Legal Provisions of Section 465 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
An order of sentence passed or recorded by a Court of competent jurisdiction is curable under this section provided the omission, irregularity or error in the order or finding has not occasioned a failure of justice.
ADVERTISEMENTS:
Thus where the order of the trial Court is substantially in accordance with the law and there has been no failure of justice, it should not be set aside merely on the ground of technical procedural defect or error. In other words, what is curable under this section is an error or irregularity only “one of form and not of substance.” For instance, where during investigation, a trap is laid by the Inspector of police instead of a Deputy Superintendent of Police as required by the law, same will not vitiate the trial unless it has been shown that it has resulted into miscarriage of justice so far accused is concerned.
It must be stated that the provisions of this section are applicable only when the finding, sentence or order under appeal or review is passed by a Court of “competent jurisdiction”. Therefore, if Court has passed such order finding or sentence without jurisdiction, the defect is not curable under this section and such an order, finding or sentence is bound to be set aside by the Court of appeal, confirmation or revision.
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Where the police officer commits irregularity in recording the statements of witnesses, it was held to be a mere irregularity and not an illegality and hence it could be cured under Section 465 if no prejudice is caused to the accused.
Non-compliance with the mandatory requirements of Section 235 regarding hearing the accused on the question of sentence cannot be said to be a mere irregularity in the course of trial. As such, it is not curable under Section 465. In fact it amounts to by passing a very important stage of trial which the Code does not permit to be overlooked, hence Section 465 will not be applicable in such a case of serious lapse or omission.
ADVERTISEMENTS:
In the case of Hanumant Das v. Vinay Kumar, it was contended that failure on the part of the High Court to summon the record of the Sessions Court was vital and hence the decision of the High Court deserves to be set aside. But the Court held neither the complaint nor the Advocate General had raised any objection in this regard at that point of time, and even assuming that there were some irregularities in the procedure, the decision of the High Court could not be set aside unless the appellants have shown that there has been any failure of justice as contemplated by Section 465 of the Code.
Given below are some cases where the irregularity was held to be a serious illegality which vitiated the trial.
(1) Failure on the part of the Court to record substance of the evidence in a summary trial when the accused does not plead guilty.
(2) Lack of sanction to prosecute under Section 197 of the Code.
ADVERTISEMENTS:
(3) Summary trial for an offence which is not triable summarily.
(4) Examination of witnesses in the absence of the accused.
(5) Not writing or pronouncing the judgment in open Court.
(6) Dismissal of a complaint by a Magistrate without giving reasons.
(7) Non-compliance of the provisions of Section 235 (2) regarding hearing the accused on the question of sentence.
The cases mentioned about are only illustrative and not exhaustive.
It would be pertinent to enumerate certain cases in which an omission or error in the procedure of trial was held to be a mere irregularity which did not vitiate the trial and was curable under Section 465 of the Code as it did not cause failure of justice. They include:—
(1) Failure to examine the complainant on oath.
(2) Omission to pronounce the judgments before convicting or sentencing the accused.
(3) Omission to sign or put date in the judgment at the time of pronouncing it.
(4) Adopting the procedure of a warrant case in a case triable as a summons case.
(5) Omission by Sessions Judge to read over and explain to the accused, the charges framed by the Magistrate.
(6) Talking cognizance of a case under a wrong section but conviction being ordered by the Competent Court under correct section.
(7) Failure to record any relevant facts observed by the Magistrate at a local inspection under Section 310 Cr.P.C.
These again, are only some of the illustrative cases, there being many more which can be cured under Section 465 provided no prejudice is caused thereby to the accused person.