IMPORTANT POINTS
1. A ‘fair trial’ is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of ‘fair trial’ is crucifixion of human rights.
2. Once prejudice is caused to the accused during trial, it occasions in ‘failure of justice’.

Headnote:Code of Criminal Procedure,1973- Section 193 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989- Section 3(1)(x)- Charge-sheet filed under Section 3(1)(x) of Act, 1989 -Divergent and contradictory views regarding the effect and impact of not committing an accused in terms of Section 193 of Crpc. and cognizance directly taken by Special Judge under Act-Matter referred to a larger bench-Held objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Act, 1989, does not vitiate the trial and on the said ground alone, conviction cannot be set aside or there cannot be a direction of retrial -Decision rendered in Bhooraji lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused- The decisions rendered in Moly and Vidyadharan having not noted the decision in Bhooraji , a binding precedent, does not expound the correct proposition of law and, they are to that extent, overruled. (Paras 52, 53)
        Fair Trial-Scope and ambit of-Fundamentally, a fair and impartial trial has a sacrosanct purpose- It has a demonstrable object that the accused should not be prejudiced-A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism-‘ Fair trial’ includes fair and proper opportunities allowed by law to the accused to prove innocence -Adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial-It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the courts should be zealous in seeing that there is no breach of them (Paras 32, 33)
       Facts of the Case :
        Issue in consideration in present case was that if cognizance is directly taken by the Special Judge under the Act and an accused without assailing the same at the inception allows the trial to continue and invites a judgment of conviction, would he be permitted in law to question the same and seek quashment of the conviction on the bedrock that the trial Judge had no jurisdiction or authority to take cognizance without the case being committed to it and thereby violated the mandate enshrined under Section 193 of the Code.
       Findings of the Court :
        A.Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing.
        B. Instantly , no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice.
        C. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim’s right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.
        D.If the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

JUDGMENT

Dipak Misra, J.

Perceiving divergent and contradictory views as regards the effect and impact of not committing an accused in terms of Section 193 of the Code of Criminal Procedure (for short ‘the Code’) in cases where charge-sheet is filed under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity ‘the Act’) and cognizance is directly taken by the Special Judge under the Act, a two-Judge Bench thought it apposite to refer the matter to a larger Bench and on the basis of the said reference, the matter has been placed before us. At this juncture, it is requisite to clarify that the real conflict or discord is manifest in Moly and Another v. State of Kerala1 AIR 2004 SC 1890 and Vidyadharan v. State of Kerala2 (2004) 1 SCC 215 on one hand wherein it has been held that the conviction by the Special Court is not sustainable if it has suo motu entertained and taken cognizance of the complaint directly without the case being committed to it and, therefore, there should be retrial or total setting aside of the conviction, as the case may be, and the other in State of M. P. v. Bhooraji & Ors.3 AIR 2001 SC 3372 wherein, taking aid of Section 465 (1) of the Code, it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by the Special Court inasmuch as the same does not give rise to failure of justice.

2. The necessitous facts required to be adumbrated for the purpose of answering the present reference are that the appellants were charge sheeted under Section 3 (1) (x) of the Act but eventually, charges were framed under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code (for short, ‘the IPC’). The learned Trial Judge vide judgment dated 31.08.1996 in Sessions Trial No. 97 of 1995 convicted all the accused persons barring Mohan for the offences under Section 302 read with Section 149 IPC and sentenced them to imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine, to suffer further rigorous imprisonment for three months and sentenced to one month rigorous imprisonment under Section 147 of the IPC. The accused Mohan was convicted for the offence under Sections 148 and 302 of the IPC and was sentenced to undergo one month rigorous imprisonment on the first score and to further life imprisonment and pay a fine of Rupees 1000/-, in default of payment of fine, to suffer further R.I. for three months on the second count.

3. Being dissatisfied with the judgment of conviction and the order of sentence, the appellants along with others preferred Criminal Appeal No. 1568 of 1996 before the High Court of Judicature of Madhya Pradesh at Jabalpur. Apart from raising various contentions on merits, it was pressed that the entire trial was vitiated as it had commenced and concluded without committal of the case to the Court of Session as provided under Section 193 of the Code. Heavy reliance was placed on Gangula Ashok and Another v. State of Andhra Pradesh4 AIR 2000 SC 740 and Moly and Another (supra) and Vidyadharan (supra) but the Division Bench placed reliance on Bhooraji (supra) wherein Gangula Ashok (supra) was distinguished keeping in view the stage of the case and regard being had to the provision contained in Section 465 of the Code and treated the same to be a binding precedent in view of the special Bench decision of the High Court of Madhya Pradesh rendered in Jabalpur Bus Operators Association and Another v. State of Madhya Pradesh and Another5 2003 (1) MPJR 158 and repelled the contention accordingly. Thereafter, as the impugned judgment would reveal, the Bench proceeded to deal with the matter on merits and eventually sustained the conviction and affirmed the sentence as has been indicated h

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2012 Supreme(SC) 148

Cases Referred (28)