Supreme Court set aside quashing of proceeding under Prevention of Corruption Act due to error in sanction for prosecution saying it is matter of evidence

 In the instant case, it appears that the petition for quashing of Sanction Order was filed by the Respondent after the trial court framed the charge and commenced the trial, rather after the prosecution examined five witnesses. It is pertinent to note that whether the Sanction has been granted by the competent authority or not, would be a matter of evidence. Further, as per the Explanation to Sub-section (4), for the purpose of Section 19, error includes "competency of the authority to grant Sanction." Therefore, in view of the settled legal position, the High Court should not have quashed the Sanction Order and the consequent proceedings, unless it was satisfied that the failure of justice had occurred by such error or irregularity or invalidity. There is not a whisper in the impugned order about any failure of justice having occurred on account of the impugned Sanction Order. The High Court also should not have entertained the petition for quashing the Sanction Order when the prosecution had already examined seven witnesses. {Para 8}

9. In that view of the matter, we are of the opinion that the High Court has committed gross error in quashing the Sanction Order and the consequent proceedings vide the impugned order.

11. As stated earlier, whether the Sanction Order was passed by the competent authority or not, would be a matter of evidence to be proved by the prosecution during the course of trial.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 104 of 2025 (Arising out of SLP (Criminal) No. 9114/2019)

Decided On: 07.01.2025

The State of Punjab Vs. Hari Kesh

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Citation:  MANU/SC/0045/2025,2025 INSC 50.

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Under which circumstance irregularity in procedure will not amount to failure of justice?

 What does the expression 'failure of justice' mean? In Shamnsaheb M. Multani v. State of Karnataka   MANU/SC/0047/2001 : (2001) 2 SCC 577 it was held that the expression 'failure of justice' is too pliable or facile an expression which could be fitted in any situation. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. {Para 71}

72. This decision was followed in State of M.P. v. Bhooraji   MANU/SC/0481/2001 : (2001) 7 SCC 679 and also in Rattiram v. State of M.P.   MANU/SC/0125/2012 : (2012) 4 SCC 516 In the latter decision, it was held that the expression 'failure of justice' must be given its due significance otherwise every procedural lapse or interdict could be interpreted to result in a failure of justice making the criminal justice delivery system completely illusory. Rattiram dealt with non-compliance with Section 193 of the Code of Criminal Procedure and it was held that this did not result in a failure of justice. It was held in paragraphs 65 and 66 of the Report as follows:

We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the legislature deliberately obliterated certain rights conferred on the Accused at the committal stage under the new Code. The intendment of the legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

 An allegation of 'failure of justice' is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of justice or a violation of law or an irregularity in procedure-it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjournment wrongly declined etc. To conclude, therefore, Section 19(3)(c) of the PC Act must be given a very restricted interpretation and we cannot accept the over-broad interpretation canvassed by learned Counsel for the Appellants. {Para 77}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

Read full Judgement here: Click here.

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Whether the appellate or revisional court should reverse any finding on account of any irregularity in sanction for prosecution if accused has not raised objection in that respect in the trial court?

 Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as if the Accused can, after an unreasonable delay, raise an issue about the sanction; but if that Accused does so, the court may not decide that issue both at the appellate stage as well as for the purposes of stay of the proceedings. {Para 66}

67. In Central Bureau of Investigation v. V.K. Sehgal   MANU/SC/0650/1999 : (1999) 8 SCC 501 it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the Accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. It was held in paragraphs 10 and 11 of the Report as under:

A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an Accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court......

In a case where the Accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

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Supreme Court: Accused in cheque bounce case can disprove his signature on cheque by producing its certified copy

 Certified copy of a document issued by a Bank is itself

admissible under the Bankers’ Books Evidence Act, 1891 without

any formal proof thereof. Hence, in an appropriate case, the

certified copy of the specimen signature maintained by the Bank

can be procured with a request to the Court to compare the same

with the signature appearing on the cheque by exercising powers

under Section 73 of the Indian Evidence Act, 1872. {Para 15}

16. Thus, we are of the view that if at all, the appellant was

desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque.

17. However, despite having opportunity, the accused appellant

did not put any question to the bank official examined in defence

for establishing his plea of purported mismatch of signature on the cheque in question and hence, we are of the firm opinion that the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023

AJITSINH CHEHUJI RATHOD Vs STATE OF GUJARAT & ANR.

Author: Mehta, J.

Citation: 2024 INSC 63.

Dated: January 29, 2024.

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Whether it is necessary to take objection as to non-joinder of necessary party before trial court?

 On the other hand, when the Plaintiff itself persists in not impleading a necessary party in spite of objection, the consequences of non-joinder may follow. However, the said objection should be taken in the trial Court itself so that the Plaintiff may have an opportunity to rectify the defect. The said plea cannot be raised in this Court for the first time. This position has been reiterated in State of U.P. v. Ram Swarup Saroj MANU/SC/0153/2000 : (2000) 3 SCC 699. We hold that a plea as to the non-joinder of the party cannot be raised for the first time before this Court if the same was not raised before the trial Court and has not resulted in failure of justice. In the case of non-joinder, if the objection is raised for the first time before this Court, the Court can always implead the party on the application wherever necessary. However, in the case on hand, for the disposal of application filed for rejection of the plaint under Order VII Rule 11, 2nd Defendant is not a necessary party, hence he need not be impleaded. Accordingly, we reject the said objection of the Respondent herein.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4841 of 2012.

Decided On: 03.07.2012

 The Church of Christ Charitable Trust and Educational Charitable Society  Vs. Ponniamman Educational Trust 

Hon'ble Judges/Coram:

P. Sathasivam and Jasti Chelameswar, JJ.

Author: P. Sathasivam, J.

Citation: MANU/SC/0515/2012,(2012) 8 SCC 706.

Read full Judgment here: Click here

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Whether joint trial of accused will be vitiated if there is misjoinder of charges?

Before adverting to the submission with regard to the question of sentence we would like to point out that there is misjoinder of charges on account of a joint trial of these two appellants with Ravi Shankar. As rightly pointed out by Mr. Tewatia, no objection to the joint trial had been raised by these two appellants either at the trial stage or at the appellate stage or even before this Court, nor the appellants had shown any prejudice having been caused to them by such a trial. However, as contemplated under Section 464 Crl. P.C. in absence of proof that failure of justice had occasioned by the joint trial, the finding and the sentence recorded by the competent Court cannot said to be invalid.

IN THE SUPREME COURT OF INDIA

Criminal Appeals Nos. 544-545 of 1986

Decided On: 31.01.1989

Prem Chand  Vs  State of Haryana

Hon'ble Judges/Coram:

B.C. Ray and S.R. Pandian, JJ.

Citations: AIR 1989 SC 937, 1989 CriLJ 1246, 1989 (1) Crimes 398 SC, JT 1989 (1) SC 158, 1989 (1) SCALE 199, 1989 Supp (1) SCC 286

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Whether criminal trial will be vitiated if there is a misjoinder of charges?

MISJOINDER OF CHARGES:

45. Mr. Ram Jethmalani, learned senior counsel, contended that Section 218 Cr.P.C. prescribes that for every distinct offence there shall be a separate charge and every charge shall be tried separately, which has not been done in the present case. According to him, the first injunction contained in Section 218 is incurable either under Sections 464 or under Section 465 Cr.P.C. In other words, if the charge is framed in contravention of Section 218 it is the breach of mandate of Section 218 and is illegal and not misjoinder of charges and therefore it is incurable either under Section 464 or Section 465 Cr.P.C.

46. We are unable to countenance with this contention of Mr. Ram Jethmalani. It is true that Section 218 Cr.P.C. prescribes for every distinct offence there shall be a separate charge and every charge shall be tried separately. Chapter XVII of the Code deals with the charge. Section 218 is under the Heading - "misjoinder of Charges". Therefore, if misjoinder of charges is in contravention of procedure prescribed under Section 218, it would be misjoinder of charges and curable under Section 464 and Section 465 Cr.P.C., provided no failure of justice has in fact been occasioned thereby.

47. Reliance has been heavily placed on the decision of this Court in W. Slaney v. State of M.P. MANU/SC/0038/1955 : 1956CriLJ291 particularly the observation of Justice Imam in paragraphs 97 and 99. That was a case where this Court was considering the error and irregularity in which there was conviction with no charge at all from start to the finish down to cases in which there was a charge but with errors, irregularities and omissions in it. Therefore, the decision in Slaney (supra) was not based on misjoinder of charges. There was no charge under Section 302 IPC from start to finish and in that context this Court said that a trial must be examined on the touchstone whether the trial is fair. It was pointed out in paragraph 44 as under:-

"44 Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice.

It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.

Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.

If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one."

48. Justice Imam in paragraphs 97 and 99 observed that even if there is a total absence of a charge from start to finish in a case where the law requires a charge to be framed, is a contravention of the provisions of the Code as to the mode of trial and a conviction of the accused of an offence in such a case is invalid and the question of prejudice does not arise. As already said in Slaney (supra) there was no charge under Section 302 from start to finish of the case. That is not the case here; here the charge was framed on all counts. Therefore, the facts of the case in Slaney (supra) are not applicable in the present facts. However, in Slaney (supra) Justice Imam also observed in paragraph 98 as under:-

"98. In cases where a charge has been framed and there is an omission or irregularity in it, it is difficult to see how the mode of trial is affected. In any event, the Code expressly provides that in such cases the conviction need not be set aside, unless, in fact, a failure of justice has resulted."

49. In the case of Birichh Bhuian v. State of Bihar, MANU/SC/0158/1962 : AIR1963SC1120, a five Judge Bench of this Court, where Justice Imam was a party, considered the distinction between an illegality and an irregularity in such misjoinder of charges. This Court, after considering the divergent views of the Privy Council as to whether misjoinder of charges is not saved by Section 537(o1d) and 465 (new), the Court then said at p.335 (2) SCR as under:-

"In this state of law, the Parliament has intervened to set at rest the conflict by passing Act XXVI of 1955 making a separate provision in respect of errors, omissions or irregularities in a charge and also enlarging the meaning of the expression such errors etc. so as to include a misjoinder of charges. After the amendment there is no scope for contending that misjoinder of charges is not saved by Section 537 of the Criminal Procedure Code if it has not occasioned a failure of justice.".

This Court summarised its finding at p.337 (2) SCR as under:-

"To summarise : a charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him. Sections 234 to 239 permit the misjoinder of such charges under specified conditions for the purpose of a single trial. Such a misjoinder may be of charges in respect of different offences committed by a single person or several persons. If the misjoinder of charges was contrary to the provisions of the Code it would be a misjoinder of charges. Section 537 prohibits the revisional or the appellate court from setting aside a finding, sentence, or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice."

50. Again in the case of State of Andhra Pradesh v. Cheemalapati Ganeswara RaoMANU/SC/0070/1963 : [1964]3SCR297, the Court noticed the decisions rendered in Slaney (supra) and Birichh Bhuian (supra) and said at p.332 (3) SCR as under:-

"Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of Sections 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson's case (1960) 1 All.E.R.558. Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of justice. For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges."

51. The question was again examined by this Court in the case of State of West Bengal v. Laisal Haque MANU/SC/0508/1988 : 1989CriLJ865, where the earlier views of this Court including the views of Justice Vivian Bose in Slaney (supra) were reiterated.

52. It is clear from the aforesaid decisions that misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.

53. In the light of the aforesaid principle, let us now examine the facts of the present case, as to whether any failure of justice had occasioned thereby or whether any prejudice is caused to the accused. The accused was represented by a very senior and ambled criminal lawyer. All the prosecution witnesses were subjected to incisive cross-examination. The accused put up 49 defence witnesses. In his cross-examination under Section 313 altogether 445 questions were put to him, affording an opportunity to explain all the circumstances appearing against him. Having regard to these facts, in our opinion, no failure of justice has occasioned and both the Courts below are justified in rejecting the contention.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 611-612 of 2003

Decided On: 05.04.2005

Kamalanantha  Vs.  State of Tamil Nadu

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Whether the court can examine witnesses again in de novo trial?

But so far as the other option is concerned, while earlier he could resummon the witnesses and recommence the inquiry or trial - which necessarily meant a de novo trial - he can now only resummon a witness who has already been examined for further examination and discharge him after such further examination, cross-examination and re-examination, if any. It is evident therefore that now the Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial. Obviously, keeping in view the inevitable frequent changes in the office of the Magistrate and Judge and in order to provide a speedy trial the legislature has taken away the well established right of the accused to claim a de novo trial and that of the Court to so direct by express words of the amending statute of 1955. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 34 of 1992

Decided On: 21.03.1995

Ranbir Yadav  Vs.   State of Bihar

Hon'ble Judges/Coram:

Dr. A.S. Anand and M.K. Mukherjee, JJ.

Equivalent citations: 1995 AIR 1219, 1995 SCC (4) 392,JT 1995 (3) 228 1995 SCALE (2)331,MANU/SC/0245/1995

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Whether court can convict accused of an offence U/S 304B of IPC if he was charged only under S 302 of IPC?

Be that as it may. The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 IPC, but on the facts the ingredients of section 304B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge.{Para 14}

15. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits "to convict the accused" of the offence of which he is shown to have committed though he was not charged with it." But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge.

16. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The Section permits the court to convict the accused "of the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but slightly different, situation. "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it."

17. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.

18. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

19. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

22. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

"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." (emphasis supplied)

23. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

24. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (The simile is borrowed from Lord Diplock in Town Investments Ltd. vs. Department of the Environment 1977(1) A E R 813. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

25. One of the cardinal principles of natural justice is that no man should be condemned without being heard, ("Audi alteram partem"). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

26. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304B IPC without the same being included as a count in the charge Section 304B has been brought on the statute book on 9-11-1986 as a package along with Section 113B of the Evidence Act. Section 304B(1) IPC reads thus:

"304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death."

27. In the Explanation to the Section it is said that the word "dowry" shall be understood as defined in the Dowry Prohibition Act, 1961.

28. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused dowry death."

29. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved." So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both.

30. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death "the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc." When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him.

31. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

32. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

33. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:- If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B, IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

34. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.

35. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the count affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.

36. As the appellant was convicted by the High Court under Section 304B IPC, without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. 

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 907 of 1998

Decided On: 24.01.2001

Shamnsaheb M. Multtani Vs  State of Karnataka

Hon'ble Judges/Coram:

K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.

Citation: Citation : AIR 2001 SC 921,(2001) 2 SCC 577, MANU/SC/0047/2001

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Leading Supreme Court Judgment on the basic concept of failure of justice

 Having dealt with regard to the concept of 'fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in 'failure of justice'. 'Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the Court has referred to Shamnsaheb M. Multtani v. State of Karnataka : (2001) 2 SCC 577 : 2001 SCC (Cri) 358 wherein it has been observed as follows:

23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Department of the Environment (1977) 1 All ER 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

(Emphasis supplied)

39. In Central Bureau of Investigation v. V. K. Sehgal MANU/SC/0650/1999 : (1999) 8 SCC 501, it was observed: -

10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error of irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court.

The concept of failure of justice was further elaborated as follows:

11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplus age. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial. {Para 45}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 223 and 458 of 2008

Decided On: 17.02.2012

 Rattiram  Vs. State of M.P. through Inspector of Police

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Whether accused can seek setting aside the conviction if Session Judge has taken cognizance of the offence directly even though the case was not committed to it?

In State of M.P. v. Bhooraji and Ors. MANU/SC/0481/2001 : AIR 2001 SC 3372 wherein, taking aid of Section 465(1) of the Code, it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by the Special Court inasmuch as the same does not give rise to failure of justice.

45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of 'failure of justice' and the convict-Appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice.  A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.

51. We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

52. Judged from these spectrums and analyzed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 223 and 458 of 2008

Decided On: 17.02.2012

 Rattiram  Vs. State of M.P. through Inspector of Police

Hon'ble Judges/Coram:

Dalveer Bhandari, T.S. Thakur and Dipak Misra, JJ.

Dipak Misra, J.

Citation:(2012) 4 SCC 516,MANU/SC/0125/2012

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Whether conviction of accused should be set aside if there is errors and omissions in framing of charge against accused?

 This Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 referred to and relied upon its earlier judgments in Willie (William) Slaney, (supra) and State of A.P. v. Thakkidiram Reddy, (supra) and held that unless there is failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused persons were in any way prejudiced due to the errors and omissions in framing the charges against him.

Supreme Court of India

Sanichar Sahni vs State Of Bihar on 26 May, 2009

Bench: Mukundakam Sharma, B.S. Chauhan

Citation:AIR 2010 SC 3786,MANU/SC/0888/2009,(2009)7 SCC 198

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