Irregularity In Order Taking Cognizance Will Not Vitiate Criminal Proceedings : Supreme Court

The Supreme Court has held that an irregularity in the order taking cognizance will not vitiate the proceedings in a criminal trial(case: Pradeep S Wodeyar vs State of Karnataka).

A bench comprising Justice DY Chandrachud, Justice Vikram Nath and Justice BV Nagarathna was deciding an appeal filed against a judgment of the Karnataka High Court which dismissed the appellant's petition seeking quashing of the criminal proceedings against him.

The appellant, a Managing Director of a company, was facing criminal trial for offences related to unauthorized mining under the Mines and Minerals (Development and Regulation) Act and Indian Penal Code.

One of the arguments raised by the appellant was that the Special Court under the MMDR Act had no power to take cognizance of the offences without the case being committed to it by the Magistrate under Section 209. Therefore, it was argued that the order taking cognizance was irregular and hence the proceedings were vitiated.

The Supreme Court agreed that the Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate under Section 209. Hence, the Court concluded that the order taking cognizance was irregular.

Next, the Court considered the question whether the irregularity in taking cognizance will affect the trial. For deciding that issue, the Court referred to Sections 460, 461 and 465 of the Code of Criminal Procedure. Section 460 enumerates irregularities which do not vitiate the proceedings.

"Clause (e) of Section 460 relates to the taking of cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190 CrPC. Clause (a) of section 190(1) refers to the receipt of a complaint of facts constituting an offence and clause (b) refers to a police report of the facts. Consequently, where a Magistrate who is not empowered by law takes cognizance of an offence either under clause (a) or clause (b) of Section 190(1) erroneously though in good faith, the proceedings will not be set aside merely on the ground that the Magistrate was not so empowered. In other words, for vitiating the proceedings, something more than a mere lack of authority has to be established", the Court noted.

Then, the Court referred to Section 465 CrPC which refers to "finding or sentence when reversible by reason of error, omission irregularity". Referring to Section 465(2), the Court held that this provision is applicable to interlocutory orders such as orders taking cognizance as well.

"Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure. This interpretation is supported by sub-section (2) to Section 465 which states that while determining if the irregularity has occasioned a failure of justice, the Court shall have regard to whether the objection could or should have been raised at an earlier stage in the proceeding", the judgment authored by Justice Chandrachud noted.

In this backdrop, the judgment concluded :

"The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC"

Failure of justice due to irregularity to be shown

The Court also noted that as per Section 465 CrPC, a mere irregularity will not vitiate the proceedings unless it is shown that a failure of justice has taken place due to it. The accused has to demonstrate that prejudice has been caused to him.

"The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others", the Court noted.

In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay.

"It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no ̳failure of justice' under Section 465 CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 CrPC", the Court held.

Also from the judgment :  Fully Reasoned Order Not Necessary For Taking Cognizance On The Basis Of Police Report : Supreme Court

Case Title : Pradeep S Wodeyar v State of Karnataka

Appearances : Senior Advocates Siddharth Dave and Pravin H Parekh, for the appellant; Advocate Nikhil Goel for the State of Karnataka*

Citation : LL 2021 SC 691

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