MAGGA AND ANOTHER v. THE STATE OF RAJASTHAN
Citation: [1953] 1 S.C.R. 973; 1953 INSC 12
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , SUDHI RANJAN DAS
Judgment date:
Case summary
1953 INSC 12. Supreme Court of India judgment dated 1953-02-16. MAGGA AND ANOTHER v. THE STATE OF RAJASTHAN. Read the judgment and case details on LawSphereX.
Judgment text
S. C. R. SUPREME COURT REPORTS • ,;' . . MAGGA AND ANOTHER 1953 v. Feb. 16. THE STATE OF RAJASTHAN [MEHR CHAND MAHAJAN and S. R. DAS JJ. ] Criminal Procedure Code (V of 1898), ss. 284, 285, 539-Asses-soi·s-Trial with three assessors-Absence of one assessor during trial-Substitution of new person-Legality of trial-Re-appear-ance of absent assessor-Continuing trial with four assessors- Va,lidity of trial. Section 285 of the Criminal Procedure Code permits a trial commenced with the aid of three assessors to be continued and completed with the aid of less than three if during the course of the trial any assessor is prevented by sufficient cause from attending. It does not, however, authorise the substitution of an assessor for an absent one nor an addition to the number of assessors during the course of the trial.
A, B and 0 were summoned to sit as assessors for a murder trial and as C did not appear, D who was i11 tl1e list of assessors and who was present in court though not su111moned, was asked to sit as an assessor, and the trial commenced \\'ith three assessors A, B and D. A absented himself during the course of the trial and the judge asked E to sit in place of A and proceeded with the trial for some days with B, D and E. Later on A appeared and the trial continued till the end with the four assessors A, B, D and E: Held, (i) that the mere fact that D who had not been summoned was allowed to sit as an assessor when the trial commenced did not vitiate the trial as it was a mere irregularity and did not cause any failure of justice; King Emperor v. Ramsidh Rai (39 Cr. L. J. 725) approved. Balak Singh v. Emperor (A. LR. 1918 Pat. 420) explained. (ii) though sub-sectiou (1) of s.
285 imposes a duty on \be judge to find ont whether there was sufficient cause for the absence of an assessor and to consider \. Vbether it is not possible to enforce his attendance, it should be presumed that he has done so when be proceeds with the trial in his absence and a mere omission to record reasons for proceeding with the trial without the absent assessor would not by itself vitiate the trial ; {iii) a sessions judge, however, has no jurisdiction to substitute another person for any assessor \Vho absents himself rlnring the trial or to reinstate the absent assessor \Vhen be re-appears and continue the trial with four asses3ors \vhen the trial commenced with three assessors, an(\ the trial in question was there~ lore illegal. n~ 974 S-CPRE:\IE COURT REPORTS [1053] King Emperor v. Tirwnal Reddi (I. L. R. 24 Mad. 523) distin· guished. CRIMINAL APPELLATE JURISDICTION: Criminal Ap. peal No. 103of1952.
Appeal under article 134(l)(c) of the Constitution of India from the Judgment and Order dated the 27th October, 1952, of the High Court of Judicature for the State of Rajasthan at Jodhpur (Wanchoo C. J. and Bapna . T. ) in D. B. Criminal Murder Reference No. 2 of . 1952, arising out of the . Judgment and Order dated the lst July, 1952, of the Court of the Sessions Judge, Pali, in Criminal Original Case No. 2 of 1951. H. J. Urnrigar for the appellants. Porus A. 111 ehta for the respondent. 1953. February 16. The Judgment of the Court was delivered by MAHAJAN J. -This is an appeal under article 1:34(1) (c) of the Constitution of India, by Magga and Bhagga, who have been convicted under section 302, Indian Penal Code, for the triple murders of Ganesh, Gheesa and Hardas. The case relates to an incident which took place on the night between the 3rd and 4th April, 1951.
Gheesa and Ganesh, deceased, Ratna, Govind, another Ganesh who is a witness in the case, and Hardas had gone to "Imaratia " a well in village Gadwara on that night to keep watch over the crops there. Gheesa slept in one shed near the well, while Hardas slept in another shed some distance away, and Ratna slept in a third shed near the entrance gate. Ganesh, deceased, Ganesh (P. ,V. ), and Govind slept on the threshing floor further away from the well. Some time after midnight Ratna woke up on hearing the cries of Gheesa. It is alleged that he then saw the two accused beating Gheesa, accused Magga having in his hand a farsi and accused Bhagga having a katari and an axe. Hardas, who woke up on hearing the cries, rushed to the aid of Gheesa and thereupon the two accused.. Magga and Bhagga, fell upon him and attacked him with farsi and axe. Ratna, • j. s. c. R. SUPREME COlHtT REPORTS 975 ran away and hid himself near the well.
On an alarm 1963 being raised, one Krishna who was working on a nearby Magga well came and witnessed the attack on Hardas. The and Another accused, after finishing Gheesa and Hardas went to the v. threshing floor where Ganesh, deceased, was sleeping. TheStaU of There Magga asked Bhagga to hit Ganesh with the axe Rajasthan. and Bhagga immediately hit Ganesh with the axe and Mahajan J. he fell down. Thereafter Magga hit Ganesh two or three times with the farsi on the legs and Bhagga cut the neck of Ganesh with the katari. Govind (P. W. ) en-treated on behalf of Ganesh but he was threatened and was told that if he did not keep quiet he would also be killed. Without injuring Govind and Ganesh (P. Ws. ) the accused then left the place. Information of the incident was carried to the village by Ratna and a report of it was made to the police at 11-30 a. rn. on 4th April, 1951.
In the report it was stated that " Bhagga and Magga are standing at their house with swords and are saying that they would kill more persons. Village people are surround-ing them outside the house''. The sub-inspector of police, when he arrived at the village, found the house of the accused surrounded by the village people. The door of the house was dosed from inside and the accused were standing on the chabutra inside. Magga had a farsi in his hand and Bhagga had an unsheathed sword. The sub-inspector got the door opened, arrested the accused, and took possession of the farsi and the sword. He also recovered the axe and a katari which were bloodstained. The clothes of the accused were also taken possession of after the arrest and they appeared to have bloodstai1rn on them. The acuused pleaded not guilty.
They admitted their partnership in cultivation at "Imaratia " well with the deceased but denied that any quarr omplying with the provisions of section 360 of tht' Cmk lnlS fairly obvious. In Subramania lyer's case (1) the pnwedure adopted was one which the Code positiYely prohibits and it . was possible that it might have worked actual injustice to the accused but that the error in not reading the statements of witnesses to them was of a different character, and such an omission was not fatal. In Pululcurti Kotayya v. 1\. ing-Emperor(") their Lordships again examined this qm'stion. That wtts a cas¥ where there had been a breach of th0 provisions of section 162, Criminal Procedure Code, and it was held that in the peculiar eircumstances of that case it had not prejudiced the accused and the ca,se therefor" fell under section 537 and that the trial was vaJid notwithstanding the breach of section 162.
Sir John Beaumont in delivering the decision of the Board made the following observations which bring out the distinction between the two sets of cases : -- "There are, no doubt, authorities in India which lend some support to ! \! fr. Pritt's contention, and reference may be made to 7'irlcha v. Nanak('), il1 which the court expressed th':' view that sedion 537, Criminal Procedure Code, applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mo,ndatory provisions of the Code, and to In re Jlarlura 11111tlw (1) (1901) ·z8 I. A. z57. (3) (1947) 74 I. A. 65, (2) (1927) 54 I. A. 96. (4) (19n) !. LR. 49 All. 475· 984 SUPREME COURT REPORTS [1953] Vannian(' ), in which the view was expressed that any failure to examine tbe accused under section 342, Criminal Procedure Code, was fatal to the validity of the trial, and could not be cured under section 537.
In their Lordships' opinion, this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a mrmner different from that prescribed by the Gode [as in Subramania Iyer's case(')], the trial is bad, and no question of curing an ii-regularity arises: but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of snCJ~l conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always he the case, a breach of one or more of the very com prehensi vc provisions of the Code. The distinction drawn in many of the cases in India between an illegality find an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Boflrd in Abdul 3 Rahman v.
]( ing-Emperor( ), where failure to comply with section 3GO, Criminal Procedure Code, was held to be cured by sections 535 and 5Bi. The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162. " In our judgment, the trial conducted in the present case was conducted in fl nrnnner different from that prescribed by the Code and is bad and no question here flrises of curing flny irregularity. The Code does not authorize a trial commenced with the flid of three named assessors to be conducted and completed with the aid of four assessors. The substitution of one assessor by another and an addition to the number of assessors appointed at the commencement of the trial is not sfluctioned by section 285, Criminal Procedure Code, nor is it authorized by section 284. On the other hand, the language of section 285( 1) read with the provisions of section 285(2) implicitly bans the holding of such a tria. I.
It is uot possible to say with any degree of certainty to what extent the opinion of the outgoing and the incoming assessors who did not attend the whole of the trial influenced the decision in the case ; but as such a trial is unknown to law, it has to be presumed that it was illegal. Mr. Mehta for the State Govemment contended thttt under section 309(2) the opinion of assessors is not binding on the sessions judge and their presence or absence does not affect the constitution of the court and that as at this trial at least two of the assessors originally appointed sat throughout the trial it should be held that the trial was substantially a trial conducted in accordance with the provisions of the Code. The learned counsel did not go to the length of urging that a trial without the aid of any assessorn whatever was a good trial under the Code. Such a contention, if raised, would have to be negatived in view of the clear provisions of section 284 and of sub-section (2) of section 285.
The appointment of at least three assessors is essential for the validity of a trial of this character at its commencement, and once validly commenced, in certain events, it can be validly concluded if at least one of them remains present throughout, while others drop out ; but a trial conducted in the manner in which it was done in this case is wholly outside the contemplation of the Code and it is not possible to hold that it was concluded according to the provisions of the Code. The provision in the Code that the opinion of the assessor is not binding on the sessions judge cannot lend support to the contention that the sessions jndgr is entitled to ignore their very existence. As already pointed out, though he may not be bound to accept their opinions, he is certainly bound to take them into consideration. The weight to be attached to such opinions may well vary with the number of assessors. :\:Ir.
Mehta to support his contention placed reliimce on tho majority decision of the Madras High Court in (1) (1922) I. LR. 45 l\lad. 820. (3) (1927) 54 I. A. 96. (%) (1901) is I. A. ~7· 1 King-Emperor v. Tirumul Reddi ( ). In that case the trial continued for about seven weeks. During that (l) (l901) I. L. R. 24 Mad. 523. 986 SUPREME COlTRT REPORTS [1953] period one of the assessors was permitted tci absent himself during two whole days, and five half days respectively, at first, so that he might visit his mother on her death-bed, and subsequently, to perform the daily obsequies rendered necessary by her decease. He then resumed his seat as an as~essor and continued so to act until the termination of the trial. all the depositions recorded in his aJ1sence having b~en read by him on his return. At the conclusion of the trial the sessions judge invited the opinion of each assessor, and recorded it.
The opinion of each was that all the accused were guilty and the judge concurring in that opinion, convicted the accused. On appeal it was contended that the judge had acted contrary to law in allowing the assessor who had been absent to resume his seat as an assessor and in inviting and taking into consideration his opinion in deciding the case. It was held by the majority of the court that the finding and the sentence appealed aga. inst had been passed by a court of competent jurisdiction within the meaning of section 537 of the Code and that the defect in the trial did not affect its validity and was 0 cured by that section as the irregularity had not in fact occasioned a failure of justice. llfr. Justice Davies took a different view. This decision was clearly given on the peculiar fact8 and circum8tances of that case and is no authority in support of the view contended for by Mr. Mehta.
For the reasons given above we are constrained to hold that the trial of the appellants conducted in the manner above stated was bad and the <tppellants have to he retried in accordance with the procedure prescribed by the Code. In the result we allow this appeal, quash the convic-tion and sentence passed on the appellants, and direct their retri! tl by the sessions judge in accordance with the procedure prescribed by the Code. Appeal allowed Retrial ordered. Agent for the respondent: G. H. Rajadhyaksha.
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