Kerala HC: Notice Issued Against Dead Person Is Invalid; Participation Of Legal Heirs In Proceedings Doesn't Make It Legal

 Upon hearing the rival submissions of the parties, we are of the view that the Appeal must succeed. The precedents referred above would make it amply clear that the notices issued under Sections 148A(b) and 148 of the Act in the name of a dead person are invalid and 'non-est' in the eye of law. It is a nullity and not a mere irregularity which could be cured. It is true that, on the receipt of the above said notices, the legal heirs of the deceased Naringaparambail Bhaskaran/appellants herein appeared before the assessing authority. However, that by itself would not change the situation. We are of the opinion that the consent of the parties cannot confer jurisdiction to the assessing authority for initiation of an action which is otherwise illegal and 'non-est'.{Para 20}

21. In the light of the above discussions, we cannot agree with the view taken by the learned Single Judge that the legal heirs of the deceased assessee are estopped from taking a different stand in the writ petition, since they have appeared before the assessing authority and participated in the proceedings. Therefore, we are of the view that the initiation of proceedings against a dead person under Sections 148A(b) and 148 of the Income Tax Act are illegal and 'non-est'.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2093 of 2023

Decided On: 29.11.2024

N. Binoj and Ors. Vs. Income Tax officer, Ward-2, Tirur and Ors.

Hon'ble Judges/Coram:

Dr. A.K. Jayasankaran Nambiar and K.V. Jayakumar, JJ.

Author: K.V. Jayakumar, J.

Citation: MANU/KE/4803/2024.

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Supreme Court: Any sale by auction or other public procurement methods once confirmed ought not to be set-aside except on grounds of collusive, fraudulent or vitiated by inadequate pricing or underbidding

  Any sale by auction or other public procurement methods once already confirmed or concluded ought not to be set-aside or interfered with lightly except on grounds that go to the core of such sale process, such as either being collusive, fraudulent or vitiated by inadequate pricing or underbidding. Mere irregularity or deviation from a Rule which does not have any fundamental procedural error does not take away the foundation of authority for such proceeding. In such cases, courts in particular should be mindful to refrain entertaining any ground for challenging an auction which either could have been taken earlier before the sale was conducted and confirmed or where no substantial injury has been caused on account of such irregularity. {Para 218}

IN THE SUPREME COURT OF INDIA

Contempt Petition (C) Nos. 158-159 of 2024.

Decided On: 13.12.2024

Celir LLP Vs. Sumati Prasad Bafna and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation: 2024 INSC 978,MANU/SC/1343/2024.

Read full Judgment here: Click here.

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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.

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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

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Whether court should dismiss the suit if there is irregularity in court commissioner report?

 The fact that the Local Commissioner’s report, and for that matter a
properly drawn up report, is requisite in the present case for the purpose of
elucidating the matter in dispute is not of any debate, for the order dated
24.01.1991 passed by the First Appellate Court having attained finality
whereby, additional issues were remitted for finding on the basis of Local
Commissioner’s report. In the given set of facts and circumstances, we are
clearly of the view that if the report of the Local Commissioner was suffering
from an irregularity i.e., want of following the applicable instructions, the
proper course for the High Court was either to issue a fresh commission or to
remand the matter for reconsideration but the entire suit could not have been
dismissed for any irregularity on the part of Local Commissioner. To put it
differently, we are clearly of the view that if the Local Commissioner’s report
was found wanting in compliance of applicable instructions for the purpose of
demarcation, it was only a matter of irregularity and could have only resulted

in discarding of such a report and requiring a fresh report but any such flaw,
by itself, could have neither resulted in nullifying the order requiring
appointment of Local Commissioner and for recording a finding after taking
his report nor in dismissal of the suit. Hence, we are unable to approve the
approach of High Court, where after rejecting the Commissioner’s report, the
High Court straightway proceeded to dismiss the suit. The plaintiffs have
been asserting encroachment by the defendants on their land and have also
adduced oral and documentary evidence in that regard. As noticed, the First
Appellate Court had allowed the appeal and decreed the suit filed by the
plaintiff not only with reference to the Commissioner’s report but also with
reference to the other evidence of the parties. Unfortunately, the High Court
appears to have overlooked the other evidence on record.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8285 OF 2009

RAM LAL VS. SALIG RAM 

Dinesh Maheshwari, J.
Dated: 4th February, 2019.

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Whether failure to explain injuries on accused will vitiate prosecution case?

 Another point put forth by the learned Counsel on behalf of the Accused--Appellant is that the prosecution has not explained the injuries suffered by the Accused and hence prosecution case should not be believed. At the outset, it would be relevant to note the settled principles of law on this aspect. Generally

failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true

[See: Mohar Rai and Bharath Rai v. The State of Bihar, MANU/SC/0057/1968 : 1968 CriLJ 1479].

28. In Lakshmi Singh and Ors. v. State of Bihar, MANU/SC/0136/1976 : 1976 CriLJ 1736 this Court observed:

Where the prosecution fails to explain the injuries on the Accused, two results follow:

(1) that the evidence of the prosecution witnesses is untrue; and

(2) that the injuries probabilise the plea taken by the Appellants.

It was further observed that:

In a murder case, the non-explanation of the injuries sustained by the Accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the Accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the Accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.  

A duty is cast on the prosecution to furnish proper explanation to the Court how the person who has been Accused of assaulting the deceased, received injuries on his person in the same occurrence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 409 of 2017

Decided On: 11.05.2018

Kumar Vs. State

Hon'ble Judges/Coram:

N.V. Ramana and S. Abdul Nazeer, JJ.

Citation:(2018) 7 SCC 536

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Whether validity of trial and conviction of accused will be affected by any irregularity in his arrest?

The contention of the appellant was that his arrest, having been effected in Jind territory by a British Indian officer, was illegal and that the illegality of his arrest vitiated the whole subsequent proceedings. Their Lordships reject this contention. They assume that the arrest was open to objection as an infringement of the sovereignty of Jind, although the Jind authorities, so far from resenting what had been done or regarding their rights as having been flouted, co-operated most readily with the British Indian police in bringing the appellant to justice. There was no suggestion of anything like kidnapping. In their Lordships' view, the validity of the trial and conviction of the appellant was not affected by any irregularity in his arrest.

BEFORE THE PRIVY COUNCIL

Decided On: 26.01.1944

Parbhu Vs. Emperor

Hon'ble Judges/Coram:

Macmillan, Wright, Porter, Clauson and George Rankin, JJ.

Citation: AIR 1944 PC 73

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What is basic concept of irregularity in proceeding?

In order to decide the above issue, it may be appropriate
for this court to examine as to what the words “proceedings” and
“regular” would mean. The word ‘proceeding’ is defined in the Shorter 
Oxford Dictionary “as doing a legal action or process, any act done by
the authority of a court of law.” In other words, as per the dictionary
meaning of the word ‘proceeding’, it is the course of procedure in an
action at law and an action, measure or step in a course of business or
conduct. The Criminal Procedure Code does not define the word
‘proceeding’ though the same is being used in the provisions of some
of the sections like Section 195 (1)(b), 116 (3) etc. of the Criminal
Procedure Code. Various High Courts have examined the word
‘proceeding’ with reference to the particular statute involved therein
and have expressed their views that the word ‘proceeding’ is not
purely a technical expression with a definite meaning attached to it.
Necessarily the term indicates a prescribed mode in which judicial
business is conducted. A ‘proceeding’ may in some statutes mean an
action or that which initiates an action and in other enactments it may
also mean a step in an action. The expression ‘proceedings’ with
reference to a case, would mean taking of steps in connection with the
further progress of the case. When a case is listed for hearing and the
case is taken up by the court and an order is also made in the case, it
would be proceedings in the case.
 As per Webster’s New World Dictionary, the word
‘regular’ is defined as consistent or habitual in action; not changing;
uniform; conforming to a standard or to a generally accepted rule or
mode of conduct. As regards the word ‘regularity’ also, various High
Courts have examined it and expressed their views that the term
‘regularity’ is a well recognised term and well recognised ground of
judicial interference on an appeal or revision. The word ‘regular’ gives 
a constant course of conduct without any break or breach. It is
‘irregular’ when the procedure followed is in violation of the principles

of Natural Justice and fair play.

IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Cril. Revn. Petn. No. 8 of 2015
Shri K. Meghachandra Singh, 
 V
 Oinam (O) Itamani Devi,
B E F O R E
HON’BLE MR. JUSTICE KH. NOBIN SINGH


Dated: 11-08-2015
Citation: 2016 CRLJ4332 Manipur

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When revision is not maintainable on ground of irregularity in proceedings?

The petitioner has challenged
only the proceedings on the ground of being irregular but the
petitioner is unable to show as to how the proceeding can be said to be
irregular when it has just commenced on the passing of the order dated
05-06-2015 issuing summons to him. The question of irregularity may
arise in a case where there is breach or break in the uniformity of the
actions or steps being taken by the Court. There is no question of such
breach or break in the proceeding of the case being Cril. Misc. Case No.
44 of 2015 because it is at its initial stage and in other words, it is just
the beginning of it.

IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Cril. Revn. Petn. No. 8 of 2015
Shri K. Meghachandra Singh, 
 V
 Oinam (O) Itamani Devi,
B E F O R E
HON’BLE MR. JUSTICE KH. NOBIN SINGH


Dated: 11-08-2015
Citation: 2016 CRLJ4332 Manipur

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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

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How irregularity or omission in criminal trial can be corrected?

We are not inclined to accept the statement made by Mr. Daga, that for non-examination of the appellant-accused, the whole trial is vitiated and therefore the judgment and order of conviction and sentence should be quashed and set aside. Every error or omission not in compliance withSection 313, Criminal Procedure Code does not necessarily vitiate the trial. Errors of this type fall within the category of curable irregularities. We do not find that in the facts and circumstances of the case, the appellant-accused would be prejudiced if the matter is remanded to the trial Court, as submitted by Mr. Mirza, the learned A.P.P.

Every irregularity or omission in trial does not vitiate the trial and irregularity can be corrected by remanding the matter back for examination of accused in accordance with law. 

Bombay High Court

Chamarsha @ Tiru S/O Lodhi Koreti vs State Of Maharashtra on 8 October, 2001

Equivalent citations: 2002 (1) MhLj 159

Bench: J Patel, S Shah

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