416 Criminal Procedure Code

e
00 its sale would be for the owner’s benefit; or
(iii) its value is [less than Rs. 500] [Sec. 459] [Substituted by the 2005 Amendment
Act for the words “less than Rs. 10.”]
Sec. 459 has been amended to make a consequential amendment due to insertion of a
proviso to Sec. 102(3) of the Code which seeks to empower the police to sell perishable
property up to a value of Rs. 500. Previously the Magistrate was empowered to sell the
perishable property of the value of less than Rs. 10.

CHAPTER XXXV

IRREGULAR PROCEEDINGS
This Chapter deals with the effect of irregularity in proceedings before criminal courts,
viz. whether or not the trial is vitiated on that account.

(I) Irregularities which Do Not Vitiate Proceedings [Sec. 460]

Sec. 460 provides that if any Magistrate who is not empowered to do any of the following
nine things, erroneously and in good faith, does that thing, his proceedings are not to
be set aside, merely on the ground of his not being empowered to do so. These nine cases
of irregularities are as follows:
(0 issuing a search warrant under Sec. 94;
(ii) ordering the Police to investigate an offence under Sec. 155;
(iii) holding an inquest under Sec. 176;
(iv) issuing process under Sec. 187, for the apprehension of a person within his
jurisdiction, for his having committed on offence outside the- limits o f such
jurisdiction;
(v) taking cognizance of an offence under Sec. 190(1 )(a)/(b);
(vi) making over a case, under Sec. 192(2);
(vii) tendering a pardon under Sec. 306;
(viii) recalling a case, and trying it himself under Sec. 410;
(ix) selling property under Sec. 458/ 459.

415. Inherent powers of Sessions Court is given under;

(a) Sec. 481.
(b) Sec. 482.
(c) Sec. 483.
(d) Nowhere in Cr.P.C.
416. In which of the following cases, the High Court cannot act under its inherent
powers:
(a) To grant a bail.
(b) To exempt an accused from appearing in court.
(c) To quash a proceeding, where the allegations in the complaint did not
make out the alleged offences.
(d) To entertain applications which are not contemplated by the Code.
 Criminal Procedure Code 417

Apart from the requirement of good faith (which is expressly specified in the
section), there is also an implied requirement that such irregularity should not occasion
a failure o f justice [Lalit Chandra, (1911) 39 Cal 119].

(2) Irregularities which Vitiate Proceedings [Sec. 461]

Sec. 461 enumerates seventeen kinds of irregularities which vitiate the proceedings. It lays
down that if any Magistrate who is not empowered to do so, does any of the following
seventeen things, his proceedings shall be void. This will happen when a Magistrate who
is not empowered to do so:
(i) attaches and sells property under Sec. 83; j
(ii) issues a search-warrant for a document, parcel or other things in the custody
o f a postal or telegraph authority;
(iii) demands security to keep the peace;
(iv) demands security for good behaviour,
(v) discharges a person lawfully bound to be of good behaviour;
(vi) cancels a bond to keep the peace;
(vii) makes an order for maintenance;
(viii) makes an order as to a local nuisance under Sec. 133;
(ix) prohibits the repetition or continuance of a public nuisance under Sec. 143;
(x) makes an order under Part C or Part D of Chap. X (i.e. regarding urgent cases
o f nuisance or apprehended danger or as regards disputes as to immovable
property);
(xQ takes cognizance of an offence under Sec. 190( 1)(c);
(xii) tries an offender;
(xiii) tries an offender summarily;
(xiv) passes a sentence, under Sec. 325, on proceedings recorded by another
Magistrate;
(xv) decides an appeal;
(xvi) call for proceedings under Sec. 397;
(xvii) revises an order passed under Sec. 446.
If any of the above irregularities exists, the proceedings are void, and no question of good
faith arises. Such proceedings have no existence in the eyes of law, and need not be set
aside by a Superior Court [Husein, (1884) 8 Bom 307].

(3) Proceedings at the Wrong Place [Sec. 462]

As regards proceedings taking place at a wrong place, it is provided by Sec. 462 that no
finding, sentence or order of any criminal court can be set aside merely on the ground
that the inquiry, trial or other proceedings took place in a wrong sessions divisions,
district, subdivision or other local area, unless it appears that such error has, in fact,
occasioned a failure of justice.
Thus, where a member of the Bihar Military Police was tried at Patna for the offence
o f deserting in Kashmir, the Supreme Court held that the trial at Patna was not vitiated,
as there was no failure of justice on this ground, there being even no allegation to that
effect [Nassiruddin AIR 1973 SC 186]. Similarly, when an appeal was presented at the right
418 Criminal Procedure Code

place, but was heard by the Presiding Judge at a place where he had no jurisdiction, it
was held that the irregularity was cured by Sec. 462 [Fazal, (1894) 1 All 36].

(4) Irregularity in Recording Statements and Confessions [Sec. 463]

As statements and confessions occupy an extremely delicate position in criminal law, the
law has deliberately provided adequate safeguards for their recording and use in criminal
trials, in the shape of Sec. 164 and Sec. 281 of the Code. Non-observance o f such
requirements may result in having a statement or confession ruled out o f evidence. Sec.
463, therefore, provides that even if the Magistrate finds that such requirements o f the
law have not been complied with, he may, despite Sec. 91 of the Indian Evidence Act,
take evidence as regards such non-compliance, and if he is satisfied that such non-
compliance has not injured the accused in his defence on the merits, and that he had,
in fact, duly made the statement recorded, the Magistrate may admit such a statement.
The above provisions also apply to courts of appeal, reference and revision.

(5) Effect of Omission to Frame Charge or Error in the Charge [Sec. 464]
Sec. 464 lays down that no finding, sentence or order of a competent court is to be
deemed to be invalid, merely on the ground that no charge was framed, or on the ground
of any error, omission or irregularity in the charge (including misjoinder of charges),
unless in the opinion of the court of appeal, confirmation or revision, a failure o f justice
has, in fact, been occasioned thereby.
If, however, such court is of the opinion that a failure of justice has, in fact, been
occasioned thereby, it may:
(a) in the case of an omission to frame a charge, order that a charge be framed,
and the trial be re-commenced 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 a manner it thinks fit.
If, however, in such a case, the court is of the opinion that the facts of the case are such
that no valid charge could be preferred against the accused in respect of the facts proved,
it must quash the conviction.

(6) C o u rt’s O rder w hen R eversible due to Error, O m issio n or

Irregularity158 [Sec. 465]
Sec. 465 provides that, subject to the other provisions of the Chapter (discussed above),
no finding, sentence or order of the competent court can be reversed or altered by a court
of appeal, confirmation or revision, on account of any error, omission or irregularity in
the complaint, summons, warrants, proclamation, order, judgment or order proceeding
before or during the trial, or in any inquiry or other proceedings under the Criminal
Procedure Code, or any error or irregularity in any sanction for prosecution, unless, in
the opinion of the court, a failure of justice has, in fact, been occasioned thereby.
In determining whether any such error, omission or irregularity has occasioned a
failure o f justice, the court must have regard to the fact whether the objection could, and
should, have been raised at an earlier stage in the proceedings.

158. ’Illegality vitiates trial whereas irregularity does not unless it results in prejudice.’
Explain. [Delhi J.S. 1989]
 Criminal Procedure Code 419

Once again, the keynote of this section also is failure o f justice. This expression
does not merely mean an erroneous decision. When the prescribed procedure, which
would have given the affected person a better opportunity to clear the position, has not
been followed, it would be a case of failure of justice [/C. Nagayya, (1969) 2 CrLJ 719].
It is not a universal rule that omission to comply with an express provision of the Code
must always vitiate the trial, irrespective of any question of prejudice to the accused or
the other party. The impugned procedure must be one that is not only prohibited by the
Code, but one which also works an actual injustice to the party [Ramaraja, (1930) 53 Mad
937]. When the cognizance of an offence was taken under a wrong section of the Code,
but the conviction was under the correct section by a competent court, it was held that
no prejudice was caused to the party [S.S. Raut, 1991 CrLJ 1595 (Ori)].
There are always chances for honest errors or innocent irregularities to creep in,
at any trial or proceeding. These are quite innocuous, if they do not occasion any failure
of justice i.e. if they are only of form, and not of substance [Appa Sabhana, (1884) 8 Bom
200]. It may, however, be noted that Sec. 465 applies only where something irregular takes
place at a regular trial. It has no application if the trial from start to finish is illegal
[Lilabati, 1966 CrLJ 88].
Whether serious irregularity can be waived or consented to by accused’s pleader - The
Bombay High Court has held that no serious defect in the mode of conducting a trial can
be justified or cured by the consent of the advocate of the accused [Abdul Rehman, 29
BLR 813].
It has also been held that in a criminal trial, consent or waiver on the part of the
accused’s pleader cannot deprive the accused of his legal rights. If the procedure adopted
is illegal, then even if no prejudice is caused to him, the illegality will not be cured by such
consent. But, if there is only an irregularity, then the consent of the Pleader, or his failure
to raise an objection, is an element which may be taken into consideration to determine
whether any prejudice has thereby been caused to the accused [Mustaffa, 49 BLR 144].
Instances o f Irregularities
The following are a few instances where the irregularities were held to be curable under
Sec. 465:
(0 the failure to examine the complainant on oath; the mere non-examination or
defective examination under Sec. 313;
(ii) the pronouncing of a sentence before writing the judgment;
(iii) the omission to record relevant facts observed by the Magistrate at a local
inspection under Sec. 310;
(iv) omission to sign the date of a judgment at the time of pronouncing it in open court;
(v) the reading and recording of evidence in one case into another companion case;
(vi) adoption of procedure prescribed for warrant case in a summons case where no
prejudice is caused to the accused.

Instances o f Illegalities
Given below are some instances where the irregularity was so serious that it was held
to be an illegality vitiating the trial:
(i) the refusal by Magistrate to issue process to witnesses named by the accused,
when such refusal was not based on any grounds allowed by law;
(ii) dismissal of a complaint by a Magistrate, without giving reasons, as required by
Sec. 203;
420 Criminal Procedure Code

(iii) neither writing nor pronouncing judgment in open court;

(iv) conducting summary trial for an offence which is not triable summarily;
(v) the omission to call upon an accused to enter on his defence; the putting of
questions to an accused in the nature of cross-examination before taking of
prosecution evidence; the examination of witnesses in the absence of the accused;
(vi) non-compliance with the requirement of Sec. 235(2) or Sec. 248(2) (hearing the
accused on question of sentence);
(vii) disobedience to an express provision as to a mode of trial;
(viii) a defect in the jurisdiction of the court;
fix) lack of sanction as required by Sec. 197;
(x) failure o f the court to record substance of the evidence in a summary trial when
the accused does not plead guilty.
The Code does not provide that irregularity in “investigation” would vitiate inquiry/trial.
Investigation is certainly not inquiry/trial before the court. But where as in Sec. 155(2)
the order of the Magistrate is a condition precedent for investigation in the case of non-
cognizable offences, and the police suo motu investigate the same, it is an irregularity
which cannot be cured under Sec. 465 [Podan (1962) 1 CrU 339], Invalidity o f investigation
does not affect the competence of the court (when the trial is concluded) unless there
is miscarriage of justice [H.N. Rishbud v State o f Delhi M R 1955 SC 196].

(7) Legality of Attachment [Sec. 466]

Sec. 466 provides that no attachment made under the Code is to be deemed to be unlawful
on account of any defect or want o f form in the summons, conviction, writ of attachment
or other proceedings relating thereto. In such cases, any person making the attachment
cannot likewise be deemed to be a trespasser.

CHAPTER XXXVI

LIMITATION FOR TAKING COGNIZANCE

OF CERTAIN OFFENCES
The general rules of jurisprudence as regards limitation of time in connection with criminal
prosecutions is reflected in the Latin maxim-nullum tempus occurrit regi i.e. lapse o f time
does not bar the right of the Crown (the rule of equity - Vigilantibus et non dormientibus
jura subveniunt, does not apply to the Crown). As the prosecution in criminal matters
is generally launched by the State, the offence being an injury not only to the person
concerned but also the society at large, the old Code was based on th is maxim, and no
period of limitation were prescribed for criminal prosecutions.
The Supreme Court said: “The question of delay in filing a complaint may be a
circumstance to be taken into consideration in arriving at the final verdict. But by itself it
affords no ground for dismissing the complaint” [Asst. Customs Collector, Bombay v L.R.
Melwani AIR 1970 SC 962]. However, long delay in prosecution m ay lead to serious
negligence on the part of the inquiry and prosecuting agencies, forgetfulness on the part
of the prosecution/ defence witnesses and unnecessary mental anguish to the person
accused. Further, infliction of punishment long after the commission o f offence impairs its
utility as social retribution to the offender.