Magga and Another vs The State of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 103 of 1952

Decision Date: 16 February 1953

Coram: Mehr Chand Mahajan

In the matter titled Magga and Another versus the State of Rajasthan, the Supreme Court of India delivered its judgment on 16 February 1953. The opinion was authored by Justice Mehr Chand Mahajan, who also sat on the bench together with Justices Das and Sudhi Ranjan. The case was recorded under the citations 1953 AIR 174 and 1953 SCR 973. Subsequent citator references include R 1956 SC 4 (4) and R 1976 SC 2386 (7). The dispute concerned the application of the Criminal Procedure Code of 1898, particularly sections 284, 285 and 539, and it raised questions about trials conducted with assessors, the effect of an assessor’s absence, the legality of substituting a new assessor, the re-appearance of an absent assessor, and the validity of continuing a trial with four assessors after it began with three.

The Court explained that section 285 of the Criminal Procedure Code allows a trial that started with three assessors to be completed with fewer than three assessors if an assessor is prevented from attending for sufficient cause. However, the provision does not empower the court to replace an absent assessor with another person, nor does it permit the addition of an extra assessor during the trial. In the factual scenario, assessors A, B and C had been summoned for a murder trial, but C failed to appear. The judge then invited D, who was listed as an assessor but had not been summoned, to sit as an assessor, and the trial proceeded with A, B and D. During the trial A withdrew, and the judge called E to sit in A’s place, so that the trial continued for several days with B, D and E. Subsequently A returned, and the trial was completed with four assessors—A, B, D and E. The Court held three propositions. First, it ruled that D’s participation, although not summoned, was a mere irregularity that did not invalidate the trial or cause a miscarriage of justice, citing King Emperor v. Ramsidh Rai and Balak Singh v. Emperor for support. Second, the Court observed that subsection (1) of section 285 obliges a judge to determine whether there is sufficient cause for an assessor’s absence and whether the absence can be remedied; however, it presumed the judge had performed this duty when he proceeded with the trial, and the failure to record reasons for continuing without the absent assessor did not, by itself, vitiate the proceedings. Third, the Court affirmed that a Sessions Judge lacks the authority to replace an absent assessor with another person or to reinstate the absent assessor and continue the trial with four assessors after it began with three; consequently, the trial in question was illegal, as reflected in the precedent of King Emperor v. Tirumal Reddi.

The appeal arose under article 134(l) (c) of the Constitution of India and was numbered Criminal Appeal No. 103 of 1952. It challenged the judgment and order dated 27 October 1952 rendered by the High Court of Judicature for the State of Rajasthan at Jodhpur, whose bench comprised Chief Justice Wanchoo and Justice Bapna, in the matter titled D.B. Criminal Murder Reference No. 2 of 1952. The High Court’s decision itself was based on the judgment and order dated 1 July 1952 of the Sessions Judge of Pali in Criminal Original Case No. 2 of 1951. Counsel for the appellants was H. J. Umrigar and counsel for the respondent was Porus A. Mehta. The Supreme Court delivered its judgment on 16 February 1953, with Justice Mahajan speaking for the Court. The appellants, Magga and Bhagga, had been convicted under section 302 of the Indian Penal Code for the murder of three persons identified as Ganesh, Gheesa and Hardas. The factual backdrop concerned an incident that occurred on the night of 3 April to 4 April 1951 at a well known as “Imaratia” in the village of Gadwara, where several workers had assembled to safeguard the crop. Present at the well that night were the deceased Gheesa and Ganesh, a laborer named Ratna, a farmhand named Govind, another individual also called Ganesh who would later be a witness, and Hardas. Gheesa slept in a shed close to the well, Hardas slept in a different shed set a short distance away, and Ratna slept in a third shed situated near the entrance gate. The two Ganeshs together with Govind took rest on the threshing floor farther from the well.

After midnight Ratna awoke upon hearing Gheesa’s cries. According to the prosecution’s version, Ratna then observed the two accused assaulting Gheesa; the accused Magma was reported to be holding a farsi (a kind of spear) while the accused Bhagga was said to have a katari (a knife) and an axe. Hardas, who also heard the cries, rose to assist Gheesa, but the two accused fell upon him and struck him with the farsi and the axe. Ratna fled the scene and concealed himself near the well. An alarm was raised and a laborer named Krishna, who was working at a nearby well, arrived and witnessed the attack on Hardas. Following the assault on Gheesa and Hardas, the accused proceeded to the threshing floor where the deceased Ganesh was sleeping. There, Magga is said to have instructed Bhagga to strike Ganesh with the axe; Bhagga complied, bringing the axe down on Ganesh, causing him to fall. Subsequently, Magga is said to have struck Ganesh two or three times on the legs with the farsi, and Bhagga is reported to have cut Ganesh’s neck with the katari. Govind, who testified on behalf of Ganesh, was threatened and warned that he would also be killed if he spoke out. After these assaults, the accused left the premises without further injuring Govind or the surviving Ganesh witness.

News of the incident was transmitted to the village by Ratna, and a formal police report was filed at 11:30 a.m. on 4 April 1951. The report recorded that “Bhagga and Magga are standing at” — the narrative then continued in the succeeding portion of the record.

The police report stated that the accused were standing at their house with swords and threatening to kill more persons, while villagers surrounded the house. When the sub-inspector arrived in the village, he observed the accused's house encircled by villagers and the door locked from within. Inside the house, the accused were positioned on the chabutra, with Magha holding a farsi and Bhagga clutching an unsheathed sword. The sub-inspector forced the door open, placed the accused under arrest, and seized the farsi and the sword as evidence. He also recovered a blood-stained axe and a katari, and confiscated the accused’s garments, which exhibited apparent bloodstains. The accused entered pleas of not guilty, acknowledging their joint cultivation at Imaratia well with the deceased but denying any dispute over crop cutting. They further denied that they had approached the well armed with weapons or that they had murdered Gheesa, Hardas and Ganesh. After evaluating the prosecution’s evidence, the sessions judge concluded that the case was proved beyond reasonable doubt and that the murders were committed brutally against sleeping victims. Consequently, the appellants were convicted under section 302 of the Indian Penal Code and sentenced to death. The High Court, after re-examining the evidence, affirmed both the conviction and the death sentence. In the High Court, the defense contended that the trial was vitiated because it had not followed the procedure prescribed by law. The High Court rejected this contention, holding that any irregularities were remedied by the provisions of section 537 of the Criminal Procedure Code. Because the objection concerned the validity of the trial, the case was certified as a fit matter for appeal to the Supreme Court. Regarding the trial’s procedural validity, the record showed that the trial commenced on 22 March 1952 with three assessors summoned for that date. Two assessors were present, and the third was absent, so the court chose another person present whose name was on the assessor list but who had not been properly summoned. The trial then proceeded with the three assessors identified as Jethmal, Balkrishna and Asharam. On 6 June 1952, assessor Jethmal was absent, and a person named Chimniram was appointed to sit in his place, resulting in three assessors. Consequently, the bench for that date consisted of the remaining assessors Balkrishna and Asharam together with Chimniram.

In this case the Court noted that after the assessor Jethmal was absent, the two assessors who had been present from the beginning of the trial, Balkrishna and Asharam, continued to sit together with a new assessor, Chimniram, who was introduced for the first time on 6 June 1952. The same three assessors, Chimniram, Balkrishna and Asharam, also sat on 23 June 1952. On 27 June 1952 Jethmal returned and was again permitted to sit, so that from that date onward four assessors—Jethmal, Chimniram, Balkrishna and Asharam—sat for the remainder of the trial. All four of these assessors gave their opinion on 1 July 1952, when the trial concluded. It was contended that the trial was invalid because it had been conducted in breach of sections 284 and 285 of the Code of Criminal Procedure and that such a breach could not be cured by the provisions of section 537. To determine the merit of this objection the Court set out the relevant statutory provisions. Section 284 states that when a trial is to be held with the aid of assessors, not less than three and, if possible, four shall be chosen from the persons summoned to act as assessors. The original wording of the section required that two or more assessors be chosen as the judge thought fit, but an amendment in 1923 raised the minimum requirement to three assessors, making three assessors an essential condition for a trial with assessors. Consequently, a trial that begins with fewer than three assessors is not authorised by the present form of section 284. Unless a case falls within the exception contained in the following section 285, a trial conducted in violation of section 284 would be illegal. Section 285, however, does not apply to cases where a trial is started with fewer than three assessors, as indicated in the authorities Balak Singh v. Emperor (1) and Sipattar Singh v. King-Emperor (2). Section 285 provides that if, during a trial with assessors, any assessor is, for sufficient cause, prevented from attending the entire trial or absents himself, and it is not practicable to compel his attendance, the trial may proceed with the remaining assessor or assessors; and that if all assessors are prevented from attending or are absent, the proceedings must be stayed and a fresh trial conducted with new assessors. Under this provision a trial that began with three assessors may continue and be completed with fewer than three assessors, as reflected in the cases A.I.R. 1918 Pat. 420 and A.I.R. 1942 All. 140. Nonetheless, section 285 does not authorise either the substitution of an absent assessor or the addition of an assessor to the panel after the trial has started. The effect of the provisions of sections 284 and 285 is therefore to forbid the commencement of a trial with fewer than three assessors chosen in the manner prescribed, while allowing a trial that began validly with three assessors to continue if some, but not all, of the originally appointed assessors remain present throughout. No provision permits the judge to add a new assessor or substitute an absent one, and the statutory language is mandatory, leaving no discretion for the court to deviate from the prescribed procedure.

The Court explained that, according to sections 284 and 285, a criminal trial could not be lawfully begun unless at least three assessors had been appointed in the manner prescribed by the Code. Once such a trial had been validly commenced, it could be allowed to proceed to completion even if, during the trial, some but not all of the originally appointed assessors continued to attend. However, if none of the originally appointed assessors were present for the remainder of the proceedings, the law required that the trial be declared void and a fresh trial be ordered with a new panel of assessors. The provisions did not permit the addition of an assessor to the original panel, nor did they allow any change or substitution of assessors during the trial; on the contrary, the Code implicitly prohibited such alterations. The Court stressed that the procedure laid down in section 285(1) was not permissive but mandatory, obliging the court to follow it whenever its conditions were satisfied, just as section 285(2) imposed a mandatory requirement. Consequently, there was no room in the statutes for a judge to exercise discretion by supplementing the statutory scheme, by conducting the trial with a mixture of originally appointed assessors and newly recruited ones, or by otherwise deviating from the prescribed method. Section 309 was cited, which mandates that, after the trial has concluded, the court may summarise the evidence for the prosecution and defence and must then require each assessor to state his opinion orally, with those opinions being recorded. Sub-clause (2) of the same section further provides that the judge may deliver the judgment without being bound to follow the assessors’ opinions. The Court also noted that sections 326 and 327 prescribe the manner of summoning assessors and jurors. Section 537 was quoted in full, stating that, subject to earlier provisions, no finding, sentence or order of a competent court could be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings, or for failure to revise the list of jurors or assessors under section 324, or for any misdirection to a jury, unless such defect had actually caused a failure of justice. The High Court’s first objection to the trial’s validity was that Asharam, who had not been formally summoned as an assessor, could not be appointed, and therefore the trial had supposedly commenced with only two assessors, contravening section 284. The Court described the factual situation: on the scheduled date of the trial there was a shortfall in the number of persons who had been summoned and who appeared to act as assessors. In response, the court summoned Asharam, whose name appeared on the list of assessors, and ordered him to sit as an assessor.

In this case the Court observed that the High Court had held, and the Court agreed, that the failure to issue a formal summons to an assessor was only a procedural irregularity that could be remedied under section 537 of the Code because no failure of justice resulted from that defect, and therefore the trial could not be declared invalid; this approach was consistent with the Calcutta High Court’s decision in King-Emperor v. Ramsidh Rai (30 Crl. L. J. 725), which the Court also endorsed. However, the Court noted that the High Court had not fully appreciated the Patna High Court’s ruling in Balak Singh v. Emperor (A.I.R. 1918 Pat. 420), where the trial was declared void because a person who had not been summoned was appointed as an assessor, and during the examination of the first witness only one qualified assessor was present, leading the judge to direct an unauthorised individual to act as assessor; the Patna High Court held that commencing the trial with only one assessor, rather than the required two duly qualified assessors, rendered the trial abortive and contrary to law, and no exception to that rule was permissible. The second objection to the trial’s validity, also raised before the High Court, was founded on section 285; it was argued that when one assessor was absent the judge was obligated, under that provision, to determine whether the absence was due to sufficient cause and whether the assessor’s attendance could be enforced, and that the judge’s failure to do so authorized the continuation of the trial with the remaining assessors, a defect that allegedly rendered the trial invalid. The High Court concluded that, although section 285 was not complied with, the irregularity was cured by section 537 because it did not cause a failure of justice, and the Court agreed with that conclusion. The Court recognised that section 285 imposes a duty on the judge to inquire into sufficient cause for an assessor’s non-attendance and the practicability of enforcing attendance, and ordinarily the record should reflect that inquiry; nevertheless, the Court held that such an omission does not automatically vitiate the trial. Moreover, the Court expressed the view that when a judge proceeds with a trial in the absence of one or two assessors, relying on the remaining assessor(s), it may be presumed that the judge was satisfied that enforcing attendance was not practicable and that sufficient cause existed for the non-attendance.

The Court noted that the judge continued with the trial because he was satisfied that it was not practicable to compel the attendance of the absent assessor or assessors and that there was sufficient cause for their non-attendance. The Court added that if evidence showed a contrary circumstance, the result might be different. The Court observed that the failure to record an order explaining the reasons for proceeding with the trial using only the remaining assessors could at most be characterised as an irregularity or omission. Such an omission would fall within the scope of section 537 unless it actually resulted in a failure of justice. The Court further held that it could not be seriously argued that the omission alone would lead to such a result.

The learned counsel, relying on section 285, contended that the sessions judge had no jurisdiction or power to substitute an assessor, to reinstate an absent assessor, or to increase the number of assessors. When this point was raised before the High Court, the High Court recognised that no provision in law permitted the substitution of an absent assessor by another assessor or the subsequent reinstatement of an absent assessor, as had been done in the present case. Nevertheless, the High Court considered the irregularity to be of the same nature as non-compliance with the provisions of section 285 and therefore curable by section 537 of the Code. Regarding the addition of an assessor during the trial, the High Court stated that it could not find any reported case where an assessor had been added in the middle of a trial, as had been done by the learned judge. The High Court suggested that perhaps no judge had ever undertaken such an apparently unreasonable act, but noted that the trial had continued with the aid of two assessors who were present throughout. Accordingly, the High Court opined that there was substantial compliance with the mode of trial prescribed in the Code and that the irregularity created by the addition of Chimniram in June 1952 was curable under section 537 because it did not cause any failure of justice. The High Court concluded that the sessions judge remained the competent court to try the case and that his decision to add an unnecessary assessor could be ignored, since the irregularity did not cause a failure of justice and therefore did not vitiate the trial.

The Court disagreed with the High Court’s view. It held that the sessions judge, during the progress of the trial, not only altered the personnel of the assessors originally appointed and increased their number, but also actually took into account the opinions of all four assessors as required by the provisions of section 309 of the Code. The Court observed that the judge acted in accordance with those four opinions when convicting the two appellants. The Court emphasized that a unanimous verdict of four assessors is bound to carry greater weight than the opinion of fewer assessors, and therefore the presence and contribution of the additional assessors could not be dismissed as harmless.

It was observed that the opinion of an assessor is part of the judicial function conferred by law, and that a judge is obliged to consider such opinion and cannot disregard it. Consequently, the trial could not be said to have proceeded merely with the assistance of two persons; rather, the judge acted as if the trial had begun with the aid of four assessors and, after taking their views into consideration, convicted the appellants. The Court found it impossible to determine the precise weight that the judge assigned to the assessors’ opinions when reaching his conclusion, and it held that the High Court was wrong to claim that no harm or prejudice resulted from the presence of those assessors. The view advanced by the High Court—that the trial should be treated as having been conducted with the assistance of the two assessors contemplated by section 285 of the Criminal Procedure Code—was rejected because the factual record did not support such a characterization.

The Court explained that the trial could not be reduced to one conducted with only two assessors when, in reality, it was conducted partly with three assessors and partly with four. At no point did the proceeding involve only two assessors; the third assessor, who replaced another, attended a portion of the trial, and a fourth assessor was added for another portion, and neither of these two individuals was present throughout the entire trial. Accordingly, the trial that concluded was fundamentally different from the trial that had commenced under the provisions of section 284 of the Criminal Procedure Code. The Court therefore concluded that section 537 could not be invoked to cure the defect, because the Code does not recognise a trial of the kind that unfolded, and the provisions of sections 284 and 285 implicitly prohibit such a configuration. The Court stressed that the irregularity could not be described as a mere error, omission, or procedural lapse; instead, it amounted to a trial conducted in violation of the Code, striking at the very foundation of the proceeding and rendering the whole trial void. In support of this conclusion, the Court quoted the Privy Council’s observation in Subramania Iyer v. King-Emperor that disobedience of an express provision governing the mode of trial cannot be treated as a simple irregularity. The Court also referred to the observations of Lord Phillimore in Abdul Rahman v. King-Emperor, noting that the distinction between cases falling within section 537 and those outside it is clear, and that the procedure adopted in Subramania Iyer’s case was expressly prohibited by the Code.

It was observed that the failure to read the statements of witnesses to the accused, although it might have caused some actual injustice, was of a different character and such an omission was not fatal to the trial. In the case of Pulukurti Kotayya v. King-Emperor (3) the Court examined a breach of section 162 of the Criminal Procedure Code. The Court held that, in the peculiar circumstances of that case, the breach had not prejudiced the accused; consequently the matter fell within the ambit of section 537 and the trial was deemed valid despite the violation of section 162. Sir John Beaumont, delivering the decision of the Board, explained the distinction between two classes of cases. He noted that Indian authorities, for example Tirkha v. Nanak (4), expressed the view that section 537 applied only to procedural errors arising from mere inadvertence and not to cases involving disregard of or disobedience to mandatory provisions of the Code. Similarly, In re Madura Muthu (1) and Vannian (1) held that any failure to examine the accused under section 342 was fatal to the trial’s validity and could not be cured under section 537. The Court considered this argument to be based on an overly narrow interpretation of section 537. It stated that when a trial is conducted in a manner wholly contrary to the Code, as in Subramania Iyer’s case (2), the trial is void and no cure is possible. However, where the trial proceeds substantially according to the Code and an irregularity occurs during its conduct, that irregularity can be remedied under section 537, even though it may involve a breach of one or more comprehensive provisions of the Code. The distinction drawn in many Indian decisions between illegality and irregularity is therefore a matter of degree rather than of kind.

The Court further explained that this view is supported by the decision of the Board in Abdul Rahman v. King-Emperor ( ), where a failure to comply with section 360 of the Criminal Procedure Code was held to be cured by sections 535 and 537. The present case, the Court held, falls within section 537, and the trial was thus valid notwithstanding the breach of section 162. However, the Court concluded that the trial in the present matter was conducted in a manner different from that prescribed by the Code and was therefore void; consequently there was no question of curing any irregularity. The Code does not authorise a trial that begins with the assistance of three named assessors to be conducted and completed with the assistance of four assessors. The substitution of one assessor by another and the addition to the number of assessors appointed at the commencement of the trial is not sanctioned by section 285 of the Criminal Procedure Code, nor is it authorised by section 284. Moreover, the language of section 285(1) read with the provisions of section 285(2) implicitly prohibits the holding of such a trial.

The trial was conducted with the assistance of three named assessors at the beginning and was intended to be completed with the assistance of four assessors. The replacement of one assessor by another and the increase in the number of assessors after the trial had started were not authorized by section 285 of the Criminal Procedure Code, nor were they permissible under section 284. Moreover, the wording of section 285(1) read together with the provisions of section 285(2) implicitly prohibited a trial of this sort. It could not be stated with certainty how much influence the opinions of the outgoing assessor and the incoming assessor, both of whom did not attend the entire trial, had on the final decision; however, because such a trial was unknown to law, it had to be presumed illegal. Counsel for the State Government argued that, under section 309(2), the opinion of assessors was not binding on the sessions judge and that their presence or absence did not affect the constitution of the court. He further submitted that since at least two of the originally appointed assessors had sat throughout the trial, the trial should be considered substantially in compliance with the Code. The counsel did not contend that a trial without any assessors could be a proper trial under the Code. If such a contention were raised, it would have to be rejected in view of the clear language of section 284 and subsection (2) of section 285. The appointment of at least three assessors was essential for the validity of a trial of this character at its commencement, and once the trial was validly commenced, it could be validly concluded if at least one assessor remained present throughout while others withdrew. Nevertheless, the trial conducted in the manner described was entirely outside the contemplation of the Code, and it could not be held that it was concluded according to the Code’s provisions. Although the Code states that the assessor’s opinion is not binding on the sessions judge, that provision does not permit the judge to disregard the assessors’ existence. While the judge may not be required to adopt their opinions, he is certainly required to consider them, and the weight given to such opinions may vary with the number of assessors. To support his argument, counsel for the State relied on the majority decision of the Madras High Court in King-Emperor v. Tirumal Reddi. In that case, the trial lasted about seven weeks. During that period, one assessor was permitted to be absent for two full days and for five

During the trial one of the assessors was permitted to be absent for a total of half a day on two separate occasions. The first absence was granted so that the assessor could travel to his mother’s bedside, which was then on her death-bed. The second absence was allowed in order for the assessor to perform the daily religious rites that were required after his mother’s death. After completing these personal duties, the assessor returned to the trial and reinstated himself in his official capacity. He continued to act as an assessor until the trial concluded, and he personally read all of the depositions that had been recorded while he was away, thereby familiarising himself with the evidence that had been taken in his absence.

When the trial reached its conclusion, the sessions judge formally invited each assessor to express his opinion on the matters that had been tried, and the judge recorded each opinion in the trial record. Every assessor, including the one who had previously been absent, stated that all of the accused persons were guilty of the charges brought against them. The sessions judge agreed with the unanimous opinion of the assessors and accordingly entered a conviction against the accused. On appeal, it was argued that the sessions judge had acted contrary to law by allowing the assessor who had been absent to resume his seat and by giving weight to his opinion in determining the verdict. The majority of the appellate court held that the finding of guilt and the sentence that were appealed against had been rendered by a court that possessed competent jurisdiction within the meaning of section 537 of the Code of Criminal Procedure. The majority further held that the procedural defect arising from the assessor’s temporary absence did not invalidate the trial because the irregularity had not caused a failure of justice, and that section 537 cured the defect. Justice Davies, however, dissented from this view. The court clarified that the decision in the cited case was based on its unique facts and circumstances and therefore could not be relied upon as authority for the position advocated by counsel for the petitioner.

Having considered the arguments and the applicable law, the court concluded that the trial of the appellants had been conducted in a manner that was inconsistent with the procedural requirements prescribed by the Code of Criminal Procedure. Accordingly, the court held that the trial was defective and that the appellants needed to be retried in accordance with the proper procedure. In the result, the court allowed the appeal, set aside the convictions and sentences that had been imposed on the appellants, and ordered that the case be retried before a sessions judge who would conduct the proceedings in compliance with the Code. The appeal was therefore allowed and a retrial was duly ordered. The agent appearing for the respondent was identified as G. H. Rajadhyaksha.