Holding

In the absence of pleaded and proved prejudice or failure of justice, the conviction cannot be quashed despite procedural irregularities in the transfer of the case.

Summary

The State of Karnataka appealed against the Karnataka High Court's order quashing the conviction of Kuppuswamy Gounder for murder and assault. The High Court had set aside the conviction on the ground that the case had been transferred among Sessions Judges without a formal order under s.407 CrPC and that the trial was therefore invalid. The Supreme Court examined whether such procedural irregularities could invalidate a finding or sentence under s.462 and s.465 CrPC in the absence of any pleaded and proved prejudice or failure of justice. It held that all Additional Sessions Judges in the Bangalore Metropolitan Sessions Division have jurisdiction, and the Principal Sessions Judge could reassign the case under s.409(2) before trial commenced. Since no prejudice was established, the conviction could not be quashed, and the High Court's order was set aside, with the matter remitted for disposal on its merits.

Issues considered

Whether a conviction can be set aside under s.462 and s.465 CrPC when a case is transferred among Sessions Judges without a formal order under s.407, absent proof of prejudice or failure of justice.
Whether the Principal Sessions Judge has the power to withdraw and reassign a case after the plea is recorded, under s.409(2) of the CrPC.
Whether the trial conducted by the III Additional City Civil and Sessions Judge was within the jurisdiction of the Bangalore Metropolitan Sessions Division.

Legislation cited

Bangalore City Civil Courts Act
Code of Criminal Procedure, 1973s. 194, s. 407, s. 409, s. 462, s. 465
Indian Penal Code, 1860s. 302, s. 332

Subjects

Criminal ProcedureJurisdictionSessions CourtTransfer of casePrejudiceFailure of justiceSection 462 CrPCSection 465 CrPCSection 409 CrPCQuashing conviction

Judgment

STATE OF KARNATAKA
A
v.
KUPPUSW AMY GOWNDER

FEBRUARY 16, 1987

[G.L. OZA AND M.M. DUTT, JJ.] B

Criminal Procedure Code, 1973: ss.194, 409, 462 & 465: Sentence
or order of competent Court-When to be quashed-Prejudice pleaded
-i and proved-Means failure of justice.

- ~
'
The case of the respondent-accused was committed to the Sessions
Court, Metropolitan Area, Bangalore City and made over under s. 194
Cr.P.C. by the Principle Sessions Judge for trial to the II Additional
Sessions Judge who framed charges on August 2 1, 1980 and recorded
c

the plea of the accused persons.
--{
In the monthly statement of October, 1980 the case was shown D
pending on the board of II Additional Sessions Judge and listed for
evidence. On November 17, 1980 the Bangalore City Civil Courts Act
came into force and powers of Sessions were conferred on all the City
Civil Judges under s.9(3) Cr.P.C. In the monthly statement prepared
ther~after for November, )980 the case was shown pending before the
IV Additional City Civil and Sessions Judge. However, the evidence in E
the case was recorded and the respondent accused convicted under
s.302 and 332 IPC by the III Additional City Civil and Sessions Judge.

In appeal and reference the High Court looked into the monthly
statements of pending cases and observing that there was no order
under s.407 Cr.P.C. transferring the case from the file of the IV Addi- F
'-1--
tional City Civil and Sessions Judge to the file of III Additional City
i Civil and Sessions Judge, that as the charge was framed and plea re-
corded when the case was pending before the II additional Sessions
Judge the case could not be withd.rawn by the Principle Sessions Judge
under s.409(2) after the commencement of the trial and allotted to any
other Additional Sesssion Judge that there was no order of the Principal G
Session Judge under s. 194 transferring the case to the board of III
Additional City Civil and Sessions Judge and that the defect could not
be remedied under s.465 Cr.P.C., quashed the conviction and directed
remand for retrial. The State came in appeal to this Court.

Allowing the appeal, the Court, H

295
296 SUPREME COURT REPORTS [1987] 2 S.C.R.

HELD: I. I The view taken by the High Court was contrary to
A
the language of ss.462 and 465 of the Code of Criminal Procedure. The
judgment of the High Court could not, therefore, be sustained. [304A]

l.2 Reading s.462 alongwith s.465 goes to show that the scheme
of the Code of Criminal Procedure is that where there is uo inherent
B lack of jurisdiction, merely either on the ground of lack of territorial
jurisdiction or on the ground of any irregularity of procedure an order
of sentence awarded by a competent court could not be set aside unless pre-
judice is pleaded and prov1od, which will mean failure of justice. l303F-G)

In the instant case, it is not found by the High Court that the
Sessions Judge who tried the case arising out of the Sessions Division
c had no jurisdiction. The Metropolitan Area, Bangalore City has a Ses-
sions Division and is presided over by a Principal Sessions Judge and
has a number of Additional Sessions Judges. All the Sessions Judg.s
sitting in this Division are notified as Sessions Judges for the Division
and, therefore, all of them have jurisdiction to try a case arising out of
D the Sessions Division. the 11Iea of prejudice of failure of justice is neither
pleaded nor. proved. Not only that, even the judgment of the High Court
does not indicate any possibility of prejudice or failure of justice. There
was no suggestion either of any possibility of prejudice or failure of
justice. The order passed by the III Additional City Civil and Sessions
Judge could not, therefore, be quashed. l302A-C)
E
2. Section 462 Cr .P.IC. even saves a decision if' the trial has taken
place in a wrong Sessions Division or Sob-Division or a district or other
local area where the court has no territorial jurisdiction, and such an
error could only be of some consequence if it results in failure of -r
justice, otherwise no finding or sentence could be set aside only on the
F basis of such an error. Therefore, even if the trial before the III ~
Additional City Civil and Sessions Judge wonld have taken place in a
Division other than the Bangalore .Metropolitan Area for which III
Additional City Civil and Sessions Judge is also notified to be a Sessions
Judge, still the trial could not have been quashed in view of s.462. [303C-E]

G 3. I The scheme of s.409 indicates that the Sessions Judge had
powers to withdraw any case and to allot it to any one of the Additional )....
Sessions Judges. The Principal Sessions Judge of the Division under
s. 194 had power to allot any Sessions case to any one of the Additional
Sessions Judges of the Division. He could pass such orders either for
individual cases or allot particular areas to particular Additional Judge
H of the Division. [299H; 300A I
KARNATAKA v. KUPPUSWAMY GOWNDER [OZA, J.] 297

3.2 The III Additional City Civil and Sessions Judge who tried A
the instant case apparently tried it as it must have been allotted to him.
The Case must have been allotted to him as the distribution orders have
not been sent for by the High Court nor have they been produced. If
enquiries were made it might have been discovered that the case had
been transferred in exercise of the powers under s. 194 by the Principal B
Sessions Judge. [300B-C]

CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 823 Of 1981 Etc.

Erom the Judgment and Order dated 27.7.1981 of the Kamataka
High Court in Crl. A.NO. 215 of 1981. C

M. Veerappa for the Appellant.

M.B. Lal (Amicus Curiae) K.R. Nagaraja for the Respondents.
D
The Judgment of the Court was delivered by,

OZA, J. These appeals have been preferred by the State of
Kamataka against the judgment of the High Court of Kamataka
setting aside conviction of the respondents and remanding the cases
before the Sessions Court for retrial. E

The respondents were committed for trial to the Sessi6ns Judge,
Metropolitan Area, Bangalore City in number of Sessions cases in-
cluding Sessions ·Case No. 35 of 1980 in respect of an offence under
__,_
.. ·. Sec. 302 for which after trial the respondent Kuppuswamy was sen-
tenced to death and also for offence under Sec. 332 of the Indian Penal F
i Code and sentence of rigorous imprisonment of one year. Against the
conviction and sentences appeal were preferred before Hon'ble the
High Court. Kuppuswamy' s matter also came before the High Court
apart from his appeal also by reference.

The facts which gave rise to these appeals were that about 2 G
A.M. on 9th April 1980 it was alleged that Kuppuswamy the present
respondent stabbed Narayanaswamy who expired at 11 P.M., and also
Ramu who expired at 8.05 P.M. and Sunil Kumar, Sub-Inspector of
Police, who expired at 2.30 A.M. on the next day. Sunil Kumar and his
police party happened to go there in a van on hearing galata in the
railway platform of the Cantonment railway station, Bangalore, and H
when Sunil Kumar caught hold of the wrist of the accused respondent.
298 SUPREME COURT REPORTS [1987] 2 S.C.R.

he somehow managed to slip out and stabbed him. PW 1 Ulaganathan,
A
who was the Senior Trains Clerk, went and lodged the First Informa-
tion Report Ex.P. l. Investigation was taken up and after investigation
chargesheet was filed. It is not necessary for us to go into these ques-
tion as question involved in these appeals is merely a technical ques-
tion pertaining to procedure and does not pertain to the merits of the
B matter.

The accused persons were committed to the Sessions Court,
Metropolitan Area, Bangalore City and it appears that the Principal
Sessions Judge .Metropolitan Area, made over the Sessions case in
exercise of his powers under Section 194 of the Code of Criminal
Procedure to II Additional Sessions Judge, Metropolitan Area,
c Bangalore City who framed charges on 21.8.80 and recorded to plea of
the accused persons.

On 17th November 1980 City Civil Courts Act came into force. .,
,Monthly statements of cases wherein the accused persons were in
0 custody were prepared and it appears that these statements also
reached the High Court and have been made use of by the learned
Judges in disposing of these appeals. It has been observed by the
learned High Court that in the monthly statement of October 1980
Sessions Case No. 35 of 1980 (with which we are concerned) is shown
having been pending on the board of II Additional Sessions Judge,
E Metropolitan Area, Bangalore City and was posted for evidence. It is
further observed by the learned Judges of the High Court that the
statement of November 1980 which was prepared after the Bangalore
City Civil Courts Act was brought into force and powers of Sessions
were conferred on all the City Civil Judges under Sec. 9(3) Cr.P .C. by
the High Court, this case has been shown as pending before the IV
F Additional City Civil and Sessions Judge, Metropolitan Area, Banga-
lore City. The High Court has also referred to a Notification issued on
30th January 1981 by the Registrar of Bangalore City Civil Courts
saying that Sessions cases and other matters pending before the II, III
and VI Additional City Civil and Sessions Judges are to be tried by
them and on 12th Jan. 1981 the III Additional City Civil and Sessions
G Judge, Bangalore City recorded the evidence in the case. It is also
observed by ·the High Court in its judgment that the Office informed
the learned Judges that there was no order of transfer under Sec. 407
Cr.P.C. transferring this case viz. Sessions Case No. 35 of 1980 from
the file of the IV Additional City Civil and Sessions Judge to the file of
H III Additional City Civil and Sessions Judge.
KARNATAKA v. KUPPUSWAMY GOWNDER [OZA, J.] 299

Under Sec. 194 Cr.P .C. the Principal City Civil and Sessions A
Judge, Metropolitan Area, Bangalore has the power to make over a
Sessions case for trial and disposal in accordance with law. The High
Court, it appears, has proceeded on the basis that as the plea was
recorded when the case was pending before the II Additional City
Civil and Sessions Judge, the Sessions Judge could not transfer the
case to the board of III Additional City Civil and Sessions Judge under B
the provisions contained in Sec. 409 clause 2. The High Court also
proceeded on the assumption that there is no order of the Sessions
Judge presiding over the Principal City Civil Court for allotment of
this case to the Court of III Addit/onal City Civil and Sessions Judge.
The learned High Court also came to the conclusion that provisions -
contained in Sec. 465 also wiil not remedy the defect. Consequently C
the High Court allowed the appeals, quashed the convictions and di-
rected remand for retrial of the cases.

What appears from the judgment of the High Court is that after
commitment this case i.e. Sessions Case No. 35 of 1980 was shown in
the list of October 1980 as pending in the Court of II Additional D
Sessions Judge as it was made over to that Court in exercise of powers
conferred under Sec. 194 by the Principal Sessions Judge and this also
was inferred by the High Court from the fact that the II Additional
Sessions Judge framed charges on 21.8.80 in this case and.recorded the
plea of the accused on the same day.
E
After the coming into force of the City Civil Courts Act in
November 1980, in the list this case was shown to be pending before
the IV Additional City Civil and Sessions Judge and what further has
been observed by the High Court is that on 12th January 1981 the
evidence in the case commenced on the board of III Additional City
Civil and Sessions Judge. It appears that the learned Judges of the F
High Court looked into the Notification issued by the Registrar of the
City Civil Court and also the list of pending cases pertaining to accused
in custody which probably was sent to the High Court every month and
also made enquiries from the Office of the High Court as to whether
any sessions trial was transferred by orders of the High Court under
Sec. 407 but it appears that the learned Judges did not direct to get the G
orders passed by the Principal Sessions Judge of the Sessions Division
under Sec. 194 Cr.P.C. As the Principal Sessions Judge of the Division
under Sec. 194 had power to allot any Sessions case to any one of the
Additional Sessions Judges of the Division. At the same time such
orders under Sec. 194 could be passed by the Principal Sessions Judge
either for individual cases or by general orders allotting particular H
300 SUPREME COURT REPORTS [1987] 2 S.C.R.

areas to particular Additional Judge of the Division. In fact Sec. 194
A contemplates that all the Sessions Judges (Principal and Additionals)
who are the Sessions Judges in the Division, have been notified as
Sessions Judges in the Division and therefore each one of them has
jurisdiction to try the case arising out of an incident in that Division.
What has been observed by the learned Judges of the High Court that
B this case from IV Additional City Civil and Sessions Judge went to the
III Additional City Civil and Sessions Judge for which they could not
find any order of transfer passed under Sec. 407 by the High Court but
it appears that if enquiries were made it might have been discovered
that the case might have been transferred in exercise of powers under
Sec. 194 by the Principal Sessions Judge.
c The usual practice in big places (Sessions Divisions) where a
number of cases are committed and there are number of courts exercis-
ing the same jurisdiction in respect of the whole Division, distribution
. memos are prepared by the Principal Sessions Judge so that cases are
so distributed to all the Additional Judges so that they are disposed of
D expeditiously. It appears that this aspect of the matter was not brought
to the notice of the learned Judges of the High Court even by the
counsel appearing for the State.

It is not disputed that the Metropolitan Area, Bangalore City has
a Sessions Division and is presided over by a Principal Session~ Judge
E and has a number of Additional Sessions Judges. It is also not disputed
that all the Sessions Judges sitting in this Division are notified as
Sessions Judges for the Division and therefore it is also not disputed
that all of them have jurisdiction to try a case arising out of the Ses-
sions Division. Even the judgment of the High Court does not indicate
any lack of inherent jurisdiction. What has weighed with the. High
F Court is that as the charge was framed by the II Additional Sessions
Judge the case could not be transferred to the' board of Ill Additional
City Civil and Sessions Judge without an order of transfer by the High
Court as it was observed that under Sec. 194 the case could not be
withdrawn by the Principal Sessions Judge after commencement
of the trial and this was inferred from the provisions contained in Sec.
G 409 clause 2. Sec. 194 reads as under:

"Additional and Assistant Sessions Judges to try cases made
over to them:- An Additional Sessions Judge or Assistant
'
Sessions Judge shall try such cases as the Sessions Judge of
the Division may, by general or special order, make over to
H
KARNATAKA v. KUPPUSWAMY GOWNDER [OZA. J.] 301

...., him for trial or as the High Court may, by special order,
A
direct him to try."

Sec. 194 authorises an Additional Sessions Judge or an Assistant ·
Sessions Judge to try a Sessions case arising in the Sessions Division
when such a case is allotted to him either by a special or general order
or a case which has been allotted to him by the High Court. Appa- B
rently therefore the III Additional City Civil and Sessions Judge who
--· tried the case, tried it as it must have been allotted to him. It is not
disputed that it must have been allotted to him as the distribution
-( orders have not been sent for by the High Court nor have been pr-0-
duced nor it is djsputed but what is observed by the High Court is that
as the charge was framed by the II Additional City Civil and Sessions
Judge it could not have been withdrawn under Sec. 409 clause 2 and
c
--f allotted to any other Additional Sessions Judge:

"Section 409 reads:

"Withdrawal of cases and appeal by Sessions Judge: ( 1) A D
Sessions Judge may withdraw any case or appeal from, or
recall any case or appeal which he has made over to any
Assistant Sessions Judge; or Chief Judicial Magistrate sub-
ordinate to him.

(2) At any time before the trial of the case or the hearing E
<
of the appeal has commenced before the Additional Ses-
sions Judge, a Sessions Judge ·may recall any case or appeal
which he has made over to any Additional Sessions Judge.
~·
(3) Where a Sessions Judge withdraws or recalls a case or
i appeal under sub-section (1) or sub-section (2), he may F.
either try the case in his own Court or hear the appeal
himself, or make it over in accordance with the provisions
of this Code to another Court for trial or hearing, as the
case may be."

Clause 2 talks of "before the trial of the case ...... commenced." In G
~ fact the scheme of Sec. 409 indicates that the Sessions Judge had pow-
ers to withdraw any case and to allot to any one of the Additional
Sessions Judges. •

In a Sessions trial recording of plea whether will amount to com-
mencement of the trial or not has not been discussed by the High H
302 SUPREME COURT REPORTS (1987] 2 S.C.R.
A
Court and it is not necessary for us also to go into this question. So far
as the trial of the case is concerned it is not found by the High Court
that the Sessions Judge who tried the case had no jurisdiction. On the
contrary it is not disputed before us that he had the jurisdiction to try
the case arising out of the Sessions Division, the only objection which
B has prevailed with the High Court is that as charge was framed and
plea was recorded by the II Additional City Civil and Sessions Judge it
could not have been withdrawn by the Principal Sessions Judge and
made over to III Additional City Civil and Sessions Judge. It is not
disputed that it was withdrawn and made over. In this view of the
matter therefore the provisions contained it Sec. 465 are of some
C importance.

The High Court, however, observed that provisions of Sec. 465
Cr.P .C. cab not be made use of to regularise this trial. No reasons have
been stated for this conclusion. Sec. 465 Cr .P.C. reads as under:

D "Finding or sentence when reversible by reason of error,
omission or irregularity:-

(1) Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of
E appeal, confirmation or revision on account of any error,
omission or irregularity in the complaint, summons, war-
rant, proclamation, order, judgment or other proceedings
before or during trial or in any inquiry or other proceedings
under this Code, or any error, or irregularity in any sanc-
"tion for the prosecution, unless in the opinion of that Court, ------~
r
F a failure of justice has in fact been occasioned thereby. t
'
(2) In determining whether any error, omission or irregu-
larity in any proceeding under this Code, or any error, or
irregularity in any sanction for the prose~ution has occa-
sioned a failure of justice, the Court shall have regard to
G the fact whether the objection could and should have been
raised at an earlier stage in the proceedings."

It is provided that a finding or sentence passed by a Court of compe-
tent jurisdiction could not be set aside merely on the ground of irregu-
larity if no projudice is caused to the accused. It is not disputed that
H this question was neither raised by the accused at the trial nor any
prejudice was pleaded either at the trial or at the appellate stage and
F KARNATAKA v. KUPPUSWAMY GOWNDER [OZA, l.] 303

therefore in absence of any prejudice such a technical objection will A
~! not affect the order or sentence passed by competent court. Apart
from Sec. 465, Sec. 462 provides for remedy in cases of trial in wrong
places. Sec. 462 reads as under:

"Proceedings in wrong place:
B
-J No finding, sentence or order of any Criminal Court shall
be set aside merely on the ground that the inquiry trial or

-r 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 are unless it appears that such
error has in fact occasioned a failure of justice."
c
~ This provision even saves .a decision if the trial has taken place in a
I
wrong Session Division or Sub-Division or a district or other local area
.:;,..
and such an error could only be of some consequence if it results in
failure of justice otherwise no finding or ssentence could be set aside
only on the basis of such an error. D

It is therefore clear that even if the trial before the III Additional
City Civil and Sessions Judge would have been in a Division other than
the Bangalore Metropolitan Area for which III Additional City Civil
and Sessions Judge is also notified to be a Sessions Judge still the trial
could not have been quashed in view of Sec. 462. This goes a Jong way E
to show that even if a trial takes place in a wrong place where the
Court has no territorial jurisdiction to try the case still unless failure of
justice is pleaded and proved, the trial can not be quashed. In this view

-----t, of the matter therefore reading Sec. 462 alongwith Sec. 465 clearly
goes to show that the scheme of the Code of Criminal Procedure is that
where there is no inherent Jack of jurisdiction merely either on the F
ground of lack of territorial jurisdiction or on the ground of any irregu-
larity of procedure an order or sentence awarded by a competent court
could not be set aside unless a prejudice is pleaded and proved, which
will mean failure of justice. But in absence of such a plea merely on
such technical ground the order or sentence passed by a competent
court could not be quashed. G
~
It is not disputed that the plea of prejudice or failure of justice is
neither pleaded nor proved. Not only that even the judgment of the
High Court does not indicate any possibility of prejudice or failure of
justice. Learned counsel appear1ng for the respondent also did not
suggest any possibility of prejudice or failure of justice. Under these H
304 SUPREME COURT REPORTS [1987] 2 S.C.R.

A circumstances therefore the view taken by the High Court does not \'"'"
appear to be correct in view of the language of Sec. 462 read with Sec.
465. The judgment of the High Court is therefore set aside. The direc-
tion of remand made by the High Court is also quashed. It is unfortu-
nate that these matters pertaining to incidents of 1980 should not have
B been disposed of till today and that the matter should have remained
pending on such technical grounds for all these years. We therefore
direct that the appeals be remitted back to the High Court so that they )--
are heard and disposed of on merits as expeditiously as possible.

P.S.S. Appeal allowed.

·+-.