Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 223 OF 2008

Rattiram & Ors. .....……..Appellant

Versus

State of M. P. Through

Inspector of Police ………Respondent

WITH

CRIMINAL APPEAL NO. 458 OF 2008

Satyanarayan & ors. ……......Appellant

Versus

The State of Madhya Pradesh Through

Incharge, Police Station Cantt. ………Respondent

J U D G M E N T

Dipak Misra, J.

Perceiving divergent and 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

2

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

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

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 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.

1

AIR 2004 SC 1890

2

(2004) 1 SCC 215

3

AIR 2001 SC 3372

3

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 (for

short, ‘the IPC’). The learned Trial Judge vide judgment dated

31.08.1996 in Sessions Trial No. 97 of 1995 convicted 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

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 imprisonment on the

first score and to further life imprisonment and pay a fine of

Rupees 1000/-, in default of payment of fine, 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

4

Criminal Appeal No. 1568 of 1996 before the High Court of

Judicature of Madhya Pradesh at Jabalpur. Apart from raising

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 Moly

and Another (supra) and Vidyadharan (supra) but the

Division Bench placed reliance on Bhooraji (supra) wherein

Gangula 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 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

Another

5

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

AIR 2000 SC 740

5

2003 (1) MPJR 158

5

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 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.

6.The questions that emanate, as a natural corollary, for

consideration are whether the Special Court as constituted under

6

the Act is a Court of Session; and whether there is any special

provision in the Act enabling the said court to take cognizance.

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

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 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

6

and in

Directorate of Enforcement v. Deepak Mahajan and

another

7

, expressed thus:

“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 cannot straight away be laid

down before the Special Court under the Act.

6

(1984) 2 SCC 500

7

(1994) 3 SCC 440

7

8.In Vidyadharan (supra), the Court delved into the said

issue and eventually proceeded to state as follows:

“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 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 case at

hand, undisputedly, has acted as one of

original jurisdiction, and the requirements of

Section 193 of the Code were not met.”

The aforesaid view was reiterated in Moly (supra). In M. A.

Kuttappan v. E Krishnan Nayanar and another

8

, 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

8

(2004) 4 SCC 231

8

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 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.

11.To make the maze clear, it is profitable to note that in

Gangula 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

9

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 Ist

Class for the purpose of committal to the Special Court. That

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

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 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 to visit them.

10

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

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 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).

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

11

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 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 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

occasioned “a failure of justice” the superior

court shall not quash the proceedings merely

on the ground of such error, omission or

irregularity.

xxx xxx xxx xxx xxx

17. It is an uphill task for the accused in this

case to show that failure of justice had in fact

12

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 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

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 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

Magistrate in such cases has only to commit

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 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 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

13

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 adopting committal 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

14

the bar against taking cognizance of certain offences or by certain

courts cannot govern the question whether the Court concerned

is a “Court 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 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

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 possibly not brought to the notice of their Lordships who

have decided the cases in Moly (supra) and Vidyadharan

(supra). In Moly (supra), later two-Judge Bench set aside the

judgment of conviction and remitted the matter as cognizance

15

was directly taken by the Special Court. In Vidyadharan

(supra), the Bench held thus:-

“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)(xi) of the Act in the

background 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 background facts and

the special features of the case.”

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. 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 authorities in

Gangula Ashok (supra) and Vidyadharan (supra) and gave the

16

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 Section 193 of the Code after conviction 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

streams of authorities.

17

20.Before we advert whether Bhooraji (supra) was correctly

decided or Moly (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.

21. In Union of India and Another v. Raghubir Singh (dead)

by L. Rs. And Others

9

, the Constitution Bench, speaking

through R. S. Pathak, CJ, has held thus:-

“We are of opinion that a pronouncement of

law by a 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”

22.In Indian Oil Corporation Ltd., v. Municipal

Corporation and Another

10

, 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

binding precedent in view of the later decisions of the co-equal

9

( 1989) 2 SCC 754

10

AIR 1995 SC 1480

11

AIR 1977 SC 308

18

Bench of this Court in Dewan Daulat Rai Kapoor v. New Delhi

Municipal Committee

12

and Dr. Balbir Singh v. Municipal

Corporation Delhi

13

. 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

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:-

“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 of this Court did not and could

not do.”

23.In Chandra Prakash and Others v. State of U.P. and

Another

14

, 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.

12

AIR 1980 SC 541

13

AIR 1985 SC 339

14

(2003) SCC (L & S) 827

19

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.

15

, another Constitution Bench, while dealing

with the issue of per incuriam, opined as under:-

“The Latin expression per incuriam means

through 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.”

26.In State of U. P. And Another v. Synthetics and

Chemicals Ltd. And Another

16

, a two-Judge Bench adverted in

15

(1990) 3 SCC 682

16

(1991) 4 SCC 139

20

detail to the aspect of per incuriam and proceeded to highlight as

follows:-

“‘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 binding authority’. (Young v.

Bristol Aeroplane Co. Ltd.

17

). Same 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 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 Singh (supra), has

stated thus:-

“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 instant case, judgments

17

(1944) 1 KB 718 : (1944) 2 ALL ER 293

18

AIR 2011 SC 312 : ( 2011) 1 SCC 694

21

mentioned in paragraphs 135 and 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

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, 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

22

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, sentence or order

passed by a Court of competent jurisdiction

shall be reversed or altered by a Court of

appeal, confirmation or revision on account of

any error, omission or irregularity in the

complaint, summons, warrant, proclamation,

order, judgment or other proceedings before or

during trial or in any inquiry or other

proceedings under this Code, or any error, or

irregularity in any sanction for the prosecution

unless in the opinion of that court, a failure of

justice has in fact been occasioned thereby.

(2) In determining whether any error,

omission or irregularity in any proceeding

under this Code, or any error, or irregularity in

any sanction for the prosecution has

occasioned a failure of justice, the Court shall

have regard to the fact whether the objection

could and should have been raised at an

earlier stage in the proceedings.”

31.On a studied scrutiny of the anatomy of the said provision,

it is luculent that the emphasis has been laid on a ‘court of

competent jurisdiction’ and ‘error, omission or irregularity in the

23

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 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 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 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 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

24

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

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.

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)

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 criminal

justice administration system in India places

19

(2007) 2 SCC 258

20

(2010) 6 SCC 1

25

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 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 basic rule of law. These

are the fundamental canons of our 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]

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

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 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

26

consequence of which there has been failure of justice or

causation of any prejudice. In this regard, it is 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 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

facts sought to be established against him

were explained to him fairly and clearly and

whether he was 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 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.

21

AIR 1957 SC 623

22

1956 CriLJ 291 : AIR 1956 SC 116

27

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

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

24

).

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 camouflage.”

[Emphasis supplied]

37.In State by Police Inspector v. T. Venkatesh Murthy

25

,

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 Bench referred to Sections 462 and 465 of the Code and

ultimately held thus:-

23

(2001) 2 SCC 577 : 2001 SCC (Cri) 358

24

(1977) 1 All ER 813

25

AIR 2004 SC 5117

28

“13. In State of M.P. v . Bhooraji and Ors. (2001)

(7) SCC 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.

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 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.

The 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.

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.”

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 apart,

the matter was remitted to adjudge the issue whether there had

29

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. Sehgal

26

, it

was observed: -

“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 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 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

(1999) 8 SCC 501

30

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

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.”

40. Adverting to the factum of irregular investigation and

eventual conviction, the Constitution Bench in M. C. Sulkunte v.

State of Mysore

27

opined thus: -

“It has been emphasized in a number of decisions

of this 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

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 reads as follows: -

“209. Commitment of case to Court of Session

when offence is triable exclusively by it. –

27

AIR 1971 SC 508

31

When in a case instituted on a police report or

otherwise, the accused appears or is brought

before the Magistrate and it appears 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,

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 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 produced in evidence;

(d)Notify the Public Prosecutor of the commitment

of the case to the Court of Session.”

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 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:

32

“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 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 that the

accused has not been furnished with such

documents or any of them, he shall cause the

came to be so furnished.

33

(4)The magistrate shall then proceed to take

the evidence of such persons, if any as may be

produced by the 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.

(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 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

and the accused 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 him

unless it appears to the Magistrate that such

person should be tried before himself or some

other magistrate, in which case he shall 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 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.

34

(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 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 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:

35

Provided also that if the magistrate thinks

that any witness is included in the list for the

purpose of vexation of delay, or of defeating the

ends of justice, the magistrate may require the

accused to satisfy him that there are reasonable

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 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 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.

(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 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 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 the State or other

officer appointed in this behalf by the High Court.

36

(15)When the commitment is made to the High

Court and any part of the record is not in

English, an English translation of such part shall

be forwarded with the record.

(16)Until and during the trial, the magistrate

shall, subject to the provisions of this Code

regarding the taking of bail, commit the accused

by warrant to custody.”

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 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 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

37

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 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 appears to the Magistrate”, the

words that follow are “that the offence is triable exclusively by the

Court of Session”. The 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

38

under the existing Code. 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

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 41

st

Report, 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 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 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

39

practice; and the 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.”

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.

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

40

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 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-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

principle. The entitlement of the accused to speedy trial has

been repeatedly emphasized by this Court. It has 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 that the administration of criminal

justice becomes effective, vibrant and meaningful. The concept of

speedy trial cannot be allowed to remain a mere formality (see

41

Hussainara Khatoon and Ors. v. Home Secretary, State of

Bihar

28

, Moti Lal Saraf v. State of Jammu & Kashmir

29

and

Raj Deo Sharma v. State of Bihar

30

).

47.While delineating on the facets of speedy trial, it cannot be

regardedas 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: -

“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 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 of the offence.”

[Emphasis supplied]

48.It is worthnoting that the Constitution Bench in Iqbal

Singh Marwah and another v. Meenakshi Marwah and

another

32

, though in a different context, had also observed that

delay in the prosecution of a guilty person comes to his

28

(1980) 1 SCC 81

29

AIR 2007 SC 56

30

AIR 1998 SC 3281

31

AIR 2009 SC 1535

32

AIR 2005 SC 2119

42

advantage as witnesses becomes reluctant 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

43

been 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. 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

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

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

or failure of justice.

51. We may state without any fear of contradiction that if the

failure of justice is not bestowed its due signification in a case of

the present nature, every procedural lapse or interdict would be

44

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. 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 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 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 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

45

Moly (supra) and Vidyadharan (supra) have not noted the

decision in Bhooraji (supra), a binding 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.

53.The appeals be placed before the appropriate Bench for

hearing on merits.

....................................J.

[Dalveer Bhandari]

....................................J.

[T. S. Thakur]

....................................J.

[Dipak Misra]

New Delhi;

February 17, 2012.