TMI Blog2012 (2) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... egularity has resulted in failure of justice. The same also applies to the appellate or revisional Court. The requirement of sub- section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial Court to record findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19. Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium . English courts have developed this principle in relaxation of the rule of stare decisis . The `quotable in law ' is avoided and ignored if it is rendered, ` in ignoratium of a statute or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accused in terms of Section 193 of the Code of Criminal Procedure (for short `the Code') in cases where charge-sheet is filed under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity `the Act') and cognizance is directly taken by the Special Judge under the Act, a two-Judge Bench thought it apposite to refer the matter to a larger Bench and on the basis of the said reference, the matter has been placed before us. At this juncture, it is requisite to clarify that the real conflict or discord is manifest in Moly and Another v. State of Kerala AIR 2004 SC 1890 and Vidyadharan v. State of Kerala (2004) 1 SCC 215 on one hand wherein it has been held that the conviction by the Special Court is not sustainable if it has suo motu entertained and taken cognizance of the complaint directly without the case being committed to it and, therefore, there should be retrial or total setting aside of the conviction, as the case may be, and the other in State of M. P. v. Bhooraji Ors. AIR 2001 SC 3372 wherein, taking aid of Section 465 (1) of the Code, it has been opined that when a trial has been conducted by the court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother v. State of Madhya Pradesh and Another 2003 (1) MPJR 158 and repelled the contention accordingly. Thereafter, as the impugned judgment would reveal, the Bench proceeded to deal with the matter on merits and eventually sustained the conviction and affirmed the sentence as has been indicated hereinbefore. 4. We have heard Mr. Fakhrudin, learned senior counsel and Mr. Anis Ahmed Khan for the appellants in both the appeals and Ms. Vibha Datta Makhija, learned counsel for the respondent- State. 5. At the very outset, we shall advert to the jurisdiction or authority of the Special Court to take cognizance of the offence under the Act regardless of the interdict stipulated in Section 193 of the Code. Section 193 of the Code reads as follows: 193. Cognizance of offence by Court of Session- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code. On a plain reading of the aforesaid provision, it is clear as noon day that no Court of Session can take cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Moly (supra). In M. A. Kuttappan v. E Krishnan Nayanar and another (2004) 4 SCC 231, another two-Judge Bench ruled that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. It is apt to mention here that similar view has been spelt out in Bhooraji (supra). 9. After careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of commonality is absolutely correct and there is no necessity to dwell upon the same more so when there is no cavil or conflict in this regard and there has been no reference on the said score. Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so. 10. The demonstrable facet of the discord is that if cognizance is directly taken by the Special Judge under the Act and an accused without assailing the same at the inception allows the trial to continue and invites a judgment of conviction, would he be permitted in law to question the same and seek quashment of the conviction on the bedrock that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for retrial seemed inevitable because of the decision rendered by this Court in Gangula Ashok (supra). 14. Be it noted, cognizance was taken directly by the Special Judge in the said case also. The anguish and the helplessness expressed by the High Court was taken note of when the State of Madhya Pradesh approached this Court. This Court laid emphasis on the fact that it was a case where the accused neither raised any objection when they were heard at the time of framing of the charge nor did they raise such a plea at any stage either before or after the evidence was recorded by the trial Court but, a significant one, proponed such a contention only after the conviction was recorded and that too after the decision in Gangula Ashok (supra) was rendered. 15. As is perceptible, the Bench posed the question whether the High Court necessarily should have quashed the trial proceedings to be repeated only on account of the declaration of the legal position made by this Court concerning the procedural aspect about the cases involving the offences under the Act. The Bench referred to the provisions contained in Sections 462 and 465 of the Code and adverted to the concept of a fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. After so stating, the Court proceeded to deal with the stance whether the Special Judge as a Court of Session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression a Court of competent jurisdiction as envisaged in Section 465 of the Code is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could 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 with the procedural requirement. The Bench further proceeded to lay down that the inability to take cognizance of an offence without a committal order does not mean that a duly constituted court becomes an incompetent court for all purposes. It was also ruled that had an objection been raised at the earlier stage, the Special Judge could have sent the record to the Magistrate for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Judge had quashed the order of the Special Judge taking cognizance of the offence under Section 3 (1)(x) of the Act. The two-Judge Bench referred to the authorities in Gangula Ashok (supra) and Vidyadharan (supra) and gave the stamp of approval to the order passed by the High Court and eventually, while dismissing the appeal, observed as follows:- However, it will be open to the appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance with law. The learned Special Court as well as the High Court have made certain observations touching on the merit of the controversy. We make it clear that in case a complaint is filed by the appellant before a competent Magistrate, he shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the learned Special Judge or by the High Court. Nothing said in this judgment also shall be construed as expression of opinion on the merit of the case. 19. It is apposite to note that in the said case, the assail was different and the Bench was not considering the effect of non- committal under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (2003) SCC (L S) 827 , a subsequent Constitution Bench reiterated the view that had already been stated in Raghubir Singh (supra). 24. Thus viewed, the decision in Bhooraji (supra) was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play. In this context, it is useful to refer to a passage from A. R. Antulay (supra), wherein, Sabyasachi Mukharji, J (as his Lordship then was), while dealing with the concept of per incuriam, had observed thus:- Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. Again, in the said decision, at a later stage, the Court observed:- It is a settled rule that if a decision has been given per incuriam the court can ignore it. 25. In Punjab Land Development Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh Ors. (1990) 3 SCC 682, another Constitution Bench, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength. 28. The sequitur of the above discussion is that the decisions rendered in Moly (supra) and Vidyadharan (supra) are certainly per incuriam. 29. Presently, we shall proceed to address which view should be accepted as just and flawless. The centripodal issue, as we understand, is whether non-compliance of the interdict as envisaged and engrafted under Section 193 of the Code nullifies the final verdict after the trial and warrants its total extinction resulting in retrial, or it is incumbent on the part of the convict to exposit and satisfy that such guillotining of the interdict has occasioned in `failure of justice' or culminated in causation of prejudice to him for the purpose of declaring that the trial was vitiated. 30. In Bhooraji (supra), the Bench has referred to Sections 462 and 465 of the Code which occur in Chapter 35 of the Code. Section 465 reads as follows:- 465. Finding or sentence when reversible by reason of error, omission or irregularity. - (1) Subject to the provisions hereinbefore contained, no finding, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism. 33. In Mrs. Kalyani Baskar v. Mrs. M. S. Sampoornam (2007) 2 SCC 258 , it has been laid down that `fair trial' includes fair and proper opportunities allowed by law to the accused to prove innocence and, therefore, adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the courts should be zealous in seeing that there is no breach of them. 34. In this regard, we may fruitfully reproduce the observations from Sidhartha Vashisht v. State (NCT of Delhi) (2010) 6 SCC 1 wherein it has been so stated: - In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Emphasis added] 36. Having dealt with regard to the concept of `fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in `failure of justice'. `Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the Court has referred to Shamnsaheb M. Multtani v. State of Karnataka AIR 1956 SC 116 wherein it has been observed as follows:- 23. 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. vs. Department of the Environment (1977) 1 All ER 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court. The concept of failure of justice was further elaborated as follows:- 11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of 26 providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present one, it is imperative to reproduce Sections 207 and 207A of the old Code. They read as under: 207. In every inquiry before a magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the magistrate, ought to be tried by such Court, the magistrate shall, - (a) In any proceeding instituted on a police report, follow the procedure specified in section 207A; and (b) In any other proceeding, follow the procedure specified in the other provisions of this Chapter. 207A. (1) When, in any proceeding instituted on a police report the magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date of the receipt of the report, unless the magistrate, for reasons to be recorded, fixes any later date. (2) If, at any time before such date, the officer conducting the prosecution applies to the magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. (3) At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent time; and, where the accused is committed for trial before the High Court, nothing in this sub- section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the State a further list of the persons whom he wishes to be summoned to give evidence on such trial. (10) When the accused, on being required to give in a list under sub-section (9), has declined to do so, or when he has given in such list, the magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons for such commitment. (11) When the accused has given in any list of witnesses under sub-section (9) and has been committed for trial, the magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed: Provided that where the accused has been committed to the High Court, the magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly: Provided also that if the magistrate thinks that any witness is included in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence as regards the actual commission of the offence alleged and further was vested with the discretion to record evidence of one or more witnesses. Quite apart from the above, the accused was at liberty to cross-examine the witnesses and it was incumbent on the magistrate to consider the documents and, if necessary, examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him by the prosecution and afford the accused an opportunity of being heard and if there was no ground for committing the accused person for trial, record reasons and discharge him. Thus, the accused enjoyed a substantial right prior to commitment of the case. It was indeed a vital stage. But, in the committal proceedings in praesenti, the magistrate is only required to see whether the offence is exclusively triable by the Court of Session. Mr. Fakhruddin, learned senior counsel, would submit that the use of the words it appears to the magistrate are of immense signification and the magistrate has the discretion to form an opinion about the case and not to accept the police report. To appreciate the said submission, it is apposite to refer to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced the same to accentuate the change that has taken place in the existing Code. True it is, the committal proceedings have not been totally abolished but in the present incarnation, it has really been metamorphosed and the role of the Magistrate has been absolutely constricted. 45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of `failure of justice' and the convict-appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to give evidence and the evidence gets lost. 49. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused. Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing. 50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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