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Judgment
Heard the learned counsel for the petitioners and the learned HCGP for respondent-State.
As a very short question is involved in this case, at the time of hearing with regard to admission itself, the matter is heard on merits and disposed
of.
The records disclose that the respondent - Chikkanayakanahally police have laid a charge sheet against the petitioners-accused No. 1 to 3
before the trial Court i.e., on the file of Prl. Civil Judge & JMFC, Chikkanayakanahally for the offences punishable under Sections 498(A), 323,
504, 506 R/w 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act. The accused persons were tried by the trial Court after filing of charge
sheet, secured the accused and framed charges against them. The accused persons pleaded not guilty, their answers were also recorded and
thereafter, the prosecution led the evidence, examined 15 witnesses as PW1 to 15 and got marked 13 documents as Ex.P.1 to Ex.P.13. After
appreciating the oral as well as documentary evidence on record, the trial Court recorded the judgment of acquittal under Section 248(1) of
Cr.P.C. which has been challenged before the V Additional District and Sessions Judge, Tiptur in Crl.A.No.10015/2016.
The Appellate Court, in a very short judgment has remitted the matter to the trial Court setting aside the order of judgment of acquittal and
directed the Magistrate to record the plea of the accused as required under Law and to sign the plea forms and thereafter, dispose of the case on
merits afresh after providing opportunities to both the parties. The learned Sessions judge has made observations after going through the order
sheet of the trial Court dated 07.12.2011 which shows that, the trial Court has recorded and read over the charge and recorded the plea of the
accused. However, the appellate Court has observed that, in fact, the learned Magistrate though shown to have framed charges but has not in
practically recorded the shara having read over the charge to the accused and recorded the plea in the words of the accused and the Magistrate
has also not signed the plea forms, as such the same is suffering from legal infirmity. The Court also observed the legal requirement particularly the
procedure to be followed in the trial of warrant case has not been followed. Therefore, on that ground without looking into the merits of the case,
the appellate Court has remitted the matter, setting aside the judgment of acquittal. There is no specific direction issued as to whether the trial
Court has to rerecord the evidence of witnesses and to write the judgment but, it goes without saying that once the judgment of acquittal is set
aside, the trial Court has to redo everything from the stage of recording of plea. The said judgment passed by the First Appellate Court in
Crl.A.No.10015/2016 dated 28.08.2017 is called in question before this Court.
Though the learned Sessions Judge has stated that, some procedural irregularities have been committed by the trial Court in not specifically
recording the plea of the accused and signing the plea forms, whether that itself totally vitiates the entire proceedings in order to set aside the
judgment of acquittal itself is the question to be looked into by this Court. It is quite clear from the grounds urged before the First Appellate Court,
that the State has not taken any such ground for setting aside the judgment of acquittal and even for remitting the matter to the trial Court. The case
of the State while challenging the judgment of acquittal is that, the trial Court has not properly appreciated the oral and documentary evidence on
record, though PW4 and 7 have supported the case of prosecution. Without appreciating the evidence on record in proper perspective, the trial
Court has committed serious error in acquitting the accused. Therefore, whatever the irregularity that has been committed by the trial Court has not
been raised as a ground for setting aside the judgment of acquittal and for remitting the matter to the trial Court. Therefore the Appellate Court
could not have remitted the matter to the trial Court for correction of such irregularity by the trial Court.
Even otherwise, when the judgment of acquittal is pronounced, the accused is deemed to have acceded to the procedure followed by the trial
Court. No Judgment or Order shall be setaside unless the same vitiates the entire proceedings before the trial Court and amounts to illegality.
When the accused and State themselves have not questioned that irregularity, the Appellate Court should not have considered that for the purpose
of remitting the matter to the trial Court.
In this context, it is worth to refer the provisions under Section 461, 464 of Cr.P.C. Chapter 35 of Cr.P.C. particularly Sec.460 which refers to
the irregularity which do not vitiate the proceedings and also under Section 461 of Cr.P.C. whereunder irregularities which vitiate proceedings are
also specifically narrated. The effect of omission to frame charges or any errors in framing of charges and recording the plea is nowhere considered
to be an irregularity which vitiates the proceedings as per Sections 460 & 461 of Cr.P.C. Therefore, the omission to frame charges or even in the
absence of error in framing the charges and consequential recordings of the plea, if there is any irregularities, the same would not vitiate the entire
proceedings when particularly, the accused did not claim it as a prejudice to him. The State has also never stated that it caused any prejudice either
to the accused or to the State.
In the above said context, it is worth to mention the provisions under Section 464 of Cr.P.C. which reads as follows:
Effect of omission to frame, or absence of, or error in, charge:-
No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or
on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal,
confirmation or revision, a failure of justice has in fact been occasioned thereby.
If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may
a. in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after
the framing of the charge.
b. in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of
the facts proved, it shall quash the conviction.
A meticulous and meaningful understanding of the above said provision, further clears that, the appellate Court normally should not declare any
sentence or order by a Court of the competent jurisdiction, or finding of the competent jurisdiction as invalid on the ground that no charge was
framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges unless, in the opinion of the Court of
appeal, on confirmation or revision, a failure of justice has in fact been occasioned thereby.
Therefore, on reading of above said provisions, if the Court is of the opinion that, the facts of that particular case are as such that, no valid
charge could be framed/preferred against the accused in respect of the facts provided, then only it shall quash the conviction. Therefore, it goes
without saying that mainly the provision is concentrated on the prejudice caused or any failure of justice has occurred due to such irregularity while
framing of charge or recording of plea, then only specifically recording how the said act of the Magistrate has caused failure of justice or prejudice
to the State or the accused, the Appellate Court can set aside or declare invalid the finding or judgment of the trial Court.
In view of the above said facts and circumstances, the appellate Court has not bestowed its attention to Section 460, 461 and 464 of Cr.P.C.
The learned HCGP also submits that the appellate Court should have heard the matter on merits and passed the orders on merits of the
appeal. When the accused has not taken up the irregularity, as noted by the appellate Court, as prejudicial to them in any manner, it goes without
saying that the petitioners or the accused themselves have come up before this Court that the said irregularity in framing of charges or recording of
plea by the trial Court, nowhere affected their right or caused any prejudice to them. Therefore, they themselves have approached to this Court to
set aside the judgment of the appellate Court and for a direction to the Appellate Court to dispose of the case on merits after hearing both the
parties.
In view of the above said facts and circumstances, the order passed by the V Additional District and Sessions Judge, Tiptur in
Crl.A.No.10015/2016 dated 28.08.2017 deserves to be set aside and Hence, I proceed to pass the following:
ORDER
Petition is allowed. Consequently the Judgment and Order passed by the V Additional District and Sessions Judge, Tiptur in
Crl.A.No.10015/2016 dated 28.08.2017 is hereby set aside Consequently Crl. A. No. 10015/2016 stands restored to the V Additional District
and Sessions Judge, Tiptur with a direction to hear the appeal on merits and dispose of the same in accordance with Law, after providing
opportunity to both the parties and after securing the records from the trial Court.