EFFECT OF IRREGULAR PROCEEDINGS

1. INTRODUCTION
The term ‘Proceeding’ means a course of action or a series of activities which take place in a
planned and controlled manner. In legal terminology, the term proceeding refers to such
activity that seeks to invoke the powers of a tribunal for the enforcement of law and acquiring
some beneficial interest and enforce a remedy.

The legal provisions regarding Irregular Proceedings are embodied in Chapter XXXV under
section 460-466 of the CrPC. This Chapter deals with the effect of irregularity in proceedings
before Criminal Courts.

Depending upon irregularities in legal proceedings and its effects before the Criminal Courts,
CrPC enumerates several provisions under 7 heads:

 Section 460- Irregularities which do not vitiate proceedings.

 Section 461- Irregularities which vitiate proceedings.
 Section 462- Proceedings in wrong place.
 Section 463- Non-compliance with provisions of section 164 or section 281.
 Section 464- Effect of omission to frame, or absence of, or error in, charge.
 Section 465- Finding or sentence when reversible by reason of error, omission or
irregularity.
 Section 466- Defect or error not to make attachment unlawful.

OBJECTIVE OF THE STUDY

The objective of the researcher’s study on this topic is to dissect and give a holistic analysis
of the Irregular Proceedings. This project analysis various provisions related to the offence,
under the Indian law.

RESEARCH QUESTIONS

1. What is meant by Irregular Proceedings?

2. How does it affect the legal system?
3. What is the role of magistrate in causing Irregular Proceedings?
 4. What are the remedies, if any, available?
5. How does the Irregular Proceedings affect the accused?

HYPOTHESIS

1. Irregular Proceedings lead to the delay of Administration of Justice.

2. Irregular Proceedings lead to the harassment of the accused.

MODE OF RESEARCH

The researcher has relied upon the Doctrinal method of research for the completion of this
project.

SOURCES OF DATA

The researcher has relied upon both primary as well as secondary sources to complete the
project.

1. Primary Sources: Books.

2. Secondary Sources: Materials available on internet.

2. IRREGULARITIES WHICH DO NOT VITIATE PROCEEDINGS

(SECTION-460)
If any Magistrate not empowered by law to do any of the following things, namely:

a) to issue a search-warrant under Section 94;

b) to order, under Section 155, the police to investigate an offence;
c) to hold an inquest under Section 176;
d) to issue process under Section 187, for the apprehension of a person within his local
jurisdiction who has committed an offence outside the limits of such jurisdiction;
e) to take cognizance of an offence under clause (a) or clause (b) of Sub-Section (1) of
Section 190;
f) to make over a case under Sub-Section (2) of Section 192;
g) to tender a pardon under Section 306;
h) to recall a case and try it himself under Section 410; or
i) to sell property under Section 458 or Section 459,
 erroneously in good faith does that thing, his proceedings shall not be set aside merely
on the ground of his not being so empowered.

SCOPE AND APPLICATION: This Section cures nine kinds of irregularities, provided
they caused erroneously and in good faith. A further qualification is implied, though it is not
expressly stated in the section, viz., they should not occasion a failure of justice. 1 The section
deals with acts done by a Magistrate in no way empowered by law to do those acts; it has no
reference to a Magistrate empowered otherwise under the Act to do an act but not possessing
jurisdiction over the offence.

Where a Magistrate holds the trial of a warrant case in a manner prescribed for that of a
summons case, the trial is bad.2 Where the trial of the accused is held as a warrant trial,
though he should have been tried summarily, the proceedings are vitiated. Where a
Magistrate takes wrong cognizance under Section 190(1)(a) or (b) it is an act of illegality not
curable under Section 460.3

Clause b: When investigation is made by the police in non-cognizable offence without the
order of the Magistrate under Section 155(2), the investigation is illegal which illegality
cannot be cured under Section 460.4

Clause e: If any Magistrate not empowered by law to take cognizance of an offence under
Section 190(1)(a) or (b) erroneously but in good faith does take cognizance, the proceedings
will not be set aside merely on the ground of his not being so empowered. Where the
Magistrate for issuing process under Section 204 CrPC reverts back to the position of Section
202 CrPC and examines witnesses, the irregularity is curable under Section 460(2) CrPC.5
Where the Magistrate though not authorized had taken cognizance of the offence punishable
under the Electricity Act, 2003, exclusively triable by a Special Court, held even if the
cognizance is taken erroneously by the learned Magistrate, without being so empowered,
merely on that ground, the proceeding cannot be said to have been vitiated and cannot be
quashed. Proceedings in a wrong place is merely an irregularity, are not vitiated.6

Clause f: Transfer of case under Section 192- Where a first class Magistrate not empowered
by law to transfer the case to a third class Magistrate erroneously but bona fide transferred it,
1
Lalit Chandra Chanda Chowdhury, (1911) 39 Cal 119, 127.
2
Manak Lal, (1954) Raj 109.
3
Sureshbai Jehaji Thakor Vs State of Gujarat, 2007 Cri LJ 2488 (2489) (Guj).
4
Avinash Madhukar Mukhodkar Vs State, 1983 Cri LJ 1833 (Bom).
5
K. Subramanian Vs K. Rajenderan, 2007 Cri LJ 4092 (4096) (Mad).
6
Kunti Devi Vs State of Bihar, 2006 Cri LJ 1482 (Pat).
the order of transfer was not invalid so as to prevent the third class Magistrate who took
cognizance upon the transfer from having jurisdiction to try the accused. If a Magistrate had
no power to transfer a case from the file of one Magistrate to another, the irregularity in such
transfer is cured by Section 460(f).

In transfer of case under Section 192 done by a Magistrate erroneously in good faith, the
proceeding shall not be set aside merely on the ground of his being not so empowered. This
has to be treated as an irregularity which does not vitiate the proceedings, the irregularity is
curable under Section 460.7

Clause g: Tender of Pardon.8 Where prior to constitution of Special Court the Chief Judicial
Magistrate had granted pardon, it is an irregularly which stands cured under this provision.
Where a Magistrate took cognizance of a private complaint for defamation on police report,
the whole proceedings were not vitiated due to erroneous cognizance. The defect could be
cured by Section 460. Where a case was committed to Session in the absence of an accused
charged of an offence under Section 307 of the IPC, it was held that even though the Court of
Session tried the case without referring the matter to the High Court, it was not vitiated.
Where an investigation was in breach of the provision in Section 167(5), it was held that
subsequent proceedings would be bad if the Magistrate has not taken the step he was bound
to take under that Section. Section 460 or 465 cannot cure such defect. Investigation made
without an order under Section 155(2) is not curable under Section 460.9

In a case of tender of pardon to an accomplice under the Prevention of Corruption Act, 1988,
where during investigation of the case, the Magistrate granted pardon under Section 306,
CrPC even after the appointment of Special Judge under the Act, it was held by the Supreme
Court that it was a curable irregularity which does not vitiate the proceedings. It has to be
borne in mind that both the Special Judge as well as the Magistrate have concurrent
jurisdiction to grant pardon during investigation.10

3. IRREGULARITIES WHICH VITIATE PROCEEDINGS (SECTION-

461)
7
Baleshwar Singh Vs Ramji Singh, 1975 Cri LJ 1539 (Pat).
8
Chidda, sup.
9
Avinash Madhukar Mukhedkar Vs Maharashtra, 1983 (Bom).
10
P.C. Mishra Vs State (C.B.I.), AIR 2014 SC 1921: (2014) 14 SCC 629.
If any Magistrate not being empowered by law in this behalf, does any of the following
things, namely:-

a) attaches and sells property under Section 83;

b) issues a search-warrant for a document, parcel or other thing in the custody of a postal
or telegraph authority;
c) demands security to keep the peace;
d) demands security for good behaviour;
e) discharges a person lawfully bound to be of good behaviour;
f) cancels a bond to keep the peace;
g) makes an order for maintenance;
h) makes an order under Section 133 as to a local nuisance;
i) prohibits, under Section 143, the repetition or continuance of a public nuisance;
j) makes an order under Part C or Part D of Chapter X;
k) takes cognizance of an offence under clause (c) of sub-section (1) of Section 190;
l) tries an offender;
m) tries an offender summarily;
n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;
o) decides an appeal;
p) calls, under Section 397, for proceedings; or
q) revises an order passed under Section 446,

his proceedings shall be void.

SCOPE AND APPLICATION: This Section enumerates seventeen kinds of irregularities

which render proceedings void. No question of error or good faith arises here. In other words,
they are illegalities which vitiate the proceedings. Such proceedings have no existence in
point of law, they need not be set aside by a superior court. This means, the Magistrate, has
no initial jurisdiction to try the matter. Where the act creating Special Court had expired the
trial and conviction of the accused by the Special Court was void and set aside.11

Only clause (c) and not clauses (a) and (b) of Section 190 is covered by Section 461 CrPC.

11
Karim Vs State of Kerala, 2006 Cri LJ (NOC) 540 (Ker).
Irregularity committed by the Investigating Officer in investigating a case when not
empowered to investigate the case is not one of the irregularities mentioned in Section 461
CrPC which vitiates proceedings.12

In a case, where the order issuing process against the accused was challenged before the
Supreme Court on the ground of irregularity, it was held that in the list of irregularities
indicated in Section 461 of the code, orders passed under section 204 do not find a mention.
Section 465(1) of the Code protects orders from errors, omissions or irregularities, unless ‘a
failure of justice’ has been occasioned thereby. It was observed that most certainly, an order
delineating reasons cannot be faulted on the ground that it has occasioned failure of justice.13

Clause g: Order for Maintenance- Order by competent Magistrate of wrong district is not
illegal. A maintenance order is not vitiated because proceedings were taken in a wrong court,
because Section 462 applies.

Clause j: This clause refers to a case where a Magistrate is not competent, by virtue of the
position he holds or powers vested in him, to try a case of the character referred to in Section
144 or Section 145. The cardinal principle of law in criminal trail is that it is the right of an
accused that he should be tried by a Judge who is competent. If an incompetent Magistrate
records the evidence, the successor Court cannot proceed from that stage onwards but must
try the case de novo. Where a Magistrate took cognizance un der Section 190(1)(c) on the
basis of a complaint lodged by himself under Section 195(b)(i), it was held that the entire
proceedings resulting in an order of conviction and sentence were liable to be quashed
because the complainant could not be a judge in his own cause.14

Prior illegality: Where the cognizance of the case has, in fact, been taken and the case has
proceeded to terminate, the invalidity of the antecedent investigation or the police report does
not vitiate the result, unless miscarriage of justice has been caused thereby. Similarly, it
would appear that where cognizance has in fact been taken on even a invalid complaint and
the case has been tried to a finished, the so-called invalidity in the complaint cannot vitiate
the trial. As there is no jurisdiction in the Magistrate of first class to try an offence under sub-
section (1) of Section 15 of the U.P. Private Forests Act, 1948, the trial by such a Magistrate
is void.15

12
Dharam Pal Vs State of U.P., 2006 Cri LJ 1421 (1423): 2006 (2) ALJ 94 (AII).
13
Nupur Talwar Vs. Central Bureau of Investigation, AIR 2012 SC 1921: (2012) 11 SCC 465.
14
Harekrishna Sahu Vs Orissa, 1986 Cri LJ 691 (Ori).
15
State of U.P. Vs Sabir Ali, AIR 1964 SC 1673: 1964 (2) Cri LJ 606.
Clause k: Cognizance under Section 190(1)(c)- If a Magistrate not being empowered by law
takes cognizance under Section 190(1)(c), the proceedings are void under Section 461(k).
Where a Judicial Magistrate has made a complaint under Section 195(b)(i) and himself takes
cognizance of the offence under Section 190(1)(c), the entire proceedings are invalid as the
complainant cannot be a Judge of his own case.16

Clause l: Trial of offender- The meaning of clause(l) is that if a Magistrate tries an offender
for an offence beyond his jurisdiction, his proceedings shall be void. An order of acquittal
passed by a Magistrate in a case where the facts disclosed an offence exclusively triable by a
Court of Session, is bad in law and all proceedings taken before the Magistrate are void. 17
Where a Magistrate having no jurisdiction holds an inquiry and commits the accused to the
sessions, the commitment is void. If a second class Magistrate tries an offence under Section
409, IPC, as one under Section 406, IPC, the proceedings are wholly void under this section.
The fact that the Magistrate acted in good faith would not cure the defect under Section 460
or 464 or 465 or any other provision of the Code. Section 460 deals with nine Acts only and
the trial of an offender is not included in them. Sections 464 and 465 are to be construed as
subject to the provisions therein before contained.

Section 26 directs that an offence under any other law shall, when any court is mentioned in
this behalf in such law, be tried by such court. Once a particular court is mentioned in the
special law, that court alone shall be competent to try offences under that law, but subject to
other provisions of the Code.18

Clause m: Trial of offender summarily- Trying an offender summarily under Section

461(m), means trying the particular offender in a particular case summarily and trying that
offender for that offence of which he is accused.

Where the Magistrate is not empowered to try the accused summarily because of the
imprisonment being for a term exceeding six months, therefore, under Section 461, the trial is
void.

Clause (m) of Section 461 states that if any Magistrate, not being empowered by law in this
behalf, tries an offender summarily, his proceedings shall be void. The question of good faith
will not arise as in the case envisaged under Section 460.19

16
Harekrishna Sahu Vs State, 1986 Cri LJ 691 (Ori).
17
41 PLR 198: AIR 1939 Lah 513. See also AIR 1941 Sind 36 (Trial of offence under S. 220, IPC, by Magistrate).
18
AIR 1962 AII 405, affirmed on appeal in AIR 1964 SC 1673: 1964 (2) Cri LJ 606.
19
Shanu Raghu Datkar Vs State, 1967 Cri LJ 876 (Goa).
Where the Magistrate has summary powers, and as per allegation the value of the property
does not exceed Rs. 200, the case is triable summarily. Where during the course of evidence
it appears that the value possibly exceeds Rs. 200, there should be no change with regard to
the competency of the Magistrate to continue the trial in a summary manner. Section 461(m)
will not take away the jurisdiction.20

TRIAL OF SUMMARY CASE: The Judge or the Magistrate, who tries the summary trial
case must give his judgement and if he is transferred without pronouncing judgement, the
succeeding Sessions Judge or the Magistrate has to start the trial afresh and pronounce the
judgement, failure in this regard vitiates the trial.21

Clause n: A succeeding Magistrate cannot proceed with the trial placing reliance on the
evidence recorded by his predecessor. He has to try the case de novo. Even the consent of
counsel on both sides cannot confer such jurisdiction on the succeeding Magistrate.

Clause o: Decision of appeal by Session Judge- ‘Magistrate’ includes a Session Judge so that
the dismissal of an appeal by a Session Judge where appeal lay only to the High Court was
held to be void ab initio.

Where a Session Judge dealt with a revision petition as if it were an appeal, in a case where
no appeal lay to him, and reversed the conviction, the order of the Sessions Judge was void.

Clause q: Revision of order under Section 446- If a Magistrate hears an appeal from an order
passed under Section 446, his proceedings are void.

VOID: Meaning of- According to one view, proceedings which are void under this section
are a nullity and need not be set aside by a superior court. But a different view has been
expressed in some cases. It has been held that an order which is void for want of jurisdiction
must nevertheless be regarded as valid, unless set aside by a court of competent jurisdiction.

4. PROCEEDINGS IN WRONG PLACE (SECTION-462)

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground
that the inquiry, trial or other proceedings in the course of which it was arrived at or passed,

20
Sheo Nath Vs State, 1975 Cri LJ 463 (AI).
21
Chandana Surya Rao Vs State of A.P., 1989 Cri LJ 2077: 1989 Cri LJ 2077: 1989 (3) Crimes 693, 695 (AP).
took place in a wrong sessions division, district, sub-division or other local area, unless it
appears that such error has in fact occasioned a failure of justice.

Scope and Object: The object of Sections 462 to 466 is to uphold, in most cases, the orders
passed by Criminal Courts which lacked local jurisdiction or which had committed illegalities
or irregularities unless failure of justice has been occasioned or is likely to be occasioned
thereby. Where a personnel of Bihar Military Police was tried at Patna for the offence of
deserting in Kashmir, the Supreme Court held that the trial at Patna was not vitiated as there
was no failure of justice on account of the trial having been conducted in Patna, particularly
where there was no allegation of failure of justice. 22 It will be observed that the key-note of
this and the following sections is “failure of justice”.23

Want of Jurisdiction: An order which is void for want of jurisdiction must nevertheless be
regarded as valid unless it is set aside by a Court of competent jurisdiction. A conviction for
an offence tried summarily though not triable by a summary procedure stands until it is set
aside in revision.

This section applies solely to cases in which there is no jurisdiction by reason of the inquiry,
trial or other proceeding being held in the wrong local area. Sections 177, 179, 180, 181, 182
and 183 should be read with this section. The manifest intention of this section is to provide
against the contingency of a finding, sentence or order, regularly passed by a Court in the
case of an offence committed outside its local area, being set aside when no failure of justice
has taken place.24

Failure of Justice: The mere fact that proceedings were taken in a wrong place would not
vitiate the trial, unless it appears that this has occasioned a failure of justice.

Lack of Territorial Jurisdiction: When there is no inherent lack of jurisdiction merely on

the ground of lack of territorial jurisdiction or on the ground of any irregularity of
proceedings, an order or sentence awarded by a competent Court, cannot be set aside unless
prejudice is pleaded and provided, which would amount to failure of justice. Because of
acquittal under Section 78 of the Trade and Merchandise Marks Act, 1958 the Magistrate is
not without jurisdiction to try a case under Section 79 of the Act merely because that offence

22
Nasiruddin Khan Vs State of Bihar, AIR 1973 SC 186: 1973 Cri LJ 241.
23
Ganapathy Chetty, (1919) 42 Mad 791, 793; Lalit Chandra Chanda Chowdhury, (1911) 39 Cal 119, 127; Birju
Marwari, (1921) 44 AII 157, 159; Mohd. Maroof, 1969 Cri LJ 533.
24
Doraiswamy Mudali, (1906) 30 Mad 94, 95.
was committed outside his local jurisdiction. 25 Where a Magistrate has power to try a case
under Section 125 and the controversy relates solely to his territorial jurisdiction this section
should made applicable to the order made by him. This section has to be applied after the
decision or finding or order is arrived at by any Magistrate or a Criminal Court in a wrong
jurisdiction. Therefore, if any objection is taken to the territorial jurisdiction of the Magistrate
it will be his duty to see if he had such jurisdiction. He cannot take resort to this section and
assume jurisdiction.26

Sessions division, district, sub-division or any other local area: The ‘sessions division,
district, sub-district or other local area’ means those to which the Criminal Procedure Code
applies. They have no reference to local area, etc., in a foreign country to which the Code has
no application. Where no prejudice is caused to the accused, trial of the case at wrong place
does not vitiate the conviction.27

Where an appeal was presented at the right place but was heard by the presiding Judge at a
place where he had no criminal jurisdiction, the irregularity was cured under this section. An
offence was committed in the district of Hardoi which was within the jurisdiction of the
former Chief Court of Oudh and the trial took place in the district of Shahjahanpur which was
within the jurisdiction of the Allahabad High Court. It was held that the conviction and
sentence could not be set aside simply on the ground of the trial having taken place in a
wrong district.28 The question of the jurisdiction must be raised at the beginning of the trial. It
must be decided before the commencement of the trial. The application of Section 462 arises
only after such a decision is rendered by a Court which has no territorial jurisdiction. 29 The
question of jurisdiction should be raised and decided before the commencement of the trial.
Where the material irregularity as to the jurisdiction of the Court was brought to the notice of
the Court before the commencement of the trial, in such a case, the curative provisions of
Section 462 are not applicable.30

25
A.N. Deen Vs Jacob, 1982 Cri LJ 2089 (Ker).
26
Raj Kumari Vijh Vs Dev Raj Vihi, AIR 1977 SC 1101: 1977 Cri LJ 940: (1977) 2 SCC 190; Rafiduddin Vs Smt.
Saleha Khatoon, 2008 Cri LJ (NOC) 291: 2008 (1) AIR Bom R 411 (Bom).
27
Banwari Lal Agarwal Vs A. Suryanarayan, 1994 Cri LJ 370 (Ori); Willie (William) Slaney Vs State of Madhya
Pradesh, AIR 1956 SC 116: 1956 Cri LJ 291; Mangaldas Vs Maharashtra State, AIR 1966 SC 128: 1966 Cri LJ 106;
Nasiruddin Khan Vs State of Bihar, AIR 1973 SC 186; (1973) 3 SCC 919: 1973 Cri LJ 241; Kunti Devi Vs State of
Bihar, 2006 Cri LJ 1482 (Pat); Ajay Khorana Vs State of U.P., 2007 Cri LJ (NOC) 842: 2007 (5) AII LJ 118 (AII).
28
Musammat Wahidan, (1952) 1 AII 595.
29
Musammat Wahidan, (1952) 1 AII 595.

30
Briju Kishore Singh Vs Nutun Singh, 1995 Cri LJ 1486 (Ori).
 5. NON-COMPLIANCE WITH PROVISIONS OF SECTION 164
OR SECTION 281 (SECTION-463)
(1) If any court before which a confession or other statement of an accused person
recorded, or purporting to be recorded under section 164 or 281, is tendered, or has been
received, in evidence finds that any of the provisions of either of such sections have not been
complied with by the Magistrate recording the statement, it may, notwithstanding anything
contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard
to such non-compliance, and may, if satisfied that such non-compliance has not injured the
accused in his defence on the merits and that he duly made the statement recorded, admit
such statement.

(2) The provisions of this section apply to Courts of appeal, reference and revision.

Scope and Application: Owing to the extremely delicate nature of statements and
confessions, the law has deliberately hedged salutary safeguards (Sections 164 and 281)
round them. Non-observance of those requirements may result in having the statements or
confessions ruled out of evidence. This section has, however, been enacted in order that
technicalities may not succeed in defeating the ends of justice.

This section permits oral evidence to be given to prove that the procedure laid down in
Section 164 had in fact been followed when the Court finds that the record produced before it
does not show that was so. If the oral evidence establishes that the procedure had been
followed then only can the record be admitted. 31 The provisions of Section 463 CrPC apply to
Courts of appeal, reference and revision. Non-compliance of the provisions of the Section is
not fatal injury to the accused in his defence on merit unless prejudice is proved.32

Violation of Procedure: If a statute has conferred a power to do an act and has laid down the
method in which that power has to be exercised, it necessarily prohibits the doing of the act in
any other manner than that which has been prescribed. The principle behind the rule that if
this were not so, the statutory provision might as well not have been enacted.33

Letting in Oral Evidence: Far from showing that the procedure laid down in Section 164 is
not intended to be obligatory, this section really emphasises that procedure has to be

31
State of U.P. Vs Singhara Singh, AIR 1964 SC 358, 362.
32
Madhu Sankar Vs State of M.P., 2009 (1) MPLJ 384 (MP).
33
State of U.P. Vs Singhara Singh, AIR 1964 SC 358: 1964 (1) Cri LJ 263.
followed. The section only permits oral evidence to prove that the procedure had actually
been followed in certain cases where the record which ought to show that does not on the
face of it do so. If the conclusion arrived at by the Sessions Judge was that the committing
Magistrate had staged the truth, then in view of this provisions it would be incumbent on him
to hold that the recording of confession by the Committing Magistrate had been done by him
in a manner as required by Section 164.34

Curable Irregularities: This section cures the irregularity where a confession is made in one
language and is recorded in another. According to Section 29 of the Indian Evidence Act,
1872, a confession otherwise admissible does not become inadmissible because the accused
person was not warned that he was not bound to make it and that it would be used as
evidence against him. By application of Section 463 of the Code the above irregularity can be
cured. The omission of non-compliance of Section 164(2) CrPC is not curable irregularity. 35

While recording the confession statement under Section 164, some questions put the accused
were not recorded by the Magistrate. It was held that it was the duty of the Sessions Judge to
look into it and find out whether such omission had prejudiced the accused. Where a
Magistrate while recording confession of an accused has not put questions to ascertain the
voluntary character of confession, it would be a case of non-compliance of substantial aspect
of Section 164, CrPC, the defect would not be cured under Section 463, CrPC by examination
of the Magistrate recording the confession.36

6. EFFECT OF OMISSION TO FRAME, OR ABSENCE OF, OR

ERROR IN, CHARGE (SECTION-464)
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed
invalid merely on the ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any misjoinder of charges, unless, in the
opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been
occasioned thereby.

34
Philips Vs State of Karnataka, 1980 Cri LJ 171, 174 (Kant-DB).
35
Kehar Singh Vs State (Delhi Admn.), AIR 1988 SC 1883: 1989 Cri LJ 1: (1988) 3 SC 609: 1988 SCC (Cri).
36
Gobardhan Rajbanshi Vs State of Jharkhand, (2002) 3 East Cri 137: 2002 Cri LJ 3301 (3304) (Jhar-DB).
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice
has in fact been occasioned it may-

a) in the case of an omission to frame a charge, order that a charge be framed and that
the trial be recommenced from the point immediately after the framing of the charge;
b) in the case of an error, omission or irregularity in the charge, direct a new trial to be
had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that facts of the case are such that no
valid charge could be preferred against the accused in respect of the facts
proved, it shall quash the conviction.

Scope and Application: Section 464 is in mandatory terms and specifically provides what is
to be done in cases where a charge is not framed or there is an error, omission or irregularity
in framing of the charge. A finding, sentence or order could be set aside only in those cases
where the facts are such that no valid charge could be framed against the accused in respect
of the facts proved. If the facts are such that a charge could be framed and yet it is not framed
but no failure of justice has in fact been occasioned, thereby, the finding, sentence or order of
the Court of competent jurisdiction is not to be set aside on that ground. If there is failure of
justice occasioned by not framing of the charge or in case of an error, or omission in the
charge, retrial of the case is to be directed under sub-section (2).37

In view of Section 464 CrPC, it is possible for the appellate or revisional Court to convict an
accused for an offence for which no charge was framed unless the Court is of the opinion that
a failure of justice would in fact occasion.38

The principles deducible from various decisions are:-

(i) The accused should not suffer any prejudice by reason of misjoinder of charges.

(ii) A conviction for lesser offence is permissible.

(iii) It should not result in failure of justice.

(iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such
misjoinder must be arising out of mere misjoinder to frame charges.39

37
Kammari Brahmaiah Vs Public Prosecutor, H.C.A.P., AIR 1999 SC 775: 1999 SCC (Cri) 281.
38
Virendra Kumar Vs State of U.P., 2007 Cri LJ 1435 (1438) (SC); Dalbir Singh Vs State of U.P., AIR 2004 SC 1990:
2004 AIR SCW 2119.
39
Anil Vs Administration of Daman & Diu, Daman, (2006) 13 SCC 36 (54): (2008) 1 SCC (Cri) 72.
Failure of Justice: Omission to frame a charge [S. 246(1)] or any error, omission or
irregularity in the charge including any misjoinder of charges will be a ground for a retrial, if
it has occasioned a failure of justice.40 The phrase “merely on the ground that no charge was
framed” means a case where the offence being a petty one and the evidence being fairly
taken, the Court framed no charge at all. The first sub-section applies to cases where there is
no charge at all, or the offence is not of serious nature, or in which the offence charged is of
such a nature that there is no difference between the ingredients of that offence and the
ingredients of the offence of which the accused has been convicted, or the offence charged
comprises all the ingredients of the offence of which the accused has been found guilty and
some more.41

Non-framing of Charge: Mere non-framing of charge would not vitiate conviction when no
prejudice has been pointed out by the accused. It is possible for the appellate or Revisional
Court to convict an accused for an offence for which no charge was framed unless the Court
is of the opinion that a failure of justice would in fact occasion. In order top judge whether a
failure of justice has been occasioned, it will be relevant to examine whether the accused was
aware of the basic ingredients of the offence for which he is being convicted and whether the
main facts sought to be established against him were explained to him clearly and whether he
got a fair chance to defend himself. 42 Where the accused had been charged for offence under
Section 498A, in examination under Section 313, CrPC basic ingredients of offence under
Section 306, IPC were explained to the accused, the accused could be convicted under
Section 306, IPC, even though no charge under the section had been framed. Where no
specific charge under Section 364, IPC had been framed, and accused had been prejudiced by
the omission, he would not be convicted under Section 364, IPC.43

In a case, where the accused persons were alleged to have trespassed in the field of the
deceased and fatally assaulted him, charges were framed under Sections 447, 504 and 300
read with Section 34. However, the trial Court came to the conclusion that the accused
persons had not acted in furtherance of common intention and only one accused caused fatal
injury. It was held that the others who caused only bleeding injuries can be convicted for their

40
Gurdu, (1880) 3 AII 129; Madhab Chandra Saha, (1926) 53 Cal 738; see Chittaranjan Das, AIR 1963 SC 1696:
(1963) 2 Cri LJ 534; State of Sikkim Vs Kul Chandra Baral, 2005 Cri LJ 1027 (1029).
41
Ramchandra Bhairu, (1971) 73 Bom LR 811.
42
Dalbir Singh Vs State of U.P., AIR2004 SC 1990: (2004) 5 SCC 334:2004 AII LJ 1448: 2004 Cri LJ 2025 (2033)
(SC).
43
Gaddala Deshaiah Vs State of A.P., 2005 Cri LJ 828 (830, 831) (AP).
individual acts even though there was no separate charge. It was held that the Court had
power to alter the charge, hence refusal to convict them for their acts was improper.44

Where the accused-appellant along with co-accused were alleged to have fatally assaulted the
deceased and the accused persons had gone there with the intention to kill and the both of
them not only inflicted injuries on the deceased, the appellant had been proved to have caused
injury on the head of the deceased, it was held that failure to charge the appellant under
Section 34 of the IPC cannot be said to have caused prejudice to the accused. Hence,
conviction of appellant under section 300 with the aid of Section 34 was held to be proper.

Error in Charge: Error in framing the charges cannot render the judgement improper to
necessitate retrial, unless prejudice is shown to the accused. Where basic ingredients of the
offence are given in the charge, the defect in language, form or narration is not fatal to the
prosecution, trial is not vitiated.45

If a charge of conspiracy to commit criminal breach of trust is followed by a substantive

charge of criminal breach of trust in pursuance of such conspiracy, there is nothing to prevent
the Court convicting the accused under the second charge even if the prosecution fails to
establish conspiracy. Furthermore, there could not be said to be any prejudice as the accused
was aware of the substantive charge under Section 409. Misjoinder of charges is saved under
this clause. It is merely an irregularity and not an illegality unless, of course, it has
occasioned a failure of justice.46 Section 464(1) or 465 of the Code does not supersede the
mandate of Section 218(1) but only cures the illegality where the trial has been concluded
without any failure of justice on account of such misjoinder. Where consolidation of trials for
different offences was done and there was no application by the accused for such
consolidation, subsequent letter by him giving his consent to such joint trial was held to be
enough to cure the defect. Where an accused with one other was charged for offences under
Section 302 read with Section 34 and the co-accused was acquitted, irregularity in framing
the charge, held, was curable. Where the name of the accused is wrongly mentioned in the
charge, but the charge has been fully explained to the accused, error in the charge would not
affect/vitiate the trial. Defect in a notice or order under Section 111, does not vitiate the
proceedings under Section 107 of the Code, if no prejudice is caused to the accused. A

44
Bhimanna Vs State of Karnataka, AIR 2012 SC 3026: (2012) 9 SCC 650.
45
C.P. Kambhar Vs State of Maharashtra, 1995 Cri LJ 290 (Bom-DB); Pananarang Punnappa Kare Vs State of
Maharashtra, 1993 (1) Bom CR 571 (Bom-DB).
46
Brichh Bhufar Vs State of Bihar, AIR 1963 SC 1120: (1963) 2 Cri LJ 190.
misjoinder of several charges of dacoity is a curable irregularity and a conviction cannot be
set aside unless the misjoinder has occasioned a failure of justice.

Where in charge for offence under Sections 304A and 279 IPC date of accident stated was
incorrect, it being clerical was held immaterial. Where in charge by mistake wrong section
has been levelled in respect of offence, the same would itself not invalidate prosecution.47

Where the accused fully knew about the allegations and were not misled by the alleged error
in the charge, irregularity in charge was curable. “Omission of the words along with three
others” in the charge Under Section 302/149 was held of no consequence, when there was
specific case that the accused had formed unlawful assembly and there was no failure of
justice.48 Where in charge by mistake the name of a prosecution witness was written as that of
the deceased, all the prosecution witness were cross-examined with reference to the deceased,
held no prejudice was caused to the deceased, the conviction of the accused was not
interfered. Where objection was not raised before the trial Court in examination under
Section 313 CrPC, the accused was appraised about all the charges against him, accused was
not prejudiced in any way, trial was held not invalid. Where there was discrepancy in the FIR
and the charge about the period during which the offence of misappropriation was alleged to
have been committed, documentary evidence about entrustment of money to accused was
filed, no prejudice was shown to accused, discrepancy was held merely inconsequential, and
curable.49

Conviction under Different Provisions: Though the accused were charged of an offence
under Sections 302 and 149, they could be convicted under Section 302/34. An accused
charged under Section 396 IPC, can be convicted under Section 394 IPC, the latter being
minor offence, as no prejudice results to the accused.50 Though Section 34 IPC, is not added
to Section 302, the accused had clear notice that they were being charged with the offence of
committing murder in pursuance of their common intention to put an end to a life. Hence the
omission to mention Section 34 IPC, in the charge has only an academic significance, and has
not in any way misled the accused. Where the accused was charged and convicted under
Section 165A IPC, but in appeal the High Court changed the conviction to one under Section
161/109 IPC, on the ground that Section 165A IPC, had not come into force when the offence
was committed, and maintained the sentence, it was held that there was no illegality, since the
47
Usha Raj Vs State of Bihar, 2009 (1) Pat LJR 113 (Pat).
48
Siddique Vs State of U.P., 1998 Cri LJ 3829 (AII—DB).
49
Shanmugam Vs State, 1997 Cri LJ 2042 (Mad).
50
Karna Dasharath Mali Vs State of Maharashtra, 2000 Cri LJ 1288 (Bom-DB).
effect in law of Section 161/109 IPC, was precisely the same as that of Section 165A IPC. 51
Where an accused was charged of various offences including one under Section 302 of IPC,
read with Section 149, though no specific and separate charge under Section 302 IPC, was
made but he was convicted under that Section, it was held that the accused had been
prejudiced in his defence and therefore conviction as well as sentence was set aside. Where
the accused charged under Section 302 IPC, had knowledge that he was being tried for
murder, held no prejudice was caused to the accused and his conviction was not vitiated. An
accused charged under section 304B cannot be convicted under Section 302 read with
Section 109 IPC, as it would be a case of prejudice to the accused. As the ingredients of
cruelty are common in offences under Sections 304B and 498A, accused charged under
Section 304B can be convicted under Section 498A, accused would not be prejudiced by
absence of charge under Section 498A. The ingredients of offences under Sections 364A and
364 IPC are different. An accused charged under Section 364 IPC cannot be convicted for
offence under Section 364A.52

7. FINDING OR SENTENCE WHEN REVERSIBLE BY REASON OF

ERROR, OMISSION OR IRREGULARITY (SECTION-465)
(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, judgement or other proceedings before or during trial
or in any injury or other proceedings under this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion of the 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.

51
Om Prakash Vs State of U.P., AIR 1960 SC 409: 1960 Cri LJ 544.
52
Anil Vs Administration of Daman & Diu, Daman, (2006) 13 SCC 36 (54): (2008) 1 SCC (Cri) 72.
Scope and Application: The principle underlying Section 465 is that any and every
irregularity or infraction of a procedural provision cannot constitute a ground for interference
by a Superior Court unless such irregularity or infraction has caused irreparable prejudice to
the party and requires to be corrected at the stage itself, frequent inference by Superior Courts
at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. 53
This section applies to a case where something irregular takes place at a regular trial. It does
not apply where the trial is illegal from start to finish. There are always chances for honest
errors or harmless omissions or innocent irregularities to creep in at any trial or proceeding.
These are quite innocuous, if they do not occasion “a failure of justice” as a matter of fact.
They are here classified into two categories: (1) error, omission or irregularity in any step of a
trial, inquiry or proceeding; (2) any error, or irregularity in any sanction for the prosecution
of any person. They do not enable a Court of confirmation or appeal or revision to interfere
with any finding, sentence or order. To put it Shortly, a mere irregularity in procedure is not
ordinarily sufficient to avoid a trial. It should, however, only be “one of form and not of
substance”.54

Adoption of Wrong Procedure: An offence punishable under Section 16(1)(ii) Prevention

of Food Adulteration Act, 1954 must be tried as a warrant case because punishment
extending up to two years can be imposed, but when the accused was tried according to the
summons case procedure, which was illegal, when no prejudice was caused to accused by
adoption of the wrong procedure the irregularity is curable. 55 A case triable as a summons
case is tried as a warrant case, the Magistrate commits an irregularity, it does not vitiate the
proceedings and is curable. The disobedience, however, to an express provision as to a mode
of trial cannot be classed as a mere irregularity.56 There is a distinction between a case in
which the trial itself is contrary to law, in which event it is not a trial at all under the Code,
and a case in which the trial is one within the jurisdiction of the Magistrate and irregularities
occur in the method of conducting it. In the latter case the provisions of Section 465 are
applicable and the finding can only be reversed, if the irregularity has in fact occasioned a
failure of justice.

53
Santosh Dev Vs Archana Guha, AIR 1994 SC 1229: 1995 Cri LJ 2640 (SC); Laxman Bapu Sarkar Vs State of
Gujarat, 2004 Cri LJ 2229 (2234) (Guj-DB).
54
Appa Subhana Mendre, (1884) 8 Bom 200, 211; Bibhuti, AIR 1969 SC 381: 1969 Cri LJ 654; Makan, AIR 1971
SC 1797.
55
Alimahomed Vs Kasturchand, (1938) 41 Bom LR.
56
Per Lord Halsbury LC in Subramania Iyer, (1901) 3 Bom LR 540, 541: 28 IA 257, 263, 25 Mad 61.
Omission to Comply with Mandatory Provision: It is not a universal rule that omission to
comply with an express or mandatory provision of the Code must always vitiate the trial,
irrespective of any question of prejudice to the accused or other party. The breach of every
provision of the Code does not necessarily make the trial invalid. If the criminal trial is
conducted substantially inn the manner prescribed by the Code but some irregularity occurs
in the course of such conduct, the irregularity can be cured under this section. 57 The
impugned procedure must be one that is not only prohibited by the Code but also works an
actual injustice to the accused.

For registration of a case under the Terrorist and Disruptive Activities (Prevention) Act,
1987, the requirement of prior approval of the District S.P. is mandatory. The approval may
be written or oral but it is sine qua non for prosecution. Thus, in a case of registration of case
without the prior approval of the District S.P. it was held by the Supreme Court that it is not
an omission which is covered under Section 465 of the Code. It is a defect that goes to the
root of the matter and is not one of the curable defects.58

Irregularity in Investigation: The question is not whether in investigation an offence the

police have disregarded the provisions of the Act, but whether the accused has been
prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary
for the accused to throw a reasonable doubt that the prosecution evidence is such that it must
have been manipulated or shaped by reason of the irregularity in the matter of investigation,
or that he was prevented by reason of such irregularity from putting forward his defence or
adducing evidence in support thereof. But where the prosecution evidence has been held to be
true and where the accused had full say in the matter, the conviction cannot obviously be set
aside on the ground of some irregularity or illegality in the matter of investigation; there must
be a sufficient nexus, either established or probabilized, between the conviction and the
irregularity in the investigation. 59 Any illegality or irregularity committed during process of
investigation is not a limitation on the power of the Court to take cognizance of the offence
and punish the offender.60

57
Ramaraja Tevan, (1930) 543 Mad 937; Maganlal, (1946) Nag 126.
58
Ashraf Khan Vs State of Gujarat, AIR 2013 SC 217: (2012) 11 SCC 606: 2013 Cri LJ 226 (SC).
59
State of U.P. Vs Bhagwant Kishore Joshi, AIR 1964 SC 221: 1964 (2) Cri LJ 140.
60
G.S.R. Somayaji Vs State, (2001) 2 Andh LT (Cri) 456: 2002 Cri LJ 795 (798) (AP).
 8. DEFECT OR ERROR NOT TO MAKE ATTACHMENT
UNLAWFUL (SECTION-466)
No attachment made under this Code shall be deemed unlawful, nor shall any person making
the same be deemed, a trespasser, on account of any defect or want of form in the summons,
conviction, writ of attachment or other proceedings relating thereto.

9. CONCLUSION
As a general principle, it can be stated that error, illegality or defect in investigation cannot
have any impact unless miscarriage of justice is brought about or serious prejudice is caused
to the accused.

If the prosecution case is established by the evidence adduced, any failure or omission on the
part of the Investigating Officer cannot render the case of the prosecution doubtful. (Amar
Singh Vs Balwinder Singh, AIR 2003 SC 1164, Sambu Das Vs State of Assam AIR 2010 SC
3300). If direct evidence is credible, failure, defect or negligence in investigation cannot
adversely affect the prosecution case, though the court should be circumspect in evaluating
the evidence (Ram Bihari Yadav Vs State of Bihar AIR 1998 SC 1850, Paras Yadav Vs State
of Bihar AIR 1999 SC 644, Dhanraj Singh Vs State of Punjab AIR 2004 SC 1920, Ram Bali
Vs State of U.P., AIR 2004 SC 2329).

If investigation is illegal or suspicious, the rest of the evidence must be scrutinized

independent of the impact of the faulty investigation; otherwise criminal trial will descend to
the Investigating Officer ruling the roost. Yet if the court is convinced that the evidence of
eyewitnesses is true, it is free to act upon such evidence though the role of the Investigating
Officer in the case is suspicious. An accused cannot be acquitted on the sole ground of
defective investigation; to do so would be playing into the hands of the Investigating Officer
whose investigation was defective by design. Mere defective investigation cannot vitiate the
trial.
 10. BIBLIOGRAPHY
Books:

1. Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis.

2. Gaur, K.D., A Textbook on Indian Penal Code, Universal Law Publications.
3. Ratanlal and Dhirajlal, The Code of Criminal Procedure, Lexis Nexis.
4. R.V. Kelkar’s Criminal Procedure, Eastern Book Company.

Legislations:

1. Constitution of India, 1950.

2. The Indian Penal Code, 1860.
3. The Code of Criminal Procedure, 1973.

Websites:

1. www.jstor.org
2. www.international.westlaw.com
3. www.manupatra.com
4. www.lawcommissionofindia.nic.in