Full Judgment Text
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PETITIONER:
STATE OF KARNATAKA
Vs.
RESPONDENT:
KUPPUSWAMY GOWNDER
DATE OF JUDGMENT16/02/1987
BENCH:
OZA, G.L. (J)
BENCH:
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.
HEADNOTE:
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case could not be withdrawn by the Principle Sessions Judge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,
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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, there-
fore, 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 award-
ed by a competent court could not be set aside unless preju-
dice 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 Sub-
Division 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 Ses-
sions 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]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 823
Of 1981 Etc.
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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 Ses-
sions cases including Sessions Case No. 35 of 1980 in re-
spect 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 Kuppuswa-
my 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 Ulaga-
nathan, who was the Senior Trains Clerk, went and lodged the
First Information Report Ex.P. 1. Investigation was taken up
and after investigation chargesheet 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 evi-
dence. 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
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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 pro-
ceeded 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 Princi-
pal 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 com-
menced on the board of III Additional City Civil and Ses-
sions 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 Ses-
sions 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
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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 Ses-
sions Judges sitting in this Division are notified as Ses-
sions 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 juris-
diction. 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
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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 Ses-
sions Judge may recall any case or appeal
which he has made over to any Additional
Sessions Judge.
(3) Where a Sessions Judge withdraws or re-
calls 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 provi-
sions 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 with-
drawn 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 pro-
ceedings under this Code, or any error, or
irregularity in any sanction for the prosecu-
tion, 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."
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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 divi-
sion, 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 alongwith 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 possi-
bility 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.
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P.S.S. Appeal
allowed.
305