in one case into another companion case.

Instances of illegalities: Given below are some instances where the irregularity was so serious that it was held to be an illegality vitiating the trial: (i) The refusal by Magistrate to issue process to witnesses named by the accused, when such refusal was not based on any grounds allowed by law; (ii) Dismissal of a complaint by a Magistrate, without giving reasons, as required by S. 203; (iii) Neither writing nor pronouncing judgment in open Court; (iv) Conducting a summary trial for an offence which is not triable summarily; (v) The omission to call upon an accused to enter his defence.

7. Legality of attachment (Sec. 466):

S.

466 provides that no attachment made under the Criminal Procedure Code is to be deemed to be unlawful on account of any defect or want of form in the summons, conviction, writ of attachment or other proceedings relating thereto. In such cases, any person making the attachment cannot likewise be deemed to be a trespasser.

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