1986 P Cr (PLP)

Mr. Justice Sen of Calcutta High Court reiterated this view in the case of Express. Dairy Ltd. A I R 1950 Cal.

61. Following the aforesaid dictum in Mastan Singh's case A I R 1953 Pepsu 125, the conviction was set aside for want of compliance with the mandatory procedure laid down for trial in summons cases. In that case, the trial Magistrate had conducted the trial in complete derogation to the procedure laid down for trial in summons cases. Mr. Justice Passey observed that the provisions of sections 242 and 243, Cr.P.C. were imperative; derogation to those provisions was not a mere irregularity but it vitiated the trial from the stage the error occurred. In M. Ramamurthy's case A 1 R 1954 Mays. 164, the learned Judges adhered to this view and observed that failure to examine the accused under section 242 Cr.P.C., prejudiced the accused in his defence. Thus, on the satisfaction of prejudice apparent from the record, it was deemed expedient to set aside the conviction.

5. The tenor of the view expressed in Gopal Krishna Saha's case rested on a general proposition of law enunciated by the Privy Council, but this view was modified by the Privy Council in subsequent decisions to be listed next. The second view, rather correct view, is that disregard or an omission in adhering to the provisions of sections 242 and 342, Cr.P.C., when occasioned no prejudice or injustice, is simply an irregularity curable under section 537, Cr.P.C., but when it is satisfied that non-compliance with the provisions has occasioned prejudice or injustice, it is an illegality incurable by section 537, Cr.P.C. Thus, the true test whether disobedience to the provisions is an illegality or irregularity, rests on the presence of prejudice or injustice to the accused. When it is satisfied that non-compliance with the provisions of these sections is not accompanied by prejudice or injustice to the accused, it is just an irregularity and not an illegality and vice versa. The learned Judges of the Privy Council examined the effect of disobedience to the imperative procedure envisaged in section 360, Cr.P.C. in V.M. Abdul Rahman's case A I R 1927 PC

44. The authority laid down in this case is not direct to the facts of the present case but it is quite helpful to appreciate the true effect of non-compliance with the mandatory provisions of section 360, Cr.P.C. which equally makes it imperative in the evidence of each witness shall be read over to him in presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. On satisfaction of the learned Judges that an omission to comply with the provisions of section 360 in that case, was unaccompanied by any probable suggestion of failure of justice, or an irregularity not enough to warrant the quashing of the conviction. The relevant observation is reproduced:

"A mere omission or irregularity to comply with section 360 unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned is not enough to warrant the quashing of a conviction."

6. The dictum of the Privy Council received attention in Mt. Lahani's case A 1 R 1932 Nag. 127, where, again, a direct proposition resting on an omission to comply with the provisions of section 242, was under consideration. In that case, the learned Judges of Nagpur Nigh Court closely examined the dictum of the Privy Council in Subhramania Aiyar's case and V.M. Abdul Rahman's case and arrived at the following conclusion:-- "The principal object of the provisions in section 242 that the particulars of the offence of which a person is accused shall be stated to him and that he shall be asked if he has any cause to show why he should not be convicted is to discover whether the accused admits whether he has committed the offence. The omission, consequently, to state the particulars of the offence in accordance with the provisions of section 242 unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned is cured by the provisions of sections 535 and 537."

7. An identical proposition was raised before the Judicial Commissioner, Peshawar in Dost Muhammad Qutab Din's case A I R 1941 Pesh.

9. On reviewing the scheme and object of the provisions of section 242, Cr.P.C. the ultimate conclusion was drawn as:-- "The primary object of the proceedings prescribed by section 242, Cr. P. C., is to determine whether the accused pleads guilty to the charge or demands to be tried ....The facts on which the case was based however were fully set out by the prosecution and the accused was specifically asked to explain that part of the case. I am of opinion that in these circumstances failure to comply with the provisions of section 242, Cr.P.C. amounts merely to an irregularity which can be cured under section 537, Criminal Procedure Code, and that there has as a matter of fact been no miscarriage of justice from this irregularity."

8. The Supreme Court of India analysed the importance of compliance with the mandatory provisions contained in section 342, Cr.P.C. in Moseb Kaka Chowdhry's case A I R 1956 SC 536, a murder case tried by the Sessions Judge with the assistance of Jury. The learned counsel for the convict-appellant assailed the conviction on the ground of want of strict adherence to the provisions of section 342, Cr.P.C. The learned Judges observed that a conviction is not to be set aside merely for the reason of inadequate compliance with section 342, Cr.P.C. clear prejudice must be shown. The appeal was dismissed as in the opinion of the leaned Judges, non-examination or inadequate examination of the accused under section 342, Cr.P.C. unaccompanied by prejudice or injustice to the accused, was not enough to set aside the conviction.

9. In Abdul Wahab's case P L D 1955 FC 88, conviction of the appellant under section 449 of the Penal Code was sought to be set aside on the ground of non-compliance with the provisions of section 342, Cr.P.C. Mr. Justice Muhammad Sharif, who spoke for the Court, on analysing the scheme of law laid down under section 342, Cr.P.C., arrived at the conclusion that the object of section 342 is not to cross- examine the accused in detail. As a matter of fact, the learned Judges held, the true object was to invite attention of the accused to the points in evidence which were likely to influence the mind of the Judge in arriving at a conclusion adverse .to the accused, so that before the Judge could draw adverse inference, the accused should be afforded opportunity to offer an explanation. Despite failure of the trial Court to, comply with the provisions of section 342, Cr.P.C., the learned Judges of the Federal Court refused to set aside the conviction. The observation on the point is:- "The accused is literate and could very well-follow the nature of the proceedings against him, and was also aware of the prosecution case. Since no miscarriage or failure of justice has been proved in this case, section 537 of the Criminal Procedure Code would cover it, and for that reason, no interference is called for by this Court. The learned counsel for the appellant was asked if there was anything to show that the amount had been credited to the Municipal Committee or paid to the Tax Darogha, he could not refer to any material on the record to show this, nor could he urge that the accused, had, in any way, been prejudiced by the general question put to him. In its absence, the appeal is hereby dismissed..."

10. In Atta Muhammad's case A I R 1930 PC 57(2) , conviction on the charge of murder was not set aside on an objection that the accused was convicted without having had a fair opportunity of knowing what charge was that he had to meet and particularly of raising defences other than the one raised or of relying on any circumstances which would have reduced the offence to a minor one. It was contended that omission to mention specifically the charge under section 300, Indian Penal Code, under which the convict was proceeded against, misled him, as such, he was deprived to raise a successful defence. The contention was turned down, as on going through the record of the case, the learned Judges were satisfied that no prejudice or injustice was caused to the convict. It was observed:-- "In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere. Their Lordships, therefore, will humbly advise His Majesty that for these reasons this appeal must be dismissed."

11. In Gurbachan Singh's case A 1 R 1957 SC 623, the conviction was challenged on a technical ground that the statements taken from the witnesses under section 161, Cr.P.C. during investigation in the connected case under the Arms Act, should not have been supplied to the accused for the purpose of defence in the trial, as the result of trial, by such action, was materially affected. The learned Judge dismissed the appeal in the following manner:- "In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to the 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."

12. The second view was followed in Iqbal Hussain's case P L D 1969 Lah.

217. Mr. Justice Ataullah Sajjad, on making analytical review of the case law on the point, arrived at the conclusion that the fact that the convict cross-examined all the prosecution witnesses, gave evidence in his defence in order to meet the prosecution case, he was an educated person and was represented by a counsel, he was examined in detail under section 342, Cr.P.C., therefore, he fully understood what the case was against him, couple wit an omission to raise objection at any stage during trial, do no reflect any prejudice or injustice caused to the accused. In this case, the accused, tried in the manner of trial .in summons case, was not examine under section 242, Cr.P.C. The defect was recovered, like the present case, at the time of decision. In appeal before the High Court, the conviction was assailed, among others, as being illegal for failure of the trial Magistrate to comply with the provisions of section 242, Cr.P.C. The objection on this score was turned down. The learned Judges, following the dictum of the Supreme Court in Shamim's case P L D 1966 SC 178 observed:

"The appellant cross-examined all the prosecution witnesses. He also gave evidence in his defence in order to meet the prosecution case. He is an educated person and was represented by a counsel. He was examined in detail under section 342 of the Code and all the incriminating circumstances appearing against him in the evidence of the prosecution were put to him. He, therefore, fully understood what the case was against him. Under the provisions of the Code, it is to be proved as a fact that prejudice has been caused. The whole evidence in possession of the prosecution was examined and it has not been shown that the appellant was misled in his defence. The appellant does not appear to have raised any objection to the omission on the part of the. Court to examine him before recording the prosecution evidence. It appears from the order-sheet, dated 18-12-1967 that the trial Court itself took notice of this omission on the part of its predecessor and heard arguments on 20-12-1967 on this aspect of the case. In the instant case, the objection to the legality of the process was not taken till after the complainant and some other witnesses had been examined in the case, in the presence of the accused and a charge had been framed against him. Even then the objection was not raised in the trial Court. It was merely mentioned in a transfer application preferred to the District Magistrate and raised later in the High Court. That transfer application succeeded and the case went for disposal to another Magistrate. The appellant had the opportunity to cross-examine the complainant and his witnesses, and it did not, therefore, appear` that he had been, in any way, prejudiced in his defence."

13. The lacuna occurring in the present case is purely of a technical nature. This is so, the accused were examined in strict compliance with the provisions of section 242, Criminal Procedure Code, by explaining to them the substance of the charge levelled against them. They pleaded not guilty by denying the charge. The prosecution witnesses were cross-examined at length by the counsel of the accused. The defence failed to raise an objection to this omission throughout the trial. The technical defect was not even objected to by the defence in final arguments as this was discovered only by the trial Court at the time of final judgment in the case. Chaudhry Muhammad Taj, the learned counsel for the defence, confined his argument to the technical aspect of the case and failed to highlight any prejudice or injustice which may have occasioned to the accused persons .by disregard of procedure in the present case. I fully subscribe to the dictum of the Supreme Court of India in Gurbachan Singh's case A I R 1957 SC 623, as well as the view expressed in Iqbal Hussain's case P L D 1969 Lah. 217, and hold that unless it is satisfied that a departure from the mandatory provisions of procedure had occasioned prejudice or injustice to the accused, such an omission is merely an irregularity curable under section 537, Cr.P.C. This is so, as it is enjoined upon the Court to ensure that a fair, impartial and justice trial is held and no prejudice or injustice is caused to the accused. Thus, in absence of prejudice or injustice, an omission to adhere to provisions of the procedure is merely an irregularity. In other words, a trial otherwise found unbiased and just cannot be vitiated on the ground of technicalities. The trial in present case being legal, the District Criminal Court, Mirpur, is competent to decide the case on merits. The reference is answered accordingly. M.Y.H. Reference answered.