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PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: KUPPUSWAMY GOWNDER

DATE OF JUDGMENT16/02/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) DUTT, M.M. (J)

CITATION:  1987 AIR 1354            1987 SCR  (2) 295  1987 SCC  (2)  74        JT 1987 (1)   512  1987 SCALE  (1)353

ACT:     Criminal Procedure Code, 1973: ss. 194, 409, 462 &  465: Sentence   or   order  of  competent   Court--When   to   be quashed--Prejudice  pleaded  and proved-- Means  failure  of justice.

HEADNOTE:     The case of the respondent-accused was committed to  the Sessions  Court, Metropolitan Area, Bangalore City and  made over  under s. 194 Cr.P.C. by the Principle  Sessions  Judge for  trial  to the II Additional Sessions Judge  who  framed charges  on  August 21, 1980 and recorded the  plea  of  the accused persons.     In  the monthly statement of October, 1980 the case  was shown  pending on the board of II Additional Sessions  Judge and listed for evidence. On November 17, 1980 the  Bangalore City Civil Courts Act came into force and powers of Sessions were  conferred  on all the City Civil Judges  under  s.9(3) Cr.P.C.  In  the monthly statement prepared  thereafter  for November,  1980  the case was shown pending  before  the  IV Additional  City  Civil  and Sessions  Judge.  However,  the evidence in the case was recorded and the respondent accused convicted under s.302 and 332 IPC by the III Additional City Civil and Sessions Judge.     In  appeal and reference the High Court looked into  the monthly statements of pending cases and observing that there was no order under s.407 Cr.P.C. transferring the case  from the file of the IV Additional City Civil and Sessions  Judge to the file of III Additional City Civil and Sessions Judge, that  as  the charge was framed and plea recorded  when  the case was pending before the II additional Sessions Judge the case could not be withdrawn by the Principle Sessions  Judge under  s.409(2)  after  the commencement of  the  trial  and allotted  to any other Additional Sesssion Judge that  there was  no  order of the Principal Session Judge under  s.  194 transferring  the case to the board of III  Additional  City Civil  and Sessions Judge and that the defect could  not  be remedied  under  s.465 Cr.P.C., quashed the  conviction  and directed  remand  for retrial. The State came in  appeal  to this Court. Allowing the appeal, the Court,

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296     HELD: 1.1 The view taken by the High Court was  contrary to  the language of ss.462 and 465 of the Code  of  Criminal Procedure. The judgment of the High Court could not,  there- fore, be sustained. [304A]     1.2 Reading s. 462 alongwith s.465 goes to show that the scheme of the Code of Criminal Procedure is that where there is  no inherent lack of jurisdiction, merely either  on  the ground of lack of territorial jurisdiction or on the  ground of any irregularity of procedure an order of sentence award- ed by a competent court could not be set aside unless preju- dice  is  pleaded  and proved, which will  mean  failure  of justice. [303F-G]     In  the instant case, it is not found by the High  Court that  the Sessions Judge who tried the case arising  out  of the Sessions Division had no jurisdiction. The  Metropolitan Area, Bangalore City has a Sessions Division and is presided over  by  a  Principal Sessions Judge and has  a  number  of Additional Sessions Judges. All the Sessions Judges  sitting in  this  Division are notified as Sessions Judges  for  the Division  and, therefore, all of them have  jurisdiction  to try a case arising out of the Sessions Division. the plea of prejudice  of  failure  of justice is  neither  pleaded  nor proved.  Not only that, even the judgment of the High  Court does not indicate any possibility of prejudice or failure of justice.  There was no suggestion either of any  possibility of prejudice or failure of justice. The order passed by  the 1II  Additional  City Civil and Sessions  Judge  could  not, therefore, be quashed. [302A-C]     2.  Section  462 Cr.P.C. even saves a  decision  if  the trial  has taken place in a wrong Sessions Division or  Sub- Division  or a district or other local area where the  court has  no  territorial jurisdiction, and such an  error  could only  be  of some consequence if it results  in  failure  of justice, otherwise no finding or sentence could be set aside only  on the basis of such an error. Therefore, even if  the trial  before  the III Additional City  Civil  and  Sessions Judge  would have taken place in a Division other  than  the Bangalore  Metropolitan Area for which III  Additional  City Civil  and Sessions Judge is also notified to be a  Sessions Judge,  still the trial could not have been quashed in  view of s.462. [303C-E]     3.1  The  scheme of s.409 indicates  that  the  Sessions Judge had powers to withdraw any case and to allot it to any one  of the Additional Sessions Judges. The  Principal  Ses- sions Judge of the Division under s. 194 had power to  allot any  Sessions  case to any one of  the  Additional  Sessions Judges of the Division. He could pass such orders either for individual  cases  or allot particular areas  to  particular Additional Judge of the Division. [299H; 300A] 297     3.2 The III Additional City Civil and Sessions Judge who tried  the instant case apparently tried it as it must  have been  allotted to him. The Case must have been  allotted  to him as the distribution orders have not been sent for by the High  Court nor have they been produced. If  enquiries  were made  it might have been discovered that the case  had  been transferred  in exercise of the powers under s. 194  by  the Principal Sessions Judge. [300B-C]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 823 Of 1981 Etc.

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   From  the  Judgment  and Order dated  27.7.1981  of  the Karnataka High Court in Crl. A.NO. 215 of 1981. M. Veerappa for the Appellant. M.B. Lal (Amicus Curiae) K.R. Nagaraja for the Respondents. The Judgment of the Court was delivered by,     OZA,  J. These appeals have been preferred by the  State of  Karnataka  against  the judgment of the  High  Court  of Karnataka  setting aside conviction of the  respondents  and remanding the cases before the Sessions Court for retrial.     The respondents were committed for trial to the Sessions Judge,  Metropolitan Area, Bangalore City in number of  Ses- sions  cases including Sessions Case No. 35 of 1980  in  re- spect of an offence under Sec. 302 for which after trial the respondent  Kuppuswamy was sentenced to death and  also  for offence under Sec. 332 of the Indian Penal Code and sentence of rigorous imprisonment of one year. Against the conviction and sentences appeal were preferred before Hon’ble the  High Court.  Kuppuswamy’s matter also came before the High  Court apart from his appeal also by reference.     The  facts  which gave rise to these appeals  were  that about 2 A.M. on 9th April 1980 it was alleged that Kuppuswa- my the present respondent stabbed Narayanaswamy who  expired at 11 P.M., and also Ramu who expired at 8.05 P.M. and Sunil Kumar, Sub-Inspector of Police, who expired at 2.30 A.M.  on the  next day. Sunil Kumar and his police party happened  to go there in a van on hearing galata in the railway  platform of the Cantonment railway station, Bangalore, and when Sunil Kumar caught hold of the wrist of the accused respondent. 298 he somehow managed to slip out and stabbed him. PW 1  Ulaga- nathan, who was the Senior Trains Clerk, went and lodged the First Information Report Ex.P. 1. Investigation was taken up and  after  investigation chargesheet was filed. It  is  not necessary  for  us  to go into these  question  as  question involved  in  these appeals is merely a  technical  question pertaining  to procedure and does not pertain to the  merits of the matter.     The  accused  persons  were committed  to  the  Sessions Court, Metropolitan Area, Bangalore City and it appears that the  Principal Sessions Judge Metropolitan Area,  made  over the  Sessions case in exercise of his powers  under  Section 194  of  the  Code of Criminal Procedure  to  II  Additional Sessions Judge, Metropolitan Area, Bangalore City who framed charges  on  21.8.80  and recorded to plea  of  the  accused persons.     On  17th November 1980 City Civil Courts Act  came  into force.  ,Monthly  statements of cases  wherein  the  accused persons  were in custody were prepared and it  appears  that these  statements also reached the High Court and have  been made  use  of by the learned Judges in  disposing  of  these appeals. It has been observed by the learned High Court that in  the monthly statement of October 1980 Sessions Case  No. 35  of  1980 (with which we are concerned) is  shown  having been  pending on the board of II Additional Sessions  Judge, Metropolitan  Area, Bangalore City and was posted  for  evi- dence.  It is further observed by the learned Judges of  the High  Court  that the statement of November 1980  which  was prepared  after  the  Bangalore City Civil  Courts  Act  was brought into force and powers of Sessions were conferred  on all  the  City Civil Judges under Sec. 9(3) Cr.P.C.  by  the High  Court, this case has been shown as pending before  the IV  Additional City Civil and Sessions  Judge,  Metropolitan Area, Bangalore City. The High Court has also referred to  a Notification issued on 30th January 1981 by the Registrar of Bangalore  City Civil Courts saying that Sessions cases  and

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other  matters pending before the II, III and VI  Additional City  Civil and Sessions Judges are to be tried by them  and on 12th Jan. 1981 the III Additional City Civil and Sessions Judge, Bangalore City recorded the evidence in the case.  It is also observed by the High Court in its judgment that  the Office  informed the learned Judges that there was no  order of  transfer under Sec. 407 Cr.P.C. transferring  this  case viz.  Sessions Case No. 35 of 1980 from the file of  the  IV Additional City Civil and Sessions Judge to the file of  III Additional City Civil and Sessions Judge. 299     Under  Sec.  194 Cr.P.C. the Principal  City  Civil  and Sessions  Judge, Metropolitan Area, Bangalore has the  power to  make  over  a Sessions case for trial  and  disposal  in accordance  with law. The High Court, it appears,  has  pro- ceeded  on the basis that as the plea was recorded when  the case  was  pending before the II Additional City  Civil  and Sessions  Judge, the Sessions Judge could not  transfer  the case to the board of III Additional City Civil and  Sessions Judge  under the provisions contained in Sec. 409 clause  2. The  High Court also proceeded on the assumption that  there is no order of the Sessions Judge presiding over the Princi- pal City Civil Court for allotment of this case to the Court of III Additional City Civil and Sessions Judge. The learned High  Court  also  came to the  conclusion  that  provisions contained  in  Sec.  465 also will not  remedy  the  defect. Consequently the High Court allowed the appeals, quashed the convictions and directed remand for retrial of the cases.     What appears from the judgment of the High Court is that after commitment this case i.e. Sessions Case No. 35 of 1980 was  shown  in the list of October 1980 as  pending  in  the Court of II Additional Sessions Judge as it was made over to that Court in exercise of powers conferred under Sec. 194 by the  Principal Sessions Judge and this also was inferred  by the High Court from the fact that the II Additional Sessions Judge  framed charges on 21.8.80 in this case  and  recorded the plea of the accused on the same day.     After the coming into force of the City Civil Courts Act in  November  1980, in the list this case was  shown  to  be pending  before  the IV Additional City Civil  and  Sessions Judge  and what further has been observed by the High  Court is  that on 12th January 1981 the evidence in the case  com- menced  on the board of III Additional City Civil  and  Ses- sions Judge. It appears that the learned Judges of the  High Court  looked into the Notification issued by the  Registrar of  the City Civil Court and also the list of pending  cases pertaining to accused in custody which probably was sent  to the High Court every month and also made enquiries from  the Office  of the High Court as to whether any  sessions  trial was  transferred by orders of the High Court under Sec.  407 but it appears that the learned Judges did not direct to get the  orders  passed by the Principal Sessions Judge  of  the Sessions  Division under Sec. 194 Cr.P.C. As  the  Principal Sessions  Judge of the Division under Sec. 194 had power  to allot  any Sessions case to any one of the  Additional  Ses- sions  Judges of the Division. At the same time such  orders under  Sec.  194 could be passed by the  Principal  Sessions Judge  either  for  individual cases or  by  general  orders allotting particular 300 areas  to  particular Additional Judge of the  Division.  In fact  Sec.  194 contemplates that all  the  Sessions  Judges (Principal  and Additionals) who are the Sessions Judges  in the  Division, have been notified as Sessions Judges in  the Division and therefore each one of them has jurisdiction  to

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try  the case arising out of an incident in  that  Division. What  has  been observed by the learned Judges of  the  High Court  that  this  case from IV Additional  City  Civil  and Sessions  Judge  went to the III Additional City  Civil  and Sessions  Judge for which they could not find any  order  of transfer  passed  under Sec. 407 by the High  Court  but  it appears  that  if  enquiries were made it  might  have  been discovered  that  the case might have  been  transferred  in exercise of powers under Sec. 194 by the Principal  Sessions Judge.     The  usual practice in big places  (Sessions  Divisions) where  a number of cases are committed and there are  number of courts exercising the same jurisdiction in respect of the whole  Division,  distribution  memos are  prepared  by  the Principal Sessions Judge so that cases are so distributed to all  the  Additional  Judges so that they  are  disposed  of expeditiously. It appears that this aspect of the matter was not brought to the notice of the learned Judges of the  High Court even by the counsel appearing for the State.     It is not disputed that the Metropolitan Area, Bangalore City  has  a  Sessions Division and is presided  over  by  a Principal  Sessions  Judge and has a  number  of  Additional Sessions  Judges. It is also not disputed that all the  Ses- sions  Judges sitting in this Division are notified as  Ses- sions  Judges for the Division and therefore it is also  not disputed  that all of them have jurisdiction to try  a  case arising  out of the Sessions Division. Even the judgment  of the High Court does not indicate any lack of inherent juris- diction. What has weighed with the High Court is that as the charge  was framed by the II Additional Sessions  Judge  the case could not be transferred to the board of III Additional City  Civil and Sessions Judge without an order of  transfer by the High Court as it was observed that under Sec. 194 the case could not be withdrawn by the Principal Sessions  Judge after  commencement of the trial and this was inferred  from the  provisions  contained in Sec. 409 clause  2.  Sec.  194 reads as under:               "Additional  and Assistant Sessions Judges  to               try  cases made over to them:-  An  Additional               Sessions  Judge  or Assistant  Sessions  Judge               shall try such cases as the Sessions Judge  of               the Division may, by general or special order,               make over to               301               him  for  trial or as the High Court  may,  by               special order, direct him to try."     Sec.  194 authorises an Additional Sessions Judge or  an Assistant  Sessions Judge to try a Sessions case arising  in the  Sessions Division when such a case is allotted  to  him either  by  a special or general order or a case  which  has been allotted to him by the High Court. Apparently therefore the  III Additional City Civil and Sessions Judge who  tried the case, tried it as it must have been allotted to him.  It is  not disputed that it must have been allotted to  him  as the  distribution orders have not been sent for by the  High Court nor have been produced nor it is disputed but what  is observed by the High Court is that as the charge was  framed by the II Additional City Civil and Sessions Judge it  could not have been withdrawn under Sec. 409 clause 2 and allotted to any other Additional Sessions Judge: "Section 409 reads:               "Withdrawal  of cases and appeal  by  Sessions               Judge:  (1) A Sessions Judge may withdraw  any               case  or  appeal from, or recall any  case  or               appeal which he has made over to any Assistant

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             Sessions  Judge; or Chief Judicial  Magistrate               subordinate to him.               (2)  At any time before the trial of the  case               or  the  hearing of the appeal  has  commenced               before  the Additional Sessions Judge, a  Ses-               sions  Judge  may recall any  case  or  appeal               which  he  has  made over  to  any  Additional               Sessions Judge.               (3)  Where a Sessions Judge withdraws  or  re-               calls  a case or appeal under sub-section  (1)               or sub-section (2), he may either try the case               in  his own Court or hear the appeal  himself,               or make it over in accordance-with the  provi-               sions of this Code to another Court for  trial               or hearing, as the case may be." Clause  2  talks of "before the trial of  the  case   ...... commenced."  In fact the scheme of Sec. 409  indicates  that the  Sessions Judge had powers to withdraw any case  and  to allot to any one of the Additional Sessions Judges.     In  a  Sessions  trial recording of  plea  whether  will amount  to  commencement of the trial or not  has  not  been discussed by the High 302 Court  and it is not necessary for us also to go  into  this question. So far as the trial of the case is concerned it is not  found  by the High Court that the  Sessions  Judge  who tried  the case had no jurisdiction. On the contrary  it  is not  disputed before us that he had the jurisdiction to  try the  case  arising out of the Sessions  Division,  the  only objection which has prevailed with the High Court is that as charge was framed and plea was recorded by the II Additional City  Civil and Sessions Judge it could not have been  with- drawn  by the Principal Sessions Judge and made over to  III Additional City Civil and Sessions Judge. It is not disputed that  it  was withdrawn and made over. In this view  of  the matter therefore the provisions contained it Sec. 465 are of some importance.     The  High  Court, however, observed that  provisions  of Sec.  465 Cr.P.C. can not be made use of to regularise  this trial. No reasons have been stated for this conclusion. Sec. 465 Cr.P.C. reads as under:               "Finding or sentence when reversible by reason               of error, omission or irregularity:-               (1)  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  trial or in any inquiry or other  pro-               ceedings  under  this Code, or any  error,  or               irregularity in any sanction for the  prosecu-               tion,  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."

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It is provided that a finding or sentence passed by a  Court of  competent jurisdiction could not be set aside merely  on the ground of irregularity if no projudice is caused to  the accused.  It is not disputed that this question was  neither raised  by  the accused at the trial nor any  prejudice  was pleaded either at the trial or at the appellate stage and 303 therefore  in  absence  of any prejudice  such  a  technical objection  will not affect the order or sentence  passed  by competent court. Apart from Sec. 465, Sec. 462 provides  for remedy in cases of trial in wrong places. Sec. 462 reads  as under:               "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  divi-               sion,  district, sub-division or  other  local               are  unless it appears that such error has  in               fact occasioned a failure of justice." This provision even saves a decision if the trial has  taken place  in  a  wrong Session Division or  Sub-Division  or  a district or other local area and such an error could only be of  some  consequence if it results in  failure  of  justice otherwise no finding or sentence could be set aside only  on the basis of such an error.     It is therefore clear that even if the trial before  the III Additional City Civil and Sessions Judge would have been in a Division other than the Bangalore Metropolitan Area for which  III Additional City Civil and Sessions Judge is  also notified  to be a Sessions Judge still the trial  could  not have been quashed in view of Sec. 462. This goes a long  way to  show that even if a trial takes place in a  wrong  place where  the Court has no territorial jurisdiction to try  the case still unless failure of justice is pleaded and  proved, the  trial  can not be quashed. In this view of  the  matter therefore  reading Sec. 462 alongwith Sec. 465 clearly  goes to show that the scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction  merely either on the ground of lack of territorial jurisdiction  or on  the ground of any irregularity of procedure an order  or sentence awarded by a competent court could not be set aside unless  a  prejudice is pleaded and proved which  will  mean failure of justice. But in absence of such a plea merely  on such  technical  ground the order or sentence  passed  by  a competent court could not be quashed.     It is not disputed that the plea of prejudice or failure of justice is neither pleaded nor proved. Not only that even the judgment of the High Court does not indicate any  possi- bility  of prejudice or failure of justice. Learned  counsel appearing  for  the  respondent also did  not  suggest.  any possibility of projudice or failure of justice. Under these 304 circumstances  therefore  the view taken by the  High  Court does  not  appear to be correct in view of the  language  of Sec. 462 read with Sec. 465. The judgment of the High  Court is therefore set aside. The direction of remand made by  the High  Court  is also quashed. It is unfortunate  that  these matters pertaining to incidents of 1980 should not have been disposed  of  till  today and that the  matter  should  have remained  pending  on such technical grounds for  all  these years. We therefore direct that the appeals be remitted back to the High Court so that they are heard and disposed of  on merits as expeditiously as possible.

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P.S.S.                                                Appeal allowed. 305