The court affirmed that procedural irregularities in criminal trials must not invalidate proceedings unless substantial prejudice is demonstrated, establishing the directory nature of S.24, CrPC.

1. This petition has arisen out of a reference made by the Court of Additional Sessions Judge (Fast Track Court No. II), Tindivanam, in an application filed in Crl. M.P. No. 20 of 2003 by the defence in S.C. No. 126 of 2002 on the file of the said Court, seeking clarification for S.24(1) of the Code of Criminal Procedure on an application filed by the defence under S.395(2) of the Code of Criminal Procedure .

2. The learned Public Prosecutor, High Court, Madras, appearing on behalf of the Returning Officer would not only submit his note, but also would argue to the effect that the case is one registered and pending disposal for the offence punishable under S.376(2)(B)(C)(G) read with 218, 201 read with 376, IPC and as many as 53 witnesses have been so far examined; that at this stage, an objection has been raised by the counsel appearing on behalf of A1, A3, A4 and A5 challenging the competence of the Additional Public Prosecutor in piloting the prosecution case; that this objection was raised belatedly and S.225, CrPC provides that in any trial before the Court of Sessions, the prosecution shall be conducted by a Public Prosecutor, citing instances from various sections of the Code such as S.460 to 466 of CrPC and quoting from an English Judgment Howard v. Bodington , reported in 1877 (2) PD 203 (N), wherein it has been held in the following manner : -

"There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non - observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end."

"These words can be applied 'mutatis mutandis' to cases where there is no charge at all. The gravity of the defect will have to be considered to determine if it falls within one class or the other. Is it a mere unimportant mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case."

"If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established."

3. The learned Public Prosecutor continuing to argue would try to impress the Court stating that even assuming that there is a departure from the provisions contained in S.225, CrPC to some extent, the objection itself had been taken belatedly and by no stretch of imagination, any prejudice could be said to have been caused to the accused in the trial of the case. The records in the case would show that Thiru, Mathiyalagan had been acting under the guidance and instructions of the Public Prosecutor, Tindivanam and the notification appointing him as a Special Public Prosecutor under S.24(8), CrPC had admittedly been issued within the legal parameters.

4. At this juncture, the learned Public Prosecutor would also refer to a judgment of the Constitutional Bench of the Supreme Court namely, W. Slaney v. State of M.P. , reported in AIR 1956 SC 116 : 1956 CriLJ 291, wherein it has been held as follows : -

"Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a Code of procedure and, like all procedural laws, is designed to