Supreme Court: Delay in furnishing written grounds of arrest or alleged procedural lapses does not constitute valid grounds for grant of bail in serious offences unless prejudice is shown

Code of Criminal Procedure, 1973 - S.437, S.439, S.50 - Whether delay in furnishing written grounds of arrest or alleged procedural lapses can constitute valid grounds for grant of bail in serious offences -- Held, constitutional and statutory framework mandates that arrested person must be informed of the grounds of arrest -- But, provisions does not prescribe a specific form or insists upon written communication in every case -- Substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown -- Procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail -- Constitution of India, Art.22(1).

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 3528-3534 of 2025 

Decided On: 14.08.2025

State of Karnataka Vs. Darshan and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: R. Mahadevan, J.

Citation: 2025 KHC 6693: 2025 INSC 979, MANU/SC/1098/2025

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Supreme Court: Curable Procedural defects shall not defeat the substantive rights of the party

The contention of the appellant with vehemence is that the

application CLMA seeking permission to file joint appeal against

common judgment and two decrees has not been decided by the

impugned order, though at the time of admitting the appeal and

issuing notice, objections were called. In the counter-affidavit

filed by the respondent even before this Court, the said fact has

not been contested or refuted. In the order, it has also not been

mentioned that dismissal of the appeal would lead to decide all

pending applications including CLMA. As per record, it is clear

that the High Court admitted the appeal on 18.07.2008 and

CLMA was awaiting its fate for almost about a decade. By the

impugned order passed on 04.07.2018, first appeal was

dismissed accepting the preliminary objection regarding

maintainability applying the principle of res-judicata. There is not

even any without observation that permission as sought to file

one appeal cannot be granted. The record indicates that the

CLMA filed by the appellant seeking permission to file one appeal

was not decided. It is to observe, once at the time of admission of

first appeal, despite having objection of maintainability it was

admitted asking reply and rejoinder on CLMA, the High Court

ought to have decided the said application.

Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after

consolidation. In case, the High Court would have rejected the

said CLMA, the appellant could have availed the opportunity to

file separate appeal against the judgment and decree passed in

Civil Suit No.411 of 1989. Without deciding the CLMA and

accepting the preliminary objections, dismissing the appeal as

barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on

dismissal of the CLMA, the appellant might have had the

opportunity to rectify the defect by way of filing separate appeal

under Section 96 of CPC challenging the same judgment with

separate decree passed in Civil Suit No.411 of 1989. Converse to

it, if this Court proceeds to consider the merit of the contentions

raised in the said CLMA and record the findings in negative, it

would effectively render the appellant remediless, therefore, we

refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be

allowed to defeat the substantive right accrued to the litigant

without affording reasonable opportunity. Therefore, in our

considered view, non-adjudication of the CLMA application, and

upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the

appellant. {Para 10}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4639 OF 2022

M/S RAMNATH EXPORTS PVT. LTD Vs VINITA MEHTA & ANR

Coram: J.K. Maheshwari, J.

Dated: July 05, 2022.

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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 govt servant can be held guilty under prevention of corruption Act if there is procedural lapse in his part?

Section 13(1)(d) of the PC Act reads as under:
“13. Criminal misconduct by a public servant

(1) A public servant is said to commit the offence of
criminal misconduct,-

(d) If he,-
(i) by corrupt or illegal means, obtains for himself
or for any other person any valuable thing or
pecuniary advantage; or
(ii) by abusing his position as a public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains
for any person any valuable thing or pecuniary
advantage without any public interest; or”
The prosecution has sought to cover the case of the
appellant under sub-clause (ii) and not under sub-clause (i) and
sub-clause (iii). Insofar as sub-clause (ii) is concerned, it
stipulates that a public servant is said to commit the offence of
criminal misconduct if he, by abusing his position as a public
servant, obtains for himself or for any other person any valuable
thing or pecuniary advantage. Thus, the ingredients which will be
required to be proved are:
(1) The public servant has abused his position.
(2) By abusing that position, he has obtained for himself or for
any other person any valuable thing or pecuniary advantage.
18) It was not even the case set up by the prosecution that appellant
had taken that money from some person and had obtained any

pecuniary advantage thereby. It was the obligation of the
prosecution to satisfy the aforesaid mandatory ingredients which
could implicate the appellant under the provisions of Section 13(1)
(d)(ii). The attempt of the prosecution was to bring the case
within the fold of clause (ii) alleging that he misused his official
position in issuing the certificate utterly fails as it is not even
alleged in the chargesheet and not even iota of evidence is led as
to what kind of pecuniary advantage was obtained by the
appellant in issuing the said letter.
19) In C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193,
this Court held that even when codal violations were established
and it was also proved that there were irregularities committed by
allotting/ awarding the work in violation of circulars, that by itself
was not sufficient to prove that a criminal case was made out. The
Court went on to hold:
“22. On a careful consideration of the material on
the record, we are of the opinion that though the
prosecution has established that the appellants
have committed not only codal violations but also
irregularities by ignoring various circulars and
departmental orders issued from time to time in the
matter of allotment of work of jungle clearance on
nomination basis and have committed
departmental lapse yet, none of the circumstances
relied upon by the prosecution are of any
conclusive nature and all the circumstances put
together do not lead to the irresistible conclusion
that the said circumstances are compatible only

with the hypothesis of the guilt of the appellants
and wholly incompatible with their innocence. In
Abdulla Mohd. Pagarkar v. State (Union Territory of
Goa, Daman and Diu), (1980) 3 SCC 110, under
somewhat similar circumstances this Court opined
that mere disregard of relevant provisions of the
Financial Code as well as ordinary norms of
procedural behaviour of government officials and
contractors, without conclusively establishing,
beyond a reasonable doubt, the guilt of the officials
and contractors concerned, may give rise to a
strong suspicion but that cannot be held to
establish the guilt of the accused. The established
circumstances in this case also do not establish
criminality of the appellants beyond the realm of
suspicion and, in our opinion, the approach of the
trial court and the High Court to the requirements of
proof in relation to a criminal charge was not
proper....”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 131 OF 2007
A. SIVAPRAKASH .....APPELLANT(S)
VERSUS
STATE OF KERALA .....RESPONDENT(S)
Dated:MAY 10, 2016
A.K. SIKRI, J.

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Distinction between non service of notice and procedural lapse in service of notice

In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained.

It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him.

If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case.
SUPREME COURT OF INDIA

Sri Prabin Ram Phukan & ANR. Vs. State of Assam & Ors.

[Civil Appeal Nos. 662-663 of 2008]

Citation;2015) 3 SCC 605.

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Procedure to be followed for examination in chief of plaintiff for avoid procedural lapse

 Learned Senior Counsel appearing for the appellant is justified in contending, placing reliance on the judgment of the Apex Court in the matter of Ameer Trading Corporation Ltd. (supra), that in appealable cases, the examination-in-chief of the witness is permissible to be produced in the form of affidavit and such affidavit cannot be ordered to form part of evidence unless deponent thereof enters the witness box and affirms that contents of the affidavit are as per his say and affidavit is under his signature. As has been observed by the Apex Court in the judgment cited supra, Rules 4 and 5 are required to be harmoniously construed and both the provisions are required to be given effect to and that Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4.

18 In the instant matter, apart from the failure of plaintiff and his witness affirming on oath before the Court contents of the affidavit and signature thereon, have also failed to prove the documents placed on record, in accordance with law. In the absence of proof of documents and more specifically the a Learned Senior Counsel appearing for the appellant is justified in contending, placing reliance on the judgment of the Apex Court in the matter of Ameer Trading Corporation Ltd. (supra), that in appealable cases, the examination-in-chief of the witness is permissible to be produced in the form of affidavit and such affidavit cannot be ordered to form part of evidence unless deponent thereof enters the witness box and affirms that contents of the affidavit are as per his say and affidavit is under his signature. As has been observed by the Apex Court in the judgment cited supra, Rules 4 and 5 are required to be harmoniously construed and both the provisions are required to be given effect to and that Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4.

18 In the instant matter, apart from the failure of plaintiff and his witness affirming on oath before the Court contents of the affidavit and signature thereon, have also failed to prove the documents placed on record, in accordance with law. In the absence of proof of documents and more specifically the agreement to sell entered into between the plaintiff and defendant, decree of specific performance of contract could not have been awarded in favour of the plaintiff.

19 In the facts and circumstances of this case, it would be just and proper to extend an opportunity to the plaintiff to cure the procedural deficiencies appearing in the evidence and remand the matter to the trial Court, would meet the ends of justice.

Bombay High Court

Anantrao S/O Krishnaji Kulkarni vs Smt.Vaishali W/O Renukadas ... on 5 July, 2011

Bench: R. M. Borde

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Whether conviction of accused under SC & ST Atrocities Act can be set aside due to non committal of case by magistrate?

 It is an uphill task for the accused in this case to show that failure of justice had in fact 

occasioned merely because the specified Sessions Court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the Special Court because that court being essentially a Court of Session can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course?

18. It is apposite to remember that during the period prior to the Code of Criminal Procedure 1973, the committal court, in police charge- sheeted cases, could examine material witnesses, and such records also had to be sent over to the Court of Session along with the committal order. But after 1973, the committal court, in police charge-sheeted cases, cannot examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by the Court of Session. Perhaps it would have been possible for an accused to raise a contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to the Magistrate's Court merely for the purpose of retransmission of the records to the Sessions Court through a committal order. We did not get any 

satisfactory answer to the above query put to the counsel.

16. After so stating, the Court proceeded to deal with the stance whether the Special Judge as a Court of Session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression a Court of competent jurisdiction as envisaged in Section 465 of the Code is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non- compliance with the procedural requirement. The Bench further proceeded to lay down that the inability to take cognizance of an offence without a committal order does not mean that a duly constituted court becomes an incompetent court for all purposes. It was also ruled that had an objection been raised at the earlier stage, the Special Judge could have sent the record to the Magistrate for adopting committal proceeding or return the police report to the Public Prosecutor or the police for presentation before the Magistrate. In essentiality, it has been laid down that 

the bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the Court concerned is a Court of competent jurisdiction and further the condition precedent for taking cognizance is not the standard to determine whether the Court concerned is a Court of competent jurisdiction. In the ultimate eventuate, Bhooraji (supra) ruled that when the trial had been conducted by a Court of competent jurisdiction, the same cannot be annulled by such a lapse and, accordingly, remitted the matter to the High Court for disposal of the appeal afresh on the basis of evidence already on record. It needs no special emphasis to highlight that in Bhooraji (supra), the controversy had emerged on the similar set of facts and the legal issues had emanated on the common platform and were dealt with. Therefore, unquestionably, it was a precedent operating in the field.

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.

Supreme Court of India

Rattiram & Ors. vs State Of M.P.Tr.Insp.Of Police on 17 February, 2012

Bench: Dalveer Bhandari, T.S. Thakur, Dipak Misra

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