Constitutional bench Judgement of Supreme Court on the distinction between irregularity and illegality in Criminal trial

Referring to the contention that the breach of a direct and important provision of the Code cannot be cured but must lead to the quashing of the conviction, Sir John Beaumont observed :-

"....... In their Lordships' opinion, this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer's case MANU/PR/0013/1901, the trial is bad, and no question of curing an irregularity arises; but if the 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 section 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in Abdul Rahman v. The King-Emperor [1926] L.R. 54 IndAp 96, where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537. The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162".

96. Of course, lack of competency of jurisdiction, absence of a complaint by the proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very root of jurisdiction stand on a separate footing, and the proceedings taken in disregard or disobedience would be illegal. The difficulty arises only when we have to consider the other provisions in the Code which regulate procedure and which are found in a mandatory form, positive or negative. It is in this class of cases that the distinction becomes important and material. The scope of the decision in Subramania Aiyar's case MANU/PR/0013/1901, has become so circumscribed that it is doubtful if it applies to the generality of cases of omissions and defects that come before the courts, excepting where they bring about the result that the trial was conducted in a manner different from that prescribed by the Code.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 6 of 1955

Decided On: 31.10.1955

Willie Slaney  Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

Sudhi Ranjan Das, Acting C.J., Vivian Bose, B. Jagannadhadas, Syed Jaffer Imam and N. Chandrasekhara Aiyar, JJ.

Citation: AIR 1956 SC 116,MANU / SC / 0038 / 1955

Authored By : Vivian Bose, N. Chandrasekhara Aiyar, Syed Jaffer Imam

Vivian Bose, J.

Print Page

Whether proceeding under SC& ST Atrocities Act will be vitiated if court other than the special court has taken cognizance of an offence under the Act?

 Further, we feel expedient to clarify that in view of Section 14 of the Act, it is the Special Court or the Exclusive Special Court, which is competent to directly take cognizance and try the offences under this Act, after 26.1.2016, the amendment came into force. Now, the question would also arise that after the amendment came into force on 26.1.2016, if any other Court than the Special Court or Exclusive Special Court established or specified under "the Act" may have taken cognizance of an offence under "the Act", whether such irregularity does vitiate the proceedings?

21. Chapter XXXV of the Code of Criminal Procedure, 1973, deals generally with irregular proceedings. Certain irregularities are not treated as vital and fundamental. They are set out in Section 460 of the Code of Criminal Procedure, 1973, which reads thus:

"460. 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."

22. There is distinction between irregularity and illegality. An irregularity may be defined as deviation from or want of adherence to rule or mode of proceeding. An illegality, on the other hand, is an act not authorized by law and it denotes a radical defects going to the root of the matter resulting in failure of justice and incurable in nature.

23. The Hon'ble Supreme Court of India, in the case of Bhoor Singh v. State of Punjab, MANU/SC/0109/1974 : AIR 1974 SC 1256 observed that the Code neither uses the word "illegality" nor defines "irregularity". Thus the Code treats all errors, omissions or defects as irregularities and further need that "illegality can only mean an incurable illegality; incurable because of prejudice leading to a failure of justice".

24. In the case of Willie Slaney v. State of M.P., MANU/SC/0038/1955 : AIR 1956 SC 116, the Hon'ble Supreme Court held as under:

"We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to "substantial" denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice"."

25. Taking into consideration, Section 460 of the Code of Criminal Procedure, 1973 and the judgments rendered by the Hon'ble Supreme Court, referred above, we are of the opinion that the cognizance of the offence under "the Act" taken under Clause (a) or Clause (b) of sub-section (1) of Section 190 of the Code by any other Court than the Special Court or Exclusive Special Court even after 26.1.2016, shall not vitiate the proceedings at all. 

IN THE HIGH COURT OF PATNA

Cr. Appeal (SJ) No. 832 of 2016

Decided On: 17.02.2017

 Ravindra Thakur  Vs  The State of Bihar

Hon'ble Judges/Coram:

Hemant Gupta, Actg. C.J. and Sudhir Singh, J.

Authored By : Sudhir Singh, Hemant Gupta

Citation:  2017 LAWSUIT PATNA 110

Print Page

Whether illegal arbitration award is against public policy of India?

It was also held by the District Judge that the arbitral award was not even against the public policy of India and merely because some illegality has been pointed out it cannot be held that the award is against the public policy.

13. We are in agreement with the findings of the District Judge and since no ground exists under Section 34 of the Act for setting aside the arbitral award without re-appreciation of evidence, we are of the opinion that the judgment and order passed by the District Judge is not illegal rather perfectly valid. 

IN THE HIGH COURT OF ALLAHABAD

F.A.F.O. No. 2188 of 2018

Decided On: 02.05.2018

 Nathu Ram Sahu Vs. Arbitrator/Collector and Ors.

Hon'ble Judges/Coram:

Pankaj Mithal and Rajiv Joshi, JJ.

Citation: AIR 2018(NOC) 880 ALL

Print Page

Whether court can direct police to file fresh chargesheet if there are illegalities in investigation?

 In short, as far as a final report or the charges are

concerned, Section 13(2) of the PC Act alone cannot be

said to have an independent existence without the junction

of the exact misconduct along with Section 13(2) of the PC

Act.    For example, in a case wherein a misconduct as

defined in Section 13(1)(a) of the PC Act is alleged against

an accused, the penal provision should be incorporated in

the final report or charge as an offence under Section 13(2)

read with Section 13(1)(a) of the PC Act. It is trite that the

accused are entitled to know as to what should be the

offence committed by them in order to defend the charges

properly. The present instance is nothing but the denial of

the principles of natural justice. Matters being so, the final

report requires correction or clarification, as the case may

be.

      6.     Apart from that, this Court could notice a gross

illegality in the final report. In the final report, it has been


vaguely alleged that the public servants have favoured a

category of candidates to procure employment, through

misconduct by the public servants. In such case, the

person/persons, who procured employment through the

commission of misconduct by the public servants, are also

particeps criminis and such person also ought to have been

arraigned as accused in the case. Instead of that, the

investigating officer has chosen to cite them as charge

witnesses. This Court could have swallowed it, had they

been made approver/approvers. The investigating officer

has not made them approvers or accomplices, whereas they

have been allegedly cited as charge witnesses in the case.

The said act of the investigating officer cannot be approved.

      7.     It seems that the court below has merely taken

cognizance of the offences most mechanically without

application of mind. At the time of taking cognizance under

Section 190(1)(b) Cr.P.C., the court below ought to have



applied its mind in the final report. In case of shortcomings,

the court below is not powerless to order a further

investigation, if required or correction or clarification in the

final report, if required. The court below has not chosen to

act timely in the matter. The court below ought to have

returned the final report for correction or clarification or the

court below ought to have ordered further investigation in

the matter, if such an investigation was required.

      8.     On hearing all the parties, this Court is of the view

that a mere correction or clarification cannot improve the

present final report in any manner. According to the learned

Senior Public Prosecutor, the investigating officer has

collected material evidence against the accused. This Court

has not gone through the evidence so far collected by the

investigating officer in the matter. At the same time,

whatever be the evidence collected by the investigating

officer, the present final report cannot be improved through



a correction or clarification. The present final report is liable

to be quashed.

      9.     By quashing the final report, this Court is of the

view that, that should not be the end of the matter. Justice

has to be done. When the investigating officer had allegedly

collected evidence, it is for the investigating officer to see

that a prosecution should go on in the matter. Therefore,

what is now required is a further investigation in the matter,

for filing a fresh final report, without the aforesaid

shortcomings. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                       MR. JUSTICE B.KEMAL PASHA

         1ST DAY OF SEPTEMBER 2016

                                 Crl.MC.No. 791 of 2015 


                K.A.HASHIM, 
V

                STATE OF KERALA,
            Citation:2017 CRLJ 109 Ker

Print Page

Whether taking of cognizance of offence by Magistrate without examining complainant is illegal?

As observed earlier, it is the main submission of the learned counsel for the petitioners that before taking cognizance, the respondent being the complainant was not examined on oath by the learned Magistrate; therefore, cognizance taken by the learned Magistrate is without any basis and the procedure adopted by the learned Magistrate is contrary to the law under Section 200(a) of Cr.P.C. In this regard, the learned counsel for the petitioners has also relied upon by the judgment delivered by the Andhra Pradesh High Court reported in 2003 (1) ALT (Cri) 309 [K.Laxma Reddy and ors Vs. The State of A.P.through Sho], wherein it has been held that when a complaint is filed, the Magistrate has to record the sworn statement of the complainant, and the object of such examination is to test whether the complaint makes out a prima facie  case so as to enable the Magistrate to issue process. For the same proposition, the learned counsel for the petitioners has also relied upon the judgment delivered by the Karnataka High Court, reported in ILR 2008 KAR 474 [Sri.K.Venkataramaiah and ors Vs. Sri Katterao].

11.But, it is the reply of the learned counsel for the respondent that non-examination of the complainant could be considered only as an irregularity and it will not vitiate the proceedings.  In this regard, the learned counsel for the respondent has also invited the attention of this Court to Section 460(e) of Cr.P.C., which deals with the irregularity, which does not vitiate the proceedings.  As per Section 460(e) of Cr.P.C., if any magistrate, who is not empowered by law, takes cognizance of an offence under Clause (a) or Clause (b) of Sub-Section (1) of Section 190, then it will not vitiate the proceedings.  Thus, the learned counsel for the respondent submitted that even if the complainant was not examined on oath, as per Section 460(e), it will only be an irregularity, and it will not vitiate the proceedings. 

12.But, in my considered opinion, the said submission of the learned counsel for the respondent is not legally sustainable, because as per Section 460 (e) of Cr.P.C.,  if any magistrate who is not empowered by law takes cognizance of an offence under Clause (a) or Clause (b) of Sub-Section (1) of Section 190, then it will not vitiate the proceedings and it could only be considered as irregularity.  But, that is not the state of affairs, in the instant case.  In the instant case, the learned Magistrate is empowered to take cognizance, but he has not taken the oath of the complainant for taking the complaint on file.   As per Section 200, if Magistrate has taken cognizance without examination of the complainant, definitely such a procedure is contrary to Section 200 of Cr.P.C.  Therefore,      I find some force in the submission made by the learned counsel for the petitioner.  On this sole ground, I am of the opinion, the cognizance taken by the learned Magistrate is liable to be set aside.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :             28.03.2016
CORAM:
THE HON'BLE MR.JUSTICE R.SUBBIAH
Crl.O.P.No.3298 of 2014 


A.Leo Charles Vs. M.Vijayakumar


M.Vijayakumar

Citation: 2016 CRLJ 4051 Madras

Print Page

Whether Confession and recovery of incriminating article becomes inadmissible on ground that it was obtained illegally?

Criminal – Criminal procedure code – Sections 160, 167, 397 – Indian Penal Code, 1860 – Sections
302, 363 – Evidence Act, 1872 – Confession and recovery of incriminating article – Admissibility of –
Murder – Grant of police remand to accused – Subsequent grant of judicial custody – Revision
petition there against – Allowed by High Court holding that confession and alleged recovery at
instance of accused had no evidentiary value – Validity – Concurring views expressed by judges -
Admissibility or otherwise of a piece of evidence has to be judged having regard to provisions of
Evidence Act – Evidence act or code of criminal procedure or for that matter any other law in India
does not exclude relevant evidence on ground that it was obtained under an illegal search and seizure
– Direction given by High Court that confession and alleged recovery had no evidentiary value was
clearly illegal and liable to be set aside

Equivalent Citation: AIR2004SC2282, 2004(2)ALD(Cri)95, 2004CriLJ2515, 2004(3)CTC138, (2004)3GLR2174, 2004(5)SCALE330,
(2004)5SCC729
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 575-576 of 2004 
Decided On: 05.05.2004
 State 
Vs.
N.M.T. Joy Immaculate
Hon'ble Judges: S. Rajendra Babu, C.J., AR. Lakshmanan and G.P. Mathur, JJ.

Print Page

When illegality in the course of investigation would not vitiate the trial ?

I have examined the materials on record including the impugned judgment.
Although there is a general discussion of the evidence on record, the issue which
primarily weighed with the learned trial Judge in acquitting the accused persons
was that investigation was not conducted by a competent agency in the instant
case. Such proposition of law is contrary to the ratio of the Apex Court in the case
of H. N. Rishbud – Vs. - State of Delhi reported in A.I.R. 1955 SC 196 (paragraph
9).
In the said report the Apex Court held that the illegality in the course of
investigation would not vitiate the trial until and unless the same has occasioned
miscarriage of justice.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present :
The Hon’ble Justice Joymalya Bagchi
C.R.R. No. 3274 of 2010
Ashok Hazra
-VersusThe
State of West Bengal & Ors.


Judgment on: November 10, 2014.
Joymalya Bagchi, J.:
Citation;2015 CRLJ(NOC)489 Cal

Print Page