The legal provisions regarding Irregular Proceedings are embodied in Chapter XXXV under section 460-466 of the Cr.P.C. This Chapter deals with the effect of irregularity in proceedings before Criminal Courts.
Depending upon Irregularities in legal proceedings and its effects before the Criminal Courts Cr.P.C enumerates several provisions under 7 heads:
- Section 460– Irregularities which do not vitiate proceedings
- Section 461– Irregularities which vitiate proceedings
- Section 462– Proceedings in wrong place
- Section 463– Non-compliance with provisions of section 164 or section 281
- Section 464– Effect of omission to frame, or absence of, or error in, charge
- Section 465– Finding or sentence when reversible by reason of error, omission or irregularity
- Section 466– Defect or error not to make attachment unlawful
Irregularities which do not vitiate proceedings (Sec. 460)
Section 460 provides for legal provisions dealing with irregularities which do not vitiate proceedings. It cures nine kinds of irregularities, if only when 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:
- Issuing a search warrant under S. 94;
- Ordering the Police to investigate an offence under S. 155;
- Holding an inquest under S. 176;
- 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;
- Taking cognizance of an offence under S. 190(1) (a) or S. 190(1) (b);
- Making over a case under S. 192(2);
- Tendering a pardon under S. 306;
- Recalling a case and trying it himself under S. 410;
- Selling property under S. 458 or S. 459.
P.C. Mishra vs State (C.B.I) & anr[i]
It was held that even if the Magistrate was not empowered by law to tender a pardon and the order was passed in good faith, then such an order is protected under Section 460 Cr.P.C.
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.
Irregularities which vitiate proceedings (Sec. 461)
1. 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,—
- Attaches and sells property under S. 83;
- Issues a search-warrant for a document, parcel or other things in the custody of a postal or telegraph authority;
- Demands security to keep the peace;
- Demands security for good behaviour;
- Discharges a person lawfully bound to be of good behaviour;
- Cancels a bond to keep the peace;
- Makes an order for maintenance;
- Makes an order as to a local nuisance under S. 133;
- Prohibits the repetition or continuance of a public nuisance under S. 143;
- Makes an order under Part С or Part D of Ch. X (i.e. regarding urgent cases of nuisance or apprehended danger or as regards disputes as to immovable property);
- Takes cognizance of an offence under S. 190(1) (c);
- Tries an offender;
- Tries an offender summarily;
- Passes a sentence under S. 325 on proceedings recorded by another Magistrate;
- Decides an appeal;
- Call for proceedings under S. 397;
- 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.
In cases of initial lack of jurisdiction to the Magistrate no question of error or good faith arises as such proceedings have no existence in the eye of law. It is not each and every irregularity that goes to vitiate the trial of criminal case. It is only that irregularity which has the character of illegality and which goes to the root of the case and vitiates the trial. Such instances are mentioned under section 461 of the code.
Proceedings in wrong place (Section 462)
As regards proceedings taking place at a wrong place, it is provided by Section 462 that,
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.
Thus, the key-factor of this section is failure of justice, until and unless it has not occasioned, any Criminal Court order or findings shall not set aside merely on grounds that the inquiry or trial or other proceedings took place in wrong session or division or other local area. But if it is seen that such error in conducting the said proceeding has caused failure of justice, such an order, finding or sentence can be set aside on this ground.
Nasiruddin Khan Vs State of Bihar [iv]
In this case, 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.
Non-compliance with provisions of section 164 or section 281 (Section 463)
As statements and confessions acquire a very delicate yet important position in Criminal law, there have been various safeguards provided for their recording and use in criminal trials under section 164 and 281 of the code. Non-compliance with such requirements may result in having a statement or confession ruled out of evidence.
Section 463 lays down that:
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 section 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 (1 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 defense 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.
3. 463. therefore, provides that even if the Magistrate finds that such requirements of the law have not been complied with, he may, despite Section 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 defense 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 also apply to Courts of appeal, reference and revision.
Effect of omission to frame charge, or error in the charge (Sec. 464):
The object of framing a charge is to enable the accused person to know the accusation against him so that he can prepare for his defense. Any omission, irregularity or defect in the framing of charge may cause prejudice to the accused. But it is not necessarily so in all the cases. Therefore, this section provides that a mere omission to frame the charge or any error, omission or irregularity in the charge including misjoinder of charges will be no ground for a de novo trial or a re-trial unless it has occasioned a failure of justice to the accused.
An accused cannot succeed in setting aside the proceedings against him merely on the ground that the charges framed against him were defective or wrong sections were stated in the charge sheet.
So, as long as the substance of charge conveyed to the accused is clear and unambiguous, any defect in the charge will be immaterial under Section 464 and the defect or error is curable. The Supreme Court has held that even vagueness of the charge will not render the trial illegal if no prejudice is caused thereby to the accused person.
Sub-section (2) provides that where the Court of appeal, confirmation or revision forms an opinion that the omission, irregularity or defect in framing of charge under Section 164 has resulted into failure of justice and the accused has been prejudiced thereby,
(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, a conviction can be quashed if 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.
Belal @ Radheshyam Mondal vs. The State of West Bengal[v], The Calcutta High Court, while allowing the appeal of a rape accused has held that mere error in mentioning the date of occurrence at the time of framing charge cannot vitiate the trial under Section 464 of CrPC and, thus, cannot be a ground to invalidate the trial.
Anna Reddy Sambasiva Reddy & others v. State of Andhra Pradesh, Supreme Court in explaining the applicability of Section 464 observed that the section specifies in unmistakable terms that a finding or sentence of a Court shall not set aside merely on the ground that a charge was not framed or that charge framed was defective unless it has occasioned in prejudice
Finding or sentence when reversible by reason of error, omission or irregularity (Section 465)
An order of sentence passed or recorded by a Court of competent jurisdiction is curable under this section provided the omission, irregularity or error in the order or finding has not occasioned a failure of justice. Thus where the order of the trial Court is substantially in accordance with the law and there has been no failure of justice, it should not be set aside merely on the ground of technical procedural defect or error. In other words, what is curable under this section is an error or irregularity only of form and not of substance.
It must be stated that the provisions of this section are applicable only when the finding, sentence or order under appeal or review is passed by a Court of “competent jurisdiction”. Therefore, if Court has passed such order finding or sentence without jurisdiction, the defect is not curable under this section and such an order, finding or sentence is bound to be set aside by the Court of appeal, confirmation or revision
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.
The expression ‘failure of justice’ 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.[vi]
Given below are some cases where the irregularity was held to be a serious illegality which vitiated the trial.
(1) Failure on the part of the Court to record substance of the evidence in a summary trial when the accused does not plead guilty.
(2) Lack of sanction to prosecute under Section 197 of the Code.
(3) Summary trial for an offence which is cannot be tried summarily.
(4) Examination of witnesses in the absence of the accused.
(5) Not writing or pronouncing the judgment in open Court.
(6) Dismissal of a complaint by a Magistrate without giving reasons.
(7) Non-compliance of the provisions of Section 235 (2) regarding hearing the accused on the question of sentence.
NOTE: The cases mentioned about are only illustrative and not exhaustive.
It would be pertinent to enumerate certain cases in which an omission or error in the procedure of trial was held to be a mere irregularity which did not vitiate the trial and was curable under Section 465 of the Code as it did not cause failure of justice. They include:—
(1) Failure to examine the complainant on oath.
(2) Omission to pronounce the judgments before convicting or sentencing the accused.
(3) Omission to sign or put date in the judgment at the time of pronouncing it.
(4) Adopting the procedure of a warrant case in a case triable as a summons case.
(5) Omission by Sessions Judge to read over and explain to the accused, the charges framed by the Magistrate.
(6) Talking cognizance of a case under a wrong section but conviction being ordered by the Competent Court under correct section.
(7) Failure to record any relevant facts observed by the Magistrate at a local inspection under Section 310 Cr.P.C.
These again, are only some of the illustrative cases, there being many more which can be cured under Section 465 provided no prejudice is caused thereby to the accused person.
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.
Hanumant Das v. Vinay Kumar[vii]
It was contended that failure on the part of the High Court to summon the record of the Sessions Court was vital and hence the decision of the High Court deserves to be set aside.
Legality of attachment (Sec. 466):
1. 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.
Frequently Asked Questions (FAQs)
1. Will a proceeding be vitiated if a magistrate not empowered to try a case summarily tries it summarily?
As according to provided provisions, under section 461 of Cr.P.C, if a magistrate not empowered to do so tries a case summarily such an irregularity shall vitiate the proceeding.
2. Can on the ground of defective framing of charges a proceeding can be set aside by the accused?
No, An accused cannot succeed in setting aside the proceedings against him merely on the ground that the charges framed against him were defective or wrong sections were stated in the charge sheet.
[i] P.C. Mishra vs State (C.B.I) & anr AIR 2014
[ii]Lalit Chandra,1911 39 Cal. 119
[iv] Nasiruddin Khan vs State Of Bihar AIR 1973 SC 186
[v] Belal @ Radheshyam Mondal vs. The State of West Bengal, AIR 2016 SC 556
[vi] K. Nagayya, 1962 (2) Cri L.J 719
[vii] Hanumant Dass vs Vinay Kumar & Ors1982 SCR (3) 595