Non-Compliance With S.279, 281 CrPC Only An Irregularity But That Is Not Permission To Violate It: Kerala High Court

The Kerala High Court has ruled that failure to interpret evidence against the accused in the language they are familiar with, as mandated under Sections 279 and 281 of CrPC, may be a mere irregularity, but the prosecution is not allowed to violate these provisions.

Justice PG Ajithkumar observed so in the light of precedents which establish that non-compliance with Sections 279(1), 279(2) or 281(4) is a mere irregularity, and that unless prejudice is caused to the accused, that irregularity will not vitiate the trial altogether.

"Non-observance of Section 279(1), 279(2) or 281(4) of the Code may be an irregularity only, but that is not a permission to violate it." 

The appellant was convicted and sentenced under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) by a Special Court. Challenging the judgment of conviction and the order of sentence, he filed an appeal before the High Court. 

Advocate Sunny Mathew appearing for the appellant contended that the appellant is only familiar with Kannada, but in none of the stages of the investigation or trial, he was informed of the proceedings in his own language. Even during the court proceedings, it was argued that the contents of various proceedings were not interpreted to him in his own language as provided in Sections 279 and 281 of the Code. 

Section 279 envisages that when evidence is given in any language not understood by the accused it shall be interpreted to him in open court with an objective to safeguard the interest of an accused. The Judge found that even in a case where the accused is represented by a counsel, it is mandatory that the evidence be interpreted to the accused in a language he understands if he is not familiar with the language in which the evidence is recorded. 

Further, Section 281(4) mandates that the memorandum of the accused's examination by the court shall be translated to him if written in a language he does not understand. In this case, it was not certified in the appellant's statement that the matter was translated into Kannada for him. None of the records of witness depositions carried any certification that the contents were interpreted to him in Kannada or that he knew Malayalam.

The Court opined that this shows that at no stage of the trial an interpreter was engaged and the evidence or other statements were translated into Kannada.

It was also observed that the appellant was represented by a lawyer throughout the proceedings in court. From the records, it was seen that neither the appellant or his counsel had not pointed out before the Special Court that he did not know Malayalam at any stage of the trial.

However, going by what the Apex Court held in Shivanarayan Kabra v. State of Madras [AIR 1967 SC 986], in a case where the accused is defended by a counsel, non-compliance with Sections 279(1) or 281(4) by itself would not render the prosecution illegal.

"The non-compliance with Sections 279(1) or 281(4) of the Code is an irregularity. Unless prejudice is caused to the accused, that irregularity will not vitiate the trial altogether."

In this case, the counsel did not point out any instance of prejudice caused to the appellant during the process of trial. Yet the Judge took the view that merely because it is a mere irregularity, the prosecution does not have the permission to violate it. 

Therefore, it was concluded that whenever an accused who does not know the language in which the court proceedings take place, the magistrate or court is expected to follow the procedure mentioned in Chalam Sheikh v. State of Kerala. 

Nevertheless, the Bench found a glaring glitch while recording the appellant's statement of waiver under Section 50 of the NDPS Act. Unless the accused waives his right to be searched before a Gazetted Officer/Magistrate, it is the obligation of the searching officer to have the search in the presence of either a Gazetted Officer or a Magistrate.

In this case, the officer who searched the appellant had deposed that the appellant was apprised of his right and as he waived the presence of Gazetted Officer/Magistrate, and had also acknowledged that the appellant only knew Kannada. The appellant wrote the waiver in Kannada as well.

"In the absence of certification or a statement of PW1 (police officer) in court that the appellant was communicated in Kannada about his right under Section 50 of the NDPS Act, it can only be said that there occurred non-compliance with the provisions of Section 50." 

As such, the conviction of the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act was held to be unsustainable. The appeal was accordingly allowed and the judgment of the Special Court, was set aside. The appellant was acquitted and set at liberty

Case Title: K.B. Rasheed v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 310

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