Report No. 41
45.7. Sub-section (1) amended to clarify the position.-
We would, therefore, recommend that sub-section (1) of section 533 be amended as follows to clarify that the evidence given should relate to the apparent non-compliance with the statutory provisions.-
"(1) If any Court before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is rendered or has been received in evidence finds that any of the provisions of either of such sections has not been complied with by the Magistrate recording the statement, it may notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872, take evidence in regard to such non¬compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement."
45.8. Section 533 of the Code and section 29 of the Evidence Act.-
It may be noted in this connection that the effect of irregularities in the recording of a confession on its admissibility in evidence is also dealt with in section 29 of the Evidence Act. This section which saves inter alia the omission to warn the accused as provided for in section 164 of the Code seems to run counter to the principle underlying section 533 as explained above. This has given rise to some difficulty in deciding the admissibility of such confessions, resulting in a number of conflicting decisions1. The cause of the trouble may be traced to the omission to mend section 29 of the Evidence Act when section 164(3) of the Criminal Procedure Code was amended in 1923. The matter will have to be considered when the Evidence Act comes up for revision.
1. Rangappa v. State, AIR 1956 Born 285; Bala Majhi v. State, AIR 1951 Ori 168; Karuthambi, AIR 1951 Mad 579; Vella, Mauji, AIR 1932 Mad 431.
45.9. Section 535 expanded and revised.-
Section 535 deals with the effect of omission to frame a charge while clause (b) of section 537 deals with the effect of "any error, omission or irregularity in the charge, including any misjoinder of charges". The same matter is also dealt with in section 232 which provides that if any appellate Court or the High Court in the exercise of its powers of revision or confirmation is of the opinion that the absence of a charge or an error in the charge has misled the accused in his defence, it shall order a re-trial. The section also provides that if the facts proved in the case are such that no valid charge can be proved against the accused, the Court shall quash the conviction.
We recommend that sections 232, 535 and 537(b) which deal with the same subject, should be combined into one. We are also of the opinion that a re-trial should not be mandatory as at present. In several reported cases, Courts have in the interests of justice refrained from ordering a re-trial, as for instance, when the accused had already undergone sufficient punishment' or when the evidence was considered insufficient to support a conviction.2 It would be better to make the provision for ordering re-trial discretionary so that a Court could pass an order appropriate in the particular circumstances of a case.
Section 535 may accordingly be amplified and revised as follows.-
"535. Effect of omission to frame, or absence of, or error in, charge.- (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may.-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
45.10. Section 536 omitted.- Section 536 which relates to jury trials may be deleted.
45.11. Section 537.-
Section 537 is a general provision regarding irregularities in complaints, summons, warrants, orders, judgment1 and other proceedings. Clauses (c) and (d) which relate to jury trials may be deleted. Clause (b) has been incorporated in the revised section 535(1). The rest of section 537 may be revised as follows.-
"537. 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, 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 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."
45.12. Section 538.-
Section 538 provides that no attachment shall be illegal on account of any defect in the proceedings. No change is necessary here.