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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Jaganmohan Reddy, J.
Acts
  • Sub-section (6) of S. 483
  • provisions of sub-section (6) of S. 488.B./D.H.Z11.
  • provisions of sub-section (6) of S. 438.6.
  • provisions of sub-section (6)
  • Section 353 as well as sub-section (6) of S. 488
  • sub-section (6) of S. 488
  • sub-section (6) of S. 438
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Jaganmohan Reddy, J.
Acts
  • Sub-section (6) of S. 483
  • provisions of sub-section (6) of S. 488.B./D.H.Z11.
  • provisions of sub-section (6) of S. 438.6.
  • provisions of sub-section (6)
  • Section 353 as well as sub-section (6) of S. 488
  • sub-section (6) of S. 488
  • sub-section (6) of S. 438
See more information ...
Smart Summary

Structured Summary of the Presented Legal Opinion

Factual and Procedural Background

This is a reference by the learned Sessions Judge of Osmanabad seeking that the proceedings under Section 488 of the Criminal Procedure Code (Cr PC) be set aside. The proceedings in question resulted in a maintenance award of Rs. 100/- to the respondent, Rukmini Bai (the revision-petitioner's wife), and their four children.

On 26-7-1951 Rukmini Bai filed a petition on behalf of herself and the four children alleging that the revision-petitioner, though having sufficient means, was negligent and refused to maintain them. The revision-petitioner, through his vakil Mr. Dattatveyarao, filed a petition on 25-8-1951 admitting that Rukmini Bai was his wife and that the children were his legitimate issue, but denying negligence or refusal to maintain and asserting insufficient means of livelihood.

The proceedings show multiple hearings between July 1951 and February following, during which much of the evidence for the wife and children (five witnesses) was recorded in the absence of the revision-petitioner, who at many hearings was represented only by his advocate. The revision-petitioner contends that under sub-section (6) of Section 488 the proceedings should be set aside because the statutory requirements for recording evidence in the presence of the respondent (or an order dispensing with his presence) were not complied with. The Sessions Judge has referred the matter for consideration.

Legal Issues Presented

  1. Whether the recording of evidence, substantially in the absence of the respondent (the revision-petitioner) and without any apparent order dispensing with his personal attendance, violates the mandatory requirements of sub-section (6) of Section 488 Cr PC.
  2. Whether non-compliance with sub-section (6) of Section 488 Cr PC (and related provisions such as Section 353) is a mere irregularity curable under Section 537 Cr PC, or whether it vitiates the proceedings and requires setting aside of the Magistrate's order.

Arguments of the Parties

Revision-petitioner (Appellant) - Contentions

  • The revision-petitioner admitted the marital relationship and legitimacy of the children but denied that he was negligent or refused to maintain them; he also claimed insufficient means of livelihood.
  • His advocate contended that the proceedings should be set aside under sub-section (6) of Section 488 because the requirements of that sub-section — namely that evidence be taken in the presence of the husband or, where his presence is dispensed with, in the presence of his pleader — were not fulfilled. The court did not make any order excusing his presence nor is there any record showing the court directed its mind to that question.

Respondent (Wife) - Contentions

  • The learned advocate for the respondent relied on an unreported judgment (Venkatarao v. Tuisibai, Revn. No. 531 of 1952–1953 (A) (Single Bench)) which, invoking Abdul Rahman v. Emperor (Privy Council), treated the omission to examine witnesses in the presence of the respondent as a mere irregularity; on the facts of that supposed analogy (and by reference to Section 360 of the I. Cr PC) the trial Magistrate's order need not be set aside where no failure of justice is shown.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Venkatarao v. Tuisibai (unreported), Revn. No. 531 of 1952–1953 (A) (Single Bench) Held (on the authority of Abdul Rahman v. Emperor and by analogy with Section 360 I. Cr PC) that omission to examine witnesses in the presence of the respondent is a mere irregularity and, where no failure of justice is shown, the Magistrate's judgment need not be set aside. The court considered this unreported decision but rejected its analogy to the present facts. The opinion states that the analogy based on Section 360 could not be applied to non-compliance with sub-section (6) of Section 488 in the present case.
Abdul Rahman v. Emperor, 54 Ind App 96; AIR 1927 PC 44 (Privy Council) Explained that the object of reading over depositions is to secure an accurate record from the witness and to allow the witness to correct words; where no inaccuracy is alleged, omission to read over may not cause failure of justice. The court reviewed this Privy Council decision and concluded that its facts (and its reliance on Section 360) are not analogous to the present case under sub-section (6) of Section 488; therefore the Abdul Rahman reasoning cannot justify treating the present non-compliance as a mere irregularity.
Subramania Iyer v. King Emperor, 28 Ind App 257 (Privy Council) Held that disobedience to an express provision as to a mode of trial cannot be regarded as a mere irregularity (the procedure was positively prohibited and might work actual injustice). The court relied on this authority to support the proposition that contravention of an express statutory provision governing mode of trial (such as sub-section (6) of Section 488 or Section 353) is not a mere curable irregularity under Section 537 but is of a class that vitiates the proceedings.

Court's Reasoning and Analysis

The court's reasoning proceeds in these steps (as stated in the opinion):

  1. The court notes the statutory requirement in sub-section (6) of Section 488 (as quoted in the opinion) that "all evidence shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance has been dispensed with, in the presence of his pleader," with a proviso permitting the Magistrate to proceed ex parte only if satisfied that the person is willfully avoiding service or willfully neglects to attend.
  2. The court observes established authority that trials and the taking of evidence under the relevant Chapter (Chapter 36 as referenced in the opinion) must be in the presence of the respondent or his pleader where personal presence has been lawfully dispensed with. The direction in sub-section (6) is described as peremptory; there must be either an application by the respondent to dispense with presence or an express order of the court dispensing with presence.
  3. Factual application: It is evident from the proceedings that the revision-petitioner was not personally present when the evidence was recorded and was represented only by his advocate. There is no material in the record showing that the Magistrate satisfied himself that the revision-petitioner was willfully avoiding service or willfully neglecting to attend, nor that the court made any order dispensing with his personal attendance.
  4. The court considered the respondent's reliance on the unreported Venkatarao decision and the Abdul Rahman Privy Council decision, which had been applied in a different statutory context (Section 360). After reviewing Abdul Rahman, the court concluded that the analogy to the present facts and to sub-section (6) of Section 488 is not appropriate.
  5. The court contrasted the Abdul Rahman line of reasoning with the principle in Subramania Iyer, where disobedience of an express procedural provision was held not to be a mere irregularity. The court noted that the object of sub-section (6) of Section 488 is similar to that of Section 353, both imposing an imperative rule that evidence be taken in the presence of the accused (or his pleader when personal attendance is dispensed with).
  6. On that basis the court concluded that the Code has positively enacted the manner in which evidence must be taken; therefore, contravention of sub-section (6) of Section 488 cannot be treated as an error or irregularity curable under Section 537. Such a contravention goes to a fundamental principle of criminal procedure and vitiates the proceedings.
  7. Consequently, the court set aside the Magistrate's order and directed that the evidence be recorded in accordance with sub-section (6) of Section 488.

Holding and Implications

Holding: Reference accepted. The court set aside the order of the Magistrate and directed that the evidence be recorded afresh in accordance with sub-section (6) of Section 488 Cr PC.

Implications as stated in the opinion:

  • The court held that sub-section (6) of Section 488 (and the similar provision in Section 353) are imperative: evidence must be taken in the presence of the accused/respondent or, where personal attendance is dispensed with by the court, in the presence of his pleader. The absence of an order dispensing with presence or a finding that the respondent was willfully absent undermines the validity of the proceedings.
  • The court ruled that such a contravention is not a mere irregularity that can be cured under Section 537 Cr PC. It is an irregularity of a fundamental nature which vitiates the trial or proceedings.
  • Direct, practical effect: The Magistrate's order awarding maintenance is set aside and the evidence must be re-recorded in conformity with sub-section (6) of Section 488.
  • The opinion does not claim to set a broader novel precedent beyond applying the existing principle that express procedural mandates governing mode of trial are not to be treated as mere curable irregularities; it applies that principle to the facts before it and orders re-recording of evidence.

Reference accepted.

Show full summary ...

    Venkatrao v. Rukminibai .

    1. This is a reference by the learned Sessions Judge of Osmanabad for setting aside the proceedings under Section 488 of the Cr PC which resulted in a maintenance of Rs. 100/- being awarded to the revision-petitioner's wife and four children. It appeal's that a petition was filed by Rukmini Bai, respondent, wile of the revision-petitioner on 26-7-1951 on behalf of herself & her four children alleging that the revision-petitioner though having sufficient means has been negligent and is refusing to maintain them. The revision-petitioner presented a petition through his vakil, Mr. Dattatveyarao on 25-8-1951, admitting Rukmini Bai to be his wife and the children to be his legitimate issues; but denying that he was either negligent or refused to maintain them. He further contended that he had insufficient means of livelihood. The proceedings show that notice was ordered to the respondent on 25th July under Section 488 of the Cr PC and on the next date of hearing, i.e, 10-3-1951, while the revision-petitioner's wife was present in person the revision-petitioner was present through his pleader. The court directed the filing of a counter.

    2. On 20th August again the wife was present in person while the revision-petitioner was represented by his advocate. Another adjournment was given for filing the counter which was filed on the 25th August when both the parties were present in person. On the 18-9-1951 the parties were represented only by their Advocates and two witnesses were examined on the next date of hearing the respondent was present but the case was adjourned. On the 24th the parties were represented by their Advocates but no evidence was recorded on that date. The evidence of one witness was, however, recorded on the 14th November in the presence of the Advocates of the parties. Two other witnesses were examined on the 21st December in the absence of the revision-petitioner.

    3. In this way almost all the witnesses for the wife and the children, viz., 5 of them, were examined in the absence of the revision-petitioner. On the next date of hearing the revision-petitioner was present, but he did not produce any witnesses and was given an adjournment. On the 21st January and 6th February, two witnesses of the revision-petitioner who were summoned did not come, nor was the revision-petitioner present. On the 13th February one witness was examined in the absence of the revision-petitioner and the evidence in the case was closed. The advocate for the revision-petitioner contends that under sub-section (6) of S. 438 the proceedings should be set aside inasmuch as the requirements of the Section have not been fulfilled. It is true that the Court, has not made any order excusing the presence of the revision-petitioner, nor does it appear that it has directed its mind to this question. Sub-section (6) of S. 483 enjoins that all evidence shall be taken in the presence of the husband or father, as the case may be, or, when his personal attends been is dispensed with, in the presence of his pleader, & shall be recorded in the manner prescribed in the case of summons-cases; provided that if the Magistrate is satisfied that he is willfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ‘ex parte’. Any orders so made may be set aside for good carse shove on application made within three months from the date thereof.

    4. It has been decided in several cases that the trial and the taking of evidence in a case under Chapter 36 must be in the presence of the respondent or in the presence of his pleader where his personal presence is dispensed with. This direction in sub-section (6) is peremptory and no presumption or inference could arise in the absence of either an application by the respondent for dispensing with his presence or the order of the court dispensing with such presence. It is evident from the proceedings extracted above that the revision-petitioner was not present when the evidence was recorded, being represented only by his Advocate. In order that the case should be brought under the proviso to sub-section (6) of S. 488 the Magistrate should have satisfied himself that the revision-petitioner was wilfully neglecting to attend the Court, before he could proceed with the case ex parte. From the record no circumstances appear from which one can infer that the Magistrate has ever considered this aspect of the case or that he was satisfied that the revision-petitioner was wilfully absenting himself. In these circumstances the mandatory provisions of sub-section (6) have not been complied with.

    5. The learned Advocate for the respondent wife has drawn my attention to an unreported judgment dated 7-7-1953 in — ‘Venkatarao v. Tuisibai’, Revn. No. 531 of 1952–1953 (A) (Single Bench) where it was held on the authority of — ‘Abdul Rahman v. Emperor” 54 Ind Cas 96 (the reference is wrong — it is 54 Ind App 96 : AIR 1927 PC 44 (B)) and on the analogy of the provisions of Section 360 of the I. Cr PC that the omission to examine witnesses in the presence of the respondent is a mere irregularity and that inasmuch as no failure of justice was occasioned, the judgment of the trial Magistrate was not set aside. I have gone through the judgment of the Privy Council in the above referred case and it appears to me, with the greatest respect, that the analogy of that case which was based on S. 360 and particularly on the facts of that case cannot be applied to the facts of this case or to non-compliance of the provisions of sub-section (6) of S. 438.

    6. In the aforesaid Privy Council case the appellant was convicted by a District Magistrate on a charge of abetment of forgery. At the trial the depositions of witnesses were read over to them while the case otherwise proceeded, and those of sonic witnesses were handed to them to read to themselves. It was argued that since some of the depositions were not read over, the trial was bad and the conviction should be set aside. The Privy Council held that no inaccuracy in the deposition was suggested and as such there was no actual or possible failure of justice inasmuch as the object of the section was to secure an accurate record from the witness of what he meant to say and not to enable the accused or his pleader to suggest corrections. Their Lordships observed at p. 47:

    “…… a careful study of the sections will show that the object of reading over the deposition is to obtain an accurate record from the witness of what he really means to say, and to give him an opportunity of correcting the words which the Magistrate or his clerk has taken down. It is not to enable the accused or his advocate to suggest corrections.”

    7. Dealing with the enabling and curing S. 537 and the case of — ‘Subramania Iyer v. King Emperor’, 28 Ind App 257 (PC) (C), their Lordships observed at p. 49:

    “…. The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused.”

    8. In the aforementioned case of — ‘Subramania Iyer v. King Emperor’, (C), Lord Chancellor (Halsbury) delivering the judgment of the Board in a case where the accused was tried of an indictment in which he was charged with no less than 41 acts extending over a period of two years, contrary to the provisions of Section 234 of the Cr PC which provided that a person may only be tried for three offences of the same kind within a period of 12 months, observed:

    “…… Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity.”

    9. The object of sub-section (6) of S. 488 requiring evidence to be taken in the presence of the respondent is similar to that provided in S. 353 of the Code, viz., that except as otherwise expressly provided all evidence taken under Chapters 18 (enquiry into cases triable by Sessions Judge or High Court), 20 (trial of summons cases by Magistrates), 21 (trial of warrant cases by Magistrates) 22 (summary trials) and 13 (trial before High Court & the Court of Session), shall be taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader. These aforesaid provisions enact a general principle of law that all evidence in enquiries and trials or proceedings should be taken in the presence of the accused unless the presence of the accused under certain circumstances is dispensed with under Ss. 205, 540-A or under sub-section (6) of S. 488 in which case evidence shall be taken in the presence of his pleader. Section 353 as well as sub-section (6) of S. 488 are imperative in that all evidence shall be taken in the presence of the accused or the respondent or in certain circumstances in the presence of their pleader.

    10. In my view, it cannot, therefore, be said that the proceedings against the revision-petitioner were conducted in accordance with the procedure laid down by the provisions of the Code relating to the mode in which the trial should take place. The Code having enacted positively that evidence I should be taken in a certain way, it cannot be contended that the contravention of this express provision can be described as an error, omission or irregularity within the meaning of S. 537. The inhibition under sub-section (6) of S. 488 or under S. 353 is of the class referred to by their Lordships of the Privy Council in ‘28 Did. App. 257 (P.C) (C)’. The action of the accused in not objecting to the evidence subsequently or the fact that his pleader did not raise any objection at the time when the evidence was recorded, cannot cure an irregularity which goes against the fundamental principles of criminal jurisprudence, that all evidence, subject to the provisions of the Code, should be taken in the presence of the accused. It is an irregularity, in my view, not curable under the provisions of S. 537 and would vitiate the trial or proceedings. In these circumstances I set aside the order of the Magistrate and direct that the evidence be recorded in accordance with the provisions of sub-section (6) of S. 488.

    B./D.H.Z

    11. Reference accepted.

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    Comments

    Venkatrao v. Rukminibai .
    (Oct 27, 1953)