Irregularities of Proceedings under Criminal Procedure Code

Author: Vaishnavi Navghare.

INTRODUCTION 

The main purpose criminal law is to maintain stability in the society by punishing the guilty for wrongful act and violation of prohibited conduct and later remedying him. As criminal law aims at protecting interest of society, delivering justice to innocent is of utmost importance.

Criminal law is implemented through criminal courts by applying the said statues, procedure and rules as laid down in the Code of Criminal Procedure 1973. Therefore final decision is in the hands of the courts and it is expected that court will deliver the justice without committing any irregularity. As the courts are run by humans there can be some circumstances where irregularities can take place. Some irregularities are curable and some are non curable. The chapter 35 of the criminal code deals with the irregular proceeding (section 460-466) as per it some irregularities can vitiate the proceedings and some irregularity do not vitiate the proceedings.

This article is the complete analysis of the irregularities that can take place in the proceedings under the Criminal Procedure Code.

DIFFERENCE BETWEEN PROCEDURAL ILLEGALITY AND PROCEDURAL IRREGULARITY 

The word illegality can be defines as an act which is contrary to law or an immoral act which lead to breach of law. On the other hand irregularity in simple words can be defined as the lack of adherence to prescribe rule or procedure, a omission of something which was necessary in said procedure or doing an act in improper manner etc.

In B.N. Nagarajan v. State of Karnataka(((1979) 4 SCC 507.)), the apex court observed that “Irregularities mean acts comprising such defects which are attributable to methodology followed during recruitment while illegality illegality includes violation of law in toto.” 

In the case of State of U.P. v. Desh Raj((2006 SCC 489.)), supreme court gave more clear distinction between the two. According to them irregularity is related to substantial compliance of the rules. For example in a procedure where a part of procedure is not followed or completed and other substantial parts are followed. For example section 164 of the Code of Criminal Procedure is related to recording of the confession of accused and statement by witness by magistrate. It can be only done by Magistrate and in absence of him a police officer. The confession should be video graphed, and a memorandum should be attached to it. It should be also voluntary and without coercion. If the magistrate or police officer forget to attached a memorandum to it then it will be a procedural irregularity but if the confession is found to be given under coercion it will lead to procedural illegality as it will violate entire procedure.

PROCEDURAL IRREGULARITY UNDER THE CR.P.C.

Chapter 35 of the Code deals with irregularity under Criminal procedure code. The irregular proceedings are divided in two parts, first section 460 which deals irregularities which cannot vitiate or make the whole procedure void. And on the other hand section 461 which deals with the irregularities which will make the whole procedure void. And then section 462 to section 466 deals with the specific irregularities. They gives a specific procedure or step in the proceedings which is mandatory to follow.

The 7 Main Irregularities in legal proceedings before the Criminal Courts are-

1. Irregularities which do not vitiate proceedings (Section. 460).

2. Irregularities which vitiate proceedings (Section. 461).

3. Proceedings at the wrong place (Section. 462).

4. Irregularity in recording confessions and admissions (Section. 463)

5. Effect of omission to frame charge, or error in the charge. (Section. 464).

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

7. Legality of attachment (Section. 466).

1. Irregularities which do not vitiate proceedings (Section 460 of the Criminal Procedure Code)

This section includes the irregularities which do not vitiate the proceedings. According to this section, if a magistrate is not empowered to do this nine listed things, but in a good faith he does so, then also this will not make the whole proceeding void.

Nine things magistrate not empowered to do are-

1. To issue a search warrant as per section 94 of the Criminal procedure code

A magistrate (who can try such cases) after inquiry if he believe that any place is used for deposit or sale of stolen property then he can issue warrant directing the police officer to enter the place and investigate

2. To order the police to investigate the offence as per section 155 of the Criminal procedure code

If officer in charge of police station gets the information in relation to non-cognizable offence he cannot investigate the matter without order of magistrate who has power to try such cases.

3. Holding an inquest under Section. 176

Magistrate who has jurisdiction to try death cases can inquest or make enquiry in the death cases.

4. As per section 187 of the Criminal procedure code, to issue for the apprehension of a person within his local jurisdiction but who has commits the offence outside the limit of jurisdiction

If there is reason to believe that a person within his local jurisdiction has committed outside such jurisdiction an offence. Magistrate who has jurisdiction to try such cases can issue warrant and summons and compel the person to appear before court

5. To take cognizance of an offence under Section. 190(1) (a) or S. 190(1) (b)

Magistrate first class or second class who is empowered by law can take cognizance of offenses.

6. As per section 192(2), Making over a case under Section.

Chief judicial magistrate after taking the cognizance of the case can make over the case to competent magistrate empowered by law for the inquiry and trial of case.

7.  To tender pardon under Section as per section 306 of the code.

Chief judicial magistrate and subordinate magistrate empowered to do so can pardon a person who make true disclosure of all circumstances and facts regarding the offense.

8. To Recall a case and try it himself under Section. As per 410 of the code.

Chief judicial magistrate can withdraw or recall case which he has made over to and magistrate empowered to do so can try such cases.

9. Selling property under Section 458 or Section. 459.

Magistrate who is empowered to do so can sell the property and perishable goods  who does not have any owner within the 6 months when the property was found can sell the property.  

In the case of P.C Mishra V. State (C.B.I) and Anr((Supreme Court of India CRIMINAL APPEAL NO.1310 OF 2010.)), it was held that even if a magistrate is not empowered by the law to tender a pardon, but the magistrate in good faith pass the order then also the proceedings will not get vitiated and order will be protected under section 460 of the code.

In the case of Ranjeet Srivastava V. State of U.P.((2016 (92) ALLCC 749.)), it was held that there is expressed requirement of good faith as already given in the section but along with this there should be also a implies requirement that such irregularity should not occasion a failure of justice.

In the case of Dipak Ghosh Dastidar V. Sunat Kumar Mukherjee((2003 (1) Crimes 297.)), in this case court was dealing with the case where complaint was not examined before the issue of process, but the warrant was issued, court said it was mere a irregularity which can be cure under section 165 of the code, proceeding will not vitiate since no prejudice has been caused to the accused due to non examination of the complaint. 

In the case of R. Basu V. National Capital Territory of Delhi((2007 Cri.L.J 4254.)), it was held that non- examination of the complainant will not vitiate the order of the cognizance in the cases where complainant is not examined and the cognizance is taken on the basis of allegation.

In the case of Satish Dayal Mathur V. M/s. Mackinnon Mackenzie & Company((ILR (1986) II Delhi 92.)), it was held that as given in the section 200 of the code the magistrate has to examine the complaint and witnesses and has to reduce the substance of such examination into writing are mandatory, but non complaint of his will not vitiate the proceedings it will make a procedural lapse.

In the case of Dharmendra Singh & another V. State of Orissa & another((2001 Cri.L.J.439.)), the question before the court was as soon as the case came in front of the magistrate he without recording the statement of the the complaint under section 200 direct the case for inquiry under Section 202, Code, whether this omission is illegality or irregularity. here the magistrate examined the complainant and witness and their statements were also taken therefore court said it will come under irregularity as their was no prejudice cause to them due to this.((Dr. V. S. Tripathi and Dr. P.K. Pandey, ‘IRREGULAR PROCEEDINGS UNDER CRIMINAL LAW’ Vol. 22, 2019 Law Exam Times, Department of Law, Brahmanand College, Kanpur.))

2. Irregularities which vitiate proceedings (Section 461 of the Criminal Procedure Code) 

According to this section thee are 17 things listed which a magistrate is not empowered to do during a trail, but if he does so then it will make the proceeding all together void. There is no chance of good faith here, if any of these listed situation takes place then such proceeding will not be having existence in the point of law.

These 17 things which can vitiate the proceedings are-

1. As per section 83 of the code to attach and sell the property

A district judge can attached and sell the property movable or immovable of the person who is absconding.

2. Issues a search-warrant for a document, parcel or other things in the custody of a postal or telegraph authority.

3. Demanding security to keep the peace

4. Demanding security for good behavior

5. To discharge a person lawfully for his bound good behavior

6. To cancel a bond to keep the peace

7. To makes an order for maintenance

8. To makes an order as per section section 133 of the code for local nuisance

District judge or sub-divisional magistrate or executive magistrate who is empowered by law can make an order to stop the work that is causing nuisance.

9. To prohibits, as per section 143, the repetition or continuance of a public nuisance

10. To makes an order under Part C or Part D of Chapter X

District judge or sub-divisional magistrate or executive magistrate who is empowered by law can make order in relation to Part C that is power to issue order in urgent cases of nuisance and Part D that is in relation to the dispute of immovable property.

11. To takes cognizance of an offence under clause (c) of sub-section (1) of section 190(l) tries an offender.

Magistrate first class or second class who is empowered by law can take cognizance of offenses.

12. To tries an offender summarily

13. To pass a sentence, as per section 325 of the code on proceedings recorded by another Magistrate

Whenever a magistrate hear case and found that person guilty is liable for sever punishment if magistrate is not empowered to give the severe punishment then he can pass the case to chief judicial magistrate.

14. To decide an appeal

15. To calls, as per section 397, for proceedings

Power of revision (examine the proceeding of the case at inferior court) with High court or session judge.

16. To revises an order passed as per section 446.

In the case of Satpal v. State of Punjab((AIR 1970 SC 655.)), it was held that section 461 sub-clause (K) would apply in the cases where magistrate has no jurisdiction to try the case and not empowered to proceed to take cognizance.

In the case of Pulukuri Kotayya v. Emperor((AIR 1947 P.C. 67.)), it was held that if the trial is conducted in the completely different manner as prescribed in the code then the trail will be termed as bad and then there will be no question of irregularity in the trial and trial will not be curable, but there are only some irregularity in the proceeding and proceedings is conducted as per procedure then it is curable.

In the case of Nitinbhai Saevantilal Shah v. Manubhai Manjibhai Panchal((Supreme Court of India CRIMINAL APPEAL NO. 1703 OF 2011.)), it was held that “plain reading of this section shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law will be void and void proceedings cannot be validated under Section 465 of the Code.”

In the case of Govind Ram V. State of Rajasthan((1997 (1) WLN254.)), it was held that if there is lack of jurisdiction and the magistrate cannot try the case then there is no question of error or good faith will arise over here as proceeding will have no existence.

3. Proceedings in wrong place (section 462 of the Criminal Procedure Code)

According to this section any findings of the court cannot be set aside merely on the basis that the proceedings of trail were taken at wrong place, it can be only set aside if there is such an error in proceedings which cause failure of justice.

In the case of Nasiruddin Khan V. State of Bihar((AIR 1973 SC 186.)) in this case member of Bihar military police was arrested at Patna for the offence of deserting in Kashmir, the court in this case held that trial proceeding will not  get vitiated as there was no failure of justice on this ground and there was no allegation too.

4. Non- compliance with provision of (Section 164 or Section 281 Section 463 of the Criminal code procedure)

Statement and confession of the accused are very important in the criminal cases. They has to be done regarding the procedure given in section 164 and 281 of the code. Non compliance with the procedure can ruled out confession as evidence. But if magistrate did not comply with the procedure, then also despite section 91 of the  Indian Evidence act he can take confession as evidence if such non complaice has not injured the accused in his defence.

5. Effect of omission to frame charge or error in the charge (Section 464 of the Criminal Procedure Code)

The object of framing is important because through it accuse get to know the charges against him so that he can prepare for his defence. But merely defect in framing the charge will not make the make the ground for re trail. Only if this cause failure of justice to the accused then it can lead to revision.  

In the case of Radheshyam Mondal V. The state of West Bengal((AIR 2016 SCC 556.)), in this case it was held that just an error in mentioning the date of occurrence of accuse for appeal at the time of framing charge will not make the proceeding void.

In the case of Anna Reddy Sambasiva Reddy and others V. State of Andhra Pradesh((Supreme Court of India CRIMINAL APPEAL NO.408 OF 2007.)), it was held by the court that section 464 has clearly specified that  circumstances such as charge was not framed or defective charge was framed will not set aside the findings of the court.

6. Finding or sentence when reversible by reason of error omission or irregularity (Section 465 of the criminal procedure code)

But merely irregularity or defect in sentence will not make the make the ground for re trail. Only if this cause failure of justice to the accused and if defect is such that it is incurable then it can lead to revision

Given below are a few instances where the irregularities were held to be curable:

1. The failure to examine the complainant on oath.
2. The pronouncing of a sentence before writing the judgment.
3. As per section 310 if there is omission to record facts observed by the Magistrate at a local inspection.
4. If there is omission to sign the date of a judgment at the time of pronouncing it in Court.
5. The reading and recording of evidence in one case into another companion case.

Given below are some instances where the irregularity was so serious that it led to an illegality and vitiate the trial:

1. 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
2. As per section 203 dismissal of a complaint by a Magistrate, without giving reason.
3. Not writing and pronouncing judgment in open Court.
4. Magistrate Conducting a summary trial for an offence which is not triable summarily.
5. The omission by the magistrate to call upon an accused to make or enter his defence.

In Lilabati Kanjilal and Ors. V. the State((1966 CriLJ 838.)), it was held in this case that if something irregular will happen then only sec 465 will be applicable, not in the case where trail is void from the starting itself.

In Hanuman Das V. Vinay Kumar and Ors((1982 SCR (3) 595.)), it was held that there was failure on the part of High court to summon the record of the session court it was important and vital part of proceeding and therefore decision of the high court was decided to set aside.

7. Legality of attachment (Section 466 of criminal procedure code) 

Section 466 provides that no attachment made under the Criminal Procedure Code be unlawful if there is any defect or want of form in the summons, conviction, writ of attachment or other proceedings.

ANALYSIS 

Irregular proceedings are inevitable because courts are handled by humans. There is difference between irregular and illegal. The irregularities in the proceedings are curable but the illegalities in the proceedings are not curable as well as they make whole trial process void. Irregularities which are curable if the magistrate do certain things which he is not empowered to do but in good faith. Those are minor defects in the proceedings which generally does not hamper the interest of the parties. On the other hand irregularities which make the whole proceeding void are the certain situation where magistrate does not have power at all to do certain thing. Here the as aspect of good faith does not arise then there are certain omissions and errors which comes under the irregularities which are curable (section 462 to 466).

The Supreme court in the case Atma Ram v. State of Rajasthan((Supreme Court of India CRIMINAL APPEAL Nos.656-657 OF 2019.)), has given the overall gist as well as the important principle to remember while dealing with this chapter that is “Chapter XXXV of the Code deals with “Irregular Proceedings”, and Section 461 stipulates certain infringements or irregularities which vitiate proceedings. Barring those stipulated in Section 461, the thrust of the Chapter is that any infringement or irregularity would not vitiate the proceedings unless, as a result of such infringement or irregularity, great prejudice had occasioned to the accused.”

From this we can say that not all irregularities will vitiate the proceedings only those irregularities which hamper the interest of the parties and cause great prejudice to them will only vitiate the proceedings. From this chapter court want to evade all the irregularities to prevent the miscarriage of justice and maintain the smooth functioning of the courts.

CONCLUSION 

From this we can conclude that the procedure, rules given in statutes are vast and complex. As the courts are run by human we cannot presume that no irregularity or mistake will take place. Therefore law does not considers each and every irregularity or defect as void, and make the whole proceeding invalid.

If court start doing it then each and every irregularity will be tried for lack of adherence, then the courts will be filled up with such cases and such cases will waste the time of court. Therefore Irregularity can only be declare void if it led to failure of justice by violating the the principles of natural. Though the procedure is complex one has to adhere to the procedure and comply with it with due care and caution.