CHAPTER XXXV - IRREGULAR PROCEEDINGS
460. Irregularities which do not vitiate proceedings.
If
any Magistrate not empowered by law to do any of the following things, namely:—
(a)
to issue a search-warrant under section 94;
(b)
to order, under section 155, the police to investigate an offence;
(c)
to hold an inquest under section 176;
(d)
to issue process under section 187, for the apprehension of a person within his
local
jurisdiction
who has committed an offence outside the limits of such jurisdiction;
(e)
to take cognizance of an offence under clause (a) or clause (b) of sub-section
(1) of section
190;
(f)
to make over a case under sub-section (2) of section 192;
(g)
to tender a pardon under section 306;
(h)
to recall a case and try it himself under section 410; or
(i)
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 so empowered.
461. Irregularities which vitiate proceedings.
If
any Magistrate, not being empowered by law in this behalf, does any of the
following things,
namely:—
(a)
attaches and sells property under section 83;
(b)
issues a search-warrant for a document, parcel or other thing in the custody of
a postal or
telegraph
authority;
(c)
demands security to keep the peace;
(d)
demands security for good behaviour;
(e)
discharges a person lawfully bound to be of good behaviour;
(f)
cancels a bond to keep the peace;
(g)
makes an order for maintenance;
(h)
makes an order under section 133 as to a local nuisance;
(i)
prohibits, under section 143, the repetition or continuance of a public
nuisance;
(j)
makes an order under Part C or Part D of Chapter X;
(k)
takes cognizance of an offence under clause (c) of sub-section (1) of section
190;
(l)
tries an offender;
(m)
tries an offender summarily;
(n)
passes a sentence, under section 325, on proceedings recorded by another
Magistrate;
(o)
decides an appeal;
(p)
calls, under section 397, for proceedings; or
(q)
revises an order passed under section 446, his proceedings shall be void.
462. Proceedings in 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 area,
unless it appears that
such
error has in fact occasioned a failure of justice
463. Non-compliance with provisions of section 164 or section 281.
(1)
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, or 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 Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such
noncompliance,
and
may, if satisfied that such non-compliance has not injured the accused in his
defence
on the merits and that he duly made the statement recorded, admit such
statement.
(2)
The provisions of this section apply to Courts of appeal, reference and
revision.
464. Effect of omission to frame, or absence of, or error in,
charge.
(1)
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 charge, unless, in the opinion of the
Court
of
appeal, confirmation or revision, a failure of justice has in fact been
occasioned thereby.
(2)
If the Court of appeal, confirmation or revision is of opinion that a failure
of justice has in
fact
been occasioned, it may—
(a)
in the case of an omission to frame a charge, order that a charge be framed and
that
the
trial be recommenced 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 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.
Comments
It
is well-settled that where the Court frames a charge on a major Court the law
does not provide
that
it should also frame a charge under the minor Court; State of Maharashtra v. Vinayak
Tukaram Utakar, (1997) 2
Crimes 615 (Bom).
465. Finding or sentence when reversible by reason of error,
omission or irregularity.
(1)
Subject to the provisions hereinbefore contained, on 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 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.
(2)
In determining whether any 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.
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 or form in the summons,
conviction,
writ of attachment or other proceedings relating there to.
