EFFECTS OF IRREGULAR PROCEEDINGS

FINAL DRAFT SUBMITTED IN PARTIAL FULFILMENT OF COURSE TITLED CRIMINAL LAW- II FOR
COMPLETION OF BA.LLB. (HONS.) IN ACADEMIC YEAR 2017-18

Submitted by – Aditya Vijay Singh Submitted to – Dr.Peter F. Ladis

Roll no – 1507, Faculty of Criminal law - II
4thsemester, BA.LLB.(Hons.)

14 APRIL 2018

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR,
PATNA (BIHAR)

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 ACKNOWLEDGEMENTS

On completion of this Project it is our present privilege to acknowledge our profound

gratitude and indebtedness towards our teachers for their valuable suggestion and
constructive criticism. Their precious guidance and unrelenting support kept us on the right
track throughout the project. We gratefully acknowledge our deepest sense of gratitude to our
revered and intellectual guide Prof. (Dr) A.Lakshminath, our hon’ble vice chancellor and
the Assistant Professors in law Dr. Fr. Peter Ladis F faculty-in-charge of Criminal Law
,who have provided us important tips after the submission of first draft.

I heartily thank the library staff for their able guidance and support without which this project
would not for their able guidance and support without which this project would not have been
completed. We are also thankful to Mr. Amit Kumar and other computer staff who helped us
in operating computer and providing access to internet.

I am thankful to our family members and friends for the affection and encouragement with
which doing this project became a pleasure.

Last but not least I would like to thank the ALMIGHTY whose blessings helped us in making
this project come out successfully with flying colures.

ADITYA VIJAY SINGH

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 TABLE OF CONTENTS

EFFECTS OF IRREGULAR PROCEEDINGS............................................................... 1

CHAPTER I .................................................................................................................................. 4
INTRODUCTORY CHAPTER .......................................................................................................... 4
1.1. OBJECTIVE OF STUDY ..................................................................................................... 4

1.2. RESEARCH METHODOLOGY........................................................................................... 4

1.3. FORMATTING METHODOLOGY ...................................................................................... 4

1.4. SCOPE OF MY STUDY ....................................................................................................... 4

1.5. HYPOTHESIS............................................................. Error! Bookmark not defined.

1.6. LIMITATION OF THE STUDY ........................................................................................... 5

CHAPTER II ................................................................................................................................. 6
IRREGULARITIES WHICH DO NOT VITIATE PROCEEDINGS ................................................. 6
CHAPTER III ................................................................................................................................ 9
IRREGULARITIES WHICH VITIATE PROCEEDINGS ........................................................................ 9
CHAPTER IV.............................................................................................................................. 13
CHAPTER V ............................................................................................................................... 16
NON COMPLIANCE WITH PROVISIONS OF SECTION 164 OR SECTION 281 .................................. 16
CHAPTER VI.............................................................................................................................. 18
EFFECT OF OMISSION TO FRAME, OR ABSENCE OF, OR ERROR IN, CHARGE .............................. 18
FINDING OR SENTENCE WHEN REVERSIBLE BY REASON OF ERROR, OMISSION OR IRREGULARITY
.................................................................................................................................................. 23
CHAPTER VIII ........................................................................................................................... 26
DEFECT OR ERROR TO MAKE ATTACHMENT UNLAWFUL .......................................................... 26
CHAPTER IX.............................................................................................................................. 27
CONCLUSION............................................................................................................................. 27
BIBLIOGRAPHY ......................................................................................................................... 28

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 CHAPTER I
INTRODUCTORY CHAPTER

Sections 215 and 464 of the Criminal Procedure Code, 1973 indicate what trial courts and
higher courts are required to consider in case of errors in charge framed by trial courts.
Sections 460 and 461 of the code deal with the effect of irregularities committed by trial –
magistrates. Sections 462 and 463 deal with certain irregularities committed by criminal
courts. However the Code under which investigation of offences is conducted does not
contain any provision to deal with irregularities committed by investigation officers (I.O) in
the course of investigation. This omission is perhaps due to belief that defects in investigation
have a role to play in appreciation of evidence by courts. Of course, in appropriate
circumstances, writ jurisdiction of the High Courts could be invoked.

1.1. OBJECTIVE OF STUDY

The objective of the researcher’s study on this topic is to dissect and give a holistic analysis
of the Irregular Proceedings. This project analysis various provisions related to the offence,
under the Indian law.

1.2. RESEARCH METHODOLOGY

The nature of research methodology adopted by the researcher for this particular topic is
purely doctrinal. The researcher has used resources available at the library of CNLU and the
World Wide Web. Thus, the researcher of this project has used secondary data for the
successful completion of this project. No primary data has been included.

1.3. FORMATTING METHODOLOGY

The project is in Times New Roman, font Size 14 for the main headings and 12 for other
parts of the study with 1.5 spacing. The footnotes are of font size 10 with 1.0 spacing.
Uniform method of footnoting has been followed.

1.4. SCOPE OF MY STUDY

To throw light on the Effects of Irregular Proceedings and analyse its current position in
India. The researchers have analysed the relevant provision Code of Criminal Procedure,
1973.

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1.5. Hypothesis
1. Irregular Proceedings lead to the delay of Administration of Justice.
2. Irregular Proceedings lead to the harassment of the accused.
1.6. Research Question
1. What is meant by Irregular proceedings?
2. How does it affect the legal system?
3. What is the role of magistrate in causing irregular proceedings?
4. What are the remedies, if any, available?
5. How does the irregular proceedings affect the accused?
1.7. LIMITATION OF THE STUDY
Due to paucity of time and lack of resources, a complete comparative study with law
prevalent in other nations could not be be undertaken by the researcher. However exhaustive
use the internet and library resources for the successful completion of this project.

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 CHAPTER II
IRREGULARITIES WHICH DO NOT VITIATE PROCEEDINGS

If any Magistrate not empowered by law to do any of the following things, namely:
a. to issue a search-warrant under section 94;
b. to order, under section 155, the police to investigate an offence;
c. to hold an inquest under section 176;
d. to issue process under section 187, for the apprehension of a person within his local
jurisdiction who has committed an offence outside the limits of such jurisdiction;
e. to take cognizance of an offence under clause (a) or clause (b) of Sub-Section (1) of section
190;
f. to make over a case under Sub-Section (2) of section 192;
g. to tender a pardon under section 306;
h. to recall a case and try it himself under section 410; or
i. to sell property under section 458 or section 459,
erroneously in good faith does that thing, his proceedings shall not be set aside merely on the
ground of his not being so empowered.

SCOPE AND APPLICATION: This section cures nine kinds of irregularities, provided they
are caused erroneously and in good faith. A further qualification is implied, though it is not
expressly stated in the section, viz., they should not occasion a failure of justice.1The section
deals with acts done by a Magistrate in no way empowered by law to do those acts; it has no
reference to a Magistrate empowered otherwise under the Act to do an act but not possessing
jurisdiction over the offence.
Where a Magistrate holds the trial of a warrant case in a manner prescribed for that of a
summons case, the trial is bad.2 Where the trial of the accused is held as a warrant trial,
though he should have been tried summarily, the proceedings are not vitiated.Where a
magistrate takes wrong cognizance under S. 190(1)(a) or (b) it is an act of illegality not
curable under S. 460 .3

1
Lalit Chandra Chanda Chowdhury, (1911) 39 Cal 119, 127.
2
Manak Lal, (1954) Raj 109
3
Sureshbai Jehaji Thakor v. State of Gujarat, 2007 CrLJ 2488 (2489) (Guj

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Clause b: When investigation is made by the police in non- cognizable offence without the
order of the Magistrate under s. 155 (2), the investigation is illegal which illegality
cannot be cured under s. 460.4

Clause e: If any Magistrate not empowered by law to take cognizance of an offence under S.
190(1)(a) or (b) erroneously but in good faith does take cognizance, the proceedings will not
be set aside merely on the ground of his not being so empowered. Where the Magistrate for
issuing process under S. 204CrPC reverts back to the position of S. 202 CrPC and examines
witnesses, the irregularity is curable under S. 460 (2)CrPC .5 Where the Magistrate though
not authorized had taken cognizance of the offence punishable under the Electricity Act,
2003, exclusively triable by a Special Court, held even if the cognizance is taken erroneously
by the learned Magistrate, without being so empowered, merely on that ground, the
proceeding cannot be said to have been vitiated and cannot be quashed. Proceedings in a
wrong place is merely an irregularity, are not vitiated.6

Clause f: Transfer of case under s. 192.—Where a first class Magistrate not empowered by
law to transfer the case to a third class Magistrate erroneously but bona fide transferred it, the
order of transfer was not invalid so as to prevent the third class Magistrate who took
cognizance upon the transfer from having jurisdiction to try the accused. If a Magistrate had
no power to transfer a case from the file of one Magistrate to another, the irregularity in such
transfer is cured by s. 460 (f).
In transfer of a case under s. 192 done by a Magistrate erroneously in good faith, the
proceeding shall not be set aside merely on the ground of his being not so empowered. This
has to be treated as an irregularity which does not vitiate the proceedings, the irregularity is
curable under s. 4607.

Clause g: Tender of pardon.8 Where prior to constitution of special Court the Chief Judicial
Magistrate had granted pardon, it is an irregularity which stands cured under this provision.
Where a Magistrate took cognizance of a private complaint for defamation on police report,
the whole proceedings were not vitiated due to erroneous cognizance. The defect could be

4
Avinash Madhukar Mukhodkar v. State, 1983 Cr LJ 1833 (Bom).
5
K. Subramanian v. K. Rajenderan, 2007 CrLJ 4092 (4096) (Mad) .
6
Kunti Devi v. State of Bihar, 2006 Crlj 1482 (Pat) .
7
Baleshwar Singh v. Ramji Singh, 1975 Cr LJ 1539 (Pat).
8
Chidda, sup.

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cured by S. 460 . Where a case was committed to Session in the absence of an accused
charged of an offence under S. 307 of the IPC, it was held that even though the Court of
Session tried the case without referring the matter to the High Court, it was not vitiated.
Where an investigation was in breach of the provision in S. 167(5), it was held that
subsequent proceedings would be bad if the Magistrate has not taken the step he was bound
to take under that Section. S. 460 or 465 cannot cure such defect. Investigation made without
an order under S. 155(2) is not curable under S. 460 .9
In a case of tender of pardon to an accomplice under the Prevention of Corruption Act, 1988,
where during investigation of the case, the Magistrate granted pardon under S. 306 , CrPC
even after the appointment of Special Judge under the Act, it was held by the Supreme Court
that it was a curable irregularity which does not vitiate the proceedings. It has to be borne in
mind that both the Special Judge as well as the Magistrate have concurrent jurisdiction to
grant pardon during investigation.10

9
Avinash Madhukar Mukhedkar v. Maharashtra, 1983 Cr LJ 1833 (Bom) ; see also Dharam Pal v. State of U.P., 2006 CrLJ
1421 (1423) : 2006 (2) ALJ 94 (All) .
10
P.C. Mishra v. State (C.B.I.), AIR 2014 SC 1921 : (2014) 14 SCC 629 .

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 CHAPTER III
IRREGULARITIES WHICH VITIATE PROCEEDINGS

If any Magistrate not being empowered by law in this behalf, does any of the following
things, namely:--

(a) attaches and sells property under section 83 ;

(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal
or telegraph authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;2042
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local nuisance;
(i) prohibits, under section 143, the repetition or continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
(k) takes cognizance of an offence under clause (c) of sub-section (1) of section 190 ;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under section 325, on proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under section 397, for proceedings; or
(q) revises an order passed under section 446,
his proceedings shall be void.
Scope and Application: This section enumerates seventeen kinds of irregularities which
render proceedings void. No question of error or good faith arises here. In other words, they
are illegalities which vitiate the proceedings. Such proceedings have no existence in point of
law, they need not be set aside by a superior Court. This means, the Magistrate has no initial
jurisdiction to try the matter. Where the act creating Special Court had expired the trial and
conviction of the accused by the Special Court was void and set aside.11
Only cl. (c) and not clauses (a) and (b) of S. 190 is covered by S. 461CrPC .

11
Karim v. State of Kerala, 2006 Crlj (NOC) 540 (Ker) .

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Irregularity committed by the Investigating Officer in investigating a case when not
empowered to investigate the case is not one of the irregularities mentioned in S. 461CrPC
which vitiates proceedings12.
In a case, where the order issuing process against the accused was challenged before the
Supreme Court on the ground of irregularity, it was held that in the list of irregularities
indicated in S. 461 of the Code, orders passed under S. 204 do not find a mention. Section
465(1) of the Code protects orders from errors, omissions or irregularities, unless 'a failure of
justice' has been occasioned thereby. It was observed that most certainly, an order delineating
reasons cannot be faulted on the ground that it has occasioned failure of justice13.

Clause g: Order for maintenance.—Order by competent Magistrate of wrong district is not

illegal. A maintenance order is not vitiated because proceedings were taken in a wrong court,
because s. 462 applies.

Clause j: This clause refers to a case where a Magistrate is not competent, by virtue of the
position he holds or powers vested in him, to try a case of the character referred to in S. 144
or S. 145. The cardinal principle of law in criminal trial is that it is the right of an accused
that he should be tried by a Judge who is competent. If an incompetent Magistrate records the
evidence, the successor Court cannot proceed from that stage onwards but must try the case
de novo. Where a Magistrate took cognizance under S. 190(1)(c) on the basis of a complaint
lodged by himself under S. 195(b)(i), it was held that the entire proceedings resulting in an
order of conviction and sentence were liable to be quashed because the complainant could not
be a judge in his own cause14.
Prior illegality: Where the cognizance of the case has, in fact, been taken and the case has
proceeded to terminate, the invalidity of the antecedent investigation or the police report does
not vitiate the result, unless miscarriage of justice has been caused thereby. Similarly, it
would appear that where cognizance has in fact been taken on even an invalid complaint and
the case has been tried to a finished, the so-called invalidity in the complaint cannot vitiate
the trial. As there is no jurisdiction in the Magistrate of first class to try an offence under sub-

12
Dharam Pal v. State of U.P., 2006 CrLJ 1421 (1423) : 2006 (2) ALJ 94 (All) .
13
Nupur Talwar v. Central Bureau of Investigation, AIR 2012 SC 1921 : (2012) 11 SCC 465 .
14
Harekrishna Sahu v. Orissa, 1986 Cr LJ 691 (Ori)

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section (1) of S. 15 of the U.P. Private Forests Act, 1948, the trial by such a Magistrate is
void.15

Clause k: Cognizance under s. 190 (1) (c).—If a Magistrate not being empowered by law
takes cognizance under s. 190 (1) (c), the proceedings are void under s. 461 (k).
Where a Judicial Magistrate has made a complaint under s. 195
(b) (i) and himself takes cognizance of the offence under s. 190 (1) (c), the entire proceedings
are invalid as the complainant cannot be a Judge of his own case.16
Clause l: Trial of offender.—The meaning of cl. (I) is that if a Magistrate tries an offender
for an offence beyond his jurisdiction, his proceedings shall be void. An order of acquittal
passed by a Magistrate in a case where the facts disclosed an offence exclusively triable by a
Court of Session, is bad in law and all proceedings taken before the Magistrate are void17.
Where a Magistrate having no jurisdiction holds an inquiry and commits the accused to the
sessions, the commitment is void. If a second class Magistrate tries an offence under s. 409,
I.P.C., as one under s. 406, I.P.C., the proceedings are wholly void under this section. The
fact that the Magistrate acted in good faith would not cure the defect under s. 460 or 464 or
465 or any other provision of the Code. Section 460 deals with nine Acts only and the trial of
an offender is not included in them. Sections 464 and 465 are to be construed as subject to
the provisions therein before contained.
Section 26 directs that an offence under any other law shall, when any court is mentioned in
this behalf in such law, be tried by such court. Once a particular court is mentioned in the
special law, that court alone shall be competent to try offences under that law, but subject to
other provisions of the Code18.

Clause m: Trial of offender summarily.—Trying an offender summarily under s. 461 (m),

means trying the particular offender in a particular case summarily and trying that offender
for that offence of which he is accused.

Where the Magistrate is not empowered to try the accused summarily because of the
imprisonment being for a term exceeding six months, therefore, under s. 461, the trial is
void.

15
State of U.P. v. Sabir Ali, AIR 1964 SC 1673 : 1964 (2) Cr LJ 606
16
Harekrishna Sahu v. State, 1986 Cr LJ 691 (Ori).
17
41 PLR 198 : AIR 1939 Lah 513. See also AIR 1941 Sind 36 (Trial of offence under s. 220, I.P.C., by Magistrate).
18
AIR 1962 All 405, affirmed on appeal in AIR 1964 SC 1673 : 1964 (2) Cr LJ 606.

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Clause (m) of s. 461 states that if any Magistrate, not being empowered by law in this behalf,
tries an offender summarily, his proceedings shall be void. The question of good faith will
not arise as in the case envisaged under s. 460.19

Where the Magistrate has summary powers, and as per allegations the value of the property
does not exceed Rs. 200, the case is triable summaiily. Where during the course of evidence
it appears that the value possibly exceeds Rs. 200, there should be no change with regard
to the competency of the Magistrate to continue the trial in a summary manner. Section 461
(m) will not take away the jurisdiction.20

TRIA OF SUMMARY CASE: The Judge or the Magistrate, who tries the summary trial
case must give his judgment and if he is transferred without pronouncing judgment, the
succeeding Sessions Judge or the Magistrate has to start the trial afresh and pronounce the
judgment, failure in this regard vitiates the trial.21

Clause n: A succeeding Magistrate cannot proceed with the trial placing reliance on the
evidence recorded by his predecessor. He has to try the case de novo. Even the consent of
counsel on both sides cannot confer such jurisdiction on the succeeding Magistrate.2

Clause o: Decision of appeal by Sessions Judge.— 'Magistrate' includes a Sessions Judge

so that the dismissal of an appeal by a Sessions Judge where appeal lay only to the High
Court was held to be void, ab initio,3
Where a Sessions Judge dealt with a revision petition as if it were an appeal, in a case where
no appeal lay to him, and reversed the conviction, the order of the Sessions Judge was void.4

Clause q: Revision of order under s. 446.—If a Magistrate hears an appeal from an order
passed under s. 446, his proceedings are void.5

VOID: Meaning of.—According to one view, proceedings which are void under this section
are a nullity and need not be set aside by a superior court.6 But a different view has been
expressed in some cases. It has been held that an order which is void for want of jurisdiction
must nevertheless be regarded as valid, unless set aside by a court of competent
jurisdiction.7

19
Shanu Raghu Datkar v. State, 1967 Cr LJ 876 (Goa).
20
Sheo Nath v. State, 1975 Cr LJ 463 (All).
21
Chandana Surya Rao v. State of A.P., 1989 Crlj 2077 : 1989 Crlj 2077 : 1989 (3) Crimes 693, 695 (AP) .

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CHAPTER IV
PROCEEDINGS IN WRONG PLACE

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground
that the inquiry, trial or other proceedings in the course of which it was arrived at or passed,
took place in a wrong sessions division, district, sub-division or other local area, unless it
appears that such error has in fact occasioned a failure of justice.
Scope and Object: The object of Ss. 462 to 466 is to uphold, in most cases, the orders
passed by Criminal Courts which lacked local jurisdiction or which had committed illegalities
or irregularities unless failure of justice has been occasioned or is likely to be occasioned
thereby.30 Where a personnel of 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 account of the trial having been conducted in Patna, particularly
where there was no allegation of failure of justice.22 It will be observed that the key-note of
this and the following sections is "failure of justice".23
Want of Jurisdiction: An order which is void for want of jurisdiction must nevertheless
be regarded as valid unless it is set aside by a Court of competent jurisdiction. A conviction
for an offence tried summarily though not triable by a summary procedure stands until it is
set aside in revision.
This section applies solely to cases in which there is no jurisdiction by reason of the inquiry,
trial or other proceeding being held in the wrong local area. Sections 177, 179, 180, 181, 182
and 183 should be read with this section. The manifest intention of this section is to provide
against the contingency of a finding, sentence or order, regularly passed by a Court in the
case of an offence committed outside its local area, being set aside when no failure of justice
has taken place.24
Failure Of Justice: The mere fact that proceedings were taken in a wrong place would
not vitiate the trial, unless it ap-pears that this has occasioned a failure of justice.
Lack of Territorial Jurisdiction: When there is no inherent lack of jurisdiction merely
on the ground of lack of territorial jurisdiction or on the ground of any irregularity of

22
Nasiruddin Khan v. State of Bihar, AIR 1973 SC 186 : 1973 Crlj 241
23
Ganapathy Chetty, (1919) 42 Mad 791, 793; Lalit Chandra Chanda Chowdhury, (1911) 39 Cal 119, 127; Birju Marwari,
(1921) 44 All 157, 159; Mohd. Maroof, 1969 Cr LJ 533.
24
Doraiswamy Mudali, (1906) 30 Mad 94, 95.

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proceedings, an order or sentence awarded by a competent Court, cannot be set aside unless
prejudice is pleaded and provided, which would amount to failure of justice.36 Because of
acquittal under S. 78 of the Trade and Merchandise Marks Act, 1958 the Magistrate is not
without jurisdiction to try a case under S. 79 of the Act merely because that offence was
committed outside his local jurisdiction.25 Where a Magistrate has power to try a case under
S. 125 and the controversy relates solely to his territorial jurisdiction this section should made
applicable to the order made by him. This section has to be applied after the decision or
finding or order is arrived at by any Magistrate or a Criminal Court in a wrong jurisdiction.
Therefore if any objection is taken to the territorial jurisdiction of the Magistrate it will be his
duty to see if he had such jurisdiction. He cannot take resort to this section and assume
jurisdiction.26
Sessions division, district, sub division or any other local area: The 'sessions
division, district, sub-district or other local area' means those to which the Criminal
Procedure Code applies. They have no reference to local area, etc., in a foreign country to
which the Code has no application. Where no prejudice is caused to the accused, trial of the
case at wrong place does not vitiate the conviction.27

Where an appeal was presented at the right place but was heard by the presiding Judge at a
place where he had no criminal jurisdiction, the irregularity was cured under this section. An
offence was committed in the district of Hardoi which was within the jurisdiction of the
former Chief Court of Oudh and the trial took place in the district of Shahjahanpur which was
within the jurisdiction of the Allahabad High Court. It was held that the conviction and
sentence could not be set aside simply on the ground of the trial having taken place in a
wrong district.28 The question of the jurisdiction must be raised at the beginning of the trial. It
must be decided before the commencement of the trial. The application of S. 462 arises only
after such a decision is rendered by a Court which has no territorial jurisdiction.29 The
question of jurisdiction should be raised and decided before the commencement of the trial.
Where the material irregularity as to the jurisdiction of the Court was brought to the notice of

25
A.N. Deen v. Jacob, 1982 Cr LJ 2089 (Ker)
26
38 Raj Kumari Vijh v. Dev Raj Vihi, AIR 1977 SC 1101 : 1977 Cr LJ 940 : (1977) 2 SCC 190 ; Rafiduddin v. Smt. Saleha
Khatoon, 2008 Crlj (NOC) 291 : 2008 (1) AIR Bom R 411 (Bom)
27
Banwari Lal Agarwal v. A. Suryanarayan, 1994 Cr LJ 370 (Ori) ; Willie (William) Slaney v. State of Madhya Pradesh, AIR
1956 SC 116 : 1956 Cr LJ 291 ; Mangaldas v. Maharashtra State, AIR 1966 SC 128 : 1966 Cr LJ 106 ; Nasiruddin Khan v.
State of Bihar, AIR 1973 SC 186 : (1973) 3 SCC 919 : 1973 Cr LJ 241 ; Kunti Devi v. State of Bihar, 2006 Crlj 1482 (Pat) ; Ajay
Khorana v. State of U.P., 2007 Crlj (NOC) 842 : 2007 (5) All LJ 118 (All) .
28
Musammat Wahidan, (1952) 1 All 595.
29
Musammat Wahidan, (1952) 1 All 595.

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the Court before the commencement of the trial, in such a case, the curative provisions of S.
462 are not applicable.30

30
Briju Kishore Singh v. Nutun Singh, 1995 Cr LJ 1486 (Ori

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 CHAPTER V
NON COMPLIANCE WITH PROVISIONS OF SECTION 164 OR SECTION 281

(1) If any Court before which a confession or other statement of an accused person
recorded, or purporting to be recorded under section 164 or 281, is tendered, or has been
received, in evidence finds that any of the provisions of either of such sections have not been
complied with by the Magistrate recording the statement, it may, notwithstanding anything
contained in section 91 of the Indian Evidence Act, 1872 (I of 1872), take evidence in regard
to such non-compliance, and may, if satisfied that such non-compliance has not injured the
accused in his defence on the merits and that he duly made the statement recorded, admit
such statement.
(2) The provisions of this section apply to Courts of appeal, reference and revision.
Scope and Application: Owing to the extremely delicate nature of statements and
confessions, the law has deliberately hedged salutary safeguards (Ss. 164 and 281) round
them. Non-observance of those requirements may result in having the statements or
confessions ruled out of evidence. This section has, however, been enacted in order that
technicalities may not succeed in defeating the ends of justice.
This section permits oral evidence to be given to prove that the procedure laid down in S. 164
had in fact been followed when the Court finds that the record produced before it does not
show that was so. If the oral evidence establishes that the procedure had been followed then
only can the record be admitted.31 The provisions of S. 463CrPC apply to Courts of appeal,
reference and revision. Non-compliance of the provisions of the Section is not fatal injury to
the accused in his defence on merit unless prejudice is proved.32
Violation of Procedure: If a statute has conferred a power to do an act and has laid
down the method in which that power has to be exercised, it necessarily prohibits the doing
of the act in any other manner than that which has been prescribed. The principle behind the
rule that if this were not so, the statutory provision might as well not have been enacted.33
Letting in Oral Evidence: Far from showing that the procedure laid down in S. 164 is
not intended to be obligatory, this section really emphasises that procedure has to be
followed. The section only permits oral evidence to prove that the procedure had actually

31
State of U.P. v. Singhara Singh, AIR 1964 SC 358, 362 .
32
Madhu Sankar v. State of M.P., 2009 (1) MPLJ 384 (MP)
33
State of U.P. v. Singhara Singh, AIR 1964 SC 358 : 1964 (1) Cr LJ 263,

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been followed in certain cases where the record which ought to show that does not on the
face of it do so. If the conclusion arrived at by the Sessions Judge was that the Committing
Magistrate had staged the truth, then in view of this provisions it would be incumbent on him
to hold that the recording of confession by the Committing Magistrate had been done by him
in a manner as required by S. 164 .34
Curable Irregularities: This section cures the irregularity where a confession is made in
one language and is recorded in another.According to S. 29 of the Evidence Act, 1872, a
confession otherwise admissible does not become inadmissible because the accused person
was not warned that he was not bound to make it and that it would be used as evidence
against him. By application of S. 463 of the Code the above irregularity can be cured. The
omission of non-compliance of S. 164(2)CrPC is not curable irregularity.35 While recording
the confession statement under S. 164, some questions put to the accused were not recorded
by the Magistrate. It was held that it was the duty of the Sessions Judge to look into it and
find out whether such omission had prejudiced the accused. Where a Magistrate while
recording confession of an accused has not put questions to ascertain the voluntary character
of confession, it would be a case of non-compliance of substantial aspect of S. 164 , CrPC,
the defect would not be cured under S. 463,CrPC by examination of the Magistrate recording
the confession.36

34
Philips v. State of Karnataka, 1980 Cr LJ 171, 174 (Kant-DB)
35
Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883 : 1989 Crlj 1 : (1988) 3 SC 609 : 1988 SCC (Cri)
36
Gobardhan Rajbanshi v. State of Jharkhand, (2002) 3 East Cri 137 : 2002 CrLJ 3301 (3304) (Jhar-DB).

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 CHAPTER VI
EFFECT OF OMISSION TO FRAME, OR ABSENCE OF, OR ERROR IN, CHARGE

(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed

invalid merely on the ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any 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.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice
has in fact been occasioned it may--

(a) in the case of an omission to frame a charge, order that a charge be framed and that
the trial be recommenced 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 whatever manner it thinks fit:

Provided that if the Court is of opinion that facts of the case are such that no valid
charge could be preferred against the accused in respect of the facts proved, it shall quash the
conviction.

Scope: Section 464 is in mandatory terms and specifically provides what is to be done in
cases where a charge is not framed or there is an error, omission or irregularity in framing of
the charge. A finding, sentence or order could be set aside only in those cases where the facts
are such that no valid charge could be framed against the accused in respect of the facts
proved. If the facts are such that a charge could be framed and yet it is not framed but no
failure of justice has in fact been occasioned, thereby, the finding, sentence or order of the
Court of competent jurisdiction is not to be set aside on that ground. If there is failure of
justice occasioned by not framing of the charge or in case of an error, or omission in the
charge, retrial of the case is to be directed under sub-section (2).37

37
Kammari Brahmaiah v. Public Prosecutor, H.C. A.P., AIR 1999 SC 775 : 1999 SCC (Cri) 281

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In view of S. 464CrPC, it is possible for the appellate or revisional Court to convict an
accused for an offence for which no charge was framed unless the Court is of the opinion that
a failure of justice would in fact occasion.38

The principles deducible from various decisions are :--

(i) The accused should not suffer any prejudice by reason of misjoinder of charges.

(ii) A conviction for lesser offence is permissible.

(iii) It should not result in failure of justice.

(iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such
misjoinder must be arising out of mere misjoinder to frame charges.39

Failure of Justice: Omission to frame a charge [ S. 246 (1)] or any error, omission or
irregularity in the charge including any misjoinder of charges will be a ground for a retrial, if
it has occasioned a failure of justice.40 The phrase "merely on the ground that no charge was
framed" means a case where the offence being a petty one and the evidence being fairly
taken, the Court framed no charge at all. The first sub-section applies to cases where there is
no charge at all, or the offence is not of a serious nature, or in which the offence charged is of
such a nature that there is no difference between the ingredients of that offence and the
ingredients of the offence of which the accused has been convicted, or the offence charged
comprises all the ingredients of the offence of which the accused has been found guilty and
some more.41

Non Framing Of Charge: Mere non-framing of charge would not vitiate conviction
when no prejudice has been pointed out by the accused. It is possible for the appellate or
Revisional Court to convict an accused for an offence for which no charge was framed unless
the Court is of the opinion that a failure of justice would in fact occasion. In order to judge
whether a failure of justice has been occasioned, it will be relevant to examine whether the
accused was aware of the basic ingredients of the offence for which he is being convicted and

38
Virendra Kumar v. State of U.P., 2007 CrLJ 1435 (1438) (SC) ; Dalbir Singh v. State of U.P., AIR 2004 SC 1990 : 2004 AIR
SCW 2119 .
39
Anil v. Administration of Daman & Diu, Daman, (2006) 13 SCC 36 (54) : (2008) 1 SCC (Cri) 72 ).
40
Gurdu, (1880) 3 All 129; Madhab Chandra Saha, (1926) 53 Cal 738; see Chittaranjan Das, AIR 1963 SC 1696 : (1963) 2 Crlj
534 ; State of Sikkim v. Kul Chandra Baral, 2005 CrLJ 1027 (1029)
41
Ramchandra Bhairu, (1971) 73 Bom LR 811.

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whether the main facts sought to be established against him were explained to him clearly
and whether he got a fair chance to defend himself.42 Where the accused had been charged
for offence under S. 498A , in examination under S. 313 , CrPC basic ingredients of offence
under S. 306,IPC were explained to the accused, the accused could be convicted under S.
306,IPC, even though no charge under the section had been framed.89 Where no specific
charge under S. 364 , IPC had been framed, and accused had been prejudiced by the
omission, he would not be convicted under S. 364 , IPC .43

In a case, where the accused persons were alleged to have trespassed in the field of the
deceased and fatally assaulted him, charges were framed under Ss. 447, 504 and 300 read
with S. 34 . However, the trial Court came to the conclusion that the accused persons had not
acted in furtherance of common intention and only one accused caused fatal injury. It was
held that the others who caused only bleeding injuries can be convicted for their individual
acts even though there was no separate charge. It was held that the Court had power to alter
the charge, hence refusal to convict them for their acts was improper.44

Where the accused-appellant along with co-accused were alleged to have fatally assaulted the
de-ceased and the accused persons had gone there with the intention to kill and the both of
them not only inflicted injuries on the deceased, the appellant had been proved to have caused
injury on the head of the deceased, it was held that failure to charge the appellant under S. 34
of the IPC cannot be said to have caused prejudice to the accused. Hence, conviction of
appellant under S. 300 with the aid of S. 34 was held to be proper.

Error in Charge: Error in framing the charges cannot render the judgment improper to
necessitate retrial, unless prejudice is shown to the accused.93 Where basic ingredients of the
offence are given in the charge, the defect in language, form or in narration is not fatal to the
prosecution, trial is not vitiated.45

If a charge of conspiracy to commit criminal breach of trust is followed by a substantive

charge of criminal breach of trust in pursuance of such conspiracy, there is nothing to prevent
the Court convicting the accused under the second charge even if the prosecution fails to
establish conspiracy. Furthermore, there could not be said to be any prejudice as the accused

42
Dalbir Singh v. State of U.P., AIR 2004 SC 1990 : (2004) 5 SCC 334 : 2004 All LJ 1448 : 2004 CrLJ 2025 (2033) (SC)
43
Gaddala Deshaiah v. State of A.P., 2005 Crlj 828 (830, 831) (AP) .
44
Bhimanna v. State of Karnataka, AIR 2012 SC 3026 : (2012) 9 SCC 650 .
45
C.P. Kambhar v. State of Maharashtra, 1995 Cr LJ 290 (Bom-DB) ; Pananarang Punnappa Kare v. State of Maharashtra,
1993 (1) Bom CR 571 (Bom-DB)

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was aware of the substantive charge under S. 409 . Misjoinder of charges is saved under this
clause. It is merely an irregularity and not an illegality unless, of course, it has occasioned a
failure of justice.46S. 464(1) or 465 of the Code does not supersede the mandate of S. 218(1)
but only cures the illegality where the trial has been concluded without any failure of justice
on account of such misjoinder. Where consolidation of trials for different offences was done
and there was no application by the accused for such consolidation, subsequent letter by him
giving his consent to such joint trial was held to be enough to cure the defect.1 Where an
accused with one other was charged for offences under S. 302 read with S. 34 and the co-
accused was acquitted, irregularity in framing the charge, held, was curable.2 Where the
name of the accused is wrongly mentioned in the charge, but the charge has been fully
explained to the accused, error in the charge would not affect/vitiate the trial.3 Defect in a
notice or order under S. 111, does not vitiate the proceedings under S. 107 of the Code, if no
prejudice is caused to the accused.4 A misjoinder of several charges of dacoity is a curable
irregularity and a conviction cannot be set aside unless the misjoinder has occasioned a
failure of justice.

Where in charge for offence under Ss. 304A and 279 IPC date of accident stated was
incorrect, it being clerical was held immaterial. Where in charge by mistake wrong section
has been levelled in respect of offence, the same would itself not invalidate prosecution.47

Where the accused fully knew about the allegations and were not misled by the alleged error
in the charge, irregularity in charge was curable. "Omission of the words along with three
others" in the charge under S. 302 / 149 was held of no consequence, when there was specific
case that the accused had formed unlawful assembly and there was no failure of
justice.48Where in charge by mistake the name of a prosecution witness was written as that of
the deceased, all the prosecution witness were cross-examined with reference to the deceased,
held no prejudice was caused to the deceased, the conviction of the accused was not
interfered. Where objection was not raised before the trial Court in examination under S.
313CrPC, the accused was appraised about all the charges against him, accused was not
prejudiced in any way, trial was held not invalid.11 Where there was discrepancy in the FIR
and the charge about the period during which the offence of misappropriation was alleged to
have been committed, documentary evidence about entrustment of money to accused was

46
Brichh Bhufar v. State of Bihar, AIR 1963 SC 1120 : (1963) 2 Crlj 190
47
Usha Raj v. State of Bihar, 2009 (1) Pat LJR 113 (Pat)
48
Siddique v. State of U.P., 1998 Cr LJ 3829 (All-DB)

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filed, no prejudice was shown to accused, discrepancy was held merely inconsequential, and
curable.49

Conviction under Different Provision: Though the accused were charged of an

offence under Sections 302, 149, they could be convicted under Section 302 / 34 . An
accused charged under S. 396IPC, can be convicted under S. 394IPC, the latter being minor
offence, as no prejudice results to the accused.50 Though Section 34IPC, is not added to
Section 302, the accused had clear notice that they were being charged with the offence of
committing murder in pursuance of their common intention to put an end to a life. Hence the
omission to mention Section 34IPC, in the charge has only an academic significance, and has
not in any way misled the accused. Where the accused was charged and convicted under S.
165AIPC, but in ap-peal the High Court changed the conviction to one under S. 161 / 109
IPC, on the ground that S. 165AIPC, had not come into force when the offence was
committed, and maintained the sentence, it was held that there was no illegality, since the
effect in law of S. 161 / 109 IPC, was precisely the same as that of S. 165AIPC .51 Where an
accused was charged of various offences including one un-der S. 302 of IPC, read with S.
149, though no specific and separate charge under S. 302IPC, was made but he was convicted
under that section, it was held that the accused had been prejudiced in his defence and
therefore conviction as well as sentence was set aside. Where the accused charged under S.
302IPC, had knowledge that he was being tried for murder, held no prejudice was caused to
the accused and his conviction was not vitiated. An accused charged under S. 304 B cannot
be convicted under S. 302 read with S. 109,IPC as it would be a case of prejudice to the
accused. As the ingredients of cruelty are common in offences under Ss. 304B and 498A,
accused charged under S. 304B can be convicted under S. 498A, accused would not be
prejudiced by absence of charge under S. 498A . The ingredients of offences under Ss. 364A
and 364 IPC are different. An accused charged under S. 364IPC cannot be convicted for
offence under S. 364A .52

49
Shanmugam v. State, 1997 Cr LJ 2042 (Mad) .
50
Karna Dasharath Mali v. State of Maharashtra, 2000 Cr LJ 1288 (Bom-DB)
51
Om Prakash v. State of U.P., AIR 1960 SC 409 : 1960 Cr LJ 544
52
Anil v. Administration of Daman & Diu, Daman, (2006) 13 SCC 36 (54) : (2008) 1 SCC (Cri) 72

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 CHAPTER VII
FINDING OR SENTENCE WHEN REVERSIBLE BY REASON OF ERROR, OMISSION
OR IRREGULARITY

(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed
by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal,
confirmation or revision on account of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or other proceedings before or during trial
or in any inquiry or other proceedings under this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact
been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under
this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a
failure of justice, the Court shall have regard to the fact whether the objection could and
should have been raised at an earlier stage in the proceedings.
Scope and Application: The principle underlying S. 465 is that any and every
irregularity or infraction of a procedural provision cannot constitute a ground for interference
by a Superior Court unless such irregularity or infraction has caused irreparable prejudice to
the party and requires to be corrected at that stage itself, frequent inference by Superior
Courts at the interlocutory stages tends to defeat the ends of justice in-stead of serving those
ends.53 This section applies to a case where something irregular takes place at a regular trial.
It does not apply where the trial is illegal from start to finish. There are always chances for
honest errors or harmless omissions or innocent irregularities to creep in at any trial or
proceeding. These are quite innocuous, if they do not occasion "a failure of justice" as a
matter of fact. They are here classified into two categories : (1) error, omission or irregularity
in any step of a trial, inquiry or proceeding; (2) any error, or irregularity in any sanction for
the prosecution of any person. They do not enable a Court of confirmation or appeal or
revision to interfere with any finding, sentence or order. To put it shortly, a mere irregularity
in procedure is not ordinarily sufficient to avoid a trial. It should, however, only be "one of
form and not of substance".54

53
Santosh De v. Archana Guha, AIR 1994 SC 1229 : 1995 Cr LJ 2640 (SC) ; Laxman Bapu Sarkar v. State of Gujarat, 2004
CrLJ 2229 (2234) (Guj-DB).
54
Appa Subhana Mendre, (1884) 8 Bom 200, 211; Bibhuti, AIR 1969 SC 381 : 1969 Crlj 654 ; Makan, AIR 1971
SC 1797 .

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Adoption of Wrong Procedure: An offence punishable under Sec. 16(1)(ii) Prevention
of Food Adulteration Act, 1954 must be tried as a warrant case because punishment
extending up to two years can be imposed, but when the ac-cused was tried according to the
summons case procedure, which was illegal, when no prejudice was caused to accused by
adoption of the wrong procedure the irregularity is curable.55 A case triable as a summons
case is tried as a warrant case, the Magistrate commits an irregularity, it does not vitiate the
proceedings and is curable. The disobedience, however, to an express provision as to a mode
of trial cannot be classed as a mere irregularity.56 There is a distinction between a case in
which the trial itself is contrary to law, in which event it is not a trial at all under the Code,
and a case in which the trial is one within the jurisdiction of the Magistrate and irregularities
occur in the method of conducting it. In the latter case the provisions of Section 465 are
applicable and the finding can only be reversed, if the irregularity has in fact occasioned a
failure of justice.
Omission to Comply with Mandatory Provision: It is not a universal rule that
omission to comply with an express or mandatory provision of the Code must always vitiate
the trial, irrespective of any question of prejudice to the accused or other party. The breach of
every provision of the Code does not necessarily make the trial invalid. If the criminal trial is
conducted substantially in the manner prescribed by the Code but some irregularity occurs in
the course of such conduct, the irregularity can be cured under this section57. The impugned
procedure must be one that is not only prohibited by the Code but also works an actual
injustice to the accused.
For registration of a case under the Terrorist and Disruptive Activities (Prevention) Act,
1987, the re-quirement of prior approval of the District S.P. is mandatory. The approval may
be written or oral but it is sine qua non for prosecution. Thus, in a case of registration of case
without the prior approval of the District S.P. it was held by the Supreme Court that it is not
an omission which is covered under S. 465 of the Code . It is a defect that goes to the root of
the matter and is not one of the curable de-fects.58
Irregularity in Investigation: The question is not whether in investigating an offence
the police have disregarded the provisions of the Act, but whether the accused has been
prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary

55
Alimahomed v. Kasturchand, (1938) 41 Bom LR
56
Per Lord HALSBURY LC in Subramania Iyer, (1901) 3 Bom LR 540, 541 : 28 IA 257, 263, 25 Mad 61.
57
Ramaraja Tevan, (1930) 543 Mad 937; Maganlal, (1946) Nag 126
58
Ashraf Khan v. State of Gujarat, AIR 2013 SC 217 : (2012) 11 SCC 606 : 2013 Crlj 226 (SC

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for the accused to throw a reasonable doubt that the prosecution evidence is such that it must
have been manipulated or shaped by reason of the irregularity in the matter of investigation,
or that he was prevented by reason of such irregularity from putting forward his defence or
adducing evidence in support thereof. But where the prosecution evidence has been held to be
true and where the accused had full say in the matter, the conviction cannot obviously be set
aside on the ground of some irregularity or illegality in the matter of investigation; there must
be a sufficient nexus, either established or probabilized, between the conviction and the
irregularity in the investigation.59 Any illegality or irregularity committed during process of
investigation is not a limitation on the power of the Court to take cognizance of the offence
and punish the offender.60

59
State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221 : 1964 (2) Cr LJ 140,
60
G.S.R. Somayaji v. State, (2001) 2 Andh LT (Cri) 456 : 2002 Crlj 795 (798) (AP)

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 CHAPTER VIII
DEFECT OR ERROR TO MAKE ATTACHMENT UNLAWFUL

No attachment made under this Code shall be deemed unlawful, nor shall any person making
the same be deemed, a trespasser, on account of any defect or want of form in the summons,
conviction, writ of attachment or other proceedings relating thereto.

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 CHAPTER IX
CONCLUSION

As a general principle, it can be stated that error, illegality or defect in investigation cannot
have any impact unless miscarriage of justice is brought about or serious prejudice is caused
to the accused.
If the prosecution case is established by the evidence adduced, any failure or omission on the
part of the I.O cannot render the case of the prosecution doubtful. (Amar Singh vs. Balwinder
Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300). If direct
evidence is credible, failure, defect or negligence in investigation cannot adversely affect the
prosecution case, though the court should be circumspect in evaluating the evidence (Ram
Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, Paras Yadav vs. State of Bihar AIR 1999
SC 644, Dhanraj Singh vs. State of Punjab AIR 2004 SC 1920, Ram Bali vs. State of U.P.
AIR 2004 SC 2329).
If investigation is illegal or suspicious, the rest of the evidence must be scrutinized
independent of the impact of the faulty investigation; otherwise criminal trial will descend to
the I.O ruling the roost. Yet if the court is convinced that the evidence of eyewitnesses is true,
it is free to act upon such evidence though the role of the I.O in the case is suspicious. An
accused cannot be acquitted on the sole ground of defective investigation; to do so would be
playing into the hands of the I.O whose investigation was defective by design. Mere defective
investigation cannot vitiate the trial.

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 BIBLIOGRAPHY

Books

1. Gaur, K.D., A Textbook on Indian Penal Code, Universal Law Publishing Company, Delhi,
2016.
2. Gaur, K.D., Commentary on Indian Penal Code, Universal Law Publishing Company, Delhi,
2016.
3. Kenny, R., Outlines of Criminal Law, Universal Law Publishing Company, Delhi, 2016.
4. Mishra, S.K., Criminal Law of India , Allahabad Law Agency, Faridabad (Haryana), 2016.
5. Misra, S.N., Code of Criminal Procedure, Central Law Publications, Allahabad, 2016
6. Ratanlal and Dhirajlal, The Code of Criminal Procedure, LexisNexis Butterworths Wadhwa,
Nagpur, 2016.
7. The Information Act, 2000, Criminal Manual, Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 2016.

LEGISLATIONS

Ø Constitution of India, 1950.

Ø Indian Penal Code, 1860.

Ø The Code of Criminal Procedure, 1973.

WEBSITES:
1. www.jstor.org
2. www.international .westlaw.com
3. www.manupatra.com
4. www.lawcommissionofindia.nic.in

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