Supreme Court of India
RATTIRAM & ORS.versusSTATE OF M. P. THROUGH INSPECTOR OF POLICE
- Citation
- 2012 INSC 94
- Decided
- 17 February 2012
- Bench
- DALVEER BHANDARI
Holding
A Special Court under the SC/ST (Prevention of Atrocities) Act is a Court of Session, and its taking cognizance without a committal order does not invalidate a conviction unless it results in a failure of justice; consequently, the conviction stands and the earlier contrary decisions are overruled as per incuriam.
Summary
The appellants were convicted by a Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for offences under the IPC. They challenged the conviction on the ground that the Special Court, being a Court of Session, had taken cognizance without a committal order as required by Section 193 of the Code of Criminal Procedure, 1973. The Supreme Court held that the Special Court is indeed a Court of Session but its taking cognizance without a committal does not automatically vitiate the trial; a conviction can be set aside only if the procedural lapse caused a "failure of justice" or prejudice to the accused. Applying the doctrine of failure of justice under Sections 462 and 465 of the Code, the Court found no such prejudice and affirmed that the conviction stands. It further declared that the earlier decisions in Moly and Vidyadharan were per incuriam for not following the binding precedent of State of M.P. v. Bhooraji, and overruled them. The appeals were remanded to a larger bench for hearing on merits.
Issues considered
- Whether the Special Court constituted under the SC/ST (Prevention of Atrocities) Act, 1989 is a Court of Session for the purpose of Section 193 of the CrPC.
- Whether taking cognizance of an offence by the Special Court without a committal order under Section 193 vitiates the trial and warrants setting aside the conviction.
- Whether the doctrine of "failure of justice" under Sections 462 and 465 of the CrPC applies to the procedural lapse in question.
- Whether the decisions in Moly and Vidyadharan are per incuriam in view of the binding precedent of State of M.P. v. Bhooraji.
Legislation cited
- Code of Criminal Procedure, 1973s. 193, s. 207, s. 207A, s. 209, s. 462, s. 465
- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 14, s. 3(1)(x), s. 4, s. 5
Subjects
Special CourtSection 193cognizancefailure of justicefair trialper incuriamSC/ST Atrocities Actcommittal proceedingsspeedy trialvictimology
Judgment
[2012] 3 S.C.R. 496
A RATTIRAM & ORS.
v.
STATE OF M. P. THROUGH INSPECTOR OF POLICE
''
(Criminal Appeal No. 223 of 2008)
FEBRUARY 17, 2012
8
[DALVEER BHANDARI, T.S. THAKUR AND
DIPAK MISRA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c
s. 193 - Effect and impact of not committing an accused
in terms of s. 193 in cases where charge-sheet is filed u/
s.3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and cognizance is directly
taken by the Special Judge under the Act - Held: Special
0
Court as constituted under 1989 Act is a Court of Session -
If cognizance is directly taken by the Special Court under the
Act and an accused without assailing the same at the
inception allows the trial to continue and invites a judgment
E of conviction, he would not be permitted in law to question the
same and seek quashment of the conviction on the ground
that the Special Court had no jurisdiction or authority to take
cognizance without the case being committed to it -1t is only
when non-compliance has occasioned in 'failure of justice' or
culminated in causation of prejudice to the accused that the
F trial is vitiated - The objection relating to non-compliance of
s. 193 which eventually has resulted in directly entertaining
and taking cognizance by the Special Judge under the Act,,
1989 does not vitiate the trial and on the said ground alone,
the conviction cannot be set aside or there cannot be a
.G direction of retrial - The decision rendered in **Bhooraji lays
down the correct law - T!Je decisions rendered in ***Moly and
****Vidyadharan did not note the decision in **Bhooraji, a
binding precedent, and hence they are per incuriam.
H 496
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 497
INSPECTOR OF POLICE
s.209 - Committal proceedings - Procedure of, in old A
Code of Criminal Procedure and new Code of 1973 - Held:
Under the Code of Criminal Procedure, 1898, a full-fledged
Magisterial enquiry was postulated in the committal
proceeding and the prosecution was then required to examine
all the witnesses at this stage itself - But, in the committal B
proceedings in praesenti, the Magistrate is only required to
see whether the offence is exclusively triable by the Court of
Session - 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 c
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. D
Criminal jurisprudence:
Fair trial - Denial of - Held: A 'fair trial' is the heart of
criminal jurisprudence - Denial of 'fair trial' is crucifixion of
human rights - It is ingrained in the concept of due process E
of law - While emphasising the principle of 'fair trial' and the
practice of the same in the course of trial, it is obligatory on
the part of the Courts to see whether in an individual case or
category of cases, because of non-compliance of a certain
provision, reversion of judgment of conviction is inevitable or F
it is dependent on arriving at an indubitable conclusion that
substantial injustice has in fact occurred.
Procedural lapse and delay in conclusion of trial - Effect
of - Held: There has to be a fair trial and no miscarriag& of
justice and under no circumstances, prejudice should be G
caused to the accused - 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 - The right of the H
498 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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 prejudice has been caused to him - Unless the
same is established, setting aside of conviction as a natural
B corollary or direction for retrial as the third step of the
syllogism solely on the said foundation would be an anathema
to justice - One cannot also afford to treat the victim as an
alien or a total stranger to the criminal trial - The criminal
jurisprudence, with the passage of time, has laid emphasis
c on victimology which fundamentally is a perception of a trial
from the view point of the criminal as well as the victim - A
direction for retrial is to put the clock back and it would be a
travesty of justice to so direct if the trial really has not been
unfair arid there has been no miscarriage of justice or failure
of justice.
0
ADMINISTRATION OF JUSTICE: Speedy trial - Held:
The entitlement of the accused to speedy trial has been
recognised as an inherent and implicit aspect in the spectrum
of Article 21 of the Constitution - The whole purpose of speedy
E trial is intended to avoid oppression and prevent delay - It is
a sacrosanct obligation of all concerned with the justice
dispensation system to see that the administration of criminal
justice becomes effective, vibrant and meaningful - The
concept of speedy trial cannot be allowed to remain a mere
F formality - However, speedy trial cannot be regarded as an
exclusive right of the accused - In many cases the victim may
suffer even more than the accused - There is, therefore, no
reason to give all the benefits on account of the delay in trial
to the accused and to completely deny all justice to the victim
G of the offence.
The questions that arose for consideration in the
instant appeals were whether the Special Court as
constituted under the Scheduled Castes and the
H Scheduled Tribes (Prevention of Atrocities) Act, 1989 is
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 499
INSPECTOR OF POLICE
a Court of Session; and whether there is any special A
provision in the Act enabling the said court to take
cognizance; and whether non-compliance of the interdict
as envisaged and engrafted under Section 193 of Code
of Criminal Procedure, 1973 nullifies the final verdict after
the trial and warrants its total extinction resulting in retrial, B
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. . c
Answering the questions the Court
HELD: 1. Plain reading of Section 193 of Code of
Criminal Procedure, 1973 would show that no Court of
Session can take cognizance of any offence as a court D
of original jurisdiction except as otherwise expressly
provided by the Code or any other law for the time being
in force. In *Gangula Ashok, a two.Judge Bench of this
Court, after taking note of Section 6 of 1973 Code and
Section 14 of the Scheduled Castes and the Scheduled E
Tribes (Prevention of Atrocities) Act, 1989 came to the
conclusion that the intendment of the legislature is to treat
the Special Court under the Act to be a Court of Session
even after specifying it as a Special Court and it would
continue to be essentially a Court of Session and not get F
denuded of its character or power as a Court of Session.
However, 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 continu~ and invites a G
judgment of conviction, would he be permitted in law to
question the same and seek quashment of the conviction
on the bedrock that the trial Judge had no jurisdiction or
authority to take cognizance without the case being
committed to it and thereby violated the mandate H
500 SUPREME COURT REPORTS [2012] 3 S.C.R.
A enshrined under Section 193 of the Code. [Paras 5, 7, 10)
[511-D, G, H; 513-D)
M, A. Kuttappan v. E Krishnan Nayanar and another
(2004) 4 SCC 231 : 2004 (2) SCR 668 - Distinguished.
B *Gangula Ashok and Another v. State of Andhra Pradesh
AIR 2000 SC 740 : 2000 (1) SCR 468 - referred to.
2~ The decision in **Bhooraji was a binding precedent,
and when in ignorance of it subsequent decisions are
c rendered, the concept of per incuriam would come into
play. In **Bhooraji, the Bench referred to Section 462 to
465 of 1973 Code. Section 465 of 1973 Code laid
emphasis on a 'court of competent jurisdiction' and 'error,
omission or irregularity in the complaint, summons,
0 warrant, proclamation, order, judgment or other
proceedings before or during trial' and 'a failure of justice
has in fact been occasioned thereby'. The legislative
intendment inhered in the language employed is
graphically clear that lancination or invalidation of a
E verdict after trial is not to be taken recourse to solely
because there is an error, omission or irregularity in the
proceeding. The term 'a failure of justice' has been treated
as the sine qua non for setting aside the conviction.
[Paras 24, 30, 31) [520-C-D; 522-G; 523-D-F]
'
F **State of M. P. v. Bhooraji & Ors. AIR 2001 SC 3372 :
2001 (2) Suppl. SCR 128 - relied on.
3. A 'fair trial' is the heart of criminal jurisprudence
and, in a way, an important facet of a democratic polity
G that is governed by Rule of Law. Denial of 'fair trial' is
crucifixion of human rights. It is ingrained in the concept
of due process of law. While emphasising the principle
of 'fair trial' and the practice of the same in the course of
trial, it is obligatory on the part of the Courts to see
H whether in an individual case or category of cases,
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 501
INSPECTOR OF POLICE
because of non-compliance of a certain provision, A
reversion of judgment of conviction is inevitable or it is
dependent on arriving at an indubitable conclusion that
substantial injustice has in fact occurred. The seminal
issue is whether protection given to the accused under
the law has been jeopardised as a consequence of which B
there has been failure of justice or causation of any
prejudice. Once prejudice is caused to the accused
during trial, it occasions in 'failure of justice'. [Paras 35-
36) [525-C-E; 526-B]
4. Section 209 of 1973 Code deals with the C
commitment of case to Court of Session when an offence
is triable exclusively by it. Prior to coming into force of
1973 Code, Section 207 of the Code of Criminal
Procedure, 1898 dealt with committal proceedings. By the
Criminal Law Amendment Act, 1955, Section 207 of the D
Principal Act was substituted by Sections 207 and 207 A.
Perusal of section 207 and 207 A of the old Code would
show that an exhaustive procedure was enumerated prior
to commitment of the case to the Court of Session. As is
evincible, earlier if a case was instituted on a police report, E
the magistrate was required to hold enquiry, record
satisfaction about various aspects, take 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. Apart from that the accused F
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 G
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 H
502 SUPREME COURT REPORTS [2012) 3 S.C.R.
A committal proceedings in praesenti, the magistrate is only
required to see whether the offence is exclusively triable
by the Court of Session. Section 207 of the 1973 Code
lays down for furnishing of certain documents to the
accused free of cost. Section 209(a) clearly stipulates that
B providing of the documents as per Section 207 or Section
208 is the only condition precedent for commitment. After
the words, namely, "it appears to the Magistrate", the
words that follow are "that the offence is triable
exclusively by the Court of Session". The limited
c jurisdiction conferred on the magistrate is only to verify
the nature of. the offence. Thereafter, a mandate is cast
that he "shall commit". Evidently, there is a sea of
difference in the proceeding for commitment to the Court
of Session under the old Code and under the existing
Code. There is nothing in Section 209 of the Code to
0
even remotely suggest that any of the protections as
provided under the old Code has been telescoped to the
existing one. [Paras 41-43] [529-C; 530-A-B; 534-8-H; 535-
A-B]
E Mrs. Kalyani Baskar v. Mrs. M. S. Sampoornam (2007)
2 SCC 258; Sidhartha Vashisht v. State (NCT of Delhi) (2010)
6 SCC 1 : 2010 (4) SCR 103; Gurbachan Singh v. State of
Punjab AIR 1957 SC 623; Shamnsaheb M. Multtani v. State
of Karnataka (2001) 2 SCC 577: 2001 (1) SCR 514; State
F by Police Inspector v. T. Venkatesh Murthy AIR 2004 SC
5117: 2004 (4) Suppl. SCR 279; Central Bureau of
Investigation v. V. K. Sehgal (1999) 8 SCC 501: 1999 (3)
Suppl. SCR 570; M. C. Sulkunte v. State of Mysore AIR 1971
SC 508 - relied on
G
Town Investments Ltd. vs. Department of the
Environment (1977) 1 All ER 813 - referred to
5. Because of the restricted role assigned to the
Magistrate at the stage of commitment under the new
H Code, the non-compliance of the same and raising of any
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 503
INSPECTOR OF POLICE
objection in that regard after conviction attracts the A
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 8
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 1973 C
Code for taking cognizance under the Act. It should be a
manifestation of reflectible and visible reality but not a
routine matter which has roots in appearance sans any
reality. Tested on the aforesaid premised reasons, it is
well nigh impossible to conceive of any failure of justice
or causation of prejudice or miscarriage of justice on 0
such non-compliance. It would be totally inapposite and
inappropriate to hold that such non-compliance vitiates
the trial. [para 45] [536-B-F]
6. The entitlement of the accused to speedy trial has E
been recognised as an inherent and implicit aspect in the
spectrum of Article 21 of the Constitution. The whole
purpose of speedy trial is intended to avoid oppression
and prevent delay. It is a sacrosanct obligation of all
concerned with the justice dispensation system to see F
that the administration of criminal justice becomes
effective, vibrant and meaningful. The concept of speedy
trial cannot be allowed to remain a mere formality.
However, speedy trial cannot be regarded as an exclusive
right of the accused. In many cases the victim may suffer G
even more than the accused. There is, therefore, no
reason to give all the benefits on account of the delay in
trial to the accused and to completely deny all justice to
the victim of the offence. [Paras 46-47] [536-G-H; 537-A-
E]
H
504 SUPREME COURT REPORTS [2012] 3 S.C.R.
A Hussainara Khatoon and Ors. v. Home Secretary, State
of Bihar (1980) 1 SCC 81: 1979 (3) SCR 169; Moti Lal Saraf
v. State of Jammu & Kashmir AIR 2007 SC 56: 2006 (6)
Suppl. SCR 903; Raj Deo Sharma v. State of Bihar AIR 1998
SC 3281: 1998 (2) Suppl. SCR 130; Mangat Singh and Anr.
B v. Kishan Singh and ors. AIR 2009 SC 1535: 2008 (16) SCR
505; Iqbal Singh Marwah and another v. Meenakshi Marwah
and another AIR 2005 SC 2119: 2005 (2) SCR 708 - relied
on.
7. The delay in conclusion of trial has a direct nexus
C 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. Every procedural lapse or every interdict that
D 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. In the case at
hand, no objection was raised at the time of framing of
E 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
F failure of justice or prejudice has been caused to him.
Unless 'the same is established, setting aside of
conviction as a natural corollary or direction for retrial as
the third step of the syllogism solely on the said
foundation would be an anathema to justice. One cannot
G also afford to treat t~e victim as an alien or a total stranger
to the criminal trial. The criminal jurisprudence, with the
passage of time, has laid emphasis on victimology which
fundamentally is a perception of a trial from the view point
of the criminal as well as the victim. Both are viewed in
H the social context. The view of the victim is given due
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 505
INSPECTOR OF POLICE
regard and respect in certain countries. In respect of A
certain offences in our existing criminal jurisprudence,
the testimony of the victim is given paramount
importance. Sometimes, it is perceived that it is the duty
of the court to see that the victim's right is protected. A
direction for retrial is to put the clock back and it would B
be a travesty of justice to so direct if the trial really has
not been unfair and there has been no miscarriage of
justice or failure of justice. [Paras 49, 50] [538-A-H]
8. If the failure of justice is not bestowed its due C
signification in a case of the present nature, every
procedural lapse or interdict would be given a privileged
place on the pulpit. It would, with unnecessary
interpretative dynamism, have the effect potentiality to
cause a dent in the criminal justice delivery system and
eventually, justice would become illusory like a mirage. D
It is to be borne in mind that the Legislature deliberately
obliterated certain rights conferred on the accused at the
committal stage under the new Code. The intendment of
the Legislature in the plainest sense is that every stage
is not to be treated as vital and it is to be interpreted to E
subserve the substantive objects of the criminal trial.
[Para 51] [539-A-C]
9. The objection relating to non-compliance of
Section 193 of the 1973 Code, which eventually has F
resulted in directly entertaining and taking cognizance by
the Special Judge under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989,
does not vitiate the trial and on the said ground alone,
the conviction cannot be set aside or there cannot be a G
direction of retrial and, therefore, the decision rendered
in **Bhooraji lays down the correct law inasmuch as there
is no failure of justice or no prejudice is caused to the
accused. The decisions rendered in ***Mo/y and
****Vidyadharan have not noted the decision in **Bhooraji, . H
a binding precedent, and hence they are per incuriam and
506 SUPREME COURT REPORTS [2012] 3 S.C.R.
A further, the law laid down therein, whereby the conviction
is set aside or matter is remanded after setting aside the
conviction for fresh trial, does not expound the correct
proposition of law and, accordingly, they are hereby, to
that extent, overruled. [Para 52) [539-D-G]
B
**State of M. P. v. Bhooraji & Ors. AIR 2001 SC 3372 :
2001 (2) Suppl. SCR 128 - relied on.
***Moly and Another v. State of Kera/a AIR 2004 SC
1890 : 2004 (3) SCR 346; ****Vidyadharan v. State of Kera/a
C (2004) 1 SCC 215 : 2003 (5) Suppl. SCR 524 - per
incuriam
Jabalpur Bus Operators Association and Anotherv. State
of Madhya Pradesh and Another 2003 (1) MPJR 158; A. R.
0 Antu/ay v. Ramdas Sriniwas Nayak and another (1984) 2
SCC 500 : 1984 (2) SCR 914; Directorate of Enforcement
v. Deepak Mahajan and another (1994) 3 SCC 440 : 1994
· (1) SCR 445; Gangu/a Ashok v. State of A.P. (2000) 2 SCC
504 : 2000 SCC (Cri) 488 : 2000 (1) SCR 468; Union of
E India and Another v. Raghubir Singh (dead) by L. Rs. And
Others (1989) 2 SCC 754 : 1989 (3) SCR 316; Indian Oil
Corporation Ltd., v. Municipal Corporation and Another AIR
1995 SC 1480 : 1995 (3) SCR 246; Municipal Corporation,
Indore v. Smt. Ratna Prabha & Ors. AIR 1977 SC 308: 1977
F (1) SCR 1017; Dewan Dau/at Rai Kapoor v. New Delhi
Municipal Committee AIR 1980 SC 541 : 1980 (2) SCR
607; Dr. Balbir Singh v. Municipal Corporation Delhi AIR 1985
SC 339 : 1985 (2) SCR 439; Chandra Prakash and Others
v. State of U.P. and Another (2003) SCC (L & S) 827; Punjab
Land Development & Reclamation Corporation Ltd. v.
G Presiding Officer, Labour Court, Chandigarh & Ors. (1990) 3
sec 682 : 1990 (3) SCR 111; State of u. P. And Another
v. Synthetics and Chemicals Ltd. And Another (1991) 4 SCC
139; Siddharam Sat/ingappa Mhetre v. State of Maharashtra
and Ors. AIR 2011 sc 312: ( 2011) 1 sec 694: 2010 (15)
H SCR 201 7 referred to.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 507
INSPECTOR OF POLICE
Case Law Reference: A
2004 (3) SCR 346 per incuriam Para 1,3,8,
:;.: 17,20,28,31
2003 (5) Suppl. SCR 524 per incuriam Para 1,3,8, 17,
18,19,28 B
2001 (2) Suppl. SCR 128 relied on Para 1,3,8, 13,
16, 17,20,23,
30,36,38
2000 (1) SCR 468 referred to Para 3,7,11, c
13,14,18
2003 (1) MPJR 158 referred to Para 3
1984 (2) SCR 914 referred to Para 7,24
D
1994 (1) SCR 445 referred to Para 7
2004 (2) SCR668 Distinguished Para 8, 18
1989 (3) SCR 316 referred to Para 21,23
1995 (3) SCR 246 referred to Para 22 E
1977 (1) SCR 1017 referred to Para 22
1980 (2) SCR 607 referred to Para 22
1985 (2) SCR 439 referred to Para 22,23 F
(2003) sec (L & S) 827 referred to Para 23
1990 (3) SCR 111 referred to Para 25
(1991) 4 sec 139 referred to Para 26
G
2010 (15) SCR 201 referred to Para 27
c2001) 2 sec 258 relied on Para 33
2010 (4) SCR 103 relied on Para 34
H
508 SUPREME COURT REPORTS [2012] 3 S.C.R.
A AIR 1957 SC 623 relied on Para 35
2001 (1) SCR 514 relied on Para 36
(1977) 1 All ER 813 referred to Para 36
2004 (4) Suppl. SCR 279 relied on Para 37
B
2001 (2) Suppl. SCR 128 referred to Para 38
1999 (3) Suppl. SCR 570 relied on Para 39
AIR 1971 SC 508 relied on Para 40
c
1979 (3) SCR 169 relied on Para 46
2006 (6) Suppl. SCR 903 relied on Para 46
1998 (2) Suppl. SCR 130 relied on Para 46
D 2008 (16) SCR 505 relied on Para 47
2005 (2) SCR 708 relied on Para 48
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 223 of 2008.
E
From the Judgment & Order dated 12.03.2007 of the High
Court of Judicature, Madhy Pradesh at Jabalpur in Criminal
Appeal No. 1568 of 1996.
WITH
F
Crl. A. No. 458 of 2008.
Fakhruddin, Bharat Bhushan, Raj Kishore Choudhary,
Samant Ahuja, Abdul Karim Ansari, Gulshan Johari, Anis
Ahmed Khan, Shoaib Ahmed Khan, M.Z. Chaudhary, Aftab Ali
G Khan for the Appellants.
Vibha Datta Makhija, Rohan Chhabra for the Respondent.
The Judgment of the Court was delivered by
H
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 509
INSPECTOR OF POLICE
DIPAK MISRA, J. 1. Perceiving divergent and A
contradictory views as regards the effect and impact of not
committing an 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, B
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 c
discord is manifest in Mo/y and Another v. State of Kerala 1
and Vidyadharan v. State of Kerala 2 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
0
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. 3 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 competent jurisdiction E
and a conviction has been recorded on proper appreciation of
evidence, the same cannot be erased or effaced merely on the
ground that there had been no committal proceeding and
cognizance was taken by the Special Court inasmuch as the
same does not give rise to failure of justice.
F
2. The necessitous facts required to be adumbrated for the
purpose of answering the present reference are that the
appellants were charge sheeted under Section 3 (1) (x) of the
Act but eventually, charges were framed under Sections 147,
148 and 302 read with Section 149 of the Indian Penal Code G
(for short, 'the IPC'). The learned Trial Judge vide judgment
dated 31.08.1996 in Sessions Trial No. 97 of 1995 convicted
1. AIR 2004 SC 1890.
2. (2004) 1 sec 215.
3. AIR 2001 SC 3372. H
510 SUPREME COURT REPORTS [2012) 3 S.C.R.
A all the accused persons barring Mohan for the offences under
Section 302 read with Section 149 IPC and sentenced them
to imprisonment for life with a fine of Rs. 1000/-, in default of
payment of fine, to suffer further rigorous imprisonment for three
months and sentenced to one month rigorous imprisonment
B under Section 147 of the IPC. The accused Mohan was
convicted for the offence under Sections 148 and 302 of the
IPC and was sentenced to undergo one month rigorous
imprisonmemt on the first score and to further life imprisonment
and pay a fine of Rupees 1000/-, in default of payment of fine,
c to suffer further R.I. for three months on the second count.
3. Being dissatisfied with the judgment of conviction and
the order of sentence, the appellants along with others preferred
Criminal Appeal No. 1568 of 1996 before the High Court of
Judicature of Madhya Pradesh at Jabalpur. Apart from raising
D various contentions on merits, it was pressed that the entire trial
was vitiated as it had commenced and concluded without
committal of the case to the Court of Session as provided under
Section 193 of the Code. Heavy reliance was placed on
Gangula Ashok and Another v. State of Andhra Pradesh 4 and
E Mo/y and Another (supra) and Vidyadharan (supra) but the
Division Bench placed reliance on Bhooraji (supra) wherein
Gangu/a Ashok (supra) was distinguished keeping in view the
stage of the case and regard being had to the provision
contained in Section 465 of the Code and treated the same to
F be a binding precedent in view of the special Bench decision
of the High Court of Madhya Pradesh rendered in Jabalpur
Bus Operators Association and Another v. State of Madhya
Pradesh and Anothe~ and repelled the contention accordingly.
Thereafter, as the impugned judgment would reveal, the Bench
G proceeded to deal with the matter on merits and eventually
sustained the conviction and affirmed the sentence as has been
indicated hereinbefore.
4. AIR 2000 SC 740.
H 5. 2003 (1) MPJR 158.
RATIIRAM & ORS. v. STATE OF M. P. THROUGH 511
INSPECTOR OF POLICE [DIPAK MISRA, J.]
4. We have heard Mr. Fakhrudin, learned senior counsel A
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 8
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 C
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 b~en committed
to it by a Magistrate under this code."
D
On a plain reading of the aforesaid provision, it is clear
as noon day that no Court of Session can take cognizance of
any offence as a court of original jurisdiction except as
otherwise expressly provided by the Code or any other law for
the time being in force.
E
6. The questions that emanate, as a natural corollary, for
consideration are whether the Special Court as constituted
under the Act is a Court of Session; and whether there is any
special provision in the Act enabling the said court to take
cognizance. F
7. In Gangula Ashok (supra), a two-Judge Bench of this
Court, after taking note of Section 6 of the Code and Section
14 of the Act, came to the conclusion that the intendment of the
legislature is to treat the Special Court under the Act to be a G
Court of Session even after specifying it as a Special Court
and it would continue to be essentially a Court of Session and
not get denuded of its character or power as a Court of
Session. The Court scanned the anatomy of the Act and
H
512 SUPREME COURT REPORTS [2012] 3 S.C.R.
A analysed the postulates contained in Sections 4 and 5 of the
Code and thereafter, referring to the Constitution Bench
decisions :in A. R. Antulay v. Ramdas Sriniwas Nayak and
another and in Directorate of Enforcement v. Deepak
Mahajan and another7, expressed thus:
B
"16. Hence we have no doubt that a Special Court under
this Act is essentially a Court of Session and it can take
cognizance of the offence when the case is committed to
it by the Magistrate in accordance with the provisions of
the Code. In other words, a complaint or a charge-sheet
c cannot straight away be laid down before the Special Court
"•
under the Act.
8. In Vidyadharan (supra), the Court delved into the said
issue and eventually proceeded to state as follows:
D
"23. Hence, we have no doubt that a Special Court under
this Act is essentially a Court of Session and it can take
cognizance of the offence when the case is committed to
it by the Magistrate in accordance with the provisions of ·
the Code. In other words, a complaint or a charge-sheet
E cannot straight away be laid down before the Special Court
under the Act. We are reiterating the view taken by this
Court in Gangula Ashok v. State of A.P. [(2000) 2 SCC
504 : 2000 SCC (Cri) 488] in the above terms with which
we are in respectful agreement. The Sessions Court in the
F case at hand, undisputedly, has acted as one of original
jurisd!ction, and the requirements of Section 193 of the
Code were not met."
The aforesaid view was reiterated in Maly (supra). In M.
G A. Kuttappan v. E Krishnan Nayanar and another8, another
two-Judge .Bench ruled that the Special Judge under the Act
cannot entertain a complaint filed before it and issue process
a. (1984) 2 sec soo.
7. (1994) 3 sec 440.
H 8. (2004) 4 sec 231.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 513
INSPECTOR OF POLICE [DIPAK MISRA, J.]
after taking cognizance without the case being committed to it A
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 B
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. C
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 D
quashment of the conviction on the bedrock that the trial Judge
had no jurisdiction or authority to take cognizance without the
case being committed to it and thereby violated the mandate
enshrined under Section 193 of the Code.
E
11. To make the maze clear, it is profitable to note that in
Gangu/a Ashok (supra), the appellants had called in question
the legal substantiality of the order passed by the Single Judge
of the High Court of Andhra Pradesh who, after expressing the
view that the Special Judge had no jurisdiction to take
cognizance of the offence under the Act without the case being F
committed to it, set aside the proceedings of the Special Court
and further directed the charge-sheet and the connected papers
to be returned to the police officer concerned who, in turn, was
required to present the same before the Judicial Magistrate of
1st Class for the purpose of committal to the Special Court. That G
apart, the Single Judge further directed that on such committal,
the Special Court shall frame appropriate charges in the light
of the observation made in the order.
12. The two-judge Bench accepted the view as far as it H
514 SUPREME COURT REPORTS [2012] 3 S.C.R.
A pertained to setting aside of the impugned order but did not
approve the direction issued for the steps to be taken by the
Special Judge for framing of charges as it was of the view that
no direction could have been issued to the Special Court as it
was open to the appellants therein to raise all their contentions
B at the stage of framing of charge if they wished to advance a
plea for discharge. Thus, it is evident that the accused-
appellants had challenged the order of framing of charge and
sought quashing of the same before the High Court. They did
not wait for the trial to commence and the judgment of conviction
c to visit them.
13. After the dictum in Gangula Ashok (supra), the High
Court of Madhya Pradesh was dealing with an appeal, Bhooraji
(supra), wherein the appellants were convicted under Sections
148, 323, 302/149 IPC and sentenced to various punishments
D including imprisonment for life. It is worth noting that they were
tried by the Special Judge under the Act as charge-sheet was
filed under Section 3 (2) of the Act along with other offences of
the IPC. When the matter came up before the Division Bench
of the High Court, the learned Judges commenced the
E judgment with the prelude that the case had sluggished for more
than nine years and the end was not in sight as direction for
retrial seemed inevitable because of the decision rendered by
this Court in Gangula Ashok (supra).
F 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
G 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
H after the decision in Gangu/a Ashok (supra) was rendered.
RATIIRAM & ORS. v. STATE OF M. P. THROUGH 515
INSPECTOR OF POLICE [DIPAK MISRA, J.]
15. As is perceptible, the Bench posed the question A·
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 B
in Sections 462 and 465 of the Code and adverted to the
concept of "a failure of justice" and held thus:
"15. A reading of the section makes it clear that the error,
omission or irregularity in the proceedings held before or C
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 occasionea "a failure of justice" D
the superior court shall not quash the proceedings merely
on the ground of such error, omission or irregularity.
xxx xxx xxx xxx xxx
E
17. 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 F
that court being essentially a Court of Session 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 G
order, what is the disadvantage of the accused in following
the said course?
18. It is apposite to remember that during the period prior
to the Code of Criminal Procedure 1973, the committal H
516 SUPREME COURT REPORTS [2012] 3 S.C.R.
A court, in police charge-sheeted cases, could examine
material witnesses, and such records also had to be sent
over to the Court of Session along with the committal order.
But after 1973, the committal court, in police charge-
sheeted cases, cannot examine any witness at all. The
B Magistrate in such cases has only to conynit the cases
involving offences exclusively triable by the Court of
Session. 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
c 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
D
Magistrate's 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."
E 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
F 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
G 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
H been raised at the earlier stage, the Special Judge could have
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 517
INSPECTOR OF POLICE [DIPAK MISRA, J.]
sent the record to the Magistrate for adopting committal A
proceeding or return the police report to the Public Prosecutor
or the police for presentation before the Magistrate. In
essentiality, it has been laid down that the bar against taking
cognizance of certain offences or by certain courts cannot
govern the question whether the Court concerned is a "Court B
of competent jurisdiction" and further the condition precedent
for taking cognizance is not the standard to determine whether
the Court concerned is "a Court of competent jurisdiction". In
the ultimate eventuate, Bhooraji (supra) ruled that when the trial
had been conducted by a Court of competent jurisdiction, the c
same cannot be annulled by such a lapse and, accordingly,
remitted the matter to the High Court for disposal of the appeal
afresh on the basis of evidence already on record. It needs no
special emphasis to highlight that in Bhooraji (supra), the
controversy had emerged on the similar set of facts and the D
legal issues had emanated on the common platform and were
dealt with. Therefore, unquestionably, it was a precedent
operating in the field.
17. It is seemly to note that the decision in Bhooraji (supra)
was poss!bly not brought to the notice of their Lordships who E
have d~cided the cases in Mo/y (supra) and Vidyadharan
(supra). In Mo/y (supra), later two-Judge Bench set aside the
judgment of conviction and remitted the matter as cognizance
was directly taken by the Special Court. In Vidyadharan (supra),
the Bench held thus:- F
"24. The inevitable conclusion is that the learned Sessions
Judge, as the undisputed factual position goes to show,
could not have convicted the appellant for the offence
relatable to Section 3(1 )(x1) of the Act in the background G
of the legal position noted supra. That is, accordingly, set
aside. However, for the offence under Sections 354 and
448 IPC, custodial sentence for the period already
undergone, which as the records reveal is about three
months, would meet the ends of justice considering the
H
background facts and the special features of the case."
518 SUPREME COURT REPORTS [2012] 3 S.C.R.
A As is perceivable, in one case, the matter was remitted and in
the other, the conviction under Section 3 (1 )(xi) was set aside
and no retrial was directed.
18. At this stage, we may proceed to x-ray the ratio of M.
B A. Kuttappan (supra). In the said case, the challenge was to
the order passed by the High Court under Section 482 of the
Code wherein the 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
C authorities in Gangu/a Ash9k (supra) and Vidyadharan (supra)
and gave the stamp of approval to the order passed by the High
Court an~ eventually, while dismissing the appeal, observed as
follows:-
"However, it will be open to the appellant, if so advised, to
D file a ~omplaint 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
E 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
F 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 Section 193 of the Code after conviction
G was recorded. Though it referred to the authority in Vidyadharan
(supra), yet that was to a limited extent. Hence, the said
pronouncement cannot be regarded or treated to be one in line
with Vidyadharan (supra) and is, therefore, kept out of the
purview of conflict of opinion that has emerged in the two
H streams of authorities.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 519
INSPECTOR OF POLICE [DIPAK MISRA, J.]
20. Before we advert whether Bhooraji (supra) was A
correctly decided or Maly (supra) and Vidyadharan (supra) laid
down the law appositely, it is appropriate to dwell upon whether
Bhooraji (supra) was a binding precedent and, what would be
the consequent effect of the later decisions which have been
rendered without noticing it. B
21. In Union of India and Another v. Raghubir Singh
(dead) by L. Rs. And Others9, the Constitution Bench, speaking
through R. S. Pathak, CJ, has held thus:-
"We are of opinion that a pronouncement of law by a C
Division Bench of this Court is binding on a Division Bench
of the same or a smaller number of Judges, and in order
that such decision be binding, it is not necessary that it
should be a decision rendered by the Full Court or a
Constitution Bench of the Court" D
22. In Indian Oil Corporation Ltd., v. Municipal
Corporation and Another10, the Division Bench of the High
Court had come to the conclusion that the decision in Municipal
Corporation, Indore v. Smt. Ratna Prabha & Ors. 11 was not a
E
binding precedent in view of the later decisions of the co-equal
Bench of this Court in Dewan Dau/at Rai Kapoor v. New Delhi
Municipal Committee 12 and Dr. Balbir Singh v. Municipal
Corporation Delhi1 3 . It is worth noting that the Division Bench
of the High Court proceeded that the decision in Ratna Prabha
(supra) was no longer good law and binding on it. The matter F
was referred to. the Full Bench which overruled the decision
passed by the Division Bench. When the matter travelled to this
Court, it observed thus:-
G
9. (1989) 2 sec 754.
10. AIR 1995 SC 1480.
11. AIR 1977 SC 308.
12. AIR 1980 SC 541.
13. AIR 1985 SC 339. H
520 SUPREME COURT REPORTS [2012] 3 S.C.R.
A "The Division Bench of the High Court in 1989 MPLJ 20
was clearly in error in taking the view that the decision of
this Court in Ratna Prabha (AIR 1977 SC 308) (supra) was
not binding on it. In doing so, the Division Bench of the High
Court did something which even a later co-equal Bench
B of this Court did not and could not do."
23. In Chandra Prakash and Others v. State of U.P. and
Another14, a subsequent Constitution Bench reiterated the view
that had already been stated in Raghubir Singh (supra).
C 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
D 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
E
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:-
F
"lt 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,
G Chandigarh & Ors. 15, another Constitution Bench, while dealing
with the issue of per incuriam, opined as under:-
14. c2003) sec (L & S) 021.
H 1s. (1990) 3 sec 682.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 521
INSPECTOR OF POLICE [DIPAK MISRA, J.]
"The Latin expression per incuriam means through A
inadvertence. A decision can be said generally to be given
per incuriam when this Court has acted in ignorance of a
previous decision of its own or when a High Court has
acted in ignorance of a decision of this Court."
B
26. In State of U. P. And Another v. Synthetics and
Chemicals Ltd. And Another16, a two-Judge Bench adverted
in detail to the aspect of per incufiam and proceeded to
highlight as follows:-
"'lncuria' literally means 'carelessness'. In practice per C
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 binding
authority'. (Young v. Bristol Aeroplane Co. Ltd.17). Same D
has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter of law."
27. Recently, in Siddharam Satlingappa Mhetre v. State E
of Maharashtra and Ors. 18, while addressing the issue of per
incuriam, a two-Judge Bench, speaking through one of us
(Bhandari, J.), after referring to the dictum in Bristol Aeroplane
Co. Ltd. (supra) and certain passages from Halsbury's Laws
of England and Raghubir Sin_gh (supra), has stated thus:-
F
"149. The analysis of English and Indian Law clearly leads
to the irresistible conclusion that not only the judgment of
a larger strength is binding on a judgment of smaller
strength but the judgment of a co-equal strength is also
binding on a Bench of Judges of co-equal strength. In the G
instant case, judgments mentioned in paragraphs 135 and
16. (1991) 4 sec 139.
17. (1944) 1 KB 718 : (1944) 2 ALL ER 293.
18. AIR 2011 SC 312 : (2011) 1 sec 694. H
522 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 136 are by two or three ,judges of this Court. These
judgments have clearly ignored a Constitution Bench
judgment of this Court in Sibbia's case (supra) which has
comprehensively dealt with all the facets of anticipatory bail
enumerated under Section 438 of Code of Criminal
B Procedure Consequently, judgments mentioned in
paragraphs 135 and 136 of this judgment are per incuriam.
150. In case there is no judgment of a Constitution Bench
or larger Bench of binding nature and if the court doubts
the correctness of the judgments by two or three judges,
c 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
D. 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,
E 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
F 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
G 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, sentence or
order passed by a Court of competent jurisdiction shall be
H
RATIIRAM & ORS. v. STATE OF M. P. THROUGH 523
INSPECTOR OF POLICE [DIPAK MISRA, J.]
reversed or altered by a Court of appeal, confirmation or A
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 B
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, C
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."
•
31. On a studied scrutiny of the anatomy of the said D
provision, it is luculent that the emphasis has been laid on a
'court of competent jurisdiction' and 'error, omission or
irregularity in the complaint, summons, warrant, proclamation,
order, judgment or other proceedings before or during trial' and
'a failure of justice has in fact been occasioned thereby'. The E
legislative intendment inhered in the language employed is
graphically clear that lancination or invalidation of a verdict after
trial is not to be taken recourse to solely because there is an
error, omission or irregularity in the proceeding. The term 'a
failure of justice' has been treated as the sine qua non for F
setting aside the conviction.
32. The submission of Mr. Fakkruddin and Mr. Anis Ahmed
Khan, learned counsel for the appellants, is that it is not a mere
irregularity but a substantial illegality. They have placed heavy
reliance on paragraph 11 of Moly (supra) wherein the Bench G
has used the expression 'that Section 193 imposes an interdict
on all courts of Session against taking cognizance of an offence
as a Court of original jurisdiction' and have also drawn
inspiration from paragraph 17 of the said decision which uses
the words 'lack of jurisdiction'. The question posed by us H
524 SUPREME COURT R'EPORTS [2012] 3 S.C.R.
A fundamentally relates to the non-compliance of such interdict.
The crux of the matter is whether it is such a substantial interdict
which impinges upon the fate of the trial beyond any redemption
or, for that matter it is such an omission or it is such an act that
defeats the basic conception of fair trial. Fundamentally, a fair
B 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 whlch
would totally ostracise injustice, prejudice, dishonesty and
favouritism.
c 33. In Mrs. Kalyani Baskar v. Mrs. M. S. Sampoomam 19,
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.
D 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
E observations from Sidhartha Vashisht v. State (NCT of
Delhi) 20 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. The
F criminal justice administration system in India places
human rights and dignity for human life at a much higher
pedestal. In our jurisprudence an accused is presumed
to be innocent till proved guilty, the alleged accused is
entitled to fairness and true investigation and fair trial and
G the prosecution is expected to play balanced role in the
trial of a crime. The investigation should be judicious, fair,
transparent and expeditious to ensure compliance to the
19. (2007) 2 sec 2ss.
H 20. (2010) 6 sec 1.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 525
INSPECTOR OF POLICE [DIPAK MISRA, J.]
basic rule of law. These are the fundamental canons of our A
criminal jurisprudence and they are quite in conformity with
the constitutional mandate contained in Articles 20 and 21
of the Constitution of India."
[Underlining is ours]
8
35. It would not be an exaggeration if it is stated that a 'fair
trial' is the heart of criminal jurisprudence and, in a way, an
important facet of a democratic polity that is governed by Rule
of Law. Denial of 'fair trial' is crucifixion of human rights. It is
ingrained in the concept of due process of law. While C
emphasising the principle of 'fair trial' and the practice of the
same in the course of trial, it is obligatory on the part of the
Courts to see whether in an individual case or category of
cases, because of non-compliance of a certain provision,
reversion of judgment of conviction is inevitable or it is D
dependent on arriving at an indubitable conclusion that
substantial injustice has in fact occurred. The seminal issue is
whether protection given to the accused under the law has been
jeopardised as a consequence of which there has been failure
of justice or causation of any prejudice. In this regard, it is E
profitable to refer to the decision in Gurbachan Singh v. State
of Punjab 21 wherein a three-Judge Bench has opined thus:-
"This court in 'Willie (William) Slaney v. The state of
Madhya Pradesh 22 elaborately discussed the question of
F
the applicability of Section 537 and came to the conclusion
that in judging a question of prejudice, as a guilt, courts
must act with a broad vision and look to the substance
and not to technicalities, and their main concern should
be to see whether the accused had a fair trial, whether
he knew what he was being tried for, whether the main G
facts sought to be established against him were
explained to him fairly and clearly and whether he was
21. AIR 1957 SC 623.
22. 1956 CriLJ 291 : AIR 1956 SC 116. H
526 SUPREME COURT REPORTS [2012] 3 S.C.R.
A given a full and fair chance to defend himself.
[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
B 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.
C Multtani v. State of Karnataka 23 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
D 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 Environment24 ). The criminal court,
E
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."
[Emphasis supplied]
F
37. In State by Police Inspector v. T. Venkatesh Murthy25,
the High Court of Karnataka had upheld an order of discharge
passed by the trial court on the ground that the sanction granted
to prosecute the accused was not in order. The two-Judge
G Bench referred to Sections 462 and 465 of the Code and
ultimately held thus:-
23. (2001) 2 sec 577 : 2001 sec (CRIJ 358.
24. (1977) 1 ALL ER 813.
H 25. AIR 2004 SC 5117.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 527
INSPECTOR OF POLICE [DIPAK MISRA, J.]
"13. In State of M. P. v. Bhooraji and Ors. (2001) (7) SCC A
679, the true essence of the expression "failure of justice"
was highlighted. Section 465 of the Code in fact deals with
"finding or sentences when reversible by reason of error,
omission or irregularity", in sanction.
B
14. In the instant case neither the Trial Court nor the High
Court appears to have kept in view the requirements of
sub-section (3) relating to question regarding "failure of
justice". Merely because there is any omission, error or
irregularity in the matter of according sanction that does C
not affect the validity of the proceeding unless the Court
records the satisfaction that such error, omission or
irregularity has resulted in failure of justice. Tile same logic
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. D
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 E
Sub-section (3) and Sub-section (4) of Section 19."
38. We have referred to the said authority only for the
purpose of a failure of justice and the discernible factum that it
had concurred with the view taken in Bhooraji (supra). That F
apart, the matter was remitted to adjudge the issue whether
there had been failure of justice, and it was so directed as the
controversy pertained to the discharge of the accused.
39. In Central Bureau of Investigation v. V. K. Sehgal26,
it was observed: - G
"10. A court of appeal or revision is debarred from
reversing a finding (or even an order of conviction and
sentence) on account of any error of irregularity in the
26. (1999) a sec 501 H
528 SUPREME COURT REPORTS [2012] 3 S.C.R.
A . sanction for the prosecution, unless failure of justice had
been occasioned on account of such error or irregularity.
For determining 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
B 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
c 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:-
D "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
E valid sanction was accorded for prosecuting the public
servant because the very purpose of 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 of their
F official duties. But once the judicial filtering process is over
on completion of the trial the purpose of providing for the
initial sanction would bog down to a surplusage. This could
be the reason for providing a bridle upon the appellate and
revisional forums as envisaged in Section 465 of the Code
of Criminal Procedure."
G
40. Adverting to the factum of irregular investigation and
eventual conviction, the Constitution Bench in M. C. Su/kunte
v. State of Mysore 27 opined thus: -
H 27. AIR 1971 SC 508.
RATIIRAM & ORS. v. STATE OF M. P. THROUGH 529
INSPECTOR OF POLICE [DIPAK MISRA, J.]
"It has been emphasized in a number of decisions of this A
Court that to set aside a conviction it must be shown that
there has been miscarriage of justice as a result of an
irregular investigation."
41. After adverting to the concept of failure of justice, it is 8
obligatory to dwell upon the aspect whether there is or can be
any failure of justice if a Special Judge directly takes
cognizance of an offence under the Act. Section 209 of the
Code deals with the commitment of case to Court of Session
when an offence is triable exclusively by it. The said provision C
reads as follows: -
"209. Commitment of case to Court of Session when
offence is triable exclusively by it. - When in a case
instituted on a police report or otherwise, the accused
appears or is brought before the Magistrate and it appears D
to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall -
(a) Commit, after complying with the provisions of
section 207 or section 208, as the case may be, E
the case to the Court of Session, and subject to the
provisions of this Code relating to bail, remand the
accused to custody until such commitment has
been made;
(b) Subject to the provisions of this Code relating to F
bail, remand the accused to custody during, and
until the conclusion of, the trial;
(c) Send to that Court the record of the case and the
documents and articles, if any, which are to be G
produced in evidence;
(d) Notify the Public Prosecutor of the commitment of
the case to the Court of Session."
H
530 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 42. Prior to coming into force of the present Code, Section
207 of the Code of Criminal Procedure, 1898 dealt with
committal proceedings. By the Criminal Law Amendment Act,
1955, Section 207 of the Principal Act was substituted by
Sections 207 and 207A. To appreciate the inherent aspects
s and the conceptual differences in the previous provisions and
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,
c 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
D
(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
E 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.
F (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
G deems it unnecessary to do so.
(3) At the commencement of the inquiry, the magistrate
shall, when the accused appears or is brought before him,
satisfy himself that the documents referred to in section
173 have been furnished to the accused and if he finds
H
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 531
INSPECTOR OF POLICE [DIPAK MISRA, J.]
that the accused has not been furnished with such A
documents or any of them, he shall cause the came to be
so furnished.
(4) The magistrate shall then procee<;i to take the evidence
of 'Such persons, if any as may be produced by the
B
prosecution as witnesses to the actual commission of the
offence alleged, and if the magistrate is of opinion that it
is necessary in the interests of justice to take the evidence
of any one or more of the other witnesses for the
prosecution, he may take such evidence also.
c
(5) The accused shall be at liberty to cross~examine the
witnesses examined under sub-section (4), and in such
case, the prosecutor may re-examine them ..
(6) When the evidence referred to in sub-section (4) has 0
been taken and the magistrate has considered all the
documents referred to in section 173 and has, if necessary,
examined the accused for the purpose of enabling him to
explain any circumstances appearing in the evidence
· against him and given ·the prosecution an<:I the accused E
an opportunity of being heard, such magistrate shall, if he
is of opinion that such evidence and documents disclose
no grounds for committing the accused person for trial,
record his reasons and discharge hiin unless it appears
to the Magistrate that such person should be tried before
himself or some other magistrate, in which case he shall F
proceed accordingly.
. ..
(7) When, upon such· evidence being taken, such
documents being considered, such examination (if any)
being made and the prosecution and the accused being G
given an opportunity of being heard, the magistrate is of
opinion that the accused should be committed for trial, he
shall frame a charge under his hand, declaring with what
offence the accused is charged.
H
532 SUPREME COURT REPORTS [2012] 3 S.C.R.
A (8) As soon as such charge has been framed, it shall be
read and explained to the accused and a copy thereof shall
be given to him free of cost.
(9) The accused shall be required at once to give in, orally
or in writing, a list of the persons, if any, whom he wishes
a. to be summoned to give evidence on his trial:
Provided that the magistrate may, in his discretion,
allow the accused to give in his list or any further list of
witnesses at a subsequent time; and, where the accused
c 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.
D
(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
E
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
F 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
G 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 the list for the purpose of vexation
H
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 533
INSPECTOR OF POLICE (DIPAK MISRA, J.]
of delay, or of defeating the ends of justice, the magistrate A
may require the accused to satisfy him that there are
r~asonable grounds for believing that the evidence of such
witness is material, and if he is not so satisfied, may refuse
to summon the witness (recording his reasons for such
refusal), or may before summoning him require such sum B
to be deposited as such magistrate thinks necessary to
defray the expense of obtaining the attendance of the
witness and all other proper expenses.
(12) Witnesses for the prosecution, whose attendance C
before the Court of Session or High Court is necessary .
and who appear before the magistrate shall execute
before him bonds binding themselves to be in attendance
when called upon by the Court of Session or High Court
to give evidence.
D
(13) If any witness refuses to attend before the Court of
Session or High Court, or execute the bond above
directed, the magistrate may detain him in custody until he
executes such bond or until his attendance at the Court of
Session or High Court is required, when the magistrate E
shall send him in custody to the Court of Session or High
Court as the case may be.
(14) When the accused is committed for trial, the
magistrate shall issue an order to such person as may be F
appointed by the State Government in this behalf, notifying
the commitment, and stating the offence in the same form
as the charge; and shall send the charge, the record of the
inquiry and any weapon or other thing which .is to be
produced in evidence, to the Court of Session or where
the commitment is made to the High Court, to the Clerk of G
the State or other officer appointed in this behalf by the
High Court.
(15) When the commitment is made to the High Court and
any part of the record is not in English, an English H
534 SUPREME COURT REPORTS [2012] 3 S.C.R.
A translation of such part shall be forwarded with the record.
(16) Until and during the t;ial, the magistrate shall, subject
to the provisions of this Code regarding the taking of bail,
commit the accused by warrant to custody."
B 43. On a bare perusal of the above quoted provisions, it
is plain as day that an exhaustive procedure was enumerated
prior to commitment of the case to the Court of Session. As is
evincible, earlier if a case was instituted on a police report, the
magistrate was required to hold enquiry, record satisfaction
C about various aspects, take 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
D 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
E 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 tr:able by the Court of
F Session. Mr. Faktiruddin, 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
G to Section 207 of the 1973 Code which lays down. for furnishing
of certain documents to the accused free of cost. Section
209(a) clearly stipulates that providing of the documents as per
Section 207 or Section 208 is the only condition precedent for
commitment. It is noteworthy that after the words, namely, "it
H appears to the Magistrate", the words that follow are "that the
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 535
INSPECTOR OF POLICE [DIPAK MISRA, J.]
offence is triable exclusively by the Court of Session". The A
limited jurisdiction conferred on the magistrate is only to verify
the nature of the offence. It is also worth noting that thereafter,
a mandate is cast that he "shall commit". Evidently, there is a
sea of difference in the proceeding for commitment to the Court
of Session under the old Code and under the existing Code. B
There is nothing in Section 209 of the Code to even remotely
suggest that any of the protections as provided under the old
Code has been telescoped to the existing one.
44. It is worth noting that under the Code of Criminal
Procedure, 1898, a full-fledged Magisterial enquiry was C
postulated in the committal proceeding and the prosecution
was then required to examine all the witnesses at this stage
itself. In 1955, the Parliament by Act 26 of 1955 curtailed the
said procedure and brought in Section 207A to the old Code.
Later on, the Law Commission of India in its 41st Report, D
recommended thus:-
"18.19. After a careful consideration we are of the
unanimous opinion that committal proceedings are largely
a waste of time and effort and do not contribute E
appreciably to the efficiency of the trial before the Court
of Session. While they are obviously time-consuming, they
do not serve any essential purpose. There can be no doubt
or dispute as to the desirability of every trial, and more
particularly of the trial for a grave offence, beginning as F
soon as practicable after the completion of investigation.
Committal proceedings which only serve to delay this step,
do not advance the cause of justice. The primary object
of protecting the innocent accused from the ordeal of a
sessions trial has not been achieved in practice; and the G
other main object of apprising the accused in sufficient
detail of the case he has to meet at the trial could be
achieved by other methods without going through a very
partial and ineffective trial rehearsal before a Magistrate.
We recommend that committal proceedings should be
abolished." H
536 SUPREME COURT REPORTS (2012] 3 S.C.R.
A We have 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.
B
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
C · 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.
D 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 a routine matter which
E has roots in appearance sans any reality. Tested on the
aforesaid premised reasons, it is well nigh impossible to
conceive of any failure of justice or causation of prejudice or
miscarriage of justice on such non-compliance. It would be
totally inapposite and inappropriate to hold that such non-
F compliance vitiates the trial.
46. At this juncture, we would like to refer to two other
concepts, namely, speedy trial and treatment of a victim in
criminal jurisprudence based on the constitutional paradigm and
G principle. The entitlement of the accused to speedy trial has
been repeatedly emphasized by this Court. It h·as been
recognised as an inherent and implicit aspect in the spectrum
of Article 21 of the Constitution. The whole purpose of speedy
trial is intended to avoid oppression and prevent delay. It is a
sacrosanct obligation of all concerned with the justice
H
RATIIRAM & ORS. v. STATE OF M. P. THROUGH 537
INSPECTOR OF POLICE [DIPAK MISRA, J.]
dispensation system to see that the administration of criminal A
justice becomes effective, vibrant and meaningful. The concept
of speedy trial cannot be allowed to remain a mere formality
(see H1:1ssainara Khatoon and Ors. v. Home Secretary, State
of Bihar8, Moti Lal Saraf v. State of Jammu & Kashmir 9 and
Raj Deo Sharma v. State of Bihafl0 ). B
47. While delineating on the facets of speedy trial, it cannot
be regarded as an exclusive right of the accused. The right of
a victim has been given recognition in Mangal Singh and Anr.
v. Kishan Singh and ors. 31 wherein it has been observed thus:
c
"Any inordinate delay in conclusion of a criminal trial
undoubtedly has highly deleterious effect on the society
generally and particularly on the two sides of the case. But
it will be a grave mistake to assume that delay in trial o
does not cause acute suffering and anguish to the victim
of the offence. In many cases the victim may suffer even
more than the accused. There is, therefore no reason to
give all the benefits on account of the delay in trial to the
accused and to completely deny all justice to the victim E
of the offence."
[Emphasis supplied]
48. It is worthnoting that the Constitution Bench in Iqbal
Singh Marwah and another v. Mee.nakshi Marwah and F
anothef32, though in a different context, had also observed that
delay in the prosecution of a guilty person comes to his
advantage as witnesses becomes reluctant to give evidence
and the evidence gets lost.
49. We have referred to the aforesaid authorities to G
28. (1980) 1 sec 81.
29. AIR 2007 SC 56.
30. AIR 1998 SC 3281.
31. AIR 2009 SC 1535.
32. AIR 2005 SC 2119. H
538 SUPREME COURT REPORTS [2012) 3 S.C.R.
A 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,
B 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
c 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
D 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 prejudice has been caused to him.
·Unless the same is established, setting aside of conviction as
E a natural corollary or direction for retrial as the third step of the
syllogism solely on the said foundation would be an anathema
to justice. Be it noted, one cannot afford to treat the victim as
an alien or a total stranger to the criminal trial. The criminal
jurisprudence, with the passage of time, has laid emphasis on
F victimology which fundamentally is a perception of a trial from
the view point of the criminal as well as the victim. Both are
viewed in the social context. The view of the victim is given due
regard and respect in certain countries. In respect of certain
offences in our existing criminal jurisprudence, the testimony of
G the victim is given paramount importance. Sometimes it is
perceived that it is the duty of the court to see that the victim's
right is protected. A direction for retrial is to put the clock back
and it would be a travesty of justice to so direct if the trial really
has not been unfair and there has been no miscarriage of justice
H or failure of justice.
RATTIRAM & ORS. v. STATE OF M. P. THROUGH 539
INSPECTOR OF POLICE [DIPAK MISRA, J.]
51. We may state without any fear of contradiction that if A
the failure of justice is not bestowed its due signification in a
case of the present nature, every procedural lapse or interdict
would be given a privileged place on the pulpit. It would, with
unnecessary interpretative dynamism, have the effect
potentiality to cause a dent in the criminal justice delivery B
system and eventually, justice would become illusory like a
mirage. It is to be borne in mind that the Legislature deliberately
obliterated certain rights conferred on the accused at the
committal stage under the new Code. The intE:lndment of the
Legislature in the plainest sense is that every stage is not to c
be treated as vital and it is to be interpreted to subserve the
substantive objects of the criminal trial.
52. Judged from these spectrums and analysed on the
aforesaid premises, we come to the irresistible conclusion that
the objection relating to non-compliance of Section 193 of the D
Code, which eventually has resulted in directly entertaining and
taking cognizance by the Special Judge under the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, does not vitiate the trial and on the said ground alone,
the conviction cannot be set aside or there cannot be a direction E
of retrial and, therefore, the decision rendered in Bhooraji
(supra) lays down the correct law inasmuch as there is no
failure of justice or no prejudice is caused to the accused. The
decisions rendered in Moly (supra) and Vidyadharan (supra)
have not noted the decision in Bhooraji (supra), a binding F
precedent, and hence they are per incuriam and further, the law
laid down therein, whereby the conviction is set aside or matter
is remanded after setting aside the conviction for fresh trial,
does not expound the correct proposition of law and,
accordingly, they are hereby, to that extent, overruled. G
53. The appeals be placed before the appropriate Bench
for hearing on merits.
D.G. Appeals Placed before appropriate Bench .
H
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