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1926 Supreme(SC) 60
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PHILLIMORE, LORD SINHA, LORD BLANESBURGH. LORD SALVESEN, AND SIR JOHN WALLIS.
ABDUL RAHMAN - Appellant
Versus
THE KING-EMPEROR - Respondents
On appeal from the High Court at Rangoon.
Decided On : Dec. 14. 1926.
Solicitors for appellant:Waterhouse & Co. Solicitor for respondent: Solicitor, India Office.
Non-compliance with the mandatory requirement to read depositions aloud to witnesses under Section 360 of the Code of Criminal Procedure is a curable irregularity under Section 537, provided it is not shown that such omission resulted in a failure of justice.
Headnote:(A) Code of Criminal Procedure - Sections 190, 191, 360, 537 - Cognizance of offence - Right to be tried by another Court - Reading over of depositions - Failure of justice - When a Magistrate takes cognizance of an offence upon receiving a complaint of facts under Section 190(a), the requirement to inform the accused of the right to be tried by another Court under Section 191 does not apply.
(B) Code of Criminal Procedure - Section 360 - Requirement that depositions be read over to the witness is mandatory; allowing witnesses to read depositions to themselves silently is a violation of the provision.
(C) Code of Criminal Procedure - Section 537 - Curative provisions - An error, omission, or irregularity in proceedings during trial does not warrant the quashing of a conviction unless it has, in fact, occasioned a failure of justice. The bare fact of non-compliance with the procedure for reading over depositions, without evidence of prejudice or material error, is curable.
Facts of the case:
An insolvency petition was filed against a firm alleging an act of insolvency based on attachment warrants. It was discovered that the dates of execution on the warrants had been forged to support the petition. The appellant was convicted of abetting the forgery. During the trial, the magistrate allowed English-speaking witnesses to read their depositions silently rather than reading them aloud in the presence of the accused. The appellant challenged the conviction on the grounds that he was not informed of his right to be tried by another court and that the procedure for reading depositions was not followed.
Findings of Court:
The court found that the magistrate proceeded under Section 190(a) and not 190(c), making Section 191 inapplicable. Regarding the depositions, while the procedure adopted was a violation of Section 360, it was an irregularity that did not result in a failure of justice, as no objection was raised during the trial and no prejudice was shown.
Issues: Whether the failure to inform the accused of the right to be tried by another court under Section 191 and the failure to read depositions aloud to witnesses under Section 360 were fatal irregularities that vitiated the trial.
Ratio Decidendi: The court held that the right to elect another court under Section 191 is specific to cognizance taken under Section 190(c). Furthermore, while the mandatory requirement of Section 360 to read depositions aloud to witnesses must be followed to ensure accuracy, any departure from this is curable under Section 537 provided there is no evidence that such an omission led to a failure of justice.
Result: Appeal dismissed.
Legal Category Hierarchy
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crime and sentencing
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offences involving property
- forgery
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offences involving property
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practice and procedure
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criminal procedure
- cognizance
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trial procedure
- witness depositions
- curative provisions
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criminal procedure
Judgement
Appeal (No. 58 of 1926) by special leave from a judgment of the High Court (August 27, 1925) confirming a conviction of the appellant under ss. 466, 109 of the Indian Penal Code by the District Magistrate at Rangoon.
By the sanction of Governor in Council a complaint was filed against the appellant and another person for an offence under s. 120 B read with ss. 466 and 109 of the Indian Penal Code. The case was tried by the District Magistrate at Rangoon. After hearing the evidence for the prosecution he formulated against the accused, in substitution for the charge under s. 120 B, two charges, the one under ss. 466 and 109, and the other under ss. 466 and 116, the latter being a new charge.
The facts of the case and the nature of these charges appear from the judgment of the Judicial Committee.
The appellant was convicted on both charges, and was sentenced on the first of them to two years rigorous imprisonment. No sentence was imposed on the second charge.
The appellant appealed to the High Court on the grounds, among others (1.) that under s. 191 of the Code of Criminal Procedure the magistrate should have informed him that he was entitled to be tried by another Court; (2.) that the provisions of s. 360, with regard to the reading of depositions, were not complied with.
The High Court confirmed the conviction on the first charge, but reduced the sentence to nine months rigorous imprisonment.
The learned judges (Maung Ba and Doyle JJ.) held with regard to the objections above stated (1.) that s. 191 did not apply, as the magistrate had proceeded under s. 190 (a); (2.) that although there had been a violation of s. 360 as to reading the depositions, it was in the circumstances an irregularity which did not vitiate the proceedings but was curable under s. 537, since there had been no failure of justice, and no objection had been taken at the trial. The Court followed Nga Hla U v. Emperor (( 1925) I. L. R. 3 R. 139.) and Saiyad Mohiuddin v. King-Emperor . (( 1925) I. L. R. 4 P. 488.)
Special leave to appeal to His Majesty in Council was granted.
1926. Nov. 23, 25. Sir John Simon K.C., K. N. Chaudhuri and Frampton for the appellant. The magistrate having framed a new charge should have informed the appellant that he had the right to be tried by another Court; he was required to do so by s. 191 of the Code of Criminal Procedure, The omission was not a mere irregularity, but vitiated the trial Emperor v. Chedi.
(I. L. R. 28 A. 212.) It is true that no sentence was imposed on the new charge, but the conviction may have led to an increased sentence on the other conviction.
Further, the provisions of s. 360 as to the reading of depositions were seriously departed from. The procedure laid down by the section is obligatory, and a departure from it is not curable under s. 537 Him Lal Ghose v. Emperor (I. L. R. 52 C. 159.) ; Dargahi v. Emperor. (I. L. R. 52 C. 499.) In Jyotish Chandra Mukerjee v. Emperor (( 1909) I. L. R. 36 C. 955.) the depositions were read, not merely handed to the witnesses to read to themselves. The object of s. 360 is to secure a uniform and equitable administration of the criminal law; it is not relevant to consider whether in this particular case injustice resulted from the serious violation of its provisions. If s. 360 is not complied with in the case of a witness he would not be chargeable with perjury. The violation of the mandatory provisions of s. 360 entitles the appellant to succeed on this appeal, on the principle followed in Subramania Iyer v. The King-Emperor. (L. R. 28 I. A. 257.) The procedure laid down in the Code cannot be varied by consent or waiver Reg. v. Cockshott ([ 1898] 1 Q. B. 582.); Hossein Buksh v. Empress (( 1880) I.
L. R. 6 C. 96.); Hendersons Criminal Code, ed. 1910, p. 1100. The appellant having obtained special leave to appeal, it is not now necessary for him to show that grave injustice has been done; it is sufficient to establish that the High Court wrongly confirmed the
