Decided on August 05,1953



Govinda Menon, J. - (1.) The appellant has been sentenced to transportation for life by the learned Sessions Judge of Tiruchirapalli division for the murder of one Kaliyaperumal by beating him with a bamboo stick at Karadikulam village, Udayarpalayam taluk, on 12-6-1952. We do not wish to express any opinion regarding the credibility of the prosecution evidence in view of the course which we are adopting. The learned Sessions Judge believed P. Ws. 1 to 4 and 9 who, according to him, deposed consistently and with very good demeanour. The evidence of these witnesses may or may not be trustworthy, but it is unnecessary to express any opinion about it. The question of importance that has been argued is whether the proceedings before the Sessions Judge were vitiated by an event that happened in the committing court and if that is so, whether the entire committal and trial are thereby rendered null and void.
(2.) As stated by the learned Sessions Judge, in the committing court, the investigating officer, who was examined as P. W. 16 in the Sessions Court, conducted the prosecution by examining a large number of witnesses. The Sub- Magistrate who was in charge of the preliminary enquiry permitted him to do so. The prosecution witnesses who were examined by the investigating officer as prosecuting counsel in the committing court, were all examined as prosecution witnesses in the Sessions Court as well and the depositions of Karutha Mookan alias Manickam, (P. W. 5 in the Sessions Court), Rajayee (P. W. 6 in the Sessions Court), Gopal Padayachi (P. W. 7 in the Sessions Court) and Rajamanickam (P. W. 8 in the Sessions Court) in the committing court were exhibited as substantive evidence under Section 288. Criminal P. C., and have thereby become part of the proceedings before the Sessions Judge. The question for consideration is whether the circumstance that the investigating officer examined prosecution witnesses in the committing court has vitiated the entire proceedings both before the committing court as well as before the Sessions Judge.
(3.) Sub-section (4) of Section 495, Criminal P. C. lays down that an officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted. There has been admittedly a violation of this mandatory provision of the statute. The learned Public Prosecutor contends that this circumstance does not render the proceedings void, taut is only an irregularity which can be cured by the provisions of Chapter 45 of the Criminal P.C. Section 529 deals with irregularities which do not vitiate proceedings and Section 530 deals with irregularities which vitiate proceedings. Section 532 relates to Irregular commitments, and states when they can be validated. Where any magistrate or other authority purporting to exercise powers duly conferred, but which were not so conferred, commits an accused person for trial before a court of Session, then the court to which the commitment is made, may, after perusal of the proceedings, accept the commitment if it considers that the accused has not been injured thereby, unless during the inquiry and before the order of commitment, objection was taken on behalf either of the accused or of the prosecution to the jurisdiction of such Magistrate or other authority. But there has been a conflict of cases in this court regarding the validation of proceedings if both the committing court as well as the Sessions Court have no territorial jurisdiction over the place where the offence took place. The divergence of view is seen from - 'Assistant Sessions Judge, North Arcot v. Ramammal', 36 Mad 387 (A) and -' Ganapathi Chetti v. Rex', AIR 1920 Mad 824 (B). The learned Public Prosecutor places great reliance on Section 537 which is intended to cure defects which have not prejudiced the accused. But Clause (a) of Section 537 does not mention about an error in the committal, for it states that any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, shall not be a ground for reversing an order passed by a Court of competent jurisdiction unless such error, omission, irregularity or misdirection has occasioned a failure of justice. Can it be said therefore that a violation of a mandatory provision of law during the stage of committal proceedings would render null and void the entire committal, for unless there is a legal committal to the Sessions Court, that tribunal would not be clothed with Jurisdiction to try. In -- 'Subramanla Aiyar v. King Emperor', 25 Mad 61 (C) and--'Abdul Rahman v. Emperor', AIR 1927 PC 44 (D), the Privy Council has laid down that a disregard of an express provision of law as to the mode of trial was not a mere Irregularity such as could be remedied by Section 537, Criminal P. C. The phrase "irregularity" is inappropriate when an illegality is committed by an infraction of a rule of law. Therefore if we are satisfied that the examination of witnesses by the police officer in direct contravention of Sub-section (4) of Section 495, Criminal P. C., is an illegality which would vitiate and render void the entire proceedings before the committing court, then there had been no committal at all to the Sessions Court and as such the trial before the Sessions Court would also be illegal. It is important to notice in this connection that Exs. P. 2 to P. 5 were treated as substantive evidence before the Sessions Judge and if the person who was responsible for bringing into existence those depositions by questioning the witnesses was an unauthorised person who should not have done what he did, then those documents would have no legal validity and would be null and void.;

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