State of
Karnataka Vs. Kuppuswamy Gownder [1987] INSC
46 (16 February 1987)
Oza,
G.L. (J) Oza, G.L. (J) Dutt, M.M. (J)
CITATION:
1987 AIR 1354 1987 SCR (2) 295 1987 SCC (2) 74 JT 1987 (1) 512 1987 SCALE
(1)353
ACT:
Criminal
Procedure Code, 1973: ss. 194, 409, 462 & 465:
Sentence
or order of competent Court--When to be quashed--Prejudice pleaded and
proved-Means failure of justice.
HEAD NOTE:
The
case of the respondent-accused was committed to the Sessions Court,
Metropolitan Area, Bangalore City and made over under s. 194 Cr.P.C. by the Principle
Sessions Judge for trial to the II Additional Sessions Judge who framed charges
on August 21, 1980 and recorded the plea of the
accused persons.
In the
monthly statement of October, 1980 the case was shown pending on the board of
II Additional Sessions Judge and listed for evidence. On November 17, 1980 the Bangalore City Civil Courts Act
came into force and powers of Sessions were conferred on all the City Civil
Judges under s.9(3) Cr.P.C. In the monthly statement prepared thereafter for
November, 1980 the case was shown pending before the IV Additional City Civil
and Sessions Judge. However, the evidence in the case was recorded and the
respondent accused convicted under s.302 and 332 IPC by the III Additional City
Civil and Sessions Judge.
In
appeal and reference the High Court looked into the monthly statements of
pending cases and observing that there was no order under s.407 Cr.P.C.
transferring the case from the file of the IV Additional City Civil and Sessions
Judge to the file of III Additional City Civil and Sessions Judge, that as the
charge was framed and plea recorded when the case was pending before the II
additional Sessions Judge the case could not be withdrawn by the Principle
Sessions Judge under s.409(2) after the commencement of the trial and allotted
to any other Additional Sesssion Judge that there was no order of the Principal
Session Judge under s. 194 transferring the case to the board of III Additional
City Civil and Sessions Judge and that the defect could not be remedied under
s.465 Cr.P.C., quashed the conviction and directed remand for retrial. The
State came in appeal to this Court.
Allowing
the appeal, the Court, 296
HELD:
1.1 The view taken by the High Court was contrary to the language of ss.462 and
465 of the Code of Criminal Procedure. The judgment of the High Court could
not, therefore, be sustained. [304A]
1.2
Reading s. 462 alongwith s.465 goes to show that the scheme of the Code of
Criminal Procedure is that where there is no inherent lack of jurisdiction,
merely either on the ground of lack of territorial jurisdiction or on the
ground of any irregularity of procedure an order of sentence awarded by a
competent court could not be set aside unless prejudice is pleaded and proved,
which will mean failure of justice. [303F-G] In the instant case, it is not
found by the High Court that the Sessions Judge who tried the case arising out
of the Sessions Division had no jurisdiction. The Metropolitan Area, Bangalore City has a Sessions Division and is presided over by a Principal
Sessions Judge and has a number of Additional Sessions Judges. All the Sessions
Judges sitting in this Division are notified as Sessions Judges for the
Division and, therefore, all of them have jurisdiction to try a case arising
out of the Sessions Division. the plea of prejudice of failure of justice is
neither pleaded nor proved. Not only that, even the judgment of the High Court
does not indicate any possibility of prejudice or failure of justice. There was
no suggestion either of any possibility of prejudice or failure of justice. The
order passed by the 1II Additional City Civil and Sessions Judge could not,
therefore, be quashed. [302A-C]
2.
Section 462 Cr.P.C. even saves a decision if the trial has taken place in a
wrong Sessions Division or SubDivision or a district or other local area where
the court has no territorial jurisdiction, and such an error could only be of
some consequence if it results in failure of justice, otherwise no finding or
sentence could be set aside only on the basis of such an error. Therefore, even
if the trial before the III Additional City Civil and Sessions Judge would have
taken place in a Division other than the Bangalore Metropolitan Area for which
III Additional City Civil and Sessions Judge is also notified to be a Sessions
Judge, still the trial could not have been quashed in view of s.462. [303C-E]
3.1
The scheme of s.409 indicates that the Sessions Judge had powers to withdraw
any case and to allot it to any one of the Additional Sessions Judges. The
Principal Sessions Judge of the Division under s. 194 had power to allot any
Sessions case to any one of the Additional Sessions Judges of the Division. He
could pass such orders either for individual cases or allot particular areas to
particular Additional Judge of the Division. [299H; 300A] 297
3.2
The III Additional City Civil and Sessions Judge who tried the instant case
apparently tried it as it must have been allotted to him. The Case must have
been allotted to him as the distribution orders have not been sent for by the High
Court nor have they been produced. If enquiries were made it might have been
discovered that the case had been transferred in exercise of the powers under
s. 194 by the Principal Sessions Judge. [300B-C]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 823 Of 1981 Etc.
From
the Judgment and Order dated 27.7.1981 of the Karnataka High Court in Crl.
A.NO. 215 of 1981.
M. Veerappa
for the Appellant.
M.B. Lal
(Amicus Curiae) K.R. Nagaraja for the Respondents.
The
Judgment of the Court was delivered by, OZA, J. These appeals have been
preferred by the State of Karnataka
against the judgment of the High Court of Karnataka setting aside conviction of
the respondents and remanding the cases before the Sessions Court for retrial.
The
respondents were committed for trial to the Sessions Judge, Metropolitan Area,
Bangalore City in number of Sessions cases including Sessions Case No. 35 of
1980 in respect of an offence under Sec. 302 for which after trial the
respondent Kuppuswamy was sentenced to death and also for offence under Sec.
332 of the Indian Penal Code and sentence of rigorous imprisonment of one year.
Against the conviction and sentences appeal were preferred before Hon'ble the
High Court. Kuppuswamy's matter also came before the High Court apart from his
appeal also by reference.
The
facts which gave rise to these appeals were that about 2 A.M. on 9th April 1980
it was alleged that Kuppuswamy the present respondent stabbed Narayanaswamy who
expired at 11 P.M., and also Ramu who expired at 8.05 P.M. and Sunil Kumar,
Sub-Inspector of Police, who expired at 2.30 A.M. on the next day. Sunil Kumar
and his police party happened to go there in a van on hearing galata in the
railway platform of the Cantonment railway station, Bangalore, and when Sunil Kumar caught hold
of the wrist of the accused respondent.
298 he
somehow managed to slip out and stabbed him. PW 1 Ulaganathan, who was the
Senior Trains Clerk, went and lodged the First Information Report Ex.P. 1.
Investigation was taken up and after investigation charge sheet was filed. It
is not necessary for us to go into these question as question involved in these
appeals is merely a technical question pertaining to procedure and does not
pertain to the merits of the matter.
The
accused persons were committed to the Sessions Court, Metropolitan Area,
Bangalore City and it appears that the Principal Sessions Judge Metropolitan
Area, made over the Sessions case in exercise of his powers under Section 194
of the Code of Criminal Procedure to II Additional Sessions Judge, Metropolitan
Area, Bangalore City who framed charges on 21.8.80 and recorded to plea of the
accused persons.
On 17th November 1980 City Civil Courts Act came into
force. ,Monthly statements of cases wherein the accused persons were in custody
were prepared and it appears that these statements also reached the High Court
and have been made use of by the learned Judges in disposing of these appeals.
It has been observed by the learned High Court that in the monthly statement of
October 1980 Sessions Case No. 35 of 1980 (with which we are concerned) is
shown having been pending on the board of II Additional Sessions Judge,
Metropolitan Area, Bangalore City and was posted for evidence. It is further
observed by the learned Judges of the High Court that the statement of November
1980 which was prepared after the Bangalore City Civil Courts Act was brought
into force and powers of Sessions were conferred on all the City Civil Judges
under Sec. 9(3) Cr.P.C. by the High Court, this case has been shown as pending
before the IV Additional City Civil and Sessions Judge, Metropolitan Area,
Bangalore City. The High Court has also referred to a Notification issued on
30th January 1981 by the Registrar of Bangalore City Civil Courts saying that
Sessions cases and other matters pending before the II, III and VI Additional
City Civil and Sessions Judges are to be tried by them and on 12th Jan. 1981
the III Additional City Civil and Sessions Judge, Bangalore City recorded the
evidence in the case. It is also observed by the High Court in its judgment
that the Office informed the learned Judges that there was no order of transfer
under Sec. 407 Cr.P.C. transferring this case viz. Sessions Case No. 35 of 1980
from the file of the IV Additional City Civil and Sessions Judge to the file of
III Additional City Civil and Sessions Judge.
299
Under Sec. 194 Cr.P.C. the Principal City Civil and Sessions Judge,
Metropolitan Area, Bangalore has the power to make over a
Sessions case for trial and disposal in accordance with law. The High Court, it
appears, has proceeded on the basis that as the plea was recorded when the case
was pending before the II Additional City Civil and Sessions Judge, the
Sessions Judge could not transfer the case to the board of III Additional City
Civil and Sessions Judge under the provisions contained in Sec. 409 clause 2.
The
High Court also proceeded on the assumption that there is no order of the
Sessions Judge presiding over the Principal City Civil Court for allotment of this case to the Court of III
Additional City Civil and Sessions Judge. The learned High Court also came to
the conclusion that provisions contained in Sec. 465 also will not remedy the
defect.
Consequently
the High Court allowed the appeals, quashed the convictions and directed remand
for retrial of the cases.
What
appears from the judgment of the High Court is that after commitment this case
i.e. Sessions Case No. 35 of 1980 was shown in the list of October 1980 as pending
in the Court of II Additional Sessions Judge as it was made over to that Court
in exercise of powers conferred under Sec. 194 by the Principal Sessions Judge
and this also was inferred by the High Court from the fact that the II
Additional Sessions Judge framed charges on 21.8.80 in this case and recorded
the plea of the accused on the same day.
After
the coming into force of the City Civil Courts Act in November 1980, in the
list this case was shown to be pending before the IV Additional City Civil and
Sessions Judge and what further has been observed by the High Court is that on
12th January 1981 the evidence in the case commenced on the board of III
Additional City Civil and Sessions Judge. It appears that the learned Judges of
the High Court looked into the Notification issued by the Registrar of the City
Civil Court and also the list of pending cases pertaining to accused in custody
which probably was sent to the High Court every month and also made enquiries
from the Office of the High Court as to whether any sessions trial was
transferred by orders of the High Court under Sec. 407 but it appears that the
learned Judges did not direct to get the orders passed by the Principal
Sessions Judge of the Sessions Division under Sec. 194 Cr.P.C. As the Principal
Sessions Judge of the Division under Sec. 194 had power to allot any Sessions
case to any one of the Additional Sessions Judges of the Division. At the same
time such orders under Sec. 194 could be passed by the Principal Sessions Judge
either for individual cases or by general orders allotting particular 300 areas
to particular Additional Judge of the Division. In fact Sec. 194 contemplates
that all the Sessions Judges (Principal and Additionals) who are the Sessions
Judges in the Division, have been notified as Sessions Judges in the Division
and therefore each one of them has jurisdiction to try the case arising out of
an incident in that Division.
What
has been observed by the learned Judges of the High Court that this case from
IV Additional City Civil and Sessions Judge went to the III Additional City
Civil and Sessions Judge for which they could not find any order of transfer
passed under Sec. 407 by the High Court but it appears that if enquiries were
made it might have been discovered that the case might have been transferred in
exercise of powers under Sec. 194 by the Principal Sessions Judge.
The
usual practice in big places (Sessions Divisions) where a number of cases are
committed and there are number of courts exercising the same jurisdiction in
respect of the whole Division, distribution memos are prepared by the Principal
Sessions Judge so that cases are so distributed to all the Additional Judges so
that they are disposed of expeditiously. It appears that this aspect of the
matter was not brought to the notice of the learned Judges of the High Court
even by the counsel appearing for the State.
It is
not disputed that the Metropolitan Area, Bangalore City has a Sessions Division and is
presided over by a Principal Sessions Judge and has a number of Additional
Sessions Judges. It is also not disputed that all the Sessions Judges sitting
in this Division are notified as Sessions Judges for the Division and therefore
it is also not disputed that all of them have jurisdiction to try a case
arising out of the Sessions Division. Even the judgment of the High Court does
not indicate any lack of inherent jurisdiction. What has weighed with the High
Court is that as the charge was framed by the II Additional Sessions Judge the
case could not be transferred to the board of III Additional City Civil and
Sessions Judge without an order of transfer by the High Court as it was
observed that under Sec. 194 the case could not be withdrawn by the Principal
Sessions Judge after commencement of the trial and this was inferred from the
provisions contained in Sec. 409 clause 2. Sec. 194 reads as under:
"Additional
and Assistant Sessions Judges to try cases made over to them:An Additional
Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions
Judge of the Division may, by general or special order, make over to 301 him
for trial or as the High Court may, by special order, direct him to try."
Sec. 194 authorises an Additional Sessions Judge or an Assistant Sessions Judge
to try a Sessions case arising in the Sessions Division when such a case is
allotted to him either by a special or general order or a case which has been
allotted to him by the High Court. Apparently therefore the III Additional City
Civil and Sessions Judge who tried the case, tried it as it must have been
allotted to him. It is not disputed that it must have been allotted to him as
the distribution orders have not been sent for by the High Court nor have been
produced nor it is disputed but what is observed by the High Court is that as
the charge was framed by the II Additional City Civil and Sessions Judge it
could not have been withdrawn under Sec. 409 clause 2 and allotted to any other
Additional Sessions Judge:
"Section
409 reads:
"Withdrawal
of cases and appeal by Sessions Judge: (1) A Sessions Judge may withdraw any
case or appeal from, or recall any case or appeal which he has made over to any
Assistant Sessions Judge; or Chief Judicial Magistrate subordinate to him.
(2) At
any time before the trial of the case or the hearing of the appeal has
commenced before the Additional Sessions Judge, a Sessions Judge may recall any
case or appeal which he has made over to any Additional Sessions Judge.
(3)
Where a Sessions Judge withdraws or recalls a case or appeal under sub-section
(1) or sub-section (2), he may either try the case in his own Court or hear the
appeal himself, or make it over in accordance-with the provisions of this Code
to another Court for trial or hearing, as the case may be." Clause 2 talks
of "before the trial of the case ......
commenced."
In fact the scheme of Sec. 409 indicates that the Sessions Judge had powers to
withdraw any case and to allot to any one of the Additional Sessions Judges.
In a
Sessions trial recording of plea whether will amount to commencement of the
trial or not has not been discussed by the High 302 Court and it is not
necessary for us also to go into this question. So far as the trial of the case
is concerned it is not found by the High Court that the Sessions Judge who tried
the case had no jurisdiction. On the contrary it is not disputed before us that
he had the jurisdiction to try the case arising out of the Sessions Division,
the only objection which has prevailed with the High Court is that as charge
was framed and plea was recorded by the II Additional City Civil and Sessions
Judge it could not have been withdrawn by the Principal Sessions Judge and made
over to III Additional City Civil and Sessions Judge. It is not disputed that
it was withdrawn and made over. In this view of the matter therefore the
provisions contained it Sec. 465 are of some importance.
The
High Court, however, observed that provisions of Sec. 465 Cr.P.C. can not be
made use of to regularise this trial. No reasons have been stated for this
conclusion. Sec. 465 Cr.P.C. reads as under:
"Finding
or sentence when reversible by reason of error, omission or irregularity:(1)
Subject to the provisions hereinbefore contained, no finding, sentence or order
passed by a Court of competent jurisdiction shall be reversed or altered by a
Court of appeal, confirmation or revision on account of any error, omission or
irregularity in the complaint, summons, warrant, proclamation, order, judgment
or other proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in any sanction for
the prosecution, unless in the opinion of that Court, a failure of justice has
in fact been occasioned thereby.
(2) In
determining whether any error, omission or irregularity in any proceeding under
this Code, or any error, or irregularity in any sanction for the prosecution
has occasioned a failure of justice, the Court shall have regard to the fact
whether the objection could and should have been raised at an earlier stage in
the proceedings." It is provided that a finding or sentence passed by a
Court of competent jurisdiction could not be set aside merely on the ground of
irregularity if no projudice is caused to the accused. It is not disputed that
this question was neither raised by the accused at the trial nor any prejudice
was pleaded either at the trial or at the appellate stage and 303 therefore in
absence of any prejudice such a technical objection will not affect the order
or sentence passed by competent court. Apart from Sec. 465, Sec. 462 provides
for remedy in cases of trial in wrong places. Sec. 462 reads as under:
"Proceedings
in wrong place:
No
finding, sentence or order of any Criminal Court shall be set aside merely on
the ground that the inquiry trial or other proceedings in the course of which
it was arrived at or passed, took place in a wrong sessions division, district,
sub-division or other local are unless it appears that such error has in fact
occasioned a failure of justice." This provision even saves a decision if
the trial has taken place in a wrong Session Division or Sub-Division or a
district or other local area and such an error could only be of some
consequence if it results in failure of justice otherwise no finding or
sentence could be set aside only on the basis of such an error.
It is
therefore clear that even if the trial before the III Additional City Civil and
Sessions Judge would have been in a Division other than the Bangalore
Metropolitan Area for which III Additional City Civil and Sessions Judge is
also notified to be a Sessions Judge still the trial could not have been
quashed in view of Sec. 462. This goes a long way to show that even if a trial
takes place in a wrong place where the Court has no territorial jurisdiction to
try the case still unless failure of justice is pleaded and proved, the trial
can not be quashed. In this view of the matter therefore reading Sec. 462 along
with Sec. 465 clearly goes to show that the scheme of the Code of Criminal
Procedure is that where there is no inherent lack of jurisdiction merely either
on the ground of lack of territorial jurisdiction or on the ground of any
irregularity of procedure an order or sentence awarded by a competent court
could not be set aside unless a prejudice is pleaded and proved which will mean
failure of justice. But in absence of such a plea merely on such technical
ground the order or sentence passed by a competent court could not be quashed.
It is
not disputed that the plea of prejudice or failure of justice is neither pleaded
nor proved. Not only that even the judgment of the High Court does not indicate
any possibility of prejudice or failure of justice. Learned counsel appearing
for the respondent also did not suggest. any possibility of projudice or
failure of justice. Under these 304 circumstances therefore the view taken by
the High Court does not appear to be correct in view of the language of Sec.
462 read with Sec. 465. The judgment of the High Court is therefore set aside.
The direction of remand made by the High Court is also quashed. It is
unfortunate that these matters pertaining to incidents of 1980 should not have
been disposed of till today and that the matter should have remained pending on
such technical grounds for all these years. We therefore direct that the
appeals be remitted back to the High Court so that they are heard and disposed
of on merits as expeditiously as possible.
P.S.S.
Appeal allowed.
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