STATE OF MADHYA PRADESHversusBHOORAJI AND ORS.

A                        STATE OF MAD HY A PRADESH
                                    v.
                             BHOORAJI AND ORS.

                                 AUGUST 24, 2001

B               [K.T. THOMAS AND K.G. BALAKRISHNAN, JJ.]


          Code of Criminal Procedure, 1973:

          Sections 193, 465, 461 and 462-Sessions Trial-Procedural
C irregularity-Whether a ground for de novo trial-Accused charged for
    offences inter alia under Scheduled Castes and Scheduled Tribes (Prevention
    ofAtrocities) Act-Cognizance by Court ofSession, a specified court established
    under the Act, without the case being committed by Magistrate-Conviction
   and sentence-Appeal by accused before High Court consequent upon a
D decision of Supreme Court-Plea raised by accused that without there being
   a committal order, trial was vitiated-High Court quashing the entire trial
   and directing de novo trial-Validity of-Held, unless procedural irregularity
    in. conduct of criminal trial has occasioned 'Jailure of justice'', It cannot be
 ' quashed-Any omission or illegality in the procedure not affecting the core of
    the case is not a ground for ordering de novo trial-Since the accused has
E failed to show that the procedural irregularity has occasioned 'Jailure of
   justice", High Court was not justified in quashing the trial and ordering de
    novo trial-Moreover, the law which held the field at the relevant time in the
   State was governed by a Full Bench decision of the High Court-Matter
   remitted to High Court for disposal on merits-Scheduled Castes and Scheduled
F Tribes (Prevention of Atrocities) _Act, 1989.
          Section 465-"Court of competent Jurisdiction" :-Determination of-
    Held, bar against taking cognizance of certain offence does not make a duly
    constituted court incompetent for all purposes-specified court under the SCI
    ST Act would not cease to be a court of competent Jurisdiction : merely
G   because of certain procedural lapse-Scheduled Castes and Scheduled Tribes
    (Prevention of Atrocities) Act.

          Words and Phrases :

          Expression "Court of Competent Jurisdiction" :-Meaning of-Jn the
H                                         128
                STATE OF MAD HYA PRADESH v. BHOORAJI                       129
context of Section 465 of the Code of Criminal Procedure, 1973.                  A
       Respondent-accused were charge-sheeted for various offences including
offences under Section 302 read with Section 149 IPC and Section 3(2) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(SC/ST) Act. The Additional Sessions Judge, a specified court under Section
14 of the Act, after a protracted trial for several years, convicted and sentenced B
the accused. The accused filed appeal before the High Court. During the
pendency of the appeal this Court in Gangula Ashok's case held that committal
proceedings were necessary for specified Court under the SC/ST Act to take
congnizance of the offences to be tried. Initially the legal position which held
the field in the State was the same on account of the judgment of the Division C
Bench of the High Court in Meerabhai 's case. But the said legal position was
subsequently overruled by Full Bench of the High Court in Anand Swarup's
case by holding that Section 193 of the Code of Criminal Procedure, 1973
does not apply to proceedings under the SC/ST Act and 5ommittal orders
were not required. Thus, in view of the judgment of this Court in Gangula
Ashok's case the legal position adopted by Division Bench of the High Court D
in Meerabhai's case got revived and the Full Bench decision in Anand Swarup 's
case got eclipsed. Consequently, respondents filed applications before the High
Court for quashing the trial proceedings on the ground that the trial held
against them by the specified Court of Session without the case being
committed by a Magistrate was without any Jurisdiction. Division Bench of E
the High Court upholding the said contention quashed the entire trial and
ordered retrial of the case. Hence the present appeal by the State.

     Disposing of the appeal and remitting the matter to the High Court,
the Court

      HELD : 1. The trial held by the Court of Session reaching the judgment      F
impugned before the High Court in appeal was c_onducted by a Court of
competent Jurisdiction and the same cannot be erased merely on account of
a procedural lapse, that is cognizance taken by specified Court without there
being any committal order, particularly when the same happened at a time
when the law which held the field in the State wa~ governed by the decision      G
of the Full Bench of the High Court in *Anand Swarup's case. The High Court
should have dealt with the appeal on merits and on the basis of the evidence
already on record. [139-D, E]

      Gangula Ashok v. State ofA.P., (2000) 2 SCC 504; Meerabhai v. Bhujbal
Singh, (1995) Criminal Law Journal 2376 (MP) and *Anand Swaroop v. Ram H ·
                               SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
    IJ~
A Ratan, 1996 M.P. Law Journal 141, referred to.
           2. A de nova trial should be the last resort and that too only when such
    a course becomes so desperately indispensable. It should be limited to the
    extreme exigency to avert "a failure of justice". Any ommission or even the
    illegality in the procedure which does not affect the core of the case is not a
B   ground for ordering a de nova trial. The superior court which orders a de
    novo trial cannot afford to overlook the realities and the serious impact on
    the pending cases in trial courts. Law is not an instrument to be used for
    inflicting sufferings on the people but for the process of justice dispensation.
                                                                      (134-B, D, EJ
c         3. Section 465(1) Cr.P.C. makes it clear that no finding, sentence or
    orders passed by a Court of competent Jurisdiction shall be reversed or altered
    in appeal or revision merely on account of any error, omission or irregularity
    in the proceedings held before or during the trial or in any enquiry unless
    such error, omission or irregularity has occasioned "a failure of justice". In
D   the instant case, the accused had failed to show that failure of justice had in
    fact occasioned merely because the specified Sessions Court took congnizance
    of the offences without the case being committed to it.
                                                                 (136-D, E; 137-CJ

          Shamnsaheb M Mu/Itani v. State ofKarnataka, (2001 J 2 SCC 577, referred
E   to.

          4.1. The expression "a court of competent jurisdiction" envisaged in
    Section 465 is to denote a validly constituted court conferred with Jurisdiction
    to try the offence or offences. Such a Court will not get denuded of its
    competence to try the case on account of any procedural lapse and the
F   competence would remain unaffected by the non-compliance of the procedural
    requirement. The inability to take cognizance of an offence without a
    committal order does not mean that a duly constituted court became an
    incompetent court for all purposes. If objection was raised in that court at
    the earliest occasion on the ground that the case should have been committed
G   by a Magistrate, the same specified court has to exercise a Jurisdiction either
    for sending the records to a Magistrate for adopting committal proceedings
    or return the police report to the Public Prosecutor or the police for
    presentation before the Magistrate. Even this could be done only because the
    Court has competence to deal with the case. Thus, it cannot be accepted that
    Section 465 is restricted to any findings, sentence or order passed by "a court
H   of competent Jurisdiction" and that a special court under the SC/ST Act which
         STA TE OF MADRYA PRADESH v. BHOORAJI [THOMAS, J.]                 131
is essentially a Sessions Court would have remained incompetent until the case     A
is committed to it [138-F-H, 137-H, 138-A)

      HN. Rishbud and Anr. v. State of Delhi, AIR (1955) SC 196 and
Ballabhdas Agarwa/a v. JC Chakravarty, AIR (1960) SC 576, Distinguished.

      4.2. The bar against taking cognizance of certain offences or by certain     B
courts cannot govern the question whether the Court concerned is a "a Court
of competent Jurisdiction", e.g. Courts are debarred from taking cognizance
of certain offences without sanction of certain authorities. If a Court took
cognizance of such offences, which later found to be without valid sanction,
it would not become the test or standard for deciding whether that court was
"a Court of competent Jurisdiction". It is now well settled that if the question   C
of sanction was not raised at the earliest opportunity the proceedings would
remain unaffected on account of want of sanction. In the instant case accused
did not raise any question, when they were heard at the time of framing the
Charge, that the Court cannot proceed without committal made by a
Magistrate. Nor did they raise such a plea at any stage either before or after     D
the evidence was recorded by the trial court The convicted persons thought
of raising such a contention only when they found the decision of this Court
in Gangula Ashok as useful to them. [139-A, B, C; 133-G I

      State of HP. v. Gita Ram, (2000) 7 SCC 452, referred to.
                                                                                   E
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
851 of 2001.

     From the Judgment and Order dated 8. I 2.2000 of the Madhya Pradesh
High Court in Crl.A. No. 709 of 1996.

      Sakesh Kumar, Uma Nath Singh and Ms. Bharti Tyagi for the Appellant.         F

     Sushi! Kumar Jain, A.P. Dhamija and Ms. Anjali Doshi for the
Respondents.

      The Judgment of the Court was delivered by
                                                                                   G
      THOMAS, J. Leave granted.

       Even after noticing that the trial proceedings in the case had already
undergone a very protracted career, ranging over a period of 9 years to reach
its finale, a Division Bench of the High Court of Madhya Pradesh has now
ordered that the whole exercise should be repeated over again and then reach       H
    132                        SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A   a fresh conclusion. It seems learned Judges of the High Court felt helpless to
    do otherwise. In the prologue of the impugned judgment the Division Bench
    bewailed like this: "This case has sluggished for nearly 9 years and the end
    is not in sight as directions for a retrial seems inevitable". Was it such a
    helpless situation that by no means repetition of the whole hog is un-
B preventable?
           We shall now briefly sketch the background of this appeal. On 26.8.1991
    an incident happened in which one Undaria was murdered and three others
    were wounded. The police, after investigation, charge-sheeted eleven persons
    in respect of the said incident for various offences including Section 302 read
C   with Section 149 !PC and Section 3(2) of the Scheduled Castes and Scheduled
    Tribes (Prevention of Atrocities) Act (for short 'the SC/ST Act'). The case
    started in January 1992 before the court of the Additional Sessions Judge,
    Dhar (M.P.) which was the specified court as per Section 14 of the said Act.
    The court framed charges against all the eleven persons for the aforementioned
    offences and proceeded with the trial. In the words of the Division Bench of
D   the High Court "after a protracted trial for about five years the eleven persons
    were convicted under Sections 148, 323, 302/149 of the !PC and sentenced
    to various punishments including imprisonment for life'', as per the judgment
    pronounced on 23.8.1996.

           All the eleven convicted persons filed appeal before the High Court of
E   Madhya Pradesh. It was during the pendency of the said appeal that Supreme
    Court decided the case in Gangula Ashok v. State ofA.P., (2000] 2 SCC 504
    in which it was held that committal proceedings are necessary for a specified
    court under the SC/ST Act to take cognizance of the offences to be tried. But
    the legal position which held the field in the State of Madhya Pradesh till
F   then was the same on account of a judgment pronounced by a Division
    Bench of the High Court of Madhya Pradesh in Meerabhai v. Bhujbal Singh,
    [1995] Criminal Law Journal 2376 (MP). But the said legal position was
    changed in the said State when a Full Bench of the High Court of Madhya
    Pradesh overruled the aforesaid dictum by a judgment reported in Anand
    Swaroop v. Ram Ratan, (1996) M.P. Law Journal 141. The Full Bench held
G   that "Section 193 of the Code of Criminal Procedure does not apply to
    proceedings under the SC/ST Acf and committal orders are not required".
    The Full Bench, in order to prevent repetition of trials already held or started,
    took the precautionary measure of directing that "when cognizance has already
    been taken on the basis of committal orders it is not necessary for the courts
H   to retrace their steps or to take cognizance afresh". The said judgment of the
         STA TE OF MADHYA PRADESH v. BHOORAJJ [THOMAS, J.]                133
Full Court was delivered on 23.8.1996.                                            A
       When this Court pronounced judgment in Gangula Ashok (supra) the
legal position adopted by the Division Bench of the Madhya Pradesh High
Court in Meerabhai (supra) got revived and the Full Bench decision (supra)
got eclipsed. Taking advantage of the decision of this Court all the convicted
persons filed I.A. 288 of 2000 before the High Court seeking quashment of         B
the trial proceedings on the ground that "the trial was without jurisdiction
inasmuch as the specified Court of Sessions did not acquire jurisdiction to
take cognizance of and try the case, in the absence of it being committed by
a magistrate". By the impugned judgment the Division Bench of the High
Court upheld the said contention and ordered "the entire trial held by the        C
court below shall stand quashed and the trial court is directed to return the
charge-sheet and the connected papers to the prosecution for re-submission
to the magistrate for further proceedings in accordance with law." The State
of Madhya Pradesh has hence filed the appeal by special leave.

       It is true, this Court held in Gangula Ashok (supra) that neither in the   D
Code nor in the Act is there any provision whatsoever, nor even by implication,
that the specified Court of Sessions (Special Court) can take cognizance of
the offences under the Act as a court of origin~] jurisdiction without the case
being committed to it by a magistrate. This Court expressed the view that the
Special Court under the SC/ST Act is essentially a Court of Sessions which
can take cognizance of offence in accordance with provisions of the Code.         E
In other words the complaint or charge-sheet cannot be laid directly before
the Special Court under the Act. It must be remembered that in the afore-
cite'd case the accused moved the High Court for quashing the charge on the
ground that charge-sheet was laid directly before the specified court. Such
motion was made before the trial started in that case. The High Court accepted    F
his contention and directed the charge-sheet and connected papers to be
returned to the police who was to present the same before a magistrate for
the purpose of committal to the Special Court. The said view of the High
Court was upheld as legally correct by this Court in Gangula Ashok (supra).

      The present is a case where accused did not raise any question, when        G
they were heard at the time of framing the charge, that the court cannot
proceed without committal made by a magistrate. Nor did they raise such a
plea at any stage either before or after the evidence was recorded by the trial
court. The convicted persons thought of raising such a contention only when
they found the decision of this Court in Gangula Ashok (supra) as useful to       H
    134                        SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A them.
         The real question is whether the High Court necessarily should have
  quashed the trial proceedings to be repeated again only on account of the
  declaration of the legal position made by Supreme Court concerning the
  procedural aspect about the cases involving offences under the SC/ST Act.
B A de novo trial should be the last resort and that too only when such a course
  becomes so desperately indispensable. It should be limited to the extreme
  exigency to avert "a failure of justice". Any omission or even the illegality
  in the procedure which does not affect the core of the case is not a ground
  for ordering a de novo trial. This is because the appellate court has plenary
C powers for re-evaluating or re-appraising the evidence and even to take
  additional evidence by the appellate court itself or to direct such additional
  evidence to be collected by the trial court. But to replay the whole laborious
  exercise after erasing the bulky records relating to the earlier proceedings, by
  bringing down all the persons to the court once again for repeating the whole
  depositions would be a sheer waste of time, energy and costs unless there is
D miscarriage of justice otherwise. Hence the said course can be resorted to
  when it becomes unpreventable for the purpose of averting "a failure of
  justice". The superior court which orders a de novo trial cannot afford to
  overlook the realities and the serious impact on the pending cases in trial
  courts which are crammed with dockets, and how much that order would
E inflict hardship on many innocent persons who once took all the troubles to
  reach the court and deposed their versions in the very same case. To them
  and the public the re-enactment of the whole labour might give the impression
  that law is more pedantic than pragmatic. Law is not an instrument to be used
  for inflicting sufferings on the people but for the process of justice dispensation.

F         Learned counsel for the appellant cited the decision of this Court in
    State ofH.P. v. Gita Ram, [2000] 7 SCC 452 when this Court had to consider
    an order passed by a single Judge of the High Court directing retrial of a
    sessions case. The following is what this Court observed then:

            "We are distressed to note that learned Single Judge was not told by
G           the government advocate of the fall out of such a view, if taken by
            the Single Judge, that it means all the witnesses once examined in full
            should be called back again, and the whole chief-examination, cross-
            examination, re-examination and questioning of the accused under
            section 313 of the Code, hearing arguments, then examination of
            defence witnesses further, again final arguments to be heard and
H
         STA TE OF MADHYA PRADESH v. BHOORAJI [THOMAS, J.]                    135
        preparation of judgment once again. The very object underlined in             A
        Section 465 of the Code is that if on any technical ground any party
        to the criminal proceedings is aggrieved he must raise the objection
        thereof at the earliest stage. If he did not raise it at the earliest stage
        he cannot be heard on that aspect after the whole trial is over."

      Shri Sushi! Kumar Jain, learned counsel for the respondents/accused             B
submitted that the said decision, on.the facts, cannot be applied because in
that case the specified court under the SC/ST Act had taken cognizance of
the offence of Section 376 !PC ~Jong with Section 3 of the said Act only after
the said case was committed to that court. But while framing the charge the
court dropped the offence under the SC/ST Act and the !PC offence alone
was included in the charge and finally the court convicted the accused of that        C
offence. The view taken by the High Court in that case (that the specified
court has no jurisdiction to try an !PC offence without any offence under the
SC/ST Act also being tagged therewith) was found to be wrong. Of course
there is difference between that case and this case. Nonetheless, the aforesaid
distinction on the facts of this case is hardly sufficient to side-step the legal     D
principle adumbrated therein.

       The counsel for the State made an endeavour before the High Court in
th is case to sustain the trial court proceedings on the strength of Section 465
of the Code. Though the said contention has been minuted by the learned
judges in the impugned judgment they did not advert to the said contention            E
at any stage of the judgment for a consideration. We may point out that
learned counsel for the appellant - State while arguing in this Court banked
mainly on Section 465 of the Code for averting a repetition of the protracted
trial proceedings once again.

      Section 465 of the Code falls within Chapter XXXV under the caption             F
"Irregular Proceedings". The chapter consists of seven sections starting with
Section 460 containing a catalogue of irregularities which the legislature
thought not enough to axe down concluded proceedings in trials or enquiries.
Section 461 of the Code contains another catalogue of irregularities which in
the legislative perception would render the entire proceedings null and void.
It is pertinent to point out that among the former catalogue contains the             G
instance of a magistrate, who is not empowered to take cognizance of offence,
taking cognizance erroneously and in good faith. The provision says that the
proceedings adopted in such a case, though based on such erroneous order,
"shall not be set aside merely on the ground of his not being so empowered.··

      It is useful to refer to Section 462 of the Code which says that even           H
    136                        SUPREME COURT REPORTS [2001] SUPP. L S.C.R.

A proceedings conducted in a wrong sessions division are not liable to be set
  at naught merely on that ground. However an exception is provided in that
  section that if the court is satisfied that proceedings conducted erroneously
  in a wrong sessions division "has in fact occasioned a failure of justice" it
  is open to the higher court to interfere. While it is provided that all the
  instances enumerated in Section 461 would render the proceedings void, no
B other proceedings would get vitiated ipso facto merely on the ground that the
  proceedings were erroneous. The court of appeal or revision has to examine
  specifically whether such erroneous steps had in fact occasioned failure of
  justice. Then alone the proceedings can be set aside. Thus the entire purport
  of the provisions subsumed in Chapter XXXV is to save the proceedings
C linked with such erroneous steps, unless the error is of such a nature that it
  had occasioned failure of justice.

           We have to examine Section 465(1) of the Code in the above context.
    It is extracted below:

            "Subject to the provisions hereinbefore contained, no finding, sentence
D
            or order passed by a Court of competent jurisdiction shall be reversed
            or altered by a court of appeal, confirmation or revision on account
            of any error, omission or irregularity in the complaint, summons,
            warrant, proclamation, order, judgment or other proceedings before
            or during trial or in any inquiry or other proceedings under this Code':
E           or any error, or irregularity in any sanction for the prosecution, unless
            in the opinion of that court, a failure of justice has in fact been
            occasioned thereby."

         A reading of the section makes it clear that the error, omission or
  irregularity in the proceedings held before or during the trial or in any enquiry
F were reckoned by the legislature as possible occurrences in criminal courts.
  Yet the legislature disfavoured axing down the proceedings or to direct
  repetition of the whole proceedings afresh. Hence, the legislature imposed a
  prohibition that unless such error, omission or irregularity has occasioned "a
  failure of justice'' the superior court shall not quash the proceedings merely
G on the ground of such error, omission or irregularity.
           What is meant by "a failure of justice" occasioned on account of such
    error, omission or irregularity? This Court has observed in Shamnsaheb M
    Multtani v. State of Karnataka, (2001] 2 SCC 577 thus:

            "We often hear about 'failure of justice' and quite often the submission
H           in a criminal court is accentuated with the said expression. Perhaps
         STATE OF MAD HYA PRADESH v. BHOORAJI [THOMAS, J.)                  13 7
        it is too pliable or facile an expression which could be fitted in any      A
        situation of a case. The expression 'failure of justice' would appear,
        sometimes, as an etymological chameleon (the simile is borrowed
        from Lord Diplock in Town Investments Ltd. v. Deptt. of the
        Environment, (1977) 1 All E.R. 813). The criminal court, particularly
        the superior court should make a close examination to ascertain
        whether there was really a failure of justice or whether it is only a       B
        camouflage."

       It is an uphill task for the accused in this case to show that failure of
justice had in fact occasioned merely because the specified sessions court
took cognizance of the offences without the case being committed to it. The         C
normal and correct procedure, of course, is that the case should have been
committed to the special court because that court being essentially a court of
sessions can take cognizance of any offence only then. But if a specified
sessions court, on the basis of the legal position then felt to be correct on
account of a decision adopted by the High Court, had chosen to take
 cognizance without a committal order, what is the disadvantage of the accused      D
 in following the said course?

       It is apposite to remember that during the period prior to the Code of
Criminal Procedure 1973, the committal court, in police charge-sheeted cases,
could examine material witnesses, and such records also had to be sent over
to the court of sessions along with the committal order. But after 1973, the        E
committal court, in police charge-sheeted cases cannot examine any witness
at all. The _magistrate in such cases has only to commit the cases involving
offences exclusively triable by the court of sessions. Perhaps it would have
been possible for an accused to raise a contention before 1973 that skipping
committal proceedings had deprived him of the opportunity to cross-examine          F
witnesses in the committal court and that had caused prejudice to his defence.
But even that is not available to an accused after 1973 in cases charge-
sheeted by the police. We repeatedly asked the learned counsel for the accused
to tell us what advantage the accused would secure if the case is sent back
to the magistrate court merely for the purpose of retransmission of the records
to the sessions court through a committal order. We. did not get any satisfactory   G
answer to the above query put to the counsel.

      Shri Sushi! Kumar Jain made his last attempt by contending that Section
465 is restricted to any findings, sentence or order passed by "a court of
competent jurisdiction" and that a special court under the SC/ST Act which          H
    138                       SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A is essentially a sessions court would have remained incompetent until the
    case is committed to it. In support of the said contention learned counsel
    invited the following observation of this Court in H.N. Rishbud and Anr. v.
    State of Delhi, AIR (1955) SC 196:

            "Section 190 cif the Code is one out of a group of sections under the
B           heading 'Conditions requisite for initiation of proceedings'; and the
            language of the said section is in marked contrast with that of the
            other sections of the group under the same heading i.e. Sections 193
            and 195 to 199. These latter sections regulate the competence of the
            court and bar its jurisdiction in certain cases excepting in compliance
            therewith."
c
          The question considered in that decision was whether an investigation
  conducted by a police officer, who is not competent to do it, vitiate the entire
  trial held on the basis of the report of such investigation. Their Lordships
  held that a defect or illegality in investigation, however serious, has no direct
D bearing on the competence or procedure relating to cognizance or trial. The
  observations extracted above were therefore meant to apply to the said context
  and it is obviously not meant for holding that a court of competent jurisdiction
  otherwise would cease to be so for the simple reason that the case was not
  committed to it. Learned counsel also cited the decision in Bal/abhdas
  Agarwala v. JC. Chakravarty, AIR (1960) SC 576 which dealt with the
E impact of Section 79 of the Calcutta Municipal Act regarding the competence
  of maintaining a criminal complaint. That did not involve any question
  regarding a court of competent jurisdiction.

         The expression "a court of competent jurisdiction" envisaged in Section
  465 is to denote a validly constituted court conferred with jurisdiction to try
F the offence or offences. Such a court will not get denuded of its competence
  to try the case on account of any procedural lapse and the competence would
  remain unaffected by the non-compliance of the procedural requirement. The
  inability to take cognizance of an offence wiihout a committal order does not
  mean that a duly constituted court became an incompetent court for all
G purposes. If objection was raised in that court at the earliest occasion on the
  ground that the case should have been committed by a magistrate, the same
  specified court has to exercise a jurisdiction either for sending the records to
  a magistrate for adopting committal proceedings or return the police report
  to the Public Prosecutor or the police for presentation before the magistrate.
  Even this could be done only because the court has competence to deal with
H the case. Sometimes that court may have to hear arguments to decide that
              STATE OFMADHYAPRADESHv. BHOORAJI [THOMAS, J.]                      139

     preliminary issue. Hence the argument advanced by the learned counsel on            A
     the strength of the aforesaid· decisions is of no avail.

            The bar against taking cognizance of certain offences or by certain.
     courts cannot govern the question whether the Court concerned is a "a Court
     of competent jurisdiction'', e.g. Courts are debarred from taking cognizance
     of certain offences without sanction of certain authorities. If a Court took        B
     cognizance of such offences, which later found to be without valid sanction,
      it would not become the test or standard for deciding whether that court was
     "a Court of competent jurisdiction··. It is now well settled that if the question
     of sanction was not raised at the.earliest opportunity the proceedings would
     remain unaffected on account of want of sanction. This is another example           C
     to show that the condition precedent for taking cognizance is not the standard
     to determine whether the Court concerned is "a Court of competent
     jurisdiction.··

           We conclude that the trial held by the sessions court reaching the
     judgment impugned before the High Court in appeal was conducted by a                D
     court of competent jurisdiction and the same cannot be erased merely on
     account of a procedural lapse, particularly when the same happened at a time
     when the law which held the field in the State of Madhya Pradesh was
     governed by the decision of the Full Bench of the Madhya Pradesh High
     Court (supra). The High Court should have dealt with the appeal on merits
     and on the basis of the evidence already on record. To facilitate the said          E
     course we set aside the judgment of the High Court impugned in this appeal.
     We remit the case back to the High Court for disposal of the appeal afresh
     on merits in accordance with law and subject to the observations made above.

     S.V.K.                                                     Appeal disposed of.




'
,-