Like Weeds in Law’s Garden

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) governs criminal procedure in India, replacing the Code of Criminal Procedure, 1973. It lays down the framework for investigation, trial and adjudication of criminal cases. However, in the course of judicial proceedings, irregularities may sometimes occur due to procedural lapses or lack of jurisdiction. The BNSS, 2023, distinguishes between irregularities that do not vitiate proceedings and those that render proceedings void. This distinction ensures that minor errors do not lead to unnecessary delays in justice, while fundamental violations of legal provisions result in nullification of proceedings.

What happens if a Magistrate, not empowered by law, issues a search warrant?

If a Magistrate erroneously but in good faith issues a search warrant without being empowered, the proceedings shall not be set aside merely on this ground.

Can a Magistrate order the police to investigate an offence if not empowered?

If a Magistrate, in good faith, orders a police investigation without being empowered, the proceedings remain valid and shall not be set aside.

Does an inquest conducted by an unauthorized Magistrate vitiate the proceedings?

No, if a Magistrate, in good faith, conducts an inquest without authority, the proceedings shall not be set aside merely due to this irregularity.

What is the effect of an unauthorized Magistrate issuing a process for apprehension of an accused outside his jurisdiction?

If done in good faith, the proceedings shall remain valid and will not be set aside solely on the ground of the Magistrate lacking authority.

What happens if a Magistrate takes cognizance of an offence under specific provisions without being empowered?

If done in good faith, the proceedings remain valid and are not vitiated merely due to the lack of empowerment.

Will an unauthorized Magistrate’s act of making over a case affect its validity?

No, if done in good faith, the proceedings will not be set aside on this ground alone.

If a Magistrate tenders a pardon without authority, does it invalidate the proceedings?

No, the proceedings shall not be set aside merely because the Magistrate lacked authority but acted in good faith.

Does recalling a case and trying it personally without authorization invalidate proceedings?

No, if done in good faith, the proceedings remain valid despite the irregularity.

If a Magistrate sells property without legal authority, will the proceedings be nullified?

No, such an act done in good faith will not vitiate the proceedings.

Are there exceptions to the principle that irregularities do not vitiate proceedings?

Yes, non-compliance with specific legal provisions may bar cognizance of offences unless procedures are strictly followed.

What happens if an unauthorized Magistrate attaches and sells property?

The proceedings shall be void if a Magistrate without legal authority attaches and sells property.

Does issuing a search warrant for items in postal custody without authority vitiate proceedings?

Yes, such proceedings will be void if conducted by an unauthorized Magistrate.

Can an unauthorized Magistrate demand security to keep the peace?

No, if an unauthorized Magistrate does so, the proceedings are rendered void.

What is the effect of an unauthorized Magistrate demanding security for good behaviour?

The proceedings shall be void.

Does discharging a person bound to be of good behaviour by an unauthorized Magistrate invalidate proceedings?

Yes, such proceedings shall be void.

Can an unauthorized Magistrate cancel a bond to keep the peace?

No, if they do, the proceedings are void.

What happens if an unauthorized Magistrate passes an order for maintenance?

The order and related proceedings shall be void.

Is an order concerning a local nuisance valid if made by an unauthorized Magistrate?

No, such an order will render the proceedings void.

What happens if an unauthorized Magistrate prohibits the repetition or continuance of a public nuisance?

The proceedings shall be void.

Does an unauthorized Magistrate taking cognizance of an offence under a specific clause affect proceedings?

Yes, if not legally empowered, the proceedings shall be void.

Can an unauthorized Magistrate try an offender?

No, if an unauthorized Magistrate tries an offender, the proceedings shall be void.

What is the effect of an unauthorized summary trial?

The proceedings shall be void if a Magistrate without authority tries an offender summarily.

Does an unauthorized sentence passed on another Magistrate’s proceedings invalidate the case?

Yes, the proceedings shall be void.

Can an unauthorized Magistrate decide an appeal?

No, if a Magistrate without legal authority decides an appeal, the proceedings are void.

What happens if an unauthorized Magistrate calls for proceedings under the relevant section?

The proceedings shall be void.

Does revising an order under a specific section without authority vitiate proceedings?

Yes, such proceedings shall be void.

What is the effect of an incompetent Magistrate trying an offender?

If an offender is tried by an incompetent Magistrate, the proceedings shall be void, as held in Kaushik Chatterjee v. State of Haryana (2020) 10 SCC 92.

Can a finding, sentence, or order be set aside merely because it was made in the wrong jurisdiction?

No, unless the error has resulted in a failure of justice.

What happens if a confession or statement is recorded without compliance with legal provisions?

The court may take evidence regarding non-compliance and admit the statement if it is satisfied that the accused was not prejudiced and made the statement voluntarily.

Do such provisions apply to appellate, reference, and revision courts?

Yes, the provisions apply to courts of appeal, reference, and revision.

Does an omission, error, or irregularity in framing a charge automatically invalidate a finding, sentence, or order?

No, unless it results in a failure of justice.

What happens if the court finds that an omission or error in a charge caused a failure of justice?

The court may order a new trial or recommence the trial from the point of charge framing.

Can a conviction be quashed due to an invalid charge?

Yes, if the facts do not support any valid charge, the conviction shall be quashed.

Does a defect in charge matter if no prejudice is caused to the accused?

No, as held in Somasundaram v. State (2020) 7 SCC 722.

Can a court reverse or alter a finding due to errors, omissions, or irregularities?

No, unless they have resulted in a failure of justice.

What factors determine whether an error or irregularity has caused a failure of justice?

The court considers whether the objection could and should have been raised earlier.

Does a defect in an attachment order make it unlawful?

No, an attachment is not deemed unlawful merely due to defects in summons, conviction, writ, or proceedings.

Therefore, the provisions of BNSS, 2023, regarding irregular proceedings strike a balance between procedural flexibility and the need for judicial accountability. While certain irregularities do not affect the validity of proceedings if done in good faith, more serious lapses, such as lack of jurisdiction, can render proceedings void. Courts also consider the principle of failure of justice in determining whether an error warrants reversal or rectification. By clearly defining the impact of irregularities, the BNSS, 2023, aims to prevent miscarriage of justice while maintaining the efficiency of the criminal justice system.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.