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Ram Prasad Manger Vs. State of Sikkim - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1981CriLJ1384
AppellantRam Prasad Manger
RespondentState of Sikkim
Cases ReferredNishan Singh v. State
Excerpt:
- - an appeal against that judgment to the sessions judge having failed, the petitioner has come up in revision. , the court of the district magistrate, being otherwise fully competent and having perfect jurisdiction to try the case, the trial does not stand vitiated and cannot be assailed on that account. 347. para 44.10), recommended 'that the sessions judge should be authorised to transfer cases, not only on the application of an interested party but also on the report of the lower court or on his own initiative',and 'accordingly in the new code of criminal procedure, 1973, not yet extended and applied to this state, it has been provided in section 408(2) that the sessions judge, in transferring a particular case from one criminal court to another 'may act either on the report of.....ordera. m. bhattacharjee, j.1. this revision against the appellate judgment of the sessions judge, gangtok, confirming the judgment passed by the district magistrate, south sikkim. whereby the latter has convicted the petitioner under sections 279/337, indian penal code and has sentenced him to pay a fine of rs. 200/-and in defualt to undergo simple imprisonment for one month, involves only one question, very seriously pressed by mr. b.c. sharma, the learned counsel for the petitioner. the question is whether a trial by a court of a case which has been transferred thereto from another court by an order of transfer passed by a sessions judge under section 528(1-c) of the code of criminal procedure, 1898, is vitiated, if the order of transfer, was passed without 'an applications made to him.....
Judgment:
ORDER

A. M. Bhattacharjee, J.

1. This revision against the appellate judgment of the Sessions Judge, Gangtok, confirming the judgment passed by the District Magistrate, South Sikkim. whereby the latter has convicted the petitioner under Sections 279/337, Indian penal Code and has sentenced him to pay a fine of Rs. 200/-and in defualt to undergo simple imprisonment for one month, involves only one question, very seriously pressed by Mr. B.C. Sharma, the learned Counsel for the petitioner. The question is whether a trial by a Court of a case which has been transferred thereto from another Court by an order of transfer passed by a Sessions Judge under Section 528(1-C) of the Code of Criminal Procedure, 1898, is vitiated, if the order of transfer, was passed without 'an applications made to him in this behalf' as required by the provisions of Section 528(1-C)

2. The case was originally instituted in the Court of the District Magistrate. South Sikkim, who after the receipt of the charge-sheet, transferred the case to the Judicial Magistrate for trial. The Judicial Magistrate proceeded with the trial to the stage when the prosecution evidence was closed, the accused was also examined under Section 342 and the case was posted for examination of defence witness and argument. At this stage, it appears, the Sessions Judge passed a general order whereby it was ordered that all cases triable summarily and pending in the courts of the Judicial Magistrate were to be transferred to the Courts of the District Magistrate, the reason obviously being that the former was not, while the latter was, empowered to try cases summarily. After the case was so transferred to the Court of the District Magistrate, the latter examined one defence witness, heard arguments and by his judgment convicted and sentenced the petitioner as stated above. An appeal against that judgment to the Sessions Judge having failed, the petitioner has come up in revision.

3. Mr. Sharma for the petitioner, has contended that the order of transfer was illegal and, therefore, the trial by the Court of the District Magistrate, to which the case was so illegally transferred, was also illegal. Mr. N. B, Kharga, the learned Public Prosecutor has, however, urged that even assuming that the order of transfer was not in accordance with the provisions of law, the transferee Court, i.e., the Court of the District Magistrate, being otherwise fully competent and having perfect jurisdiction to try the case, the trial does not stand vitiated and cannot be assailed on that account.

4. Under Section 528 of the Code o/ Criminal Procedure, 1898, by which this State is still governed, the Sessions Judge, can in accordance with the provisions of Sub-sections (1) and (1-A). withdraw or recall any case or appeal from the Additional or the Assistant Sessions Judge and under Sub-section (1-C), can transfer any criminal case from one Criminal Court to another Criminal Court within the same Sessions Division. Prior to the insertion of Sub-section (1-C) in 1955, a Sessions Judge had no such power to order transfer of any case from one Criminal Court to another. Though such a power has, thereafter, been conferred on the Sessions Judge, to be exercised 'for the ends of justice', by Sub-section (1-C), inserted by the Amendment Act of 1955, such power, however, can be exercised by the Sessions Judge only on an application made to him and not suo motu or on the report of any lower Court. The Law Commission in its 41st Report (p. 347. para 44.10), recommended 'that the Sessions Judge should be authorised to transfer cases, not only on the application of an interested party but also on the report of the lower Court or on his own initiative', and ' accordingly in the new Code of Criminal Procedure, 1973, not yet extended and applied to this State, it has been provided in Section 408(2) that the Sessions Judge, in transferring a particular case from one Criminal Court to another 'may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative'.

5. Mr. N. B. Kharga the learned Public Prosecutor has very fairly submitted that the order of transfer made by the learned Sessions Judge was not in accordance with the provisions of Section 52 (1-C), there being no 'application made to him in this behalf' to proceed under that Sub-section. As already noted, the order of transfer was made at a stage when the prosecution evidence was closed and the accused was also examined under Section 342 and what remained was the examination of defence witness, if any, the hearing of arguments and writing a judgment. A Magistrate who has personally heard the witnesses in a case is generally expected to be in a better position to understand, assess and appreciate the evidence that one who has not done so and, therefore, such a Magistrate should be allowed to try and dispose of the case, as far as possible, unless as a result of his transfer or for ether just and convenient reasons, it become.: necessary to have the case tried by some other Magistrate. But so far the letters of Section 528 (IC) ke there is absolutely no indication suggesting the stage at or before which a case can b-. and after which a case cannot be, transferred. A case (that is the expression used in the Sub-section) or a trial continues until H is concluded by a judgment and, therefore, can be legally transferred from one Court to another under Section 528(IC) at any time or at any stage before the judgment is delivered, I may, however, mention that in Section 526 (8), which applies to transfers under Section 528 also the expression 'at any stage before the defence closes its case' goes only to show that any intimation by any party of his intention to make any application for trans-for before that stage would oblige a Court, to intimated, to adjourn the case and not that no transfer or application therefore can be made thereafter. But if it can be shown that the transfer of a case at a very late stage was, under the facts and circumstances thereof, not at all 'expedient for the ends of justice' for which alone a transfer under Section 528 (IC) can be ordered, the order of transfer in that case may be assailed in revision, not on the ground of its being made at a late stage, but on the ground of its not being 'expedient for the ends of justice'.

6. It is also true that the order of transfer in this case was made by the learned Sessions Judge without any notice to the petitioner-accused or, for the matter of that, without any notice to any of the parties. Section 528 (IC) does not provide for any notice of transfer to the accused or any party before an order of transfer is to be made. Section 526, providing for transfer by the High Court, makes it obligatory on the accused under Sub-section (6) to give notice in writing of his application for transfer to the Public Prosecutor; but, strangely enough, it does not expressly provide for any such notice to the accused when the State or a private complainant would apply for transfer. The same position has been continued under the new Code of 1973 also, with this difference that the provisions for giving notice to the Public Prosecutor, when the accused is the applicant for transfer, have been made applicable also to applications for transfers in the Sessions Court. I am, however, inclined to think that even though Section 528 does not provide for any notice to any party before any transfer is ordered, any such order, f made without notice, is liable to be struck down as being violative of the fundamental principles of judicial procedure and natural justice. As has been pointed out by this Court in Jas-man Rai v. Sonamaya Rai 1980 Cri LJ 500 at p. 502) relying on the observations of the Supreme Court in Sangram Singh's case : [1955]2SCR1 a Code of Procedure must be regarded as 'something designed to facilitate justice and further its ends' and that there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be affected unheard, that decisions affecting them should not be reached behind their backs, that proceedings that affect them should not continue in their absence and they should not be precluded from participating in them and that 'our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle' (emphasis added). These being the fundamental principles of judicial procedure and also of natural justice, epigrammatically enshrined in the maxim audi alteram partem', must apply to all statutory provisions relating to judicial procedure, unless the relevant statutory provisions are absolutely incompatible and can not co-exist with these principles. We have it from the highest authorities that the provisions of a statute can overthrow all the principles of natural justice, and such principles can only supplement, but can not supplant, the former. But we have at the same time been told that unless the relevant statutory provisions unmistakably demonstrate by clear expression or irresistible. implication their antipathy and allergy vis-a-vis the principles of natural justice, the relevant provisions should be interpreted in consonance with these principles.

7. The relevant provisions of Section 528(1C), no doubt, do not say anything about any notice to be given to any party before making any order of transfer. But these Provisions at the same time would remain perfectly workable and elfective if they are invoked and applied only after notice to the party or parties likely to be affected thereby. That being so, since an order transferring criminal case from one Court to another, even though within the same Sessions division, which, under the terms of Section 528(1C), is to be made on the application of one party might adversely affect the other party with inconvenience or hardship, the principles of natural justice would require notice to such other party before such an order is made and, therefore, such an order, if made without notice, may be assailed and annulled at the instance of a party affected thereby. But non-compliance with the principles of natural justice would become relevant only when the party affected thereby chooses to make any grievance about it and no Court would strike down any order only on the ground of non-compliance with the principles of natural justice unless the party affected thereby complains about such non-compliance, Mr. Kharga. therefore, in my view is right when he contends that, even if the order of transfer was made without notice to the petitioner, he having decided to take a chance with the trial at the transferee Court and having thus acquiesced in the order of transfer by allowing the transferee Court to conclude the trial without any protest and also not having impugned the order on this ground at any stage in the trial Court or at the first appellate Court or even in the application for revision in this Court, cannot be allowed to assail the order of transfer on this ground any longer.

8. There can be no doubt that the learned Sessions Judge, in making the transfer on his own initiative and without any application from any party, and that also without any notice to any party, went very much wrong and has not only failed to follow the provisions of law as contained in Section 528 (1C), but has also failed to comply with the principles of natural justice. I am also inclined to think that if any of the parties objected to and moved against the order at an early stage within a reasonable period, action could have been taken to set aside the order. But now that such an order of transfer, however irregular, has been followed by a regular trial, in which the parties participated without any objection or protest, the relevant question would be as to whether the irregularities as noted above are still then to be regarded of such magnitude as to cut at the root of and to vitiate the trial and to make it no trial at all or are of lesser or much lesser maginitude. If it is the former, as Mr. Sharma has urged, the irregularities are fatal and the trial has failed. But if it is the latter, as Mr. Kharga has contended, the irregularities are not irreparable and may be cured if there is, in fact, no failure of justice.

9. Mr. Kharga has referred to the provisions of Section 529 (f), providing that 'if any Magisrate not empowered by law' 'to transfer a case under Section 192', 'erroneously in good faith' does so. 'his proceedings shall hot be set aside merely on the ground of his not being so empowered', and has contended that assuming the learned Sessions Judge was not empowered to order this transfer in the absence of 'an application made to him in this behalf', as required by Section 528(1C), the order of transfer, though erroneous, but having been made in good faith, is not liable to be set aside and, therefore, shall not vitiate the trial which has followed such order. Mr. Kharga has submitted that though the provisions of Section 529(f) apply to a transfer by a Magistrate , only and that too, under Section 192. and cannot apply in terms to a transfer by a Sessions Judge under Section 528(1C), yet as a Sessions Judge cannot be expected to stand in a lower or less advantageous position than a Magistrate, the principles of these provisions should apply. Even assuming the principles of Section 529(f) can apply to an order of transfer made by a Sessions Judge under Section 528(1C), though, in my view, they do not, can the Sessions Judge in this case, be said to have ordered the transfer 'erroneously in good faith' as required by Section 529 Erroneously, of course, but in 'good faith' too It should be noted that the expression 'good faith' in the Code of Criminal Procedure, not having been denned therein, must mean, because of Section 3(2) thereof, what it means in Section 52, Indian Penal Code, which provides that 'nothing is said to be done or believed in good faith which is done or believed without due care and attention' and I have my doubts whether a Judge of the status of a Sessions Judge, who transfers a case under Section 538(1C), without 'an application made to him in this behalf', as expressly required in the body of the Sub-section, can be said to have acted in 'good faith' and to have acted with 'due care and attention'. Any way, since Section 529(f) in my view can not apply to an order of transfer made by a Sessions Judge under Section 528(1C), this aspect need not detain me any further. Mr. Kharga has relied on a single Judge decision of the Patna High Court in Baleshwar Singh v. Ramji Singh : AIR1975Pat272 which only has reiterated in different words what has been expressly stated in Section 529(f) and has held that even if the Magistrate in the ease, who on the re- levant date was discharging the functions' of the Sub-Divisional Magistrate, was to be regarded to be not empowered to function as such and accordingly was not empowered to order transfer under Section 192, his order still could not be assailed as he appeared to have acted in good faith, even if erroneously. This decision, therefore, is of no assistance to decide the point in issue here, namely, if a Sessions Judge transfers a case from one Criminal Court to another under Section 528(1C) 'without an application made to him in this behalf', whether the trial by the transferee Court following such transfer shall stand vitiated on that account.

10. As I had occasion to point out in Jasman Rai v. Sonamaya Rai 1980 Cri LJ 500 at p. 505-6), the framers of the Code of Criminal procedure, 1898, realised very well that breach of one or more of the provisions of 'the very comprehensive provisions of such a lengthy Code, however undesirable, is very much likely and, therefore, took care to provide in details in Chapter XLV of the Code as to when and under what circumstances such a breach is to be regarded as vitiating and fatal and when and under what circumstances such a breach may be ignored, allowing the substance to prevail over form and technicalities. The Law Commission in its 41st Report (Volume I. page 350) has observed that 'the Code recognises the principle that it is not every deviation from, or neglect of, procedural formalities and technicalities that would vitiate the proceedings of a Court' and that 'broadly speaking, only the irregularities that have caused substantial prejudice to the accused will render the proceedings invalid, while minor or inconsequential error or omissions are considered curable', but yet 'there are certain provisions of the Code which are considered so vital that their disregard must vitiate a fair and proper trial and, therefore, destroy the validity of the proceedings'. The various provisions of Chapter XLV of the Code, headed as 'Of Irregular Proceedings' and dealing with various types of irregularities in criminal proceedings may be classified under four broad categories :-

(1) Certain irregularities which at once and without more vitiate the proceedings-prejudice or no prejudice - and these are listed in Section 530.

(2) Certain irregularities which vitiate the proceedings even if no prejudice to the accused has been caused - if objection on the ground of any such irregularity was taken during or before a certain stage - and these are dealt with in Section 532 and Section 536:

(3) Certain irregularities which do not vitiate the proceedings-prejudice or no prejudice and these are listed in Section 529 and also dealt with in Section 538;

(4) Certain irregularities which do not vitiate the proceedings unless the error or the infraction of or the deviation from the law has caused injury or prejudice to the accused or has otherwise occasioned failure of justice; these are dealt with in the remaining provisions of Chapter XLV, being Section 531, Section 532, Section 533 and Section 535 - which deal with some specified types of irregularities and Section 537, which is the general and residuary provisions regarding all other error, omission or irregularities in the complaint, summons, warrant, proclamation, charge, order, Judgment or other proceedings.

11. But apart from these four categories noted above, there is another category of irregularities, which relate to infraction of those provisions of the Code which give the Courts jurisdiction to entertain proceedings and regulate their competence and bar their jurisdiction without their compliance. For example, as pointed out by the Supreme Court in H.V. Rishbud v. State of Delhi : 1955CriLJ526 . Section 193 and Sections 195 to 199 of the Code requiring commitment, complaint, consent or sanction by proper person or authority really 'regulate the competence of the Court and bar its jurisdiction in certain cases except in accordance therewith'. The infractions of these provisions are, to borrow from the Supreme Court decision in W. Slaney v. State of Madhya Pradesh : 1956CriLJ291 'defects that strike at the very root of jurisdiction'' and 'stand on a separate footing and the proceedings taken in disregard or disobedience would be illegal', whether or not any provision expressly declares it to be so.

12. The net result, therefore is that unless the breach or infraction or irre- gularity complained of is one listed in Section 530, or is dealt with in Section 532 or Section 536 or amounts to a breach of any of those provisions regulating the jurisdiction and competency of the Courts and thus barring or striking at the root of the jurisdiction of the Court, such breach or irregularity shall not invalidate any proceeding, unless prejudice to the parties and/or any failure of justice has been caused.

13. Now, an order of transfer passed by a Sessions Judge under Section 528 (1C), even though without an application as required thereunder, is obviously not an irregularity listed in Section 530, nor covered by Section 532 dealing with irregular commitment, nor by Section 536 dealing with trial without jury of an offence triable by jury. Nor can the provisions requiring an application by a party for such an order of transfer under Section 528(IC) be said to regulate the jurisdiction and competency of the Sessions Judge to pass such an order. The Sessions Judge derives full jurisdiction and competence to make an order of transfer under Section 528(IC) from the provisions of that sub-section itself and the provision requiring an application only regulates the procedure according to which such jurisdiction is to be exercised and, therefore, the exercise of such jurisdiction without such an application would only amount to irregular exercise thereof. Therefore, such irregularity, not being, as already pointed out, covered by Section 530 or Section 532 or Section 536, can affect the validity of the proceedings, only if the accused can be said to have been prejudiced by the irregularity of the order and/or there has been a failure of justice as a result thereof. If no prejudice and/or no failure of justice. such breach would be cured, by the comprehensive curative antidote provided in Section 537.

14. In this case, the Court of the District Magistrate, where the case was originally instituted and the Court of the Judicial Magistrate, to which the case was initially transferred by the District Magistrate under Section 192 and which tried the case upto the stage of the examination of the accused under Section 342 and also the Court of the District Magistrate to which again this case was transferred by the Sessions Judge .by the impugned order of trans- fer and which finally tried and disposed of the case from the stage of the examination of defence witnesses, were all perfectly competent and had full jurisdiction to try the case. In fact, if the case was all through tried by the District Magistrate, who initially took cognizance thereof and transferred the same to the Judicial Magistrate and who again finally tried the same after it was re-transferred to him from the Court of the Judicial Magistrate as a result of the impugned order of transfer, or if the case was tried from the beginning to the end by the Judicial Magistrate and was not transferred from his Court as a result of the impugned order of transfer, no objection or exception could be taken to such trial on any possible ground whatsover. In other words, each of the three stages through which this case has passed, namely, the taking of cognizance of the case by the District Magistrate, the trial of the case by the Judicial Magistrate upto the stage of the examination of the accused, and the subsequent trial by the District Magistrate until conclusion, was, by itself, perfectly regular and the only irregularity that crept, in between relates to the order by which the case was transferred from the Court of the Judicial Magistrate to the Court of the District Magistrate. To put it more precisely, the trial by the District Magistrate resulting in the conviction and sentence, was quite regular, but the route by which the case reached or returned to that Court was irregular. The end was good, the means was bad. Would not the end justify the means May not, according to our ancient and traditional notions of morality. But would, according to the spirit and the legislative intendment behind the relevant provisions of the Code of Criminal Procedure. As I have already pointed out, even a transfer by a Magistrate 'not empowered by law' to do so under Section 192, is curable under Section 529 (f) if done in good faith. Then why a transfer of a case from one Criminal Court to another by a Sessions .Judge, 'empowered by law' to do so, though on application of parties, shall not be cured only for the want of an application Borrowing from and slightly altering the language of the Privy Council in Pulukuri Kotoyya's case AIR 1947 PC 67 at pp. 69-70 : (1947) 48 Cri LJ 533 at pp. 537, 538 approved by the Supreme Court in W. Slaney's case 1956 Cri LJ 291 (supra) and also in Pyarelal's case : (1962)ILLJ637SC it is, therefore, a case where the trials in the Courts of the Judicial Magistrate and of the District Magistrate have been conducted substantially in the manner prescribed by the Code but some irregularity has occurred in the course of such conduct only in the order effecting transfer from the Court of the Judicial Magistrate to that of the District Magistrate. As already noted, an irregularity of this nature is neither listed in or covered by Section 530 or Section 532 or Section 536 and, therefore, shall stand cured, if no prejudice to the accused or no failure of justice has been caused. Not only Mr. Sharma for the petitioner has failed to point out, but I have also failed to find out, any such prejudice or failure or any likelihood thereof. And when the case has all along been tried at all stages by competent Courts having perfect and valid jurisdiction, I also cannot think of the possibility of any prejudice or failure of justice in the trial simply because of the order transferring the case from one Court to the other having been made without any application as required under the law. I have also taken note of the fact that no objection was taken by the petitioner about the irregularity of the impugned order of transfer at any stage before the trial Court or the first Appellate Court. As pointed out in Jasman Rai's case 1980 Cri LJ 500 (Sikkim) (supra), in view of the provisions contained in the Explanation to Section 537, it is now settled that the failure to raise such an objection at earlier stage in the proceeding goes to militate against the contention that, prejudice or injustice has been caused. Reference in this connection may also be made to the decision of the Supreme Court in K. C. Mathew v. State of Travancore Cochin : 1956CriLJ444 , where it has been observed (at 244) that 'the fact that objection was not taken at an earlier stage, if it could and should have been taken, is a material circumstance that will necessarily weigh heavily against the accused, particularly when he has been represented by a counsel throughout' and it may be noted that in this case also the accused-petitioner was re- presented by lawyer in the Court below. In my view, therefore, the irregularity in this case has been fully antidoted by the curative provision of Section 537. The end has, therefore, justified the means.

15. But even statutory provisions of Section 537 apart, i think, on the general principles also, if the Court which has tried a case, has the essential and inherent jurisdiction t0 try the same any irregularity in the mode of assuming such jurisdiction or any deviation from the 'cursus curiae' should, as a rule, be immaterial unless such irregularity or deviation can be shown to have prejudiced a party and thereby to have occasioned a failure of justice. Shearer, J. in the Full Bench decision of the Patna High Court in Jhakar Abir v. Province of Bihar AIR 1945 Pat 98 observed (at p. 103): 1945-48 Cri LJ 399 at PP 404, 405 that 'where a Court has jurisdiction to try an offence, it is, as a rule, immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another Court which was not empowered to make the order of the transfer'. It is true that the case in that Patna decision was covered by the provisions of Section 529(e) and (f). But these observations, in my view are of general application unless, in a given case, their application is barred by clear expression or inevitable implication. In the Division Bench decision of the Punjab High Court in Nishan Singh v. State , these observations of the Patna Full Bench were relied on to sustain an order of conviction by a Special Judge, though the regularity of the manner in which the case reached the Court of the Special Judge was open to question. That was a case under the Criminal Law Amendment Act, 1952 whereunder a Special Judge, where there are more than one for an area, can try only such a case which is assigned to him by the State Government. All the Sessions Judges and the Additional Sessions Judges in the State of Punjab were appointed as Special Judges under the said Act. The Sessions Judge, who was also a Special Judge, transferred the case in question to the Additional Sessions Judge and the latter proceeded with the trial. Though the Additional Sessions Judge was also a Special Judge, he being one of such Judges in that area, could try a case under the Act which was assigned to him by the State Government. But the Additional Sessions Judge in that case, after receiving the case on transfer by the Sessions Judge, proceeded with the taking of evidence for a considerable period before the case was as required under the Act of 1952, assigned to him by the State Government and finally concluded the trial ending ?n conviction. It was contended that the Additional Sessions Judge,, though appointed as a Special Judge,, had no jurisdiction to proceed with the case received by way of transfer from the Sessions Judge and that all the proceedings before him before the case' was assigned to him by the State Government as required by the Act, was void. The Division Bench held that the Additional Sessions Judge, having been appointed as a Special Judge also, had full and perfect jurisdiction and competence to try the case, though the manner in which he assumed jurisdiction 'was not according to the mode prescribed by the Statute' and, relying on the abovequoted observations of the Patna Full Bench in Jhakar Abir's case (supra) held that such irregularity did not vitiate the trial.

16. In any view of the matter, therefore, the trial in this case cannot be regarded to have been vitiated. In the result, the revisional application must fail and is dismissed.


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