Find a Lawyer

Criminal Reference No. 22 of 1986, decided on 23rd July, 1986.

---S. 242--Compliance of provisions of S.242, Cr.P.C.--Test--Particulars of alleged offence had to be explained to accused so that he knew what was charge against him which he had to face in trial and to defend himself in such circumstances.

----Ss. 242 & 537--Provisions of S.242, Cr.P.C.--Compliance imperative- True test whether disobedience to provisions of S.242 was an illegality or irregularity, held, rested on question whether any prejudice or injustice was caused to accused--Unless Court by the non-compliance of provisions by Trial Court was satisfied that such departure from mandatory provisions of procedure had occasioned' prejudice or, injustice to accused, such omission would be merely an irregularity curable under S.537, Cr.P.C.--Trial otherwise found unbiased and just could not be vitiated on grounds of technicalities.

Gopal Krishna Saha's case A I R 1927 Cal. 196; Express Dairy Ltd.'s case A I R 1950 Cal. 61; Mastan Singh's case A I R 1953 Pepsu 125; M. Ramamurthy's case A I R 1954 Mys. 164; V.M. Abdul Rahman's case A I R 1927 P C 44; Mt. Lahani's case A I R 1932 Nag. 127; Dost Muhammad Qutab Din's case A I R 1941 Pesh. 9; Moseb Kaka Chowdhry's case A t R 1956 S C 536; Abdul Wahab's case P L D 1955 FC 88; Atta Muhammad's case A I R 1930 PC 57(2); Gurbachan Singh's case A I R 1957 SC 623; Iqbal Hussain's case P L D 1969 Lah. 217 and Shamim's case P L D 1966 SC 178 rel.

Manzoor-ul-Hassan Gilani, A.-G. for the State.

Basharat Ahmad Sheikh for the Complainant.

Ch. Muhammad Taj for Respondents.

The reference made by the District Criminal Court, Mirpur, raises the question as to what is legal effect of omission to examine the accused in compliance with the provisions of section 242 Cr.P.C. in the trial of summons case.

2. Abrar Hussain Shah, Matloob Hussain Shah and Ghulam Mustafa are facing trial, on the charge of murder of Zamurd Hussain Shah, in the District Criminal Court, Mirpur. The incident took place on August 4, 1981 at 5. p.m. in the vicinity of Mirpur city. The accused were examined under section 242, Cr.P.C. on October 27, 1981. They pleaded not guilty, on which prosecution was asked to lead its evidence in support of its attribution. On conclusion of trial, it was discovered by the members of the District Criminal Court that the certificate endorsed on the statement of accused persons under section 242, Cr.P.C. was not signed by one of the members (District Qazi). The omission was brought to the notice of the counsel for the parties who advised the Court to refer the matter for decision by this Court.

3. The offence of murder 'is' punishable under section 5 of the Islamic Penal Laws Act, 1974. It is exclusively triable by District Criminal Court consisting of Sessions Judge and District Qazi. District Criminal Court is enjoined upon to hold such trial in the manner of trial of summons cases. In present case, as noticed earlier, the accused were examined under section 242; Criminal Procedure Code; the substance of accusation with which they were charged, was put to them and they were asked to show cause why they may not be convicted for the alleged offence: It is undisputed that the material particulars relating to the alleged offence were explained to the accused persons in the light Of provisions of section 242, Cr.P.C. The omission discovered at the time of judgment is that the certificate of the Court that the substance of mate2al particulars was put to the accused, was explained and read over to him, was not signed by the District Qazi. This omission was not objected, to by the, accused at the relevant time or during the evidence of prosecution. Again, the accused were examined under section 342, Cr.P.C. At that stage also, no objection to the said omission was raised. Defence also failed to point out any prejudice or injustice caused to the accused due to omission of signature of District Qazi. Ian this, state of facts: the effect of omission of signature of one of the members of the trial Court, whether present in the Court on the relevant day of trial or not is to be construed in the light of importance of the provisions of section 242, Cr.P.C.

3. The intended object of the provisions of section 242 is to inquire whether the accused pleads guilty to the alleged offence or demands trial. This object finds support from the next provisions contained in sections 243 and 244 of the Code. Section 243 postulates that if the accused admits that he has committed the offence, his admission shall be recorded in the words used by him and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. The dual object of the provisions of section 242 is, firstly, to explain the charge of alleged offence to the accused and to inquire whether he is guilty or not and, secondly, if the accused admits the charge, he is to be asked to show cause why he should not be convicted. If he shows no sufficient cause to the satisfaction of the trial Court, the Court is vested with power to convict him for such offence accordingly. Section 244, next provides that if the Magistrate does not convict the accused under section 243 for want of admission of committing the offence, the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. The test of compliance with the provisions of section 242 therefore, is that the particulars of alleged offence are explained to the accused so that he knows what is the charge against him he has to face in the trial and to defend himself in suet circumstances. In other words, the charge is put to the accused in concise manner so that he is not misled and confused by going through trial of unnoticed accusation. It is a measure to ensure fair and just trial to the accused.

4. The provisions of section 242 are considered imperative as the language of the section envisages that when the accused appears before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits the committing of the offence with which he is charged. The use of word 'shall' twice in this section is pointer to the imperative character of the provisions. The omission to explain the particulars of the alleged offence to the accused, according to one view vitiates the trial. This is so as failure to fulfil the mandatory requirements of the section is not a mere formality. This view rests on the principle that mandatory provisions of the Code must be complied with. The source of this view is a dictum of the Privy Council in Subhramania Aiyar s case followed by the learned Judges of Calcutta High Court in Gopal Krishna Saha s case A I R 1927 Cal. 196. The Privy Council held that disobedience to an express provision as to a mode of trial cannot be regarded as a mere irregularity and that such a disregard is obviously an irregularity. The relevant observation made in Gopal Krishna Saha's case is reproduced:--

"The omission to state to the accused to particulars of the offence with which he is charged when he appears or is brought before the Court is an omission to comply with an express provision of the Code as to the mode of trial, and is more than a mere irregularity and cannot be cured by section 537."

Mr. Justice Sen of Calcutta High Court reiterated this view in the case of Express. Dairy Ltd. A I R 1950 Cal. 61. Following the aforesaid dictum in Mastan Singh's case A I R 1953 Pepsu 125, the conviction was set aside for want of compliance with the mandatory procedure laid down for trial in summons cases. In that case, the trial Magistrate had conducted the trial in complete derogation to the procedure laid down for trial in summons cases. Mr. Justice Passey observed that the provisions of sections 242 and 243, Cr.P.C. were imperative; derogation to those provisions was not a mere irregularity but it vitiated the trial from the stage the error occurred. In M. Ramamurthy's case A 1 R 1954 Mays. 164, the learned Judges adhered to this view and observed that failure to examine the accused under section 242 Cr.P.C., prejudiced the accused in his defence. Thus, on the satisfaction of prejudice apparent from the record, it was deemed expedient to set aside the conviction.

5. The tenor of the view expressed in Gopal Krishna Saha's case rested on a general proposition of law enunciated by the Privy Council, but this view was modified by the Privy Council in subsequent decisions to be listed next. The second view, rather correct view, is that disregard or an omission in adhering to the provisions of sections 242 and 342, Cr.P.C., when occasioned no prejudice or injustice, is simply an irregularity curable under section 537, Cr.P.C., but when it is satisfied that non-compliance with the provisions has occasioned prejudice or injustice, it is an illegality incurable by section 537, Cr.P.C. Thus, the true test whether disobedience to the provisions is an illegality or irregularity, rests on the presence of prejudice or injustice to the accused. When it is satisfied that non-compliance with the provisions of these sections is not accompanied by prejudice or injustice to the accused, it is just an irregularity and not an illegality and vice versa. The learned Judges of the Privy Council examined the effect of disobedience to the imperative procedure envisaged in section 360, Cr.P.C. in V.M. Abdul Rahman's case A I R 1927 PC 44. The authority laid down in this case is not direct to the facts of the present case but it is quite helpful to appreciate the true effect of non-compliance with the mandatory provisions of section 360, Cr.P.C. which equally makes it imperative in the evidence of each witness shall be read over to him in presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. On satisfaction of the learned Judges that an omission to comply with the provisions of section 360 in that case, was unaccompanied by any probable suggestion of failure of justice, or an irregularity not enough to warrant the quashing of the conviction. The relevant observation is reproduced:---

"A mere omission or irregularity to comply with section 360 unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned is not enough to warrant the quashing of a conviction."

6. The dictum of the Privy Council received attention in Mt. Lahani's case A 1 R 1932 Nag. 127, where, again, a direct proposition resting on an omission to comply with the provisions of section 242, was under consideration. In that case, the learned Judges of Nagpur Nigh Court closely examined the dictum of the Privy Council in Subhramania Aiyar's case and V.M. Abdul Rahman's case and arrived at the following conclusion:--

"The principal object of the provisions in section 242 that the particulars of the offence of which a person is accused shall be stated to him and that he shall be asked if he has any cause to show why he should not be convicted is to discover whether the accused admits whether he has committed the offence. The omission, consequently, to state the particulars of the offence in accordance with the provisions of section 242 unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned is cured by the provisions of sections 535 and 537."

7. An identical proposition was raised before the Judicial Commissioner, Peshawar in Dost Muhammad Qutab Din's case A I R 1941 Pesh. 9. On reviewing the scheme and object of the provisions of section 242, Cr.P.C. the ultimate conclusion was drawn as:--

"The primary object of the proceedings prescribed by section 242, Cr. P. C., is to determine whether the accused pleads guilty to the charge or demands to be tried ....The facts on which the case was based however were fully set out by the prosecution and the accused was specifically asked to explain that part of the case. I am of opinion that in these circumstances failure to comply with the provisions of section 242, Cr.P.C. amounts merely to an irregularity which can be cured under section 537, Criminal Procedure Code, and that there has as a matter of fact been no miscarriage of justice from this irregularity."

8. The Supreme Court of India analysed the importance of compliance with the mandatory provisions contained in section 342, Cr.P.C. in Moseb Kaka Chowdhry's case A I R 1956 SC 536, a murder case tried by the Sessions Judge with the assistance of Jury. The learned counsel for the convict-appellant assailed the conviction on the ground of want of strict adherence to the provisions of section 342, Cr.P.C. The learned Judges observed that a conviction is not to be set aside merely for the reason of inadequate compliance with section 342, Cr.P.C. clear prejudice must be shown. The appeal was dismissed as in the opinion of the leaned Judges, non-examination or inadequate examination of the accused under section 342, Cr.P.C. unaccompanied by prejudice or injustice to the accused, was not enough to set aside the conviction.

9. In Abdul Wahab's case P L D 1955 FC 88, conviction of the appellant under section 449 of the Penal Code was sought to be set aside on the ground of non-compliance with the provisions of section 342, Cr.P.C. Mr. Justice Muhammad Sharif, who spoke for the Court, on analysing the scheme of law laid down under section 342, Cr.P.C., arrived at the conclusion that the object of section 342 is not to cross- examine the accused in detail. As a matter of fact, the learned Judges held, the true object was to invite attention of the accused to the points in evidence which were likely to influence the mind of the Judge in arriving at a conclusion adverse .to the accused, so that before the Judge could draw adverse inference, the accused should be afforded opportunity to offer an explanation. Despite failure of the trial Court to, comply with the provisions of section 342, Cr.P.C., the learned Judges of the Federal Court refused to set aside the conviction. The observation on the point is:-

"The accused is literate and could very well-follow the nature of the proceedings against him, and was also aware of the prosecution case. Since no miscarriage or failure of justice has been proved in this case, section 537 of the Criminal Procedure Code would cover it, and for that reason, no interference is called for by this Court. The learned counsel for the appellant was asked if there was anything to show that the amount had been credited to the Municipal Committee or paid to the Tax Darogha, he could not refer to any material on the record to show this, nor could he urge that the accused, had, in any way, been prejudiced by the general question put to him. In its absence, the appeal is hereby dismissed..."

10. In Atta Muhammad's case A I R 1930 PC 57(2) , conviction on the charge of murder was not set aside on an objection that the accused was convicted without having had a fair opportunity of knowing what charge was that he had to meet and particularly of raising defences other than the one raised or of relying on any circumstances which would have reduced the offence to a minor one. It was contended that omission to mention specifically the charge under section 300, Indian Penal Code, under which the convict was proceeded against, misled him, as such, he was deprived to raise a successful defence. The contention was turned down, as on going through the record of the case, the learned Judges were satisfied that no prejudice or injustice was caused to the convict. It was observed:--

"In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere. Their Lordships, therefore, will humbly advise His Majesty that for these reasons this appeal must be dismissed."

11. In Gurbachan Singh's case A 1 R 1957 SC 623, the conviction was challenged on a technical ground that the statements taken from the witnesses under section 161, Cr.P.C. during investigation in the connected case under the Arms Act, should not have been supplied to the accused for the purpose of defence in the trial, as the result of trial, by such action, was materially affected. The learned Judge dismissed the appeal in the following manner:-

"In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."

12. The second view was followed in Iqbal Hussain's case P L D 1969 Lah. 217. Mr. Justice Ataullah Sajjad, on making analytical review of the case law on the point, arrived at the conclusion that the fact that the convict cross-examined all the prosecution witnesses, gave evidence in his defence in order to meet the prosecution case, he was an educated person and was represented by a counsel, he was examined in detail under section 342, Cr.P.C., therefore, he fully understood what the case was against him, couple wit an omission to raise objection at any stage during trial, do no reflect any prejudice or injustice caused to the accused. In this case, the accused, tried in the manner of trial .in summons case, was not examine under section 242, Cr.P.C. The defect was recovered, like the present case, at the time of decision. In appeal before the High Court, the conviction was assailed, among others, as being illegal for failure of the trial Magistrate to comply with the provisions of section 242, Cr.P.C. The objection on this score was turned down. The learned Judges, following the dictum of the Supreme Court in Shamim's case P L D 1966 SC 178 observed:---

"The appellant cross-examined all the prosecution witnesses. He also gave evidence in his defence in order to meet the prosecution case. He is an educated person and was represented by a counsel. He was examined in detail under section 342 of the Code and all the incriminating circumstances appearing against him in the evidence of the prosecution were put to him. He, therefore, fully understood what the case was against him. Under the provisions of the Code, it is to be proved as a fact that prejudice has been caused. The whole evidence in possession of the prosecution was examined and it has not been shown that the appellant was misled in his defence.

The appellant does not appear to have raised any objection to the omission on the part of the. Court to examine him before recording the prosecution evidence. It appears from the order-sheet, dated 18-12-1967 that the trial Court itself took notice of this omission on the part of its predecessor and heard arguments on 20-12-1967 on this aspect of the case.

In the instant case, the objection to the legality of the process was not taken till after the complainant and some other witnesses had been examined in the case, in the presence of the accused and a charge had been framed against him. Even then the objection was not raised in the trial Court. It was merely mentioned in a transfer application preferred to the District Magistrate and raised later in the High Court. That transfer application succeeded and the case went for disposal to another Magistrate. The appellant had the opportunity to cross-examine the complainant and his witnesses, and it did not, therefore, appear that he had been, in any way, prejudiced in his defence."

13. The lacuna occurring in the present case is purely of a technical nature. This is so, the accused were examined in strict compliance with the provisions of section 242, Criminal Procedure Code, by explaining to them the substance of the charge levelled against them. They pleaded not guilty by denying the charge. The prosecution witnesses were cross-examined at length by the counsel of the accused. The defence failed to raise an objection to this omission throughout the trial. The technical defect was not even objected to by the defence in final arguments as this was discovered only by the trial Court at the time of final judgment in the case. Chaudhry Muhammad Taj, the learned counsel for the defence, confined his argument to the technical aspect of the case and failed to highlight any prejudice or injustice which may have occasioned to the accused persons .by disregard of procedure in the present case. I fully subscribe to the dictum of the Supreme Court of India in Gurbachan Singh's case A I R 1957 SC 623, as well as the view expressed in Iqbal Hussain's case P L D 1969 Lah. 217, and hold that unless it is satisfied that a departure from the mandatory provisions of procedure had occasioned prejudice or injustice to the accused, such an omission is merely an irregularity curable under section 537, Cr.P.C. This is so, as it is enjoined upon the Court to ensure that a fair, impartial and justice trial is held and no prejudice or injustice is caused to the accused. Thus, in absence of prejudice or injustice, an omission to adhere to provisions of the procedure is merely an irregularity. In other words, a trial otherwise found unbiased and just cannot be vitiated on the ground of technicalities. The trial in present case being legal, the District Criminal Court, Mirpur, is competent to decide the case on merits.

The reference is answered accordingly.

M.Y.H. Reference answered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.