A Critical Analysis of the Difference between Illegal and Irregular Procedure

By | July 18, 2019
A Critical Analysis of the Difference between Illegal and Irregular Procedure

When the procedure followed in any jurisprudence is vast and highly complex, it is inevitable that procedural irregularities will occur. Therefore, the statutes and common law take this into consideration and all irregularities are not prima facie considered void.

Meaning of Procedure under the Law

Etymologically, the word ‘procedure’ means the official way of doing something or a mode of conducting any business. The term ‘procedure’ has not been defined in any of the procedural laws or the General Clauses Act, 1897. Hence, it is essential to take assistance from external aids such as law lexicons. According to Black’s Law Dictionary, the procedure is ‘commonly composed of the sum of legal principles constituting the substance of the law, and denotes the body of rules, whether of practice or of pleading, whereby rights are effectuated through the successful application of the proper remedies’[1]. Further, the procedure has been defined as a ‘mode or form of conducting judicial or other proceedings’ in Aiyar’s law dictionary[2]. 

Meaning of ‘Illegality’ and ‘Irregularity’

The word ‘illegality’ signifies that activity which is contrary to the established principles of law and denotes a complete defect in the proceedings. According to S.R. Das, illegal refers to that quality of the act which makes it contrary to the law[3]. In People v. Kelly[4], the New York appellate court observed that illegality connotes something which is ‘immoral or wicked or which implies a breach of the law’.

On the other hand, an ‘irregularity’ is a want or lack of adherence to some prescribed rule or mode of proceeding and includes omitting to do something that is necessary for the due and orderly conducting of the suit or doing it in an unreasonable time or improper manner[5]. Thus, irregular means a departure from the prescribed course of doing an act and does not include an act contrary to the procedure.

The distinction between Procedural Illegality and Irregularity

The Supreme Court, in National Fertilizers Ltd. v. Somvir Singh[6] pointed out that the distinction between illegality and irregularity is explicit. While dealing with the procedure of appointment to one of the departments of the appellant company, the apex court held that the appointment was made at a time when recruitment was banned by the government vide notification dated 31.03.1998. Further, the recruitment rules were not followed and the selection committee had not been properly constituted. In these circumstances, the court held that this is not mere irregularity but the violation of the provisions of law.

In B.N. Nagarjan v. State of Karnataka[7], the apex court observed that irregularities means acts comprising such defects which are attributable to methodology followed during recruitment while illegality includes violation of law in toto.

In State of U.P. v. Desh Raj[8], the distinction was made crystal clear. The Supreme Court here averred that “an appointment which was made throwing all constitutional obligations and statutory rules to winds would render the same illegal whereas irregularity presupposes substantial compliance of the rules”. It means that when the term irregular is used, it is presumed that a part of the procedure to be followed has not been followed while substantial other parts which were required to be followed were followed.

For instance, under Section 164 of the Code of Criminal Procedure, the procedure for recording of confession of accused and statements of witnesses by the Magistrate is provided. According to this provision, a confession can be recorded only by a Judicial Magistrate, in the absence of the police officer; it may be video-graphed and a memorandum has to be affixed at the foot of the statement by the Magistrate. The provision also requires that the confession must be voluntary and this should be mentioned in the memorandum. Now, if the confession is recorded by a police officer or the Magistrate forgets to prepare a memorandum, this is procedural irregularity as one of the several procedures was not followed. However, if the confession is not voluntary and still recorded by coercion, this is procedural illegality because involuntary confession is a violation of the entire procedure and not merely a part of it.

Points of difference between Irregularity and Illegality[9] 

  1. Meaning: Procedural Illegality relates to the violation of law caused by an act without reference to the legal power of the person. On the contrary, procedural irregularity relates to legal competence and the extent of power that can be exercised to do an act. If the power exercised is less or more, it is irregular.
  2. Application: Procedural illegality applies to an act forbidden or prohibited by the law. On the other hand, irregularity applies to an act which, even though not prohibited by law, but not permitted by any statutory provision. It applies to acts which are not done completely done even though the law mandates it to be done.
  3. Effect: An illegal act or procedure is wholly unwarranted by law. The effect of such acts is that they are void ab initio and cannot be made enforceable in any court of law. Contrary to this, procedural irregularity may not be illegal in the sense that no wrong is committed and an act of irregularity may not necessarily be void[10]. It is usually voidable at the option of the court or as the statute prescribes.

For instance, in National Fertilizer Company’s case[11], the respondent’s argument that the appointment made without a proper selection committee was a procedural irregularity and hence, the appointment was not void, was rejected by the court which stated that since the act was done against the notification of the Ministry, it was illegal and hence, void.

  1. Ability to Rectify: An illegal act cannot be made legal under any circumstances. Nevertheless, an irregular act can be cured of such irregularity by the court or higher authority if the statute provides power to such authority.

For instance, as stated above Section 164 provides the procedure to be followed by Magistrates during recording confessional statements. A counterpart provision exists in Section 463 of the Code which empowers the court to condone any irregularity in Section 164 procedure if the court is of the opinion that it will not do any injustice to the accused and the accused have been given sufficient opportunity to defend himself.

  1. Principles of Natural Justice: In Kesava Rao v. Subba Raju[12], the Andhra Pradesh High Court observed that an order is illegal if it is opposed to any enactment or any rule having a force of law. It is irregular if the procedure followed is in violation of the principles of natural justice (right to be heard and rule against bias) and fair play. In K. Kraipak v. Union of India[13], where a candidate for selection to Forest services was himself a member of the selection committee, the apex court held that procedure followed was contrary to rule against bias (principle of natural justice) and hence, illegal.

Now, in one case, the court has held violation of principles of natural justice as procedural irregularity while in other, it is illegality. This conflict was addressed by the Andhra Pradesh High Court in the 1977 case of Govt. of India v. National Tobacco Co.[14]. The court held that if during any procedure or in the middle of any proceeding, ‘any principle of natural justice has been violated and if it has resulted in the substantial failure of justice, it would be an act of illegality’.

Procedural Irregularity under the Cr.P.C.

Chapter 35 of the Code deals with irregular and illegal proceedings and the effects of such acts. The chapter does not specifically use the term illegal proceeding but divides irregular proceedings into two parts; first, irregularities which do not vitiate the proceedings (procedural irregularities) and second, irregularities which vitiate the proceedings (procedural illegalities)[15].

Section 460 of the Code provides that if a Magistrate who is not empowered to perform any of the enlisted acts in the provision, does such act in good faith, the proceeding shall not be set aside for such irregularities. On the other hand, Section 461 provides the exact opposite of Section 460. According to this provision, if any Magistrate, not being empowered by law to do the acts specified in the provision, does any of the following things, the proceeding shall be void.

Sections 462 to 464 are critical examples of procedural irregularities. Section 462 provides that if the order or sentence is passed by a court which did not have jurisdiction to try the case, such order or sentence shall not be set aside only on the grounds that the place of trial was incorrect unless it is shown that such proceeding has actually resulted in the failure of justice. Similarly, Section 463 protects the proceedings before a Judicial and Metropolitan Magistrate which do not follow the prescribed procedure provided the accused is not affected by such irregularity and that the accused received sufficient opportunity to defend himself. Lastly, Section 464 avers that no sentence or any finding (observation) of any criminal court can be set aside only because no charge was framed or incorrect charges were recorded against the accused unless a failure of justice has occurred.

Conclusion

Thus, the common ground to declare any irregularity void is to prove the failure of justice which can only be proved by exhibiting violation of any of the principles of natural justice. When the procedure followed in any jurisprudence is vast and highly complex, it is inevitable that procedural irregularities will occur. Therefore, the statutes and common law take this into consideration and all irregularities are not prima facie considered void. If that had been the case, almost every case would have to be tried again for lack of adherence to some procedure or the other.


[1] Bryan A. Garner, Black’s Law Dictionary 2065 (10th ed. 2014).

[2] P Ramanatha Aiyar, Concise Law Dictionary 1006 (5th ed. 2014).

[3] S.R. Das, The Law of Ultra Vires 08-09 (1924).

[4] People v. Kelly, 62 N.Y.2d 516 (1984).

[5] Aiyar, supra note 2 at 600.

[6] National Fertilizers Ltd. v. Somvir Singh, (2006) 5 SCC 493.

[7] B.N. Nagarjan v. State of Karnataka, (1979) 4 SCC 507.

[8] State of U.P. v. Desh Raj, 2006 SCC 489.

[9] 1 D.D. Basu, Code of Criminal Procedure, 1973 1109 (6th ed. 2017).

[10] Das, supra note 3 at 9.

[11] Supra note 6.

[12] Kesava Rao v. Subba Raju, AIR 1957 AP 55.

[13] A.K. Kraipak v. Union of India, AIR 1970 SC 150.

[14] Govt. of India v. National Tobacco Co., AIR 1977 AP 250.

[15] 2 D.D. Basu, Code of Criminal Procedure, 1973 3201 (6th ed. 2017).

Relevant Links

1. Important articles and study material on the Criminal Procedure Code

2. The procedure of Trial Before Sessions Court

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Ashish
Author: Ashish

Ashish has a flair for legal research and writing on contemporary issues. He believes the law is not a course but a Value Education subject that everyone should be taught at the school level. Belonging to the legal fraternity, he owes a responsibility to the future law aspirants and tries to assist them through their law school until they chose a career in law.

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