Narayan Rao vs The State Of Andhra Pradesh

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 97 of 1957

Decision Date: 15 July 1957

Coram: Bhuvneshwar P. Sinha, Syed Jaffer Imam, J.L. Kapur

In the matter titled Narayan Rao versus The State of Andhra Pradesh, the Supreme Court rendered its judgment on 15 July 1957. The bench comprised Justices Bhuvneshwar P Sinha, Syed Jaffer Imam and J L Kapur. The petitioner was Narayan Rao and the respondent was the State of Andhra Pradesh. The decision was reported in 1957 AIR 737 and 1957 SCR 283. The case concerned provisions of the Code of Criminal Procedure, Act V of 1898, as amended by the 1955 amendment (Act 26 of 1955), specifically sections 173(4), 207A(3) and 537, and dealt with a Sessions‑Trial proceeding based on a police report in which a police officer failed to furnish necessary copies to the accused.

The Court observed that the word “shall” appearing in subsection (4) of section 173 and subsection (3) of section 207A of the Code is not of a mandatory character but is directory. Consequently, a failure to comply with those subsections does not, by itself, invalidate the commitment proceedings or the subsequent trial unless it can be shown that such non‑compliance prejudiced the accused in his defence. Magistrates conducting inquiries under section 207A(3) must exercise caution to ensure that the accused is not disadvantaged by any omission on the part of the police officer in providing the required copies. Where the Court finds that the omission has caused prejudice, it must, in the interest of justice, reopen the proceedings and require full compliance with the statutory provisions. In the absence of any prejudice, the defect is considered a mere irregularity that can be cured under section 537 of the Code.

The Court relied on earlier authorities, namely Abdul Rahman v The King‑Emperor (1929 L R 55 I A 96), Pulukuri Kolayya v King‑Emperor (1947 L R 74 I A 65) and Gurbachan Singh v The State of Punjab (Cr A No 48 of 1957). Applying those principles, the Court held that when an accused was committed to the Court of Session on a charge under section 302 of the Indian Penal Code, found guilty by the Sessions Judge and sentenced to death, and the police officer had omitted to furnish the copies required by section 173(4) and by the inquiring magistrate under section 207A(3), the omission did not, in the present case, prejudice the accused. Accordingly, the omission was a mere irregularity that did not vitiate the commitment proceedings or the trial and was cured by section 537.

The judgment concerned Criminal Appeal No 97 of 1957, filed by special leave against the order dated 20 November 1956 of the Andhra Pradesh High Court at Hyderabad in Criminal Confirmation Case No 18 of 1956, which itself arose from the judgment and order dated 25 April 1956 of the Sessions Judge at Karimnagar in Criminal Case No 9/8 of 1956. The appeal presented the question whether non‑compliance with sections 173(4) and 207A(3) affected the legality of the proceedings and the conviction of the appellant, who had been tried for murder under section 302 of the Indian Penal Code, convicted, and sentenced to death.

The judgment was delivered on 15 July 1957 by Justice Sinha. The appeal was filed by special leave and the principal issue for determination was whether, and to what extent, the failure to comply with the requirements of sections 173(4) and 207A(3) of the Code of Criminal Procedure had affected the legality of the proceedings that resulted in the conviction of the appellant. The appellant, Narayan Rao, had been tried before the Sessions Judge at Karimnagar, which at that time formed part of the State of Hyderabad and thereafter became part of Andhra Pradesh, on a charge under section 302 of the Indian Penal Code for the murder of his brother Baga Rao. The learned Sessions Judge sentenced the appellant to death. The conviction and sentence were subsequently affirmed by the High Court of Judicature of Andhra Pradesh at Hyderabad both on appeal and on a reference made by the Sessions Judge. In the same trial three other persons—Lingarao, who was the appellant’s brother; Narsingrao, the appellant’s nephew and son of Lingarao; and Mahboob Ali, described as a close friend of the other accused—were also tried under section 302 read with sections 34 and 109 of the Indian Penal Code. All three were convicted and sentenced to life imprisonment. Their respective appeals were heard together with the appellant’s appeal, and a common judgment of the High Court dismissed each of the appeals, thereby confirming the convictions and sentences imposed on all four accused. The present appeal concerns only Narayan Rao, who alone has been sentenced to death by the lower courts. The factual background of the case is concise and straightforward. The deceased, Baga Rao, was an excise contractor who had become estranged from his brothers and had partitioned the family lands. Disputes among the brothers had earlier led to arbitration proceedings a few months before the incident, but Baga Rao remained dissatisfied with the outcome. On the Saturday preceding Monday, 26 December 1955—the day on which the fatal occurrence took place—a quarrel erupted in a field supposedly belonging to Baga Rao between him on one side and Lingarao together with Narsingrao on the other. The parties lived in the village of Kollamaddi, taluk Sircilla, district Karimnagar. At approximately seven o’clock in the morning of 26 December 1955, Baga Rao was moving from his village toward the Nirmal side. The accused, who appears to have been lying in wait for Baga Rao, rushed at him from behind and the appellant fell upon Baga Rao with a knife. The other accused seized Baga Rao, and the appellant inflicted several knife injuries upon his person, as recorded in memorandum of evidence 13. Initially Baga Rao managed to free himself from the grip of Narsingrao, but Narsingrao pursued him and overtook him. All the accused then overpowered him by grasping various parts of his body, and the appellant stabbed him in the neck, abdomen, thigh and other regions, the fatal injuries being sustained in the neck and abdomen.

The Court described that the appellant had attacked the deceased by gripping various parts of his body and stabbing him in the neck, abdomen, thigh and other areas, with the wounds to the neck and abdomen proving fatal. At the time of the incident, P.W. 1, who was the appellant’s paternal uncle and who was also travelling toward Nirmal, witnessed most of the event and, out of fear, withdrew to a nearby hut. A second witness, P.W. 2, was a boy of about twelve years who was a fourth‑standard student in a government school; he too was moving in the same direction that morning and observed the whole incident from a short distance of a few yards. The boy asserted that the murdered Baga Rao was his maternal uncle, claiming his mother to be Baga Rao’s sister. However, during cross‑examination, the wife of the deceased, identified as P.W. 6, contradicted this claim and stated that P.W. 2 was only a distant relative of her husband and not the son of her husband’s sister. The father of the deceased, Chatriah, an eighty‑five‑year‑old man who was examined as defence witness No. 1, denied any relationship with P.W. 2 but affirmed that he was related to Dharmiah, P.W. 1, who was his full brother. Chatriah’s testimony was offered to support a defence theory that P.W. 1, Dharmiah Rao, and his son had orchestrated the murder of Baga Rao and had wrongly implicated the accused; the Court noted that this line of argument had never been raised at any earlier stage of the proceedings and therefore was not accepted by the lower courts. Another defence witness, identified as D.W. 2, claimed to be the son‑in‑law of P.W. 1 and was examined solely to establish that there had been a rivalry between P.W. 1 and the accused concerning the purchase of certain land. The Court found D.W. 2’s evidence to be vague and irrelevant. The prosecution’s case against the appellant, as well as against the other accused not presently before this Court, rested principally on the testimonies of Dharmiah (P.W. 1) and Ramchander Rao (P.W. 2), who were the principal eyewitnesses. In addition to their statements, the prosecution produced the blood‑stained garments recovered from the accused persons’ houses and a blood‑stained knife found near the dead body, which was identified in court as belonging to the appellant. A chemical examiner confirmed that the stains on the garments and the knife were of human blood. The lower courts relied upon the eyewitness accounts, corroborated by these incriminating physical pieces of evidence, and consequently convicted and sentenced the accused as earlier recorded. After a thorough review of the evidence and hearing the counsel for the appellant, the Court observed that there were no grounds to depart from the assessments of the courts below regarding the prosecution’s evidence. Accordingly, the Court held that there was no basis for interference with the findings and conclusions of the lower courts on the merits of the case.

In this case the Court noted that the substantive question of law had been strongly raised before it. It was contended, and the learned Government Advocate even admitted before the High Court, that the provisions of sections 173(4) and 207A(3) of the Code of Criminal Procedure had not been fulfilled, and that, as a result of those omissions, the entire proceeding and the trial were purported to be vitiated. The Court first set out the unusual course of the investigations carried out by the police and the committing magistrate, and thereafter the trial before the learned Sessions Judge. According to the record, the first witness, who is identified as P.W. 1, informed Gopal Rao, the police patta of the village (also recorded as P.W. 8), about the incident. He prepared the first information report at approximately eleven o’clock in the morning on 26 December. All four accused were named as perpetrators in that report, which was then dispatched to the police station at Gambhiraopet, a location about five miles from the place where the occurrence took place. The Sub‑Inspector of police, identified as P.W. 11, proceeded to the scene and compiled an inquest report. In his examination he discovered that the throat of the deceased had been cut, that there were additional injuries on the left side of the stomach and the right thigh, and that three wounds were present on the left hand. The police officer summoned two village elders, Lachmayya and Ramayya (recorded as P.W. 10), and in their presence and under their signatures he entered a detailed note describing what the panchas observed at the spot. He then recorded the substance of the statements of the two eye‑witnesses, namely P.W. 1 and P.W. 2, on the same day. This contemporaneous record served a dual purpose: it documented the observations made by the police officer and the panchas, and it also captured the full substance of the two principal witnesses for the prosecution as heard by the investigating officer. The post‑mortem report, prepared on the following day, 27 December, corroborated the nature of the injuries previously described and further indicated that the incised wound across the lower neck had severed vital structures such as the trachea, the oesophagus and the jugular vein. The prosecution also introduced as exhibit P‑5 the panchnama prepared on the same day, which bore the signatures of the two panchas and purportedly also the signatures of the accused persons. This document was characterised as a complete confession of the crime from beginning to end by all the accused. Although the Court observed that this procedure was highly irregular and that the provisions of the Evidence Act as well as of the Code of Criminal Procedure had not been observed, it noted that the case was not tried before a jury and therefore the irregularity had not caused substantial prejudice to the accused. Finally, on 10 and 11 January 1956 the learned Munsiff‑Magistrate recorded the full statements of Ramchander Rao (as P.W. 1) and Dharmiah Rao (as P.W. 2) under section 164 of the Code of Criminal Procedure.

The police, apprehending that the two individuals were linked to three of the four accused, took the precaution of obtaining their statements under the provisions of the Criminal Procedure Code. The investigating officer prepared a report under section 173 of the Code on 11 January 1956, and this report was placed before the learned Munsiff‑Magistrate on 12 January 1956. The report contained a comprehensive statement of the prosecution case together with the names and full descriptions of the witnesses who were to be examined in support of that case. The learned Munsiff‑Magistrate subsequently examined the investigating police officer as PW‑1 and examined the two eyewitnesses, Dharmiah and Ramchander Rao, as PW‑2 and PW‑3, and also examined the medical officer as PW‑4, around 15 February 1956. The statement of the medical officer was recorded in the paper book, whereas the evidence of the other three witnesses was not entered in that book. On 16 February 1956, the learned Munsiff‑Magistrate asked very detailed questions of each accused and placed before them the complete evidence of all witnesses he had examined, noting that the accused denied participation in the crime and alleged hostility with the two eyewitnesses. No committal order appears in the material before the Court. The learned Munsiff‑Magistrate framed a charge of murder under section 302 against the appellant and framed charges of participation under section 302 read with sections 34 and 109 of the Indian Penal Code against the remaining three accused. He again posed a series of questions to each accused to elicit their responses to the charges and to obtain any defence they might raise. The record shows that, while the Munsiff‑Magistrate was conducting his inquiries under sections 207A(3) and 207A(4), no grievance was expressed that the police officer had failed to comply with the requirements of section 173(4). Nor was any request made to summon the investigating officer to provide the accused with the copies contemplated by sub‑section (4) of section 173. There is likewise no indication that, when the matter proceeded to trial before the learned Sessions Judge, the accused raised such a grievance or made any such request to that court. The cross‑examination of the eyewitnesses was conducted at length, and references were made to the records prepared by the investigating officer during the investigation. It was only after the Sessions Judge had convicted and sentenced the accused, and the appeals were lodged before the High Court, that the appellants for the first time raised, in their memoranda of appeal, the ground that the lower court had ignored the mandatory provisions of sections 173, 207A and other relevant sections of the Criminal Procedure Code, thereby causing a failure of justice.

In the appeal, the High Court considered the allegation that procedural requirements had not been observed and that this failure resulted in a complete denial of justice. The court recorded the quoted statement: “Procedure have not been complied with, and this fact has caused a complete failure of justice.” It noted that the learned Government Advocate admitted that the lower court had failed to comply with the statutory provisions, but argued that such omission would not automatically invalidate the trial unless the accused could show actual prejudice to their defence. The High Court further observed that the accused had obtained the copies of the witness statements while the matter was before the Sessions Court, and that this fact precluded any conclusion that the accused suffered prejudice. The court expressly found that the accused received the necessary copies of the witnesses’ depositions in the Sessions Court prior to the recording of the prosecution witnesses’ statements by that court. Additionally, the High Court remarked that although the copies had been supplied a day earlier, the record did not show any complaint by the accused that the limited time was insufficient for them to conduct effective cross‑examination, nor did they seek an adjournment to facilitate such cross‑examination. On the basis of these observations, the High Court concluded that the accused had not established any prejudice arising from the procedural lapse. Before the Supreme Court, no evidence was presented to demonstrate that the failure to comply with sections 173(4) and 207A(3) had caused any disadvantage to the accused. The appellant’s counsel argued that the omission itself vitiated the entire proceeding and, consequently, a fresh trial was required irrespective of any showing of prejudice. In other words, the counsel submitted that the illegalities rendered the trial null and void and that the Court need not examine the issue of prejudice. The Court then set out the statutory amendment relevant to the discussion. Section 173, sub‑section (4), of the Code of Criminal Procedure was amended by the Code of Criminal Procedure Amendment Act, 26 of 1955, by inserting the following provision: “(4) After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub‑section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub‑section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (5) Notwithstanding anything contained in subsection (4), if the police officer is of opinion that any part of any statement recorded under sub‑section (3) of section 161 is not relevant to the subject‑matter of”

When a police officer believes that any part of a statement recorded under section 161(3) of the Code is either not essential to the interests of justice or would be inconvenient to disclose in the public interest, the officer may omit that part from the copy of the statement that must be furnished to the accused. In such an instance, the officer is required to prepare a report for the Magistrate explaining the reasons for the omission. The provision further stipulates that, at the commencement of the inquiry or trial, the Magistrate must examine the omitted portion together with the officer’s report. After this consideration, the Magistrate may issue any order he deems appropriate, including directing that the omitted portion, or any part of it he considers proper, be supplied to the accused.

To streamline the commitment proceedings that precede a Sessions trial, section 207A was inserted into the Code at the same time as the amendment to section 173. The relevant subsections of section 207A read as follows: subsection (3) requires that, at the start of the inquiry, when the accused appears before the Magistrate, the Magistrate must verify that all documents referred to in section 173 have been given to the accused; if any such document has not been provided, the Magistrate must ensure its delivery. Subsection (4) directs the Magistrate, after confirming that the documents have been furnished, to take the testimony of any persons produced by the prosecution who witnessed the actual commission of the offence, and additionally allows the Magistrate to take evidence from other prosecution witnesses if, in his opinion, doing so is necessary in the interests of justice.

These provisions make it clear that, in matters that are exclusively triable by a Sessions Court, the Magistrate conducting the preliminary inquiry has the duty to confirm that the documents required under section 173 have been handed to the accused. Should the Magistrate discover that the police officer failed to fulfil this duty, the Magistrate must see that the documents are supplied. Once the accused has received the requisite documents, the Magistrate is then required to record the evidence of only those prosecution witnesses who actually observed the offence, together with any additional witnesses the Magistrate deems necessary for justice. The High Court observed, based on the Government Advocate’s admission, that while the Munsiff‑Magistrate had complied with subsection (4) of section 207A by recording the required evidence, he had not complied with subsection (3) of section 207A. The Court noted that it was not clear whether all the documents contemplated by section 173(4) had been furnished to the accused, leaving the question of complete compliance unresolved.

In this case the Court examined whether the failure to provide the accused with any documents other than witness statements, as required by sub‑section (4) of section 173 read together with sub‑section 3 of section 207A, automatically invalidates the entire committal proceeding and the subsequent trial, or whether such a failure constitutes only a procedural irregularity that can be remedied under section 537(a) of the Code. The judgment of the High Court appeared to indicate that the documents had not been supplied, and the present Court proceeded on the assumption that there was a total omission in complying with the provisions of sub‑section (4) of section 173 and sub‑section 3 of section 207A. The Court then asked whether this omission must necessarily render the whole proceeding null and void, or whether it can be treated as a curable defect. It noted that the provisions in question were introduced by the Amending Act of 1955 with the purpose of simplifying the procedure for inquiries leading to a Sessions trial and, at the same time, safeguarding the interests of the accused by obligating police officers and magistrates to furnish all necessary documents that enable the accused to prepare an effective defence. The Court accepted the argument raised on behalf of the appellant that it is the magistrate’s duty to ensure full compliance with these statutory requirements. Accordingly, magistrates must act with caution in conducting such proceedings so that the accused are not disadvantaged by any omission on the part of the police in providing the required copies. However, the Court declined to hold that a breach of these provisions automatically vitiates the committal proceedings and the trial that follows. It observed that the word “shall” occurring in both sub‑section (4) of section 173 and sub‑section (3) of section 207A is to be understood as directory rather than mandatory. An omission by a police officer to fully comply with section 173 should not be allowed to have the extensive consequence of rendering the entire proceeding, including the trial before the Sessions Court, ineffective. To interpret the provisions in such a strict manner would defeat the purpose of the 1955 amendment, which was intended to streamline procedure, and would also necessitate reopening proceedings and trials that may have been concluded long ago. Such a result would be contrary to the goal of speedy justice and would not serve the interests of the accused. The Court stated that if, in a particular case, it is shown that the omission by the police or the magistrate has caused prejudice to the accused, the court may, in the interest of justice, reopen the proceedings and insist on full compliance with the Code. In the present case, however, the Court concluded that the omission complained of should not have a broader effect than an omission to comply with the provisions of sections 162 or 360 of the Code.

In this case, the Court referred to earlier decisions of the Judicial Committee of the Privy Council concerning the effect of non‑compliance with sections 162, 360 and 537 of the Code of Criminal Procedure. In Abdul Rahman v. The King‑Emperor (1) the Committee examined a failure to comply with section 360 and held that such a failure was merely an irregularity that could be remedied under section 537. In Pulukuri Kotayya and others v. King‑Emperor (2) the Committee considered a breach of section 162 and, quoting at pages 75‑76, explained that when a trial is conducted in a manner substantially prescribed by the Code, any irregularity may be cured by section 537, even though the breach involves one or more comprehensive provisions of the Code. The Committee distinguished a trial that is conducted in a manner entirely contrary to the Code – which it termed a “bad” trial and not curable – from a trial that follows the Code except for minor defects. The distinction between illegality and irregularity, the Committee observed, is one of degree rather than of kind. This view was supported by the earlier decision in Abdul Rahman (1), where failure to comply with section 360 was held to be curable by sections 535 and 537. Applying the same reasoning, the Court noted that the present case falls within section 537 and therefore the trial remains valid notwithstanding the breach of section 162. The facts in the instant case were straightforward. A daylight murder was committed by four persons acting together while the victim was out on business. Two persons, who were related in some way to three of the accused, witnessed the event and gave detailed statements to the police on the day of the occurrence, statements that were recorded in the inquest report. Because the statements were taken promptly, there was little opportunity for variation during investigation or before the court. Consequently the issue for the trial was essentially whether the court should accept or reject the testimony of those two eyewitnesses. All four accused, including the appellant, were identified in the first information report lodged within a few hours after the murder.

The first information report was filed without any avoidable delay, being lodged only a few hours after the murder took place. Both the trial court and the appellate court relied principally on the testimony of the two eye‑witnesses, whose statements had been recorded by the police in detail on the day of the incident and were subsequently placed on record. These eyewitness accounts were reinforced by the circumstantial evidence that had been highlighted earlier, thereby forming the core of the prosecution's case. The courts rejected the defence suggestions put forward by the two defence witnesses, noting that one of those witnesses was a common ancestor of three of the four accused persons and therefore lacked credibility. No argument was advanced, and none could be entertained, that the accused had suffered any prejudice as a result of the procedural irregularities alleged by the defence. The accused were therefore required to confront a straightforward case, which they failed to do. After a careful review of all arguments presented on behalf of the appellant, the Court concluded that the proceedings and the trial were not vitiated by the admitted non‑compliance with the prescribed provisions of the Code, and that the defect was curable under section 537 of the Code because no prejudice was demonstrated. In the decision of Gurbachan Singh v. State of Punjab (1), this Court expressed a similar view regarding those Code provisions, although it ultimately held that they did not apply in that particular case. Accordingly, the appeal was dismissed.