Irregular proceedings

Author: Meenakshi Raj


Introduction to Law

The rules which a particular country or a community recognizes or implements to as regulate the actions of the members of the society and may be enforced by the imposition of penalties is called a law.

A law may be divided into two types:-

  1. Substantive Law i.e., the law by which rights, duties, and liberties are defined. E.g. The Indian Penal Code.
  2. Procedural Law i.e., the law which prescribes the mode of the application of  Substantive law. E.g The Code of Criminal Procedure.

What is Cr. P.C., i.e., The Code of Criminal Procedure?

The Code of Criminal Procedure,1973 is a procedural law that provides the machinery for the punishment of offenders under the substantive criminal law or other penal statutes. The Code contains elaborate details about the procedure to be followed in every investigation, inquiry, and trial.

The law is meant to be complementary to the criminal law by creating necessary machinery for-

  • The detection of crime
  • The arrest of suspected criminals
  • Collection of evidence
  • Determination of guilt or innocence of the suspected person
  • And, the imposition of proper punishment on the guilty person.

As said in the case of [Iqbal Ismail Sodawala v State of Maharashtra (1975), the law of criminal procedure aims at providing safeguards against the possible harms and violations of human rights of an innocent person].

What is a proceeding under The Code of Criminal Procedure?

According to the dictionary meaning, a proceeding means ‘to begin a course of action’ or ‘ a series of actions that take place in a planned and controlled manner’

The word proceeding in legal terms means, “an activity that seeks to invoke the power of a tribunal in order to enforce the law and acquire a benefit, interest, right or to enforce a remedy”.

A legal proceeding is generally categorized by an orderly process in which the parties or the representatives are able to present their evidence in order to prove or support their claims, or to argue in favor of a particular interpretation of the law. Once the proceeding is done, the jury or the judge makes a determination of the factual and judicial issues.

Irregular Proceeding-

According to the dictionary meaning, irregular means something which is not even or is not in shape. The criminal law, that aims to deliver justice by punishing the guilty, and by remedying the aggrieved person is implemented by the courts and they are expected to reach the final decision or conclusion, without committing any irregularities. But, many situations arise in the court when irregularities are committed, which can either be curable or incurable.

The legal provisions relating to the irregular proceedings are embodied in Chapter XXXV, Sections 460-466 of the Code of Criminal Procedure. The chapter deals with the effect of irregularity in proceedings before the criminal courts.

Section 460. Irregularities which do not vitiate proceedings-

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

  1. To issue a search-warrant under section 94;
  2. To order, under section 155, the police to investigate an offence;
  3. To hold an inquest under section 176;
  4. To issue process under section 187, for the apprehension of a person without his local jurisdiction who has committed an offence outside the limits of such jurisdiction;
  5. To take cognizance of an offence under clause (a) or clause (b) of the sub-section (1) of section 190;
  6. To make over a case under sub-section (2) of section 192;
  7. To tender a pardon under section 306;
  8. To recall a case and try it himself under section 410; or
  9. 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 empowered.

Section 461. Irregularities which vitiate proceedings

If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-

  1. Attaches and sells the property under section 83;
  2. Issues a search-warrant for a document, parcel or other things in the custody of a postal or telegraph authority;
  3. Demands security to keep the peace;
  4. Demands security for good behavior;
  5. Discharges a person lawfully bound to be of good behavior;
  6. Cancels a bond to keep the peace;
  7. Makes an order for maintenance;
  8. Makes an order under section 133 as a local nuisance;
  9. Prohibits, under section 143, the repetition or continuance of a public nuisance;
  10. Makes an order under Part C or Part D of Chapter X;
  11. Takes cognizance of an offence under clause (c) of sub-section (1) of section 190;
  12. Tries an offender;
  13. Tries an offender summarily;
  14. Passes a sentence, under section 325, on proceedings recorded by another Magistrate;
  15. Decides an appeal;
  16. Calls, under section 397, for proceedings; or
  17. Revises an order passed under section 446,

His proceedings shall be void.

Section 462. Proceedings in the wrong place-

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, took place in a wrong sessions division, district, sub-division or other local areas, unless it appears that such error has, in fact, occasioned a failure of justice.

Section 463. Non-compliance with provisions of section 164 or section 281-

  • If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, r 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 India 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 evidence on the merits and that he duly made the statement recorded, admit such statement.
  • The provisions of this section apply to Courts of appeal, reference, and revision.

Section 464. Effect of omission to frame, or absence of, or error in, charge-

  • 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.
  • If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
  • In the case of an omission to frame a charge, order that a charge is framed and the trial be recommended from the point immediately after the framing of the charge.
  • 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 the 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.

Section 465. Finding or sentence when reversible by reason of error, omission or irregularity-

  • 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 the 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.
  • In determining whether the 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.

Section 466. Defect or error not to make attachment unlawful-

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.

Case laws-

  1. Anna Reddy Sambasiva Reddy & others v. State of Andhra Pradesh-“The Supreme Court explained the applicability of Section 464 observed that a finding or sentence of a Court shall not be set aside merely on the ground that a charge was not framed or that charge framed was defective unless it has occasioned in prejudice”.
  2. Nasiruddin Khan v State of Bihar- The Court held that the offence of desertion was committed at a place where the Act was not in force and, therefore, the appellant’s desertion did not constitute an offence.
  3. L. C Nagaraja v The State of CBI- The court held that the principles of double jeopardy are not applicable since both the F.I.R. are at the investigation stage and the same is monitored by the Hon’ble Division Bench of this Court in Writ Petition. In that light, the contentions which are taken by the learned counsel for the petitioner has no force. It is rejected.[1]