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Report No. 41

Chapter XLV

Irregular Proceedings

45.1. Introductory.-

Chapter 45 deals with the effect of irregularities in procedure on the validity of the proceedings in which they occur. The Code recognizes the principle that is not every deviation from, or neglect of, procedural formalities and technicalities that would vitiate the proceedings of a Court. Broadly speaking, only irregularities that have caused substantial prejudice to the accused will render the proceedings invalid, while minor or inconsequential errors or omissions are considered curable. The Chapter contains specific provisions saving irregularities on certain matters, as also a residuary provision saving irregularities in general. At the same time, there are certain provisions of the Code which are considered so vital that their disregard must vitiate a fair and proper trial and, therefore, destroy the validity of the proceedings.

45.2. Section 529.-

Section 529 enumerates the irregularities committed by a Magistrate which do not vitiate the proceedings, where the Magistrate erroneously, but in good faith, takes a proceeding though not empowered to do so. No changes seem to be necessary in this section. Though the specific enumeration of certain proceedings naturally leaves out others, and may occasionally cause difficulties, it does not appear to be desirable to insert a blanket provision saving all irregularities where no injustice has, in fact been caused.

45.3. Section 530.-

Section 530 enumerates the irregularities which, when committed by a Magistrate not empowered by law to do a particular thing, vitiate the proceedings. The section seems to need no change.

45.4. Section 531.-

Section 531 saves the validity of a proceeding held in a wrong place unless the error has in fact occasioned a failure of justice. No changes are necessary in the section.

45.5. Section 532 omitted.-

Section 532 validates irregular commitments in certain circumstances. In view of the proposed abolition of commitment proceedings, this section will be rendered unnecessary and may be omitted.

45.6. Section 53.-nature of evidence that may be taken.-

Section 533 provides that if the Court before which a statement or confession of the accused person purporting to be recorded under section 164 and section 364 is tendered in evidence, finds that any of the provisions of such sections have not been complied with by the Magistrate recording the statement, it shall "take evidence that such person duly made the statement recorded". This expression seems to have created some difficulty in interpretation, as is evidenced by the conflicting decisions of the various Courts.

One has to distinguish between two questions, (1) whether the confession or other statement was "duly made", that is to say, made after giving the necessary warning and after putting the required questions under section 164, and (ii) whether the confession or other statement, duly made, was properly recorded. In the first case, section 533 should not apply, because, to apply the section in such cases would defeat the very object of sections 164 and 364, thereby depriving the accused of a beneficial provision on a matter on which the law has always shown its anxious concern.

It is only the second kind of defec.-defect in recordin.-that should be curable. The Magistrate should have complied with the substantial provisions of section 164, and there can be no saving for a non¬compliance on that account. If such compliance is not apparent from the record, it can be proved otherwise. That is all that section 533 is intended to provide for.

As observed by the Supreme Court1-

"Now a statement would not have been 'duly made' unless the procedure for making it laid down in section 164 had been followed. What section 533 therefore does is to permit oral evidence to be given to prove that the procedure laid down in section 164 had in fact been followed when the Court finds that the record produced before it does not show that that was so. If the oral evidence establishes that the procedure had been followed, then only can the record be admitted. Therefore, far from showing that the procedure laid down in section 164 is not intended to be obligatory, section 533 really emphasises that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases where the record which ought to show that does not on the face of it do so."

1. State of Uttar Pradesh v. Singhara Singh, (1964) 4 SCR 385: AIR 1964 SC 358 (362).

Code of Criminal Procedure, 1898 Back

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