Magga & ANR Vs. The State of
Rajasthan  INSC 9 (16 February 1953)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
CITATION: 1953 AIR 174 1953 SCR 973
CITATOR INFO :
R 1956 SC 4 (4) R 1976 SC2386 (7)
Criminal Procedure Code (V of 1898), ss. 284,
285, 539Assessors-Trial with three assessors-Absence of one assessor during
trial-Substitution of new person-Legality of trial-Re-appearance of absent
assessor-Continuing trial with four assessors Validity of trial.
Section 285 of the Criminal Procedure Code
permits a trial commenced with the aid of three assessors to be continued and
completed with the aid of less than three if during the course of the trial any
assessor is prevented by sufficient cause from attending. It does not, however,
authorise the substitution of an assessor for an absent one nor an addition to
the number of assessors during the course of the trial.
A, B and C were summoned to sit as assessors
for a murder trial and as C did not appear, D who was in the list of assessors
and who was present in court though not summoned, was asked to sit as an
assessor, and the trial commenced with three assessors A:, B and D. A absented
himself during the course of, the trial and the judge asked E to sit in place
of A and proceeded with the trial for some days with B, D and E. Later on A
appeared and the trial continued till the end with the four assessors A, B, D
Held, (i) that the mere fact that D who had
not been summoned was allowed to sit as an assessor when the trial commenced
did not vitiate the trial as it, was a mere irregularity and did not cause any
failure of justice;
King Emperor v. Ramsidh Rai (39 Cr. L.J. 726)
Balak Singh v. Emperor (A.I.R. 1918 Pat. 420)
(ii)though sub-section (1) of s. 285 imposes
a duty on the judge to find out whether there was sufficient cause for the
absence of an assessor and to consider whether it is not possible to enforce
his attendance, it should be presumed that he has done so when he proceeds with
the trial in his absence and a mere omission to record reasons for proceeding
with the trial without the absent assessor would not by itself vitiate the
(iii) a sessions judge, however, has no
jurisdiction to substitute another person for any assessor who absents himself
during the trial or to reinstate the absent assessor when be reappears and
continue the trial with four assessors when the trial commenced with three
assessors, and the trial in question was therefore illegal.
126 974 King Emperor v. Tirumal Reddi (I.L.R.
24 Mad. 523 distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 103 of 1952. Appeal under article 134(l) (c) of the Constitution of
India from the Judgment and Order dated the 27th October, 1952, of the High
Court of Judicature for the State of Rajasthan at Jodhpur (Wanchoo C.J. and
Bapna J.) in D.B.
Criminal Murder Reference No. 2 of 1952,
arising out of the Judgment and Order dated the 1st July, 1952, of the Court of
the Sessions Judge, Pali, in Criminal Original Case No. 2 of 1951.
H. J. Umrigar for the appellants.
Porus A. Mehta for the respondent.
1953. February 16. The Judgment of the Court
was delivered by MAHAJAN J.--This is an appeal under article 134(l) (c) of the
Constitution of India, by Magga and Bhagga,who have been convicted under
section 302, Indian Penal Code, for the triple murders of Ganesh, Gheesa and
The case relates to an incident which took
place -on the night between the 3rd and 4th April, 1951 Gheesa and Ganesh, deceased,
Ratna, Govind, another Ganesh who is a witness in the case, and Hardas had gone
to " Imaratia " a well in village Gadwara on that night to keep watch
over the crops there. Gheesa slept in one shed near the well, while Hardas
slept in another shed some distance away, and Ratna slept in a third shed near
the entrance gate. Ganesh, deceased, Ganesh (P. W.), and Govind slept on the
threshing floor further away from the well. Sometime after midnight Ratna woke
up on hearing the cries of Gheesa. It is alleged that he then saw the two
accused beating Gheesa, accused Magga having in his hand a farsi and accused
Bhagga having a katari and an axe. Hardas, who woke up on hearing the cries,
rushed to the aid of Gheesa and thereupon the two accused, Magga and Bhagga,
fell upon him and attacked him with farsi and axe. Ratna 975 ran away and hid
himself near the well. On an alarm being raised, one Krishna who was working on
a nearby well came and witnessed the attack on Hardas. The accused, after
finishing Gheesa and Hardas went to the threshing floor where Ganesh, deceased,
was sleeping. There Magga asked Bhagga to hit Ganesh with the axe and Bhagga
immediately hit Ganesh with the axe and he fell down. Thereafter Magga hit
Ganesh two or three times with the farsi on the legs and Bhagga cut the neck of
Ganesh with the katari. Govind (P.W.) entreated on behalf of Ganesh but he was
threatened and was told, that if he did not keep quiet he would also be killed.
Without injuring Govind and Ganesh (P.Ws.) the accused then left the place.
Information of the incident was carried to
the village by Ratna and a report of it was made to the police at 11-30 a.m. on
4th April, 1951. In the report it was stated that " Bhagga and Magga are
standing at their house with swords and are saying that they would kill more
persons. Village people are surrounding them outside the house ". The subinspector
of police, when he arrived at the village, found the house of the accused
surrounded by the village people.
The door of the house was closed from inside
and the accused were standing on the chabutra inside. Magga had a farsi in his
hand and Bhagga had an unsheathed sword. The subinspector got the door opened,
arrested the accused, and took possession of the farsi and the sword. He also recovered
the axe and a katari which were bloodstained. The clothes of the accused were
also taken possession of after the arrest and they appeared to have bloodstains
The accused pleaded not guilty. They admitted
their partnership in cultivation at " Imaratia " well with the
deceased but denied that any quarrel took place between them and the other
partners about the cutting of the crop. They also denied that they had gone to
the well armed with various weapons and had committed the murder of Gheesa,
Hardas and Ganesh.
The sessions judge on the evidence led by the
prosecution felt satisfied that the prosecution case was 976 proved beyond all
reasonable doubt. It was held that the murder was brutal and advantage had been
taken of the persons who were sleeping to kill them. In the result the
appellants were convicted under section 302, Indian Penal Code, and sentenced
to death. The sentence of death passed on them by the sessions judge was
confirmed by the High Court after examining the evidence afresh. In the High
Court a contention was raised that the whole trial was vitiated inasmuch as it
had not been conducted in accordance with procedure prescribed by law. This
contention was negatived on the ground that the irregularities committed in the
course of the trial were such as were cured by the provisions of section 537,
Criminal Procedure Code. As the objection raised concerned the validity of the
trial the case was certified as a fit one for appeal to this Court.
The facts which concern the validity of the
trial, shortly stated, are these: The trial began on 22nd March, 1952.
Three assessors had been summoned for that
date. Of these two were present while the third did not come. Thereupon one
person who was present in the court premises and whose name was in the list of
assessors but who had not been summoned in the manner prescribed by the Code of
Criminal Procedure was chosen as an assessor. The trial then began with the
three assessors so chosen, viz., Jethmal, Balkrishna and Asharam. On the 6th
June, 1952, Jethmal, one of the assessors absented himself and for some reason,
which is not clear from the record, one Chimniram was asked to sit in place of
Jethmal as an assessor with the result that on the 6th June, 1952, there were
three assessors, viz., Balkrishna and Asharam, who had been sitting from the
beginning -of the trial, and Chimniram who was introduced for the first time
that day. On the 23rd June also Chimniram, Balkrishna and Asharam sat as
assessors. On 27th June, however, Jethmal reappeared and was allowed to sit and
since that date four assessors sat throughout, viz., Jethmal, Chimniram,
Balkrishna and Asharam. Eventually all these four assessors gave their opinion
on the first 977 July, 1952, when the trial came to an end. It was con tended
that the trial was bad as it took place in defiance of the provisions of
sections 284 and 285 of the Code of Criminal Procedure and that such an
illegality could not be cured by the provisions of section 537 of the Code.
In order to judge of the validity of this
objection it is necessary to set out the provisions of the Code relevant to
this matter. Section 284 provides that, "When the trial is to be held with
the aid of assessors, not less than three and, if possible, four shall be
chosen from the persons summoned to act as such" . The section as it
originally stood required that " two or more shall be chosen as the Judge
thinks fit ", so that there had to be a minimum of two assessors. In the
year 1923, that provision was amended so as to make a minimum of three
assessors an essential requisite for a trial to be held with the aid of
A trial commenced with less than three
assessors is not authorised by the provisions of this section as it now stands.
Therefore, unless a case comes within the provisions of the next following
section 285, a trial held in defiance of the provisions of section 284 would
not be legal. Section 285, however, has no application to cases where a trial
is commenced with less than three assessors.
[Vide Balak Singh v. Emperor (1); Sipattar
Singh v. King-Emperor (2)]. Section 285 provides :"(1) If in the course of
a trial with the aid of assessors, at any time before the finding, any assessor
is from any sufficient cause, prevented from attending throughout the trial, or
absents himself, and it is not practicable to enforce his attendance, the trial
shall proceed with the aid of the other assessor or assessors.
(2)If all the assessors are prevented from
attending or absent themselves, the proceedings shall be stayed and a new trial
shall be held with the aid of fresh assessors." In cases contemplated by
this section a trial commenced with the aid of three assessors can be (1)
A.I.R. 1918 Pat. 420. (2) A.I.R. 1942 All, 140.
978 continued and finished with the aid of
less than three assessors. This section, however, does neither authorize the
substitution of an assessor for an absent assessor, nor does it authorise an
addition of an assessor to the number of assessors during the course of the
trial. The effect of the provisions of sections 284 and 285 is that a trial
cannot be validly commenced with less than three assessors chosen in the manner
prescribed by the Code, but once validly commenced it can be continued in
certain cases to a finish if some, though not all, of the persons originally
appointed, attend throughout the trial. If all of them do not attend, then a
fresh trial has to be held. An addition in the number of the assessors or a
change or substitution in their personnel during the course of the trial is not
warranted by the Code; on the other hand, it is implicitly prohibited. The
procedure prescribed by section 285(l) is not of a permissive nature. It has to
be followed if the conditions prescribed are fulfilled, and like section 285(2)
it is of a mandatory character. No scope is left in these provisions for the
exercise of the discretion of the judge for supplementing these provisions and
for holding a trial in a manner different from the one prescribed and for
conducting it with the aid of some assessors originally appointed, and also
with the aid of some others recruited during the trial. Section 309 provides
that when a trial is concluded, the court may sum up the evidence for the
prosecution and defence and shall then require each of the assessors to state
his opinion orally and shall record such opinions. Sub-clause (2) of this
section enacts that the judge shall then give judgment, but in doing so shall
not be bound to conform to the opinions of the assessors. Sections 326 and 327
enact the method and manner of summoning assessors and jurors. Section 537
provides as follows:"Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent jurisdiction shall be
reversed or altered under Chapter XXVII or on appeal or revision on account979
(a)of any error, omission or irregularity in the complaint, summons, warrant,
charge, proclamation, order, judgment or other proceedings before or during
trial or in any inquiry or other proceedings under this Code, or...
(c)of the omission to revise any list of
jurors or assessors in accordance with section 324, or (d)of any misdirection
in any charge to a jury, unless such error, omission, irregularity or
misdirection has in fact occasioned a failure of justice." The first
objection that was taken in the High Court to the validity of the trial was
that Asharam who had not been summoned as an assessor could not be appointed as
such and hence it should be held that the trial commenced with a minimum of two
assessors in defiance of the provisions of section 284. What happened was this:
On the date fixed for the trial there was a deficiency in the number of persons
who had been summoned and who appeared to act as assessors, the court then sent
for Asharam whose name was in the list of assessors and ordered him to sit as
an assessor. The High Court took the view, and we think rightly, that the
circumstance that the formality of issuing a summons was not gone through was a
mere irregularity which was curable under section 537 of the Code, as there was
no failure of justice caused on account of that irregularity and that the trial
on that account could not be held to be bad. This view is in accord with the
decision of the Calcutta High Court in KingEmperor v. Ramsidh Rai(1) with which
we agree. We are constrained, however, to observe that the High Court did not
fully appreciate the decision of the Patna High Court in Balak Singh v.
Emperor(2), when it said that that decision held a trial bad where a -person
was chosen as an assessor who had not been summoned. In that case during the
examination of the first witness only one qualified assessor was present in
court and capable of acting as such, the judge ordered another person who
happened to be present in court but was not in the official list of assessors
to act as an (1) 30 Crl. L. J . 725.
(2) A.I.R. 1918 Pat. 420.
980 assessor, and it was held that as the
trial commenced with only one assessor and not with two duly qualified
assessors the trial was abortive and contrary to law. No exception could
therefore be taken to the rule stated in this decision.
The second objection against the validity of
the trial taken before the High Court was -founded on section 285. It was
contended that when one of the assessors appointed absented himself the court
was bound, under section 285, to ascertain before proceeding further with the
trial whether the absence of the assessor was due to sufficient cause and
whether it was practicable to enforce his attendance and that the judge in this
case failed to observe this condition which alone entitled him to continue the
trial with the remaining assessors and that the defect was fatal to the
validity of the trial. The High Court held that though there was noncompliance
with the provisions of section 285 in the case, this irregularity was cured by
section 537 as it had not in fact caused failure of justice. We agree with the
High Court in this conclusion. It is no doubt true that the section enjoins on
the judge a duty to find whether there is a sufficient cause for the
non-attendance of an assessor and whether it is not practicable to enforce his
attendance, and ordinarily the proceedings must represent on their face whether
this duty has been performed, but we think that such an omission on his part
does not necessarily vitiate the trial. We are further of the opinion that when
a judge proceeds with a trial in the absence of one or two of the assessors
with the aid of the remaining assessor or assessors, it may be presumed that he
has done so because he was satisfied that it was not practicable to enforce the
attendance of the absent assessor or assessors and that there was sufficient
cause for his or their non-attendance.
If, however, there is evidence to a contrary
effect, the matter maybe different. Failure to record an order indicating the
reasons for proceeding with the trial with the aid of the remaining assessors
can at best be an irregularity or an omission which must be held to 981 be such
as to come within the reach of section 537 unless it has in fact occasioned a
failure of justice. It could not be seriously argued that such an omission can
lead to such a result.
Finally the learned counsel contended, also
relying on section 285, that the sessions judge had no jurisdiction or power to
substitute an assessor or to reinstate the absent assessor, or to add to the
number of assessors. When the point was raised before the High Court, it fully
realized that there was no provision in law which permitted such substitution
of an absent assessor by another assessor or the subsequent reinstatement of an
absent assessor as bad been done in this case. It, however, felt that the
irregularity was of the same nature as noncompliance with the provisions of
section 285, and as such was cured by section 537 of the Code. In regard to the
addition of an assessor during the trial it said:" We have not been able
to find any reported case where an assessor had been added in the middle of the
trial as has been done by the learned judge. That is perhaps due to the fact
that no judge ever did such an obviously silly thing, but considering that the
trial, in any case, continued with the aid of two assessors who were there
throughout, there was, in our opinion, substantial compliance with the mode of
trial provided in the Code and the irregularity committed by the addition of
Chimniram in June, 1952, is curable under section 537 as it did not occasion
any failure of justice.
The sessions judge was still the court of
competent jurisdiction to try the case and all that he did was to add
unnecessarily one more assessor to advise him when he had no business to do so.
We can ignore his presence altogether and as the irregularity has not caused
failure of justice, the trial will not be vitiated".
In our judgment, the High Court was in error
in this view.
The sessions judge during the progress of the
trial not only made a change in the personnel of the assessors originally
appointed and also added to their number, but he. actually took the opinions
127 982 of all the four assessors as required by the provisions of section 309
of the Code, and acted in accordance with those opinions in convicting the two
appellants. It is plain that a unanimous verdict of four assessors is bound to
weigh much more with a judge than the opinion of two persons. We have not been
able to understand how the High Court could ignore the presence of assessors
altogether who had given their opinions and which opinions had been accepted by
The opinion of an assessor is exercised in
the judicial function imposed upon him by law, and the judge is bound to take
it into consideration and he cannot dispense with it.
The judge considered this trial as if lie had
commenced it with the aid of four assessors, and taking into -consideration
their opinion, he convicted the appellants.
It is difficult to assess the value which the
judge gave to the opinions of the assessors at the time of arriving at his
finding and the High Court was in error in thinking that it did no harm and
caused no prejudice. We cannot subscribe to the view of the High Court that the
trial should be taken as having been conducted with the aid of the two
assessors as sanctioned by section 285, Criminal Procedure Code. That is not
what actually happened. It is difficult to convert a trial held partly with the
aid of three assessors and partly with the aid of four assessors into one held
with the aid of two assessors only. At no stage was the trial held with the aid
of two assessors only. The third substituted assessor attended a part of the
trial and the added fourth assessor also attended a part of it. None of these
two were present throughout. Thus the trial when it concluded was a different
trial from the one which was commenced under the provisions of section 284,
Criminal Procedure Code. To a situation like this we think section 537 cannot
be called in aid. Such a trial is not known to the Code and it seems implicitly
prohibited by the provisions of sections 284 and 285. What happened in this
case cannot be described as a mere error, omission or irregularity in the
course of the trial. It is much more serious, It 983 amounts to holding a trial
in violation of the provisions of the Code and goes to the root of the matter
and the illegality is of a character that it vitiates the whole proceedings. As
observed by their Lordships of the Privy Council in Subramania lyer v.
-King-Emperor('), disobedience to an express provision as to a mode of trial
cannot be regarded as a mere irregularity. In Abdul Rahman v. KingEmperor (2),
the distinction between cases which fall within the rule of section 537 and
those which are outside it was pointed out by Lord Phillimore. There it was
said that the distinction between Suubramania Iyer's case (1) and that case in
which there was an irregularity in complying with the provisions of section 360
of the Code was fairly obvious. In Subramania Iyer's case(1) the procedure
adopted was one which the Code positively prohibits and it was possible that it
might have worked actual injustice, to the accused but that the error in not
reading the statements of witnesses to them was of a different character, and
such an omission was not fatal. In Pulukurti Kotayya v. KingEmperor(3) their
Lordships again examined this question.
That was a case where there had been a breach
of the provisions of section 162, Criminal Procedure Code, and it was held that
in the peculiar circumstances of that case it had not prejudiced the accused
and the case therefore fell under section 537 and that the trial was valid
notwithstanding the breach of section 162. Sir John Beaumont in delivering the
decision of the Board made the following observations which bring out the
distinction between the two sets of cases:-There are, no doubt, authorities in
India which lend some support to Mr. Pritt's contention, and reference may be
made to Tirkha v. Nanak (4), in which the court expressed the view that section
537, Criminal Procedure Code, applied only to errors of procedure arising out
of mere inadvertence, and not to cases of disregard of, or disobedience to,
mandatory provisions of the Code, and to In re Madura Muthu (1) (1901) 28 l.A.
257. (3) (1947) 74 I.A. 65.
(2) (1927) 54 I.A. 96. (4) (1927) I.L.R. 49
984 Vannian(1), in which the view was
expressed that any failure to examine the accused under section 342, Criminal
Procedure Code, was fatal to the validity of the trial, and could not be cured
under section 537. 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 Subramania lyer's
case(2)], 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 none the less so because the irregularity
involves, as must nearly always be the case, a breach of one or 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. King-Emperor('), where failure to comply
with section 360, Criminal Procedure Code, 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." In our judgment,
the trial conducted in the present case was conducted in a manner different
from that prescribed by the Code and is bad and no question here arises of
curing any irregularity. The Code does not authorize a trial commenced with the
aid of three named assessors to be conducted and completed with the aid of four
assessors. The substitution of one assessor by another and an addition to the
number of assessors appointed at the commencement of the trial is not
sanctioned by section 285, Criminal Procedure Code, nor is it authorized by
section 284. On the other hand, the language of section 285(l) read with the
provisions of section 285(2) implicitly bans the holding of such a trial.
It is not possible to say with any degree (1)
(1922) I.L.R. 45 Mad. 82o.
(2) (1901) 28 I.A. 257.
(3) (1927) 54 I.A. 96.
985 of certainty to what extent the opinion
of the outgoing and the incoming assessors who did not attend the whole of the
trial influenced the decision in the case ; but as such a trial is unknown to
law, it has to be presumed that it was illegal.
Mr. Mehta for the State Government contended
that under section 309(2) the opinion of assessors is not binding on the
sessions judge and their presence or absence does not affect the constitution
of the court and that as at this trial at least two of the assessors originally
appointed sat throughout the trial it should be held that the trial was
substantially a trial conducted in accordance with the provisions of the Code.
The learned counsel did not go to the length of urging that a trial without the
aid of any assessors whatever was a good trial under the Code. Such a
contention, if raised, would have to be negatived in view of the clear
provisions of section 284 and of sub-section (2) of section 285. The
appointment of at least three assessors is essential for the validity of a
trial of this character at its commencement, and once validly commenced in
certain events, it can be validly concluded if at least one of them remains
present throughout, while others drop out; but a trial conducted in the manner
in which it was done in this case is wholly outside the contemplation of the
Code and it is not possible to hold that it was concluded according to the
provisions of the Code. The provision in the Code that the opinion of the
assessor is not binding on the sessions judge cannot lend support to the
contention that the sessions judge is entitled to ignore their very existence.
As already pointed out, though he may not be
bound to accept their opinions, be is certainly bound to take them into
consideration. The weight to be attached to such opinions may well vary with
the number of assessors.
Mr. Mehta to support his contention placed
reliance on the majority decision of the Madras High Court in King-Emperor v.
Tirumal Reddi (1). In that case the trial continued for about seven weeks.
During that (1) (1901) I.L.R. 24 Mad. 523.
986 period one of the assessors was permitted
to absent himself during two whole days, and five half days respectively, at
first, so that he might visit his mother on her death-bed, and subsequently, to
perform the daily obsequies rendered necessary by her decease. He then resumed
his seat as an assessor and continued so to act until the termination of the
trial, all the depositions recorded in his absence having been read by him on
his return. At the conclusion of the trial the sessions judge invited the
opinion of each assessor, and recorded it. The opinion of each was that all the
accused were guilty and the judge concurring in that opinion, convicted. the
accused. On appeal it was contended that the judge had acted contrary to law in
allowing the assessor who had been absent to resume his seat as an assessor and
in inviting and taking into consideration his opinion in deciding the case. It
was held by the majority of the court that the finding and the sentence
appealed against had been passed by a court of competent jurisdiction within
the meaning of section 537 of the Code and that the defect in the trial did not
affect its validity and was cured by that section as the irregularity had not
in fact occasioned a failure of justice. Mr. Justice Davies took a different
view. This decision was clearly given on the peculiar facts and circumstances
of that case and is no authority in support of the view contended for by Mr.
For the reasons given above we are
constrained to hold that the trial of the appellants conducted in the manner
above stated was bad and the appellants have to be retried in accordance with
the procedure prescribed by the Code.
In the result we allow this appeal, quash
tile conviction and sentence passed on the appellants, and direct their retrial
by the sessions judge in accordance with the procedure prescribed by the Code.
Appeal allowed Retrial ordered.
Agent for the respondent: G. H. Rajadhyaksha.