State
of Madhya Pradesh Vs. Bhooraji & Ors [2001] Insc
414 (24 August 2001)
K.T.
Thomas & K.G. Balakrishnan Thomas, J.
Leave
granted.
Even
after noticing that the trial proceedings in the case had already undergone a
very protracted career, ranging over a period of 9 years to reach its finale, a
Division Bench of the High Court of Madhya Pradesh has now ordered that the
whole exercise should be repeated over again and then reach a fresh conclusion.
It seems learned Judges of the High Court felt helpless to do otherwise. In the
prologue of the impugned judgment the Division Bench bewailed like this: This
case has sluggished for nearly 9 years and the end is not in sight as
directions for a retrial seems inevitable. Was it such a helpless situation
that by no means repetition of the whole hog is un-preventable? We shall now
briefly sketch the background of this appeal. On 26.8.1991 an incident happened
in which one Undaria was murdered and three others were wounded. The police,
after investigation, charge-sheeted eleven persons in respect of the said
incident for various offences including Section 302 read with Section 149 IPC
and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act (for short the SC/ST Act).
The
case started in January 1992 before the court of the Additional Sessions Judge,
Dhar (M.P.) which was the specified court as per Section 14 of the said Act.
The court framed charges against all the eleven persons for the aforementioned
offences and proceeded with the trial. In the words of the Division Bench of
the High Court after a protracted trial for about five years the eleven persons
were convicted under Sections 148, 323, 302/149 of the IPC and sentenced to
various punishments including imprisonment for life, as per the judgment
pronounced on 23.8.1996.
All
the eleven convicted persons filed appeal before the High Court of Madhya
Pradesh. It was during the pendency of the said appeal that Supreme Court
decided the case in Gangula Ashok vs. State of A.P. {2000 (2) SCC 504} in which
it was held that committal proceedings are necessary for a specified court
under the SC/ST Act to take cognizance of the offences to be tried. But the
legal position which held the field in the State of Madhya Pradesh till then
was the same on account of a judgment pronounced by a Division Bench of the
High Court of Madhya Pradesh in Meerabhai vs. Bhujbal Singh {1995 Criminal Law
Journal 2376 (MP)}. But the said legal position was changed in the said State
when a Full Bench of the High Court of Madhya Pradesh overruled the aforesaid
dictum by a judgment reported in Anand Swaroop vs. Ram Ratan (1996 M.P.Law
Journal 141). The Full Bench held that Section 193 of the Code of Criminal
Procedure does not apply to proceedings under the SC/ST Act and committal
orders are not required. The Full Bench, in order to prevent repetition of
trials already held or started, took the precautionary measure of directing
that when cognizance has already been taken on the basis of committal orders it
is not necessary for the courts to retrace their steps or to take cognizance
afresh. The said judgment of the Full Court was delivered on 23.8.1995.
When
this Court pronounced judgment in Gangula Ashok (supra) the legal position
adopted by the Division Bench of the Madhya Pradesh High Court in Meerabhai
(supra) got revived and the Full Bench decision (supra) got eclipsed.
Taking
advantage of the decision of this Court all the convicted persons filed I.A.
288 of 2000 before the High Court seeking quashment of the trial proceedings on
the ground that the trial was without jurisdiction inasmuch as the specified
Court of Sessions did not acquire jurisdiction to take cognizance of and try
the case, in the absence of it being committed by a magistrate. By the impugned
judgment the Division Bench of the High Court upheld the said contention and
ordered the entire trial held by the court below shall stand quashed and the
trial court is directed to return the charge-sheet and the connected papers to
the prosecution for re-submission to the magistrate for further proceedings in
accordance with law. The State of Madhya Pradesh has hence filed the appeal by special leave.
It is
true, this Court held in Gangula Ashok (supra) that neither in the Code nor in
the Act is there any provision whatsoever, nor even by implication, that the
specified Court of Sessions (Special Court) can take cognizance of the offences
under the Act as a court of original jurisdiction without the case being
committed to it by a magistrate. This Court expressed the view that the Special Court under the SC/ST Act is essentially
a Court of Sessions which can take cognizance of offence in accordance with
provisions of the Code. In other words the complaint or charge-sheet cannot be
laid directly before the Special
Court under the Act.
It must be remembered that in the afore-cited case the accused moved the High
Court for quashing the charge on the ground that charge- sheet was laid
directly before the specified court. Such motion was made before the trial
started in that case. The High Court accepted his contention and directed the
charge- sheet and connected papers to be returned to the police who was to
present the same before a magistrate for the purpose of committal to the Special Court. The said view of the High Court
was upheld as legally correct by this Court in Gangula Ashok (supra).
The
present is a case where accused did not raise any question, when they were
heard at the time of framing the charge, that the court cannot proceed without
committal made by a magistrate. Nor did they raise such a plea at any stage
either before or after the evidence was recorded by the trial court. The
convicted persons thought of raising such a contention only when they found the
decision of this Court in Gangula Ashok (supra) as useful to them.
The
real question is whether the High Court necessarily should have quashed the
trial proceedings to be repeated again only on account of the declaration of
the legal position made by Supreme Court concerning the procedural aspect about
the cases involving offences under the SC/ST Act. A de novo trial should be the
last resort and that too only when such a course becomes so desperately
indispensable. It should be limited to the extreme exigency to avert a failure
of justice. Any omission or even the illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de novo trial.
This
is because the appellate court has plenary powers for re-evaluating or
re-appraising the evidence and even to take additional evidence by the
appellate court itself or to direct such additional evidence to be collected by
the trial court. But to replay the whole laborious exercise after erasing the
bulky records relating to the earlier proceedings, by bringing down all the persons
to the court once again for repeating the whole depositions would be a sheer
waste of time, energy and costs unless there is miscarriage of justice
otherwise. Hence the said course can be resorted to when it becomes
unpreventable for the purpose of averting a failure of justice. The superior
court which orders a de novo trial cannot afford to overlook the realities and
the serious impact on the pending cases in trial courts which are crammed with
dockets, and how much that order would inflict hardship on many innocent
persons who once took all the troubles to reach the court and deposed their
versions in the very same case. To them and the public the re-enactment of the
whole labour might give the impression that law is more pedantic than
pragmatic. Law is not an instrument to be used for inflicting sufferings on the
people but for the process of justice dispensation.
Learned
counsel for the appellant cited the decision of this Court in State of H.P. vs.
Gita Ram {2000 (7) SCC 452} when this Court had to consider an order passed by
a single Judge of the High Court directing retrial of a sessions case. The
following is what this Court observed then:
We are
distressed to note that learned Single Judge was not told by the government
advocate of the fall out of such a view, if taken by the Single Judge, that it
means all the witnesses once examined in full should be called back again, and
the whole chief- examination, cross-examination, re- examination and
questioning of the accused under section 313 of the Code, hearing arguments,
then examination of defence witnesses further, again final arguments to be
heard and preparation of judgment once again. The very object underlined in
Section 465 of the Code is that if on any technical ground any party to the
criminal proceedings is aggrieved he must raise the objection thereof at the
earliest stage. If he did not raise it at the earliest stage he cannot be heard
on that aspect after the whole trial is over.
Shri Sushil
Kumar Jain, learned counsel for the respondents/accused submitted that the said
decision, on the facts, cannot be applied because in that case the specified
court under the SC/St Act had taken cognizance of the offence of Section 376
IPC along with Section 3 of the said Act only after the said case was committed
to that court. But while framing the charge the court dropped the offence under
the SC/ST Act and the IPC offence alone was included in the charge and finally
the court convicted the accused of that offence. The view taken by the High
Court in that case (that the specified court has no jurisdiction to try an IPC
offence without any offence under the SC/ST Act also being tagged therewith)
was found to be wrong. Of course there is difference between that case and this
case.
Nonetheless,
the aforesaid distinction on the facts of this case is hardly sufficient to
side-step the legal principle adumbrated therein.
The
counsel for the State made an endeavour before the High Court in this case to
sustain the trial court proceedings on the strength of Section 465 of the Code.
Though
the said contention has been minuted by the learned judges in the impugned
judgment they did not advert to the said contention at any stage of the
judgment for a consideration. We may point out that learned counsel for the
appellant - State while arguing in this Court banked mainly on Section 465 of
the Code for averting a repetition of the protracted trial proceedings once
again.
Section
465 of the Code falls within Chapter XXXV under the caption Irregular
Proceedings. The chapter consists of seven sections starting with Section 460
containing a catalogue of irregularities which the legislature thought not
enough to axe down concluded proceedings in trials or enquiries. Section 461 of
the Code contains another catalogue of irregularities which in the legislative
perception would render the entire proceedings null and void. It is pertinent
to point out that among the former catalogue contains the instance of a
magistrate, who is not empowered to take cognizance of offence, taking cognizance
erroneously and in good faith. The provision says that the proceedings adopted
in such a case, though based on such erroneous order, shall not be set aside
merely on the ground of his not being so empowered.
It is
useful to refer to Section 462 of the Code which says that even proceedings
conducted in a wrong sessions division are not liable to be set at naught
merely on that ground. However an exception is provided in that section that if
the court is satisfied that proceedings conducted erroneously in a wrong sessions
division has in fact occasioned a failure of justice it is open to the higher
court to interfere. While it is provided that all the instances enumerated in
Section 461 would render the proceedings void, no other proceedings would get
vitiated ipso facto merely on the ground that the proceedings were erroneous.
The court of appeal or revision has to examine specifically whether such
erroneous steps had in fact occasioned failure of justice. Then alone the
proceedings can be set aside. Thus the entire purport of the provisions
subsumed in Chapter XXXV is to save the proceedings linked with such erroneous
steps, unless the error is of such a nature that it had occasioned failure of
justice.
We
have to examine Section 465(1) of the Code in the above context. It is
extracted below:
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.
A
reading of the section makes it clear that the error, omission or irregularity
in the proceedings held before or during the trial or in any enquiry were
reckoned by the legislature as possible occurrences in criminal courts. Yet the
legislature disfavoured axing down the proceedings or to direct repetition of
the whole proceedings afresh. Hence, the legislature imposed a prohibition that
unless such error, omission or irregularity has occasioned a failure of justice
the superior court shall not quash the proceedings merely on the ground of such
error, omission or irregularity.
What
is meant by a failure of justice occasioned on account of such error, omission
or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of
Karnataka {2001 (2) SCC 577} thus:
We
often hear about failure of justice and quite often the submission in a
criminal court is accentuated with the said expression. Perhaps it is too
pliable or facile an expression which could be fitted in any situation of a
case. The expression failure of justice would appear, sometimes, as an
etymological chameleon (the simile is borrowed from Lord Diplock in Town
Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813). The
criminal court, particularly the superior court should make a close examination
to ascertain whether there was really a failure of justice or whether it is
only a camouflage.
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 sessions 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? 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
sessions 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 sessions. 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 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.
Shri Sushil
Kumar Jain made his last attempt by contending that Section 465 is restricted
to any findings, sentence or order passed by a court of competent jurisdiction
and that a special court under the SC/ST Act which is essentially a sessions
court would have remained incompetent until the case is committed to it. In
support of the said contention learned counsel invited the following
observation of this Court in H.N. Rishbud and anr. vs. State of Delhi (AIR 1955
SC 196):
Section
190 of the Code is one out of a group of sections under the heading Conditions
requisite for initiation of proceedings; and the language of the said section
is in marked contrast with that of the other sections of the group under the
same heading i.e. Sections 193 and 195 to 199. These latter sections regulate
the competence of the court and bar its jurisdiction in certain cases excepting
in compliance therewith.
The
question considered in that decision was whether an investigation conducted by
a police officer, who is not competent to do it, vitiate the entire trial held
on the basis of the report of such investigation. Their Lordships held that a
defect or illegality in investigation, however serious, has no direct bearing
on the competence or procedure relating to cognizance or trial. The
observations extracted above were therefore meant to apply to the said context
and it is obviously not meant for holding that a court of competent jurisdiction
otherwise would cease to be so for the simple reason that the case was not
committed to it. Learned counsel also cited the decision in Ballabhdas Agarwala
vs. J.C. Chakravarty (AIR 1960 SC 576) which dealt with the impact of Section
79 of the Calcutta Municipal Act regarding the competence of maintaining a
criminal complaint. That did not involve any question regarding a court of
competent jurisdiction.
The
expression a court of competent jurisdiction envisaged in Section 465 is to
denote a validly constituted court conferred with jurisdiction to try the
offence of offences. Such a court will 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 of the procedural requirement. The inability
to take cognizance of an offence without a committal order does not mean that a
duly constituted court became an incompetent court for all purposes. If
objection was raised in that court at the earliest occasion on the ground that
the case should have been committed by a magistrate, the same specified court
has to exercise a jurisdiction either for sending the records to a magistrate
for adopting committal proceedings or return the police report to the Public
Prosecutor or the police for presentation before the magistrate. Even this
could be done only because the court has competence to deal with the case.
Sometimes that court may have to hear arguments to decide that preliminary
issue. Hence the argument advanced by the learned counsel on the strength of
the aforesaid decisions is of no avail.
The
bar against taking cognizance of certain offences or by certain courts cannot
govern the question whether the Court concerned is a a Court of competent
jurisdiction, e.g. Courts are debarred from taking cognizance of certain
offences without sanction of certain authorities. If a Court took cognizance of
such offences, which later found to be without valid sanction, it would not
become the test or standard for deciding whether that court was a Court of
competent jurisdiction. It is now well settled that if the question of sanction
was not raised at the earliest opportunity the proceedings would remain
unaffected on account of want of sanction. This is another example to show that
the condition precedent for taking cognizance is not the standard to determine
whether the Court concerned is a Court of competent jurisdiction.
We
conclude that the trial held by the sessions court reaching the judgment
impugned before the High Court in appeal was conducted by a court of competent
jurisdiction and the same cannot be erased merely on account of a procedural
lapse, particularly when the same happened at a time when the law which held
the field in the State of Madhya Pradesh was governed by the decision of the
Full Bench of the Madhya Pradesh High Court (supra). The High Court should have
dealt with the appeal on merits and on the basis of the evidence already on
record. To facilitate the said course we set aside the judgment of the High
Court impugned in this appeal. We remit the case back to the High Court for
disposal of the appeal afresh on merits in accordance with law and subject to
the observations made above.
J [
K.T. Thomas ] J [ K.G. Balakrishnan ] August 24, 2001.
Back
Pages: 1 2