Published in Vol. 22, 2019 Law Exam Times (ISSN 2319-9121) 17-21.

IRREGULAR PROCEEDINGS UNDER CRIMINAL LAW

From the provisions of section 460 and 461 of the Code of Criminal Procedure, it is crystal clear that legislature
has listed the defects or irregularities in two different categories, viz (i) curable which does not vitiate proceedings
and the other (ii) incurable which vitiates proceedings.
-Allahabad High Court in Ranjeet Srivastava v. State of U.P., on 20 November, 2015
erroneously in good faith does that thing, his
Introduction: proceedings shall not be set aside merely on the
The criminal law, dealing with the matters related to ground of his not being so empowered.
violation of prohibited conduct in society, aims to Section 460 CrPC cures nine kinds of irregularities
deliver justice by punishing the guilty and remedying provided they are caused erroneously and in good
the aggrieved persons. The purpose of criminal law, faith. A further qualification is implied in this section
inter alia, is to protect the interests of society. The that the irregularity should not occasion a failure of
criminal law is being implemented by the criminal justice.
courts applying the statutes, decisions etc. wherein it In Dipak Ghosh Dastidar v. Sanat Kumar Mukherjee,
has been expected that the courts have to reach at 2003(1) Crimes 297 Calcutta High Court was dealing
final conclusion without committing any irregularity. with a case where complainant was not examined
But, there may be some circumstances where before issue of process, it in that case issued a
irregularities have been committed which may be warrant of arrest. It was held that it was at best a
curable irregularity or incurable irregularity. The mere irregularity curable under Section 165 of the
present paper deals with effects of irregularities Code since no prejudice to the accused had been
committed by a criminal court. caused on account of non- examination of the
Irregular Proceedings: complainant.
The provisions relating to irregular proceedings are In R.Basu v. National Capital Territory of Delhi,
contained in Chapter XXXV CrPC, 1973 2007 Cri.L.J. 4254, it was observed by
containing sections 460-466. In this the Court that even where the
respect, CrPC, 1898 contained provisions complainant is not examined and
in Chapter XLV containing sections 529- cognizance is taken on the basis of
538. Section 460 CrPC deals with curable allegations which make out the offence,
irregularities and section 461 CrPC deals non-examination of the complainant
with incurable irregularities as under- Dr. V.S. Tripathi Dr. P.K. Pandey would not vitiate the order of
Curable Irregularities-Curable cognizance.
irregularities do not vitiate the proceedings. The In Satish Dayal Mathur v. M/s. Mackinnon
relevant provisions read as under: Mackenzie & Company, ILR (1986) II Delhi 92, it
460. Irregularities which do not vitiate was held that though the provisions of Section 200 of
proceedings.—If any Magistrate not empowered by the Code of Criminal Procedure requiring the
law to do any of the following things, namely:— Magistrate to examine the complaint and witnesses
(a) to issue a search-warrant under section and reducing the substance of such examination into
94; writing are mandatory and should be strictly
(b) to order, under section 155, the police to complied with, non-compliance thereof by itself
investigate an offence; would not vitiate the subsequent proceedings and
(c) to hold an inquest under section 176; such an error would be only a procedural lapse.
(d) to issue process under section 187, for Allahabad High Court in Queen-Empress v. Chidda,
the apprehension of a person within his local (1898) ILR 20 All 40 said that this section deals with
jurisdiction who has committed an offence acts done by a Magistrate in no way empowered by
outside the limits of such jurisdiction; law to do those acts; it has no reference to a
(e) to take cognizance of an offence under Magistrate empowered otherwise under the Act to do
clause (a) or clause (b) of sub-section (1) of an act but not possessing jurisdiction over the
section 190; offence. In this case, the court mentioned that the
(f) to make over a case under sub-section (2) Magistrate of Etah, as Magistrate of the district Etah,
of section 192; is undoubtedly empowered to tender pardon in
(g) to tender a pardon under section 306; respect of offences inquired into in the Etah district
(h) to recall a case and try it himself under which are covered by the provisions of Section 337
section 410; or CrPC, 1898 but he has no such jurisdiction in respect
(i) to sell property under section 458 or of an offence of the same kind committed in the
section 459, district of Muttra. On the other hand a second or third

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 Published in Vol. 22, 2019 Law Exam Times (ISSN 2319-9121) 17-21.

class Magistrate in the Muttra district not inquiring irregularities which would lead to annulment of
into the offence or not empowered by the Magistrate proceedings. In simple terms, the irregularities
of the district, has no power by law to tender a committed by any Magistrate as mentioned in section
pardon to a person accused of having committed an 461 CrPC will result as void. Section 461 CrPC reads
offence covered by Section 337 within the district of as under:
Muttra, but if such a Magistrate should tender a 461. Irregularities which vitiate proceedings.—If any
pardon in such a case, his proceedings would not be Magistrate, not being empowered by law in this
set aside merely on the ground of his not being so behalf, does any of the following things, namely:—
empowered. (a) attaches and sells property under section
In Akbar Ali Khan v. Domi Lal, (1900) 4 C.W.N. 821 83;
the court noted that a Subordinate Magistrate cannot (b) issues a search-warrant for a document,
be empowered under Section 192(2) to transfer cases parcel or other things in the custody of a
but this defect is cured by Section 529(f) of the postal or telegraph authority;
Criminal Procedure Code. (c) demands security to keep the peace;
In Dilip Kumar Kundu & others v. Madan Chandra (d) demands security for good behaviour;
Dey & another, 1992 (1) Crimes 171, a Division (e) discharges a person lawfully bound to be
Bench of Calcutta High Court in a complaint of good behaviour;
pertaining to an offence under various provisions of (f) cancels a bond to keep the peace;
Indian Penal Code, held that examination of the (g) makes an order for maintenance;
complainant on solemn affirmation is not a condition (h) makes an order under section 133 as to a
precedent for taking cognizance and that issuance of local nuisance;
summons by a Magistrate without examining the (i) prohibits, under section 143, the
complainant on solemn affirmation is merely an repetition or continuance of a public
irregularity. nuisance;
In Dharmendra Singh & another v. State of Orissa & (j) makes an order under Part C or Part D of
another, 2001 Cri.L.J.439, Orissa High Court, inter Chapter X;
alia, held that on receiving the complaint the learned (k) takes cognizance of an offence under
Magistrate without recording the statement of the clause (c) of sub-section (1) of section 190;
complainant as required under Section 200, Cr. P.C. (l) tries an offender;
posted the case for inquiry under Section 202, (m) tries an offender summarily;
Cr.P.C. Therefore, a question arose whether the (n) passes a sentence, under section 325, on
omission to examine the complainant on oath is an proceedings recorded by another Magistrate;
illegality or a mere irregularity. The complainant and (o) decides an appeal;
her witnesses have been examined on solemn (p) calls, under section 397, for proceedings;
affirmation in course of inquiry under Section 202, or
Cr.P.C. and their statements are available to the (q) revises an order passed under section
petitioners for the purpose of cross-examining the 446,
witnesses. The petitioners, thereafter, cannot urge his proceedings shall be void.
that the omission has in any way prejudiced them. So Section 461 CrPC enumerates seventeen types of
non-examination of the complainant on oath as irregularities, which if committed by any Magistrate,
required under Section 200, Cr. P.C. being an will result in vitiating the proceedings. No question
irregularity cannot vitiate the proceeding. of good faith arises here. In other words, these are
In V. Velu v. Chennakrishnan, on 22 March, 2019 illegalities which vitiate the proceedings. Such
Madras High Court said that section 460 (e) of proceedings have no existence in point of law.
Cr.P.C read with 462 of Cr.P.C would clearly say Punjab-Haryana High Court in Satpal v. State of
that, if any Magistrate not empowered by law to take Punjab, on 19 December, 2018 mentioned that
cognizance of an offence under clause (a) or clause section 461(k) Cr.P.C. would apply to those cases
(b) of sub-section (1) of Section 190; erroneously in where a Magistrate having absolutely no jurisdiction
good faith take cognizance, it shall not be set aside and not being empowered at all proceeds to take
merely on the ground of his not being so empowered. cognizance in the matter.
Such an irregularity will not vitiate the proceedings. Privy Council in Pulukuri Kotayya v. Emperor, AIR
Incurable Irregularities-There may be some 1947 P.C. 67 said that when a trial is conducted in a
irregularities which have taken place during trial of a manner different from that prescribed by the Code,
matter. Code of Criminal Procedure expressly the trial is bad, and no question of curing an
delineates irregularities in procedure which would irregularity arises; but if the trial is conducted
vitiate proceedings. Section 461 CrPC lists substantially in the manner prescribed, but some

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irregularity occurs in the course of such conduct, the Rajasthan, on 31 January, 2019 noted that a perusal
irregularity can be cured. of the Section 465 Cr.P.C. will lead to only inference
Supreme Court in Nitinbhai Saevantilal Shah v. that irregularity should have been challenged at very
Manubhai Manjibhai Panchal, on 1 September, 2011 initial stage.
noted that a plain reading of this provision shows that Will the trial of magisterial offences by a Court of
the proceedings held by a Magistrate, to the extent Session vitiate the trial rendering the proceedings
that he is not empowered by law, would be void and void? This question was before Kerala High Court in
void proceedings cannot be validated under Section Suresh v. State of Kerala, 2018 (1) KHC 735 wherein
465 of the Code. the court noted that Section 461 Cr.P.C. describes in
Under Sec. 462 CrPC, any finding, sentence or order precise terms the irregularities that would vitiate the
of any Criminal Court shall not be set aside merely proceedings. It is specifically provided under clause
on the ground that the inquiry, trial or other (l) of sub-section(1) of Section 461 Cr.P.C. that when
proceedings in the course of which it was arrived at a court tries an offender without being empowered to
or passed, took place in a wrong sessions division, do so, as per the mandate in Section 228 Cr.P.C., the
district, sub-division or other local area unless it accused in the case on hand ought to have been tried
appears that such error has in fact occasioned a by the Judicial First Class Magistrate empowered to
failure of justice. do so by the Code of Criminal Procedure and in the
Section 463 CrPC deals with non-compliance with event of the same having been conducted by the
the provision of Section 164 or Section 281. The Court of Sessions, without being empowered to do
Code has made a conscious distinction between so, proceedings is irregular and is void.
irregularities that would not vitiate the proceedings Concluding Observations:
(Section 460) and those which do so. The specific Hon’ble Supreme Court of India in Atma Ram v.
provision for omission to frame charges, mis-joinder State of Rajasthan, on 11 April, 2019 has
of charges, is found in Section 464. The underlying summarized the legal provisions relating to irregular
theme of that provision is that unless miscarriage of proceedings as: ‘Chapter XXXV of the Code deals
justice is found by the Court, irregularity in the with “Irregular Proceedings”, and Section 461
framing of charge or misjoinder of charges, do not stipulates certain infringements or irregularities
authorize the Court to set aside the order on charge. which vitiate proceedings. Barring those stipulated in
Therefore, the recurring theme is that a omission or Section 461, the thrust of the Chapter is that any
technical violation does not by itself constitute a fatal infringement or irregularity would not vitiate the
infirmity in charges framed and for the revisional or proceedings unless, as a result of such infringement
appellate Court to set aside such an order, there or irregularity, great prejudice had occasioned to the
should be a positive finding of failure of justice. accused.’ The courts’ prime duty is to evade such
Section 465 CrPC protects orders from errors, circumstances through which the miscarriage of
omissions or irregularities, unless "a failure of justice is caused. The power given in Chapter XXXV
justice" has been occasioned thereby. Most certainly, should be used properly and with caution.
an order delineating reasons cannot be faulted on the (By Dr. V. S. Tripathi, Associate Professor & Dr.
ground that it has occasioned failure of justice. P.K. Pandey, Assistant Professor, Department of
Rajasthan High Court in Prakash Chand v. State of Law, Brahmanand College, Kanpur)

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