2011 Supreme(Kar) 723

High Court of Karnataka (Circuit Bench At Dharwad)
THE HONOURABLE MR. JUSTICE MOHAN SHANTNAGOUDAR, THE HONOURABLE MR. JUSTICE V. JAGANNATHAN & THE HONOURABLE MR. JUSTICE RAVI MALIMATH
State of Karnataka, by Circle Inspector of Police
Versus
Hosakeri Ningappa & Another
C.A. No. 971 of 2005
Decided on : 19-12-2011

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 465: [Mohan Shantanagoudar, V. Jagannathan & Ravi Malimath, JJ] Object of the Section - Held, Section 465 of the Code is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent Jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object of the Section is to secure justice by preventing the invalidation of a trial held on the ground of technical breaches of any provisions of the Code causing no prejudice to the accused. The intention is to eliminate all possibilities of acquittal of persons committing offences except on the merits. The procedural laws are designed to further the end of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with our notions of natural justice. If there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. The procedural laws are designed to subserve the ends of justice and not to frustrate them. The test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule or procedure. In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial; whether he knew that 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. Each case has to be decided on merits based on the facts and circumstances of that case, as to whether the irregularity in the procedure adopted by the Trial Judge while proceeding with the trial has occasioned failure of justice or not. If the irregularity in procedure adopted by the Sessions Courts has occasioned failure of justice, them only the proceedings vitiate. Otherwise not.

       CRIMINAL TRIAL - Case & Counter Case: [Mohan Shantanagoudar, V. Jagannathan & Ravi Malimath, JJ] Procedure to be followed - Held, The procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors., The trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other. In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case. Further held, If the Trial Court by not adopting the salutary procedure mentioned supra disposes of the case and the counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and appeals is preferred in the case decided later, the proceedings in he later case are not vitiated. The Court cannot compel the State to file and appeal in any given case. It is left to the wisdom of the State to decide as to whether the Judgment passed by the Court below needs to be questioned or not. If the State is satisfied about the Judgment passed in one case it may choose not to file appeal in that case. However, the State may feel that in the other case (i.e., in the counter case), appeal may be necessary. In such an event, nobody can prevent the State from filing the appeal. If two cases arise out of the same incident and if two charge sheets are filed, two trials will be held. In a given case, the Trial Judge may choose to acquit the accused in both the cases or may choose to convict the accused in both the cases; the Trial Judge may even convict the accused in one case and acquit the accused in another case. The decision will depend upon facts and circumstances of each case. Merely because the appeal is not filed in one case and the appeal is filed in the other case, the proceedings will not get vitiated automatically in the later case. In Court’s considered opinion, in such a situation, the accused in such cases will have to show prejudice suffered by him. However, as a proposition of law, it cannot be laid down that the appeal filed in the second case by the State questioning the Judgment and Order of acquittal needs to be dismissed in limine on the ground that the proceedings in the later case is vitiated. It all depends upon facts and circumstances of individual case to be decided by the Appellate Court to see whether any prejudice is caused to the accused in not conducting the trial of the case and the cross case simultaneously.

       CRIMINAL TRIAL Case and counter case: [Mohan Shantanagoudar, V. Jagannathan & Ravi Malimath, JJ] Held, There is no statute governing the procedure to be adopted in case and counter case or cross cases. However, the Supreme Court has laid down the procedure for trial in such matters. The Legislature ought to remedy the defect by enacting the procedure in that regard. However, the Judge made law relating to procedure mentioned is being followed since 1929 till this day. The law declared by the Supreme Court binds all the Courts in India under Article 141 of the Constitution of India. Hence, the observations made by the Division Bench in the case of Abdual Majid Sab do not lay down good law on the point, inasmuch as, the observations run contrary to the well established principles of law as laid down by the Supreme Court from time to time. The Supreme Court has described the procedure and practice of simultaneous trial of case and counter case as "fair procedure", "salubrious practice", "salutary practice", "generally recognised rule", "proper procedure to adopt" etc., in various judgments. The procedure to be adopted by the Courts while dealing with the case and counter case is the Judge made procedure and not a statutory procedure. It is also settled position in law as laid down by the Supreme Court in the aforementioned judgments that in deciding the case and the counter case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into, nor can the Judge be influenced by the arguments in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence and the arguments in the cross case. It is also relevant to note that the investigation is to be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors., The Government of Karnataka has issued the law Circular dated 24.9.1982 bearing No. 4836 and the law Circular dated 12.11.1982 bearing No. 4839, stipulating that the same Investigation Officer shall investigate case and counter case.

       CRIMINAL TRIAL - Case and counter case: [Mohan Shantanagoudar, V. Jagannathan & Ravi Malimath, JJ] Procedural irregularity in conducting Trial - Held, If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal vs State of U.P. reported in 1990 Suppl. SCC 145: 1990 SCC (Cri) 638, and in the case of Sudhir and others vs State of M.P, reported in 2001 SCC (Cri) 387, the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code.