Words "Tries An Offence" Are More Appropriate Than The Words "Tries An Offender" In Section 461(l) CrPC, Says SC [Read Judgment

The words "tries an offence" are more appropriate than the words "tries an offender" in section 461 (l), the Supreme Court opined while considering a Transfer Petition filed on the ground of lack of territorial jurisdiction.

Justice V. Ramasubramanian observed that there seems to be some incongruity between Section 461(l) and Section 462 of the Code of Criminal Procedure.

Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void. However, under Section 462, no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub­ division or other local area, unless it appears that such error has in fact occasioned a failure of justice. 

"A cursory reading of Section 461(l) and Section 462 gives an impression that there is some incongruity. Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void. A proceeding which is void under Section 461 cannot be saved by Section 462. The focus of clause (l) of Section 461 18 is on the "offender" and not on the "offence". If clause (l) had used the words "tries an offence" rather than the words "tries an offender", the consequence might have been different."

The court also noted that Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word "offence" in three places namely clauses (b), (d) and (e). Section 460 does not use the word "offender" even once. "On the contrary Section 461 uses the word 'offence' only once, namely in clause (a), but uses the word "offender" twice namely in clauses (l) and (m). Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461.", the court further noted. Referring to Section 26 CrPC and some precedents which dealt with the old CrPC, the court said:

"From the above discussion, it is possible to take a view that the words "tries an offence" are more appropriate than the words "tries an offender" in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do."

Case no.: TRANSFER PETITION (CRL.) NO.456 OF 2019

Case name: KAUSHIK CHATTERJEE vs. STATE OF HARYANA 

Coram: Justice V. Ramasubramanian

Counsel: Sr. Adv Vikas Singh , Sr. Adv Neeraj Kishan Kaul

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