Willie (William) Slaney Vs. The State of
Madhya Pradesh  INSC 60 (31 October 1955)
BOSE, VIVIAN AIYAR, N. CHANDRASEKHARA DAS,
SUDHI RANJAN JAGANNADHADAS, B.
IMAM, SYED JAFFER
CITATION: 1956 AIR 116 1955 SCR (2)1140
Sessions Trial-Charge under s. 304 read with
s. 34 of the Indian Penal Code against two persons-Acquittal of oneOmission to
frame alternative charge against the otherConviction under s. 302
simpliciter-Validity-Code of Criminal Procedure (Act V of 1898), ss. 225, 226,
227, 228, 232, 233, 237, 238, 535, 537-Indian Penal Code (Act XLV of 1860), ss.
The appellant and his brother were put up for
trial on charges under s. 302 read with s. 34 of the Indian Penal Code. The
appellant was specifically charged with murder in prosecution of the common
intention. There was evidence to show that he and not his brother had struck
the fatal blow.
The brother was acquitted and the appellant
was convicted under s. 302 and sentenced to transportation for life. The High
Court upheld the conviction and sentence and dismissed the appeal. The question
was whether the omission to frame an alternative charge under s. 302
simpliciter was an illegality that vitiated the trial and invalidated the
conviction and whether there was a conflict of decisions of this Court on the
matter in controversy.
Held percuriam, that the omission to frame an
alternative charge under s. 302 in the facts and circumstances of the case was
not an illegality that vitiated the trial but was a curable irregularity as it
had not occasioned any prejudice to the appellant and the conviction was not
liable to be set aside.
That s. 34 of the Indian Penal Code by itself
does not create any offence and where, as in the present case, it is possible
to ascertain who struck the fatal blow, the fact that another was also sought
to be made liable does not invalidate a conviction for murder unless there was
That the expression 'illegality' used in
Nanak Chand's case must be read with reference to the facts of that case where
the court 1141 found prejudice, and the apparent conflict of view between the
judgment in that case and that in Suraj Pal's case had really no bearing on the
Nanak Chand v. The State of Punjab ( 1
S.C.R. 1201), and SurajPal v. The State of U.P. ( 1 S.C.R. 1332),
That the Code does not use the word
'illegality' nor define 'irregularity' and 'illegality' can only mean an
incurable irregularity, incurable because of prejudice leading to a failure of
justice. The question of prejudice is a question of fact to be decided by the
court in each particular case.
That the offence committed by the appellant
fell under the second part of s. 304 of the Indian Penal Code and not s. 302
and the conviction must be altered to one under that section.
N. A. Subramania Iyer v. King-Emperor (
L.R. 28 I.
A. 257), explained.
Babulal Choukhani v. The King-Emperor (
L.R. 65 I. A.
158), Pulukuri Kotayya v. King-Emperor
( L.R. 74 I.A.
65), Abdul Rahman v. King-Emperor (
L.R. 54 I. A. 96), Atta Mohammad v. King-Emperor ( L.R. 57 I.A. 71),
Karnail Singh v. The State of Punjab ( S.C.R. 904) and Begu v.
KingEmperor ( I.L.R. 6 Lah. 226), referred to.
Per S. R. DAS, ACTING C.J. and BOSE J.-Like
laws the Code of Criminal Procedure is
designed to sub serve the ends of justice and not to frustrate them by more
technicalities. It regards some of its provisions as vital but others not, and
a breach of the latter is a curable irregularity unless the accused is
prejudiced thereby. It places errors in the charge, or even a total absence of
a charge in the curable class. This is made clear by ss. 535 and 537 of the
The object of the charge is to give the
accused notice of the matter he is charged with and does not touch
jurisdiction. If, therefore, the necessary information is conveyed to him in
other ways and there is no prejudice, the trial is not invalidated by the mere
fact that the charge was not formally reduced to writing. The essential part of
this part of the law is not any technical formula of words but the reality,
whether the matter was explained to the accused and whether he understood what
he was being tried for.
It is not correct to say that s. 535 of the
Code has no application to a case in which there is no charge at all or that it
cannot apply except where ss. 237 and 238 apply or that it is governed by s.
Sections 237, 238, 535 and 537 should not be
read disjunctively. They cover every possible case that relates to the charge
and they place all failures to observe the rules about the charge in the
category of curable irregularities.
Sections 535 and 537 apply to every case in
which there is a 1142 departure from the rules set out in Chapter XIX ranging
from error, omissions and irregularities in charges that are framed, down to
charges that might have been framed and were not and include a total omission
to frame a charge at all at any stage of the trial.
In judging a question of prejudice, as of
guilt, courts must act with a broad vision and look to the substance and not to
technicalities; and their main concern should be to see whether the accused had
a fair trial, whether he knew what he was being tried for, whether the main facts
sought to be established against him were explained to him fairly and clearly
and whether he was given a full and fair chance to defend himself.
There is no conflict of view between Nanak
Chand v. The State of Punjab and Suraj Pal v. The State of U.P. and a close
consideration of the reasons given in Nanak Chand's case show that there was in
fact no difference of opinion as regards cases where there is a charge to start
Neither case, however, deals with the
position where there is no charge at all. The remarks made in Nanak Chand's
case must be read in the perspective indicated and expressions which appear to
travel wider do not give a correct exposition of the law.
The effect of charging two persons with
murder committed in pursuance of a common intention under s. 34 of the Indian
Penal Code is that the accused is unmistakably told that he participated in the
crime. Where it cannot be ascertained who struck the fatal blow no conviction
can follow unless a common intention is proved. But the converse does not hold
Per JAGANNADHADAS and CHANDRASEKHARA AIYAR
JJ. (IMAM J. agreeing). Sections 226, 227, 232(1), 237, 535 and 537 indicate
that in the generality of cases the omission to frame a charge is not per se
fatal. It is not, therefore, correct to say that where there is no charge the
conviction must be illegal, prejudice or no prejudice. Nor is it correct to say
that s. 535 is sufficiently wide to apply to every case where there is no
charge of any kind from the outset. The section cannot be construed in such an
unlimited sense and must normally be read in the same context as ss. 225,226
and 232, that is, with reference to a trial that validly commenced, for there
may be cases where a trial without any kind of charge from the outset will be wholly
contrary to the provisions of the Code and as such illegal without the
necessity of a positive finding of prejudice.
The provisions of S. 535 mainly apply to
cases of inadvertence to frame a charge induced by the belief that the matter
on record is sufficient to warrant the conviction for a particular offence
without express specification and where the facts proved constitute a separate
and distinct offence but closely relevant to and springing out of the same set
of facts connected with the one charged.
The Code requires that in a sessions trial
there should be a 1143 charge in writing. A deliberate breach of this basic
requirement cannot be covered by the assertion that everything was orally
explained to the accused, the assessors or jurors and there was no prejudice.
So also where the conviction is for a totally different offence from the one
charged and not covered by ss. 236 and 237 of the Code, the omission to frame a
separate charge would be an incurable irregularity amounting to illegality.
In cases coming under ss. 34, 114 and 149 of
the Indian Penal Code the charge against persons actuated by a common intention
is a rolled-up one. It involves direct liability and constructive liability
without distinct specification.
The absence of a charge under one or other of
the various heads of criminal Liability for the offence in such cases is not
fatal and a conviction for the substantive offence, without a charge, can be
set aside only where there is prejudice.
In considering whether a defect is illegal or
merely irregular, several facts will have to be considered, including its
gravity to determine if it falls within one class or the other. The answer must
depend on the facts and circumstances of each case. If the defect is so grave
that prejudice would necessarily be implied, it is an illegality.
If less serious, it will be an irregularity
and prejudice by way of failure of justice must be established.
Howard v. Bodington ( 2 P.D. 203),
Per IMAM J.-On the facts of the present case
the question raised by the reference does not arise. There is no substantial
conflict of view between the two decisions of this court in Nanak Chand's case
and Suraj Pal's case.
Section 233 of the Code is a mandatory
provision and the force of its direction is not weakened by the fact that
another provision of the Code permits the conviction of the accused for an
offence with which he had not been charged.
The total absence of a charge from the
beginning to the end where it is incumbent that a charge must be framed is a
contravention of the Code regarding the mode of trial it prescribes and a
conviction of the accused in such a case is invalid and no question of
prejudice can arise. In cases, however, where a charge is framed but there is
an omission or irregularity but the mode of trial is not affected the Code
provides that the conviction may be set aside if, in fact, a failure of justice
as resulted. It is difficult to lay down any hard and fast rule as to the
applicability of s. 535. That will depend on the facts of each case.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 6 of 1955.
Appeal by special leave from the judgment and
order dated the 3rd November, 1953 of the High Court of Judicature at Nagpur in
Criminal Appeal 1144 No. 220 of 1953 arising out of the judgment and order
dated the 21st July 1953 of the Court of Sessions Judge at Jabalpur in Sessions
Trial No. 32 of 1953.
H.J. Umrigar and Rajinder Narain, for the
appellant. The courts below were wrong in convicting the appellant of murder
under s. 302 of the Indian Penal Code in the absence of a charge framed for the
offence. The charge framed against the appellant was different and he was never
charged individually of having committed murder. When the other person was
acquitted the charge of an offence under s. 302 read with s. 34 of the Indian
Penal Code falls and the appellant is bound to be acquitted. It is a
fundamental principle of criminal law as administered in India that there
should be a separate charge for every distinct offence as the accused person
must have notice of the charge which he has to meet. The only exceptions are
contained in ss.
236, 237 and 238 of the Code of Criminal
Procedure. The offence of murder under s. 302 of the Indian Penal Code being
separate, distinct and different from an offence under s. 302 read with 34 or
an offence under s. 302 read with 149 which creates a distinct head of criminal
liability known as constructive liability a conviction under s. 302 simpliciter
without a charge being framed therefor is an illegality in the mode of trial.
Where a person has been convicted of an offence with which he has not been
charged (unless allowed by exceptions) the prejudice is inherent in the absence
of the charge itself and it is unnecessary to look any further.
Where there is an illegality in the mode of
trial as contemplated in ss. 233 to 239 it is an illegality, which is not cured
by the provisions of ss. 535 and 537. There is no difference in principle
between a charge under s. 302 read with 34 and a charge under s. 302 read with
149 [See: Nanak Chand v. State of Punjab ( 1 S.C.R.1201), Suraj Pal v. State
of U. P.  1 S.C.R. 1332)]. It is incorrect to say that the decision of
the Privy Council in Subramania Iyer's case as to what is an illegality has
been modified by the subse1145 quent decisions of the Privy Council, and, in
fact, in Babulal Chowkhani's case Lord Wright in delivering the judgment of the
Board actually stated that it was taken as settled law by both sides that the
breach of the provisions of s. 239 of the Code of Criminal Procedure would be
an 'illegality' which would vitiate the trial as opposed to a mere
'irregularity' which would not vitiate the trial.
Similarly the courts in India have also taken
the view that a breach of any of the mandatory -provisions relating to ss.
233 to 239 of the Code, would be an
'illegality' in the mode of trial which would vitiate the trial, as opposed to
an 'irregularity' in the course of trial which could be cured.
[See N.A. Subramania Iyer v. King-Emperor
( 28 I.A.
257), Abdul Rahman v. The King-Emperor
( 54 I. A. 96), Pulukuri Kotayya and Others v. King-Emperor ( 74 I.
65), Babulal Chowkhani v. King-Emperor
( L.A. 65 I.A. 158), Chintaman v. KingEmperor ( I.L.R. 24 Patna
303), Begu and Others v. The King-Emperor ( I.L.R. 6 Lahore 226), In re
Boreddi Kondamma and Another (A.I.R 1948 Mad.
293), Thakur Singh and Others v. Emperor
(A.I.R. 1939 All.
665), Govind Prosad v. Gomti and Others
( I.L.R. 30 Cal. 288), Lang v. Willis ( 52 C.W.N. 637 ), Sita Ahir
v. Emperor ( I.L.R. 40 Cal. 168), Bijo Gope and Others v. Emperor (A.I.R.
1945 Pat. 376)]. Section 535 appears in Chapter XLV of the Code and is headed
"Of irregular proceedings" and cannot possibly apply to breaches of
the mandatory provisions of ss. 233 to 239 of the Code; it may relate to those
cases where it is optional to frame a charge. See ss. 263, 362(4).
Assuming that actual prejudice is necessary,
then as the only charge against the appellant being one under s. 302 read with
s. 34, and that having failed due to the acquittal of the co-accused, and the
appellant having successfully shown that there was no "common
intention" as contemplated by s. 34 of the Indian Penal Code prejudice is
bound to occur due to his conviction under s. 302 simpliciter, with which he
was never charged. In any event, the 1146 offence committed in the case, even
though the blow was struck on the head, could never be murder, as even the
medical evidence showed that the bead injury "was likely" to result
in fatal consequences. The offence committed would either be one of grievous
hurt under s. 325, or alternatively, it is covered by exception 4 to s. 300,
and punishable under the second part of s. 304.
B.Sen and I. N. Shroff, for the respondent.
The word 'illegality' which is frequently used in the judgments is nowhere
defined in the Code of Criminal. Procedure. This word had been used by the
judges to convey that the trial has been irregular and the irregularity is not
curable under the provisions of the Code. The word has been used in three
senses, namely: (a) In cases where the trial and conviction are ab initio void
due to some inherent defect, which goes to the root and is by itself enough to
vitiate the trial, as in cases of lack of jurisdiction, e.g., where s. 197 of
the Code has not been complied with; (b) In cases where a mandatory prohibition
of the Code has been disregarded and it is apparent from the provision itself
that, having regard to its objects and purposes, such disregard is bound to
lead to prejudice; (c) In a more popular sense, that is, in respect of a
particular case or cases where having regard to the facts and circumstances,
whether it be due to prejudice or otherwise, the conviction cannot be
Proceeding on the basis that an offence under
s. 302 read with s. 149 is a distinct and separate offence from an offence
under s. 302, the question is whether in the absence of actual prejudice the
conviction of a person of the latter offence, when he is only charged with the
former, is illegal. The answer depends on the determination as to whether the
failure to frame a charge is such a disregard of the mandatory Provisions of
the Code so as to lead to the conclusion that prejudice must have been caused.
In N. A.
Subramania Iyer v. King-Emperor ( 28
I.A. 257) the decision was based on the facts of the case in which actual
prejudice was caused. In any event, that decision stands modified by the 1141
decisions of the Privy Council in the later cases: [See, Abdul Rahman v. The
King-Emperor ( 54 I.A. 96) and Pulukuri Kotayya and Others v.
King-Emperor ( 74 I.A.
65). It is clear from those decisions that
every breach of a mandatory provision is not such as would ipso facto vitiate a
trial. If one looks at the relevant sections, the object behind the enactment
of those provisions and the intention of the legislature, it is clear that the
framing of a charge though mandatory is not of a vital nature. See ss. 210,
254,271, 221, 222, 223, 225, 226, 227, 232 and 535.
All that the Code contemplates is that an
accused person must in fact receive notice of what be is being tried for.
When a person is charged with an offence
under s. 302 read with s. 149 of the Indian Penal Code there is no objection to
his being convicted under s. 302 without a charge being framed, if it appears
from the evidence that he has committed the actual murder and it appears from
the record that either by the trend of cross-examination or by reason of
questions being put to him under s. 342 he understood that he was actually
being tried for murder: [See Karnail Singh and Another v. The State of Punjab
(. 8 C.R.
904) and Lachman Singh and Others v. The
State ( S.C.R. 839)]. A case of this nature may even be covered by the
provisions of s. 237 of the Code of Criminal Procedure.
The cases of Nanak Chand v. State of Punjab
( 1 S.C.R.
1201) and Suraj Pal v. State of U.P. (
1 S.C.R. 1332), do not lay down the proposition that even in the absence of
prejudice conviction of a person under s. 302 who is charged with an offence
under s. 302 read with s. 149, would be ipso facto illegal. Whatever view the
Court takes in respect of a conviction under s. 302 when a person is charged
with s. 302 read with s. 149, it is quite clear that a person can be validly
convicted of murder when he is charged with s. 302 read with s. 34. Section 34
does not create a specific offence and a person who is charged under s. 302
read with s. 34 is really being charged for his act in the murder itself. It is
therefore not necessary to frame a separate charge under s. 302. The Privy
Council as well as the High 1148 Courts in India have always taken this view.
See' The KingEmperor v. Barendra Kumar Ghose (A.I.R. 1924 Cal. 257), Emperor v.
Destrali ( 58 Cal. 822), Debiprasad Kalowar v. Emperor ( 59 Cal.
1192), Devki Nandan and Others v. Emperor (A.I.R. 1941 Lah. 423) and Bhondu Das
v. KingEmperor ( 7 Patna 758). In this case there was no actual prejudice
as the accused knew that he was being charged with murder which is clear from
the trend of crossexaminations of witnesses and his examination under s. 342 of
the Code of Criminal Procedure. The facts clearly show that the offence
committed by the accused is one of murder as the deceased died as a result of
injuries and the injury was sufficient to cause death according to the doctor's
Umrigar in reply. If s. 535 is given its
literal meaning it would mean that a trial for any offence could be held and
terminated without the framing of any charge whatsoever. It would also mean
that a person could be charged with a minor offence and convicted of a major
offence, whereas s. 238(2) only allows conviction of a minor offence without a
charge, if the major offence with which the person is charged is not made out.
It would further mean that the elaborate procedure set out in ss. 226 to 231 as
to the alteration and amendment of charges could be ignored. Further s. 271 (1)
which provides that the charge shall be read out and explained to the accused
would also become meaningless.
Such a wide meaning which would lead to
absurdities should not be given to s. 535.
1955. October 31. The judgment of S. R. Das,
and Bose J. was delivered by Bose J. The
judgment of Jagannadhadas and Chandrasekhara Aiyar JJ. was delivered by
Chandrasekhara Aiyar J. Jafer Imam J. delivered a separate judgment.
BOSE J.-This appeal was referred to a Bench
of five Judges in order to determine whether there was a conflict of view
between Nanak Chand v. The State of Punjab(1) and Suraj Pal v. The State of
U.P.(2) and (1)  I S.C.R. 1201.
(2)  1 S.C.R. 1332.
1149 if so, to determine it.
The appeal is against a conviction for murder
in which the lesser sentence was given. The main ground is that the appellant
was charged under section 302 of the Indian Penal Code read with section 34.
His co-accused was acquitted, so, it was urged, the element of common intention
drops out and accordingly section 34 cannot be called in aid. But the Courts
below hold that the appellant inflicted the fatal blow and have made him
directly liable for the murder. He contends that as he was not charged with
having murdered the man personally be cannot be convicted under section 302. He
relies on certain observations in Nanak Chand v. The State of Punjab(1) and
contends that the conviction is an illegality which cannot be cured and claims
that he must either be acquitted or, at the most, be retried, though be adds
further that in the circumstances of this case the Court should not in the
exercise of its discretion order a retrial. As against this it is contended for
the State that an omission to frame a separate charge in the alternative under
section 302 simpliciter is a curable irregularity provided there is no
prejudice to the accused. Therefore, the only matter for determination is a
question of fact whether there was prejudice in this case.
The charge was as follows:
"That you, on or about the 12th day of
February 1953, at Civil Lines, Jabalpur, went with your brother Ronnie Slaney
to the house of Mrs. Waters (P.W. 20) at about 7 p.m. and in furtherance of the
common intention did commit murder by intentionally or knowingly causing the
death of her brother D. Smythe and thereby committed an offence punishable
under section 302 of the Indian Penal Code read with section 34 of the Indian
An exactly similar charge with the necessary
change of name was framed against the co-accused Ronnie Slaney.
It was contended on behalf of the State that
this is really a charge under section 302 of the Indian (1)  1 S.C.R.
1201, 1150 Penal Code and that the references to common intention and to
section 34 are mere surplusage. There is much to be said for this but we will
assume in this case (without so deciding) that the charge is ambiguous and that
it means what the appellant says it means, namely a charge under section 302
read with section 34 and not one under section 302 simpliciter. On that
assumption the question for our decision is whether the omission to frame an
alternative charge under section 302 of the Indian Penal Code is an illegality
that cuts at the root of the conviction and makes not invalid or whether it is
a curable irregularity in which all that we are concerned to see is whether
there was prejudice. What it narrows down to is this: Is the charge to be
regarded as a ritualistic formula so sacred and fundamental that a total
absence of one, or any departure in it from the strict and technical requirements
of the Code, is so vital as to cut at the root of the trial and vitiate it from
the start, or is it one of many regulations designed to ensure a fair and
proper trial so that substantial, as opposed to purely technical, compliance
with the spirit and requirements of the Code in this behalf is enough to cure
departures from the strict letter of the law? Before we proceed to set out our
answer and examine the provisions of the Code, we will pause to observe that
the Code is a code of procedure and, like all procedural laws, is designed to
further the ends of justice and not to frustrate them by the introduction of
endless technicalities. The object of the Code is to ensure that an accused
person gets a full and fair trial along certain well-established and
well-understood lines that accord with our notions of natural justice. If he
does, if he is tried by a competent court, if be is told and clearly
understands the nature of the offence for which he is being tried, if the case
against him is fully and fairly explained to him and he is afforded a full and
fair opportunity of defending himself, then, provided there is substantial
compliance with the outward forms of the law, mere mistakes in procedure, mere
in consequential errors and omissions 1151 in the trial are regarded as venal
by the Code and the trial is not vitiated unless the accused can show
substantial prejudice. That, broadly speaking, is the basic principle on which
the Code is based.
Now here, as in all procedural laws, certain
things are regarded as vital. Disregard of a provision-of that nature is fatal
to the trial and at once invalidates the conviction. Others are not vital and
whatever the irregularity they can be cured; and in that event the conviction
must stand unless the Court is satisfied that there was prejudice. Some of
these matters are dealt with by the Code and wherever that is the case full
effect must be given to its provisions. The question here is, does the Code
deal with the absence of a charge and irregularities in it, and if so, into
which of the two categories does it place them? But before looking into the
Code, we deem it desirable to refer to certain decisions of the Privy Council
because much of the judicial thinking in this country has been moulded by their
observations. In our opinion, the general effect of those decisions can be
summarised as follows.
First comes a class of case in which the Code
deals with the matter expressly. In that event, full effect must be given to
the plain meaning of the words used.
"The language of that Code is
conclusive, and must be construed according to ordinary principles, so as to
give effect to the plain meaning of the language used. No doubt, in the case of
an ambiguity, that meaning must be preferred which is more in accord with
justice and convenience, but in general the words used read in their context
Babulal Choukhani v. The King-Emperor(1).
And at page 177"But, even so, that can
be no ground why the Court should misconstrue the section".
and at page 178,"Their Lordships decide
the question on what they regard as the plain meaning of the language
(1)  L.R. 65 I.A. 158, 175.
1152 Next comes a class of case for which
there is no express provision in the Code, or where there is ambiguity. In that
event, the question is whether the trial has been conducted in substantial
compliance with the Code or in a manner substantially different from that
"When a trial is conducted in a manner
different from that prescribed by the Code (as in N. A. Subramania Iyer's
case(1)), the trial is bad and no question of curing an irregularity arises;
but if the trial is conducted substantially in the manner prescribed by the
Code, but some irregularity occurs in the course of such conduct, the irregularity
can be cured under section 537, and none the less so because the irregularity
involves, as must nearly always be the case, a breach of one or more of the
very comprehensive provisions of the Code". Pulukuri Kotayya v. King-Emperor(2).
Now it is obvious that the question of curing
an irregularity can only arise when one or more of the express provisions of
the Code is violated. The question in such cases is whether the departure is so
violent as to strike at the root of the trial and make it no trial at all or is
of a less vital character. It is impossible to lay down any hard and fast rule
but taken by and large the question usually narrows down to one of prejudice.
In any case, the courts must be guided by the plain provisions of the Code
without straining at its language wherever there is an express provision.
For a time it was thought that all provisions
of the Code about the mode of trial were so vital as to make any departure
there from an illegality that could not be cured.
That was dueto the language of the Judicial
Committee in N.A. Subramania Iyer v. King Emperor(1).
Later this was construed to mean that that
only applies when there is an express prohibition and there is prejudice. In
Subramania Iyer's case(1), the Privy Council said"The remedying of mere
irregularities is familiar (1)  L.R. 28 I.A. 257, 263.
(2)  L.R. 74 I.A. 66, 75.
1153 in most systems of jurisprudence, but it
would be an extraordinary extension of such a branch of administering the
criminal law to say that when the Code positively enacts that such a trial as
that which has taken place here shall not be permitted that this contravention
of the Code comes within the description of error, omission or
This was examined and explained in Abdul Rahman
v. KingEmperor(1) as follows:
"The procedure adopted was one which the
Code positively prohibited, and it was possible that it might have worked
actual injustice to the accused".
In our opinion, the key to the problem lies
in the words underlined. Except where there is something so vital as to cut at
the root of jurisdiction or so abhorrent to what one might term natural
justice, the matter resolves itself to a question of prejudice. Some violations
of the Code will be so obvious that they will speak for themselves as, for
example, a refusal to give the accused a hearing, a refusal to allow him to
defend himself, a refusal to explain the nature of the charge to him and so
forth. These go to the foundations of natural justice and would be struck down as
illegal forthwith. It hardly matters whether this is because prejudice is then
patent or because it is so abhorrent to well-established notions of natural
justice that a trial of that kind is only a mockery of a trial and not of the
kind envisaged by the laws of our land, because either way they would be struck
down at once. Other violations will not be so obvious and it may be possible to
show that having regard to all that occurred no prejudice was -occasioned or
that there was no reasonable probability of prejudice. In still another class
of case, the matter may be so near the border line that very slight evidence of
a reasonable possibility of prejudice would swing the balance in favour of the
This, in our opinion, has been the trend of the
more recent decisions of the Privy Council and indeed of latter-day criminal
jurisprudence in England as well as in India. The swing of the pendulum has
been (1)  L.R. 54 I.A. 96, 109.
1154 away from technicality, and a greater
endeavour has been made to regard the substance rather than the shadow and to
administer Justice fairly and impartially as it should be administered; fair to
the accused, fair to the State and fair to the vast mass of the people for
whose protection penal laws are made and administered.
The more recent attitude of the Judicial
Committee is summed -up by Sir John Beaumont in Pulukuri Kotayya v. King Emperor(1)
where he says that" The distinction drawn in many of the cases in India
between an illegality and an irregularity is one of degree rather than of
kind" and by Viscount Sumner in Atta Mohammad v. King-Emperor(2)"In
the complete absence of any substantial injustice, in the complete absence of
anything that outrages what is due to natural justice in criminal cases, their
Lordships find it impossible to advise His Majesty to interfere".
We prefer this way of stating the law, for
the distinction that was once sought to be drawn between an express prohibition
and an equally express provision positively stated strikes us as unreal. The
real question is not whether a matter is expressed positively or is stated in
negative terms but whether disregard of a particular provision amounts to
substantial denial of a trial as contemplated by the Code and understood by the
comprehensive expression "Natural justice". It will be observed that
disregard of ail express Prohibition was regarded as curable in Zahiruddin v.
King-Emperor(3), so the question whether a particular provision is stated in
positive or in negative terms is not the true criterion.
It is possible (though we need not so decide
in this case) that the recent amendment to section 537 in the Code of Criminal
Procedure (Amendment) Act XXVI of 1955, where misjoinder of charges has been
placed in the curable category, will set at rest the (1)  L.R. 74 I.A.
65, 75. (2)  L.R. 57 I.A. 71,
76. (3)  L.R. 74 I.A. 80, 1155
controversy that has raged around the true meaning of N. A.
Subramania Iyer v. King-Emperor(1). In any
case, our opinion is that the real object of the Code is to leave these matters
to the discretion and vigilance of the courts.
Slightly to alter the language of the Privy
Council in Babulal Choukhani v. The KingEmperor(2) we would say "It must
be hoped, and indeed assumed, that magistrates and judges will exercise their
jurisdiction fairly and honestly.
Such is the implied condition of the exercise
of judicial power. If they do not, or if they go wrong in fact or in law, the
accused has prima facie a right of recourse to the superior courts by way of
appeal or revision; and the cases show bow vigilant and resolute the High
Courts are in seeing that the accused is not prejudiced or embarrassed by
unsubstantial departures from the Code and bow closely and jealously the
Supreme Court guards the position of the accused. These safeguards may well
have appeared to the Legislature to be sufficient when they enacted the
remedial provisions of the Code and have now left them substantially unaltered
in the new Code recently introduced".
This, we feel, is the true intent and purpose
of section 537(a) which covers every proceeding taken with jurisdiction in the
general phrase "or other proceedings under this Code". It is for the
Court in all these cases to determine whether there has been prejudice to the accused;
and in doing so to bear in mind that some violations are so obviously opposed
to natural justice and the true intendment of the Code that on the face of them
and without anything else they must be struck, down, while in other cases a
closer examination of all the circumstances will be called for in order to
discover whether the accused has been prejudiced.
We now proceed to examine the relevant
sections of the Code.
Chapter XLV deals generally with irregular
There are certain irregularities which do not
vitiate the proceedings. They are set out in section 529. No question of
prejudice arises, (1)  L.R. 28 I.A. 257. 146 (2)  L.R. 5 I.A.
1156 in this class of case because the
section states categorically that they shall not vitiate the proceedings.
Certain other irregularities are treated as
vital and there the proceedings are void irrespective of prejudice. These are
set out in section 530. A third class is dealt with in sections 531, 532, 533,
535, 536 (2) and 537. There, broadly speaking, the question is whether the
error has caused prejudice to the accused or, as some of the sections put it,
has occasioned a failure of justice. The examples we have given are
illustrative and not exhaustive. What we are seeking to demonstrate is that the
Code has carefully classified certain kinds of error and expressly indicates
bow they are to be dealt with. In every such case the Court is bound to give
effect to the express commands of the legislature: there is no scope for
further speculation. The only class of case in which the Courts are free to
reach a decision is that for which no express provision is made.
The present case is concerned with the nature
of the charge and we find that the Code expressly deals with this in several of
its sections. Our only task therefore is to interpret them and, having
propounded their meaning, to give effect to whatever they say.
Now there is no doubt that a charge forms the
foundation of a sessions trial and is a most important step in it. The accused
must know and understand what he is being tried for and must be told in clear
and unambiguous terms: section 271 (1). There can be no shirking that or
slurring over it, and this must appear on the face of the record. It cannot be
established by evidence taken after the trial. But there is, in our opinion,
equally no doubt that the Code expressly deals with this and expressly provides
that no error, omission or irregularity in the charge, or even total absence of
a charge, shall vitiate a trial unless prejudice to the accused is shown. This
is repeatedly reiterated in a number of sections. The whole question therefore
is whether the "charge" must be formally reduced to writing and
expressed as a ritualistic formula in order to save the trial from the'
fundamental defect. of an incurable illegality or 1157 whether the information
that is the substance of the matter can be conveyed in other ways. The question
is whether we are to grasp at the substance or play hide and seek among the
shadows of procedure.
First of all, sections 221 to 223 of the
Code, which undoubtedly envisage a formal written charge, set out what a charge
must contain. A perusal of them reveals the reasons why a charge is required.
It must set out the offence with which the accused is charged and if the law
which creates the offence does not give it any specific name, so much of the
definition of the offence must be stated "as to give the accused notice of
the matter with which he is charged". The charge must also contain such
particulars of date, time, place and person "as are reasonably sufficient
to give the accused notice of the matter with which he is charged"; and
section 223 says"When.the nature of the case is such that the particulars
mentioned in sections 221 and 222 do not give the accused sufficient notice of
the matter with which he is charged, the charge shall also contain such
particulars of the manner in which the alleged offence was committed as will be
sufficient for that purpose".
It is clear to us that the object of the
charge is not to introduce a provision that goes to the root of jurisdiction
as, for example, the requirement of previous sanction under section 197, but to
enable the accused to have a clear idea of what he is being tried for and of
the essential facts that he has to meet. But there are other ways of conveying
this information. For example, in summons cases no formal charge is required:
all that is necessary is to tell the accused the substance of the accusation
made against him (section 242). The whole question is whether, in warrant cases
and in sessions trials, the necessary information must be conveyed in one way
and one way only, namely in a formal charge in order that the entire trial may
not be ipso facto vitiated because of an incurable illegality, or whether that
can be done in other and less formal ways, provided always that it is in fact
conveyed in a clear and unambiguous manner and in circumstances that the court
will regard '1158 as fair and in substantial, as opposed to purely technical,
compliance with the requirements of the Code. The law could have provided one
way as easily as another, but what it has chosen to do is set out in the
The marginal note to section 225 is headed
"Effect of errors." and the section states that" No error in
stating either the offence or the particulars required to be stated in the
charge, and no omission to state the offence or those particulars, shall be
regarded at any stage of the case as material, unless the accused was in fact
misled by such error or omission, and it has occasioned a failure of
justice". Therefore, when there is a charge and there is either error or
omission in it or both, and whatever its nature, it is not to be regarded as
material unless two conditions are fulfilled both of which are matters of fact:
(1) the accused has in fact been misled by it and (2) it has occasioned a
failure of justice. That, in our opinion, is reasonably plain language.
Next, sections 226 and 227 show that errors
in a charge, and even the total absence of a charge, do not vitiate a trial
from the start so as to render it no trial at all as would the absence of
sanction under section 197. This is evident because these errors and omissions
can be remedied at any time during the course of the trial in the sessions
Court (section 226) or even at the very end of the trial (section 227), and
when this is done the trial need not proceed de novo but can go on from the
stage at which the alteration was made provided neither side is prejudiced
That is conclusive to show that no error or
omission in the charge, and not even a total absence of a charge, cuts at the
root of the trial. The proceedings up to the stage of the alteration, which, as
,we have seen, can be at the very end of the trial, are not vitiated unless
there is prejudice; they are good despite these imperfections. That is
impossible when the error is so vital as to cut at the root of the trial. It
follows that errors in the charge, and even a total absence of a charge, are
not placed in the non-curable class.
1159 Next, we have a case in which the error
is not observed and corrected during the trial and the accused is convicted. In
such a case, the High Court is empowered to direct a retrial only if, in its
opinion, the accused was "misled in his defence" (section 232). It is
to be observed that this is so whether there was a total absence of a charge or
merely an error in it. It is evident that a conviction cannot stand if the
defect cuts at the root of the trial, therefore defects even of this nature are
not regarded as fatal.
From there we proceed to section 535. The
marginal note is "Effect of omission to prepare charge", and the
section says" No finding or sentence pronounced or passed shall be deemed
invalid merely on the ground that no charge was framed, unless, in the opinion
of the Court of appeal or revision, a failure of justice has in fact been
Here again the language is clear and wide and
emphatic. The section summarises what was already indicated in sections 226,
227, 228 and 232.
Next, there is section 537:
"Subject to etc no finding, sentence or
order passed by a Court of competent jurisdiction shall be reversed or altered
under Chapter XXVLI or on appeal or revision on account(a) of any error,
omission or irregularity in the .......... charge...... or other proceedings
before or during trial..........
unless such error, omission, irregularity has
in fact occasioned a failure of justice".
The Explanation is also important:
"In determining whether any error,
omission or irregularity in any proceeding under this Code has occasioned a
failure of justice, the Court shall have regard to the fact whether the
objection could and should have been raised at an earlier stage in the
This repeats what was set out in greater
detail in section 225 and is all the more impressive because 1160 even when a
death sentence is under review in confirmation proceedings under Chapter XXVII
the Court is expressly directed not to regard any error, omission or
irregularity in the charge as fatal unless it has in fact occasioned a failure
of justice. Reading these provisions as a whole, there is, in our opinion, no
room left for doubt about what was intended.
It was argued on behalf of the appellant that
these sections must be read along with sections 236, 237 and 238. Counsel
conceded that there are occasions when an accused person can be convicted in
the absence of a charge but he said that they are expressly set out in sections
237 and 238 and he contended that no further departure is permissible. He put
his argument as follows. He said that sections 237 and 238 deal with cases in
which there is a charge to start with but none to support a conviction for an
offence which the Court feels is made out by the evidence. These sections
define the limits within which the Court may convict in spite of the fact that
there is no charge for that particular offence. When section 535 is read along
with these two sections it is seen that it cannot apply to a case in which
there is no charge at all, nor can it apply to any case that is not covered by
these two sections. It is limited to cases in which sections 237 and 238 permit
a conviction without a charge.
In answer to this the following argument was
put to counsel and be was asked to meet it. The point was put this way.
Section 535 cures convictions that would be
invalid but for its provisions. This, it was said, follows from the words
"shall be deemed invalid". It was suggested that these words show
that a conviction without a charge is in truth and in fact invalid but that it
can be cured in certain cases, and when that is done, that which in truth is
invalid is deemed not to be invalid because of this section. But as sections
237 and 238 expressly permit convictions in certain cases without a charge for
those offences, provided there is a charge in the case to start with, the
convictions so permitted cannot be invalid or even irregular because it would
be wrong to say that that which the Code expressly allows is, or can be, 1161
irregular. Therefore, section 535 cannot apply to cases covered by sections 237
and 238. The result is that in these cases no question of prejudice can arise;
the convictions are good, prejudice or no prejudice. Counsel replied that even
if that is so, section 535 is still governed by section 233 and so cannot apply
to cases in which there is no charge at all.
We do not agree with either view. In our
opinion, the cases contemplated by section 237 are just as much a departure
from section 233 as are those envisaged in sections 225, 226, 227, 228, 535 and
537 Sections 236, 237 and 238 deal with joinder of charges and so does section
233. The first condition is that there shall be a separate charge for each
offence and the second is that each charge must be tried separately except in
the cases mentioned in sections 234, 235 and 236. It is to be observed that the
exceptions are confined to the rule about joinder of charges and that no exception
is made to that part of the rule that requires separate charges for each
offence. It will be seen that though sections 234, 235 and 236 are expressly
mentioned, section 237 is not referred to, nor is section 238.
Therefore, so far as section 233 is concerned,
there can be no doubt that it requires a separate charge for each offence and
does not envisage a situation in which there is either no charge at all or
where, there being a charge for some other offence of which the accused is
acquitted, he can be convicted instead of something else for which be was not
charged. We are unable to hold that the Code regards sections 237 and 238 as
part of the normal procedure.
What then is the position if there is some
departure from the normal procedure? In our opinion, sections 225, 226) 227,
228, 535 and 537 furnish the answer and they apply with equal force to every
kind of departure from that part of section 233 that requires a separate charge
for each offence. Section 237 is only a corollary to section 236 and is there
to emphasise that even when a number of charges could be joined together in the
cases set out in section 236 and one or more are not put in, oven then, there
can be convictions in respect of those offences despite the 1162 absence of a
charge or charges. But all these sections are governed by the overriding rule
about prejudice mentioned in one form or another in sections 225, 226, 227,
228, 535 and 537. We think it would be monstrous to bold that a conviction
cannot be set aside even when gross prejudice is proved in cases covered by
section 237 just because it does not speak of prejudice. We can envisage cases
where there would be grave prejudice under that section just as clearly as we
can see cases where there would be none under the others.
The sort of problem that we are now examining
can only arise when an express provision of the Code is violated and then the
root of the matter is not whether there is violation of an express provision,
for the problem postulates that there must be, nor is it whether the provision
is expressed in positive or in negative terms, but what are the consequences of
such disregard. Does it result in an illegality that strikes at the root of the
trial and cannot be cured or is it an irregularity that is curable? We have
used the terms "illegality" and "irregularity" because they
have acquired a technical significance and are convenient to demarcate a
distinction between two classes of case. They were first used by the Privy
Council in N. A. Subramania Iyer v. KingEmperor(1) and repeated in Babulal
Choukhani v. King-Emperor(2 ) and in Pulukuri Kotayya v. King-Emperor(3), but
it is to be observed that the Code does not use the term
"illegality". It refers to both classes as
"irregularities"; some vitiate the proceedings (section 530) and
others do not (section 529). Proceedings that come under the former head are
"void". Section 535 uses the words "shall be deemed
invalid" which indicate that a total omission to frame a charge would
render the conviction invalid but for section 535 which serves to validate it
when that sort of "irregularity" has not occasioned a "failure
of justice". Section 537 does not use any of these expressions but merely
says that no conviction or (1)  L.R. 28 I.A. 257. (2)  L.R. 65 I.A.
158, 174. (3)  L.R. 74 I.A. 65,75.
1163 sentence "shall be reversed or
altered" unless there has in fact been a failure of justice.
We do not attach any special significance to
They are convenient expressions to convey a
thought and that is all. The essence of the matter does not lie there. It is
embedded in broader considerations of justice that cannot be reduced to a set
formula of words or rules. It is a feeling, a way of thinking and of living
that has been crystallized into judicial thought and is summed up in the
admittedly vague and indefinite expression "natural justice":
something that is incapable of being reduced to a set formula of words and yet
which is easily recognisable by those steeped in judicial thought and tradition.
In the end, it all narrows down to this: some things are "illegal",
that is to say, not curable, because the Code expressly makes them so; others
are struck down by the good sense of judges who, whatever expressions they may
use, do so because those things occasion prejudice and offend their sense of
fair play and justice. When so struck down, the conviction is
"invalid"; when not, it is good whatever the "irregularity".
It matters little whether this is called an "illegality", an
"irregularity that cannot be cured" or an "invalidity", so
long as the terms are used in a clearly defined sense.
Turning next to the second branch of the
argument about section 535. We cannot agree that because sections 237 and 238
expressly permit convictions without a charge in the cases contemplated by
them, therefore they lift them out of the Chapter on Irregularities, because,
if they do, then so does section 232 (1) in the cases with which it deals.
Between them, these sections cover every kind
of case in which there is an error, omission or irregularity in a charge and an
omission to frame a charge, so, if sections 232(1) and 237 and 238 save
departures from section 233 from being irregularities, then there is nothing
left for sections 535 and 537 to operate on. In our opinion, the truth is that
the Code deals with the same subject-matter under different heads, so there is
147 1164 Sections 222 to 224 deal with the
form of a charge and explain what a charge should contain. Section, 225 deals
with the effect of errors relating to a charge. Sections 233 to 240 deal with
the joinder of charges. Sections 535 and 537 are in the Chapter that deals with
irregularities generally and these two sections deal specifically with the
charge and make it clear that an omission to frame a charge as well as
irregularities, errors and omission in a charge are all irregularities that do
not vitiate or invalidate a conviction unless there is prejudice.
But, apart from that, if we examine the
learned counsel's contention more closely the fallacy in his argument becomes
clear. Sections 237 and 238 deal with cases in which there is a charge to start
with and then they go on to say that in certain cases the trial can proceed
beyond the matter actually charged and a conviction for an offence disclosed in
the evidence in that type of case will be good despite the absence of a charge
in respect of it. But what are those cases? Only thosein which the additional
charge or charges could have been framed from the start; and that is controlled
by sections 234, 235 and 239 which set out the rules about joinder of charges
It is evident that if charges A and B cannot
be tried together because of the prohibition in section 233 read with sections
234, 235 and 239, then no conviction could be sustained on either A or B, and
if that is the case when specific charges are drawn up it is all the more so
when though there is a charge in respect of A there is none in respect of B,
for clearly you cannot do indirectly that which you are prohibited from doing
directly.In our opinion sections 233 to 240 deal with joinder of charges and
they must be read together and not in isolation. They all deal with the same
subject-matter and set out different aspects of it. When they are read as a whole,
it becomes clear that sections 237 and 238 cover every type of case in which a
conviction can be sustained when there is no charge for that offence provided
there is a charge to start with.
1165 They do not deal with a case in which
there is no charge at all, and anything travelling beyond that when there is a
charge would be hit by sections 233,234, 235 and 239 read as a whole, for the
reasons we have just given. But if that is so, and if section 535 is excluded
where sections 237 and 238 apply, then what is there left for it to operate on
except cases in which there is a total omission to frame a charge? We do not
think these sections should be regarded disjunctively. In our opinion, they
between them (including sections 535 and 537) cover every possible case that
relates to the charge and they place all failures to observe the rules about
the charge in the category of curable irregularities. Chapter XIX deals
comprehensively with charges and sections 535 and 537 cover every case in which
there is a departure from the rules set out in that Chapter.
Such departures range from errors, omissions
and irregularities' in charges that are framed, down to charges that might have
been framed and were not and include a total omission to frame a charge at all at
any stage of the trial.
In all these cases the only question is about
prejudice. We say this because the Code repeatedly says so in express and
emphatic terms and because that is the foundation on which rules of procedure
are based. We say it because that accords with logic and principle and reason
and because it touches the deep verities on which the structure of justice is
erected and maintained.
With the utmost respect we cannot read the
words "by the absence of a charge" in section 232(1) and "no charge
was framed" in section 535 to mean not what they would appear to mean on
the face of them but "where there is a charge but none for the offence of
which the accused is convicted".
That would necessitate reading into the
section words that are not there. We see no reason for straining at the meaning
of these plain and emphatic provisions unless ritual and form are to be
regarded as of the essence in criminal trials. We are unable to find any magic
or charm in the ritual of a charge. It is the substance of these provisions
that count and not their outward 1166 form. To hold otherwise is only to
provide avenues of escape for the guilty and afford no protection to the
innocent. We agree that a man must know what offence he is being tried for and
that he must be told in clear and unambiguous terms and that it must all be
"explained to him " so that he really understands (section 271(1) in
sessions trials, section 255(1) in warrant cases) but to say that a technical
jargon of words whose significance no man not trained to the law can grasp or
-follow affords him greater protection or assistance than the informing and the
explaining that are the substance of the matter, is to base on fanciful theory
wholly divorced from practical reality; and the same applies to the vast bulk
of jurors who attend our courts. They are none the wiser because of a formal
charge except in a vague and general way that is of no practical account. The
essence of the matter is not a technical formula of words but the reality. Was
he told? Was it explained to him? Did he understand? Was it done in a fair way?
We attach equal importance to other sections of the Code that are just as
emphatic as section 233, namely, sections 342 and 364; and yet no one doubts
that irregularities there are curable. It is the spirit of section 271 that
must be observed in a sessions trial rather than its letter and the essence of
that lies in the words "and explained to him".
We do not mean to imply that laxness of
procedure should be encouraged in the matter of the charge any more than this
Court encourages it in matters relating to section 342; nor do we mean to
suggest that a trial can be regarded as good when the accused does not know
what be is being tried for and is not told and the matter is not explained to
him as section 271 requires. Of course, the rules should and ought to be
punctually observed. But judges and magistrates are fallible and make mistakes
and the question is what is to be done in the exceptional class of case in
which there has been a disregard of some express provision.
As an illustration, we give a case in which a
Sessions Judge in a sessions trial having no charge 1167 before him from the
committal court omits to frame one himself but instead, carefully and
painstakingly, explains the particulars and the substance of the offence as in
section 242 and complies with the spirit and object of section 271 but omits to
observe its technical form. Then, when the witnesses are examined, the accused
shows by his cross-examination that he knows just what he is being tried for.
He is examined fully and fairly under section 342 and his answers show that he
is under no delusion. He calls witnesses in defence to meet the very point or
points the prosecution seek to make out against him. He puts in a written
statement and is defended by an able lawyer who raises no objection from start
to finish. Will a technical defect in a case like that vitiate the trial? If
the Code says Yes, then there is an end of the matter. But, in our opinion, the
Code very emphatically says No; but even if that is not the case and even if
the very plain and clear words of sections 232 and 535 are susceptible of two
meanings, surely they should be construed so as to accord with what will best
serve the ends of justice. We have put a case in which there neither is, nor
can be, prejudice.
Surely it would be a travesty of justice to
brand a conviction in a case like that as illegal. And yet that must be done if
these words that are otherwise plain are construed in a strained and unnatural
manner. On the other hand, there is nothing in the view we take to imperil or
harass an accused however innocent he may be. How does the technical formula of
a charge afford greater protection than the "explaining" under
section 271 (1) -and the examination under section 342? And yet, on the
argument before us, an omission to observe these other rules that are of the
substance is curable when there is no prejudice but not the sacred ritual of
the framing of the charge; once that is there, the accused cannot be heard to
say that be did not understand however much that may be the fact. Surely, this
cannot be right.
Now, as we have said, sections 225, 232, 535
and 537(a) between them, cover every conceivable typo, of error and
irregularity referable to a charge that 1168 can possibly arise, ranging from
cases in which there is a conviction with no charge at all from start to finish
down to cases in which there is a charge but with errors, irregularities and
omissions in it. The Code is emphatic that whatever the irregularity it is not
to be regarded as fatal unless there is prejudice. It is the substance that we
must seek. Courts have to administer justice and justice includes the
punishment of guilt just as much as the protection of innocence. Neither can be
done if the shadow is mistaken for the substance and the goal is lost in a
labyrinth of unsubstantial technicalities. Broad vision is required, a nice
balancing of the rights of the State and the protection of society in general
against protection from harassment to the individual and the risks of unjust
conviction. Every reasonable presumption must be made infavour of an accused
person; he must be given the benefit of every reasonable doubt. The same broad
principles of justice and fair play must be brought to bear when determining a
matter of prejudice as in adjudging guilt.
But when all is said and done, what we are
concerned to see is whether the accused bad a fair trial, whether he knew what
be was being tried for, whether the main facts sought to be established against
him were explained to him fairly and clearly and whether he was given a full
and fair chance to defend himself. If all these elements are there and no
prejudice is shown the conviction must stand whatever the irregularities
whether traceable to the charge or to a want of one.
In adjudging the question of prejudice the
fact that the absence of a charge, or a substantial mistake in it, is a serious
lacuna will naturally operate to the benefit of the accused and if there is any
reasonable and substantial doubt about whether he was, or was reasonably likely
to have been, misled in the circumstances of any particular case, be is as much
entitled to the benefit of it here as elsewhere; but if, on a careful
consideration of all the facts, prejudice, or a reasonable and substantial
likelihood of it, is not disclosed the conviction must stand; also it will
always be material to consider whether objec1169 tion to the nature of the
charge, or a total want of one, was taken at an early stage. If it was not, and
particularly where the accused is defended by counsel [Atta Mohammad v.
King-Emperor(1)], it may in a given case be proper to conclude that the accused
was satisfied and knew just what he was being tried for and knew what was being
alleged against him and wanted no further particulars, provided it is always
borne in mind that "no serious defect in the mode of conducting a criminal
trial can be justified or cured by the consent of the advocate of the
accused" [Abdul -Rahman v. King-Emperor(2)]. But these are matters of fact
which will be special to each different case and no conclusion on these
questions of fact in any one case can ever be regarded as a precedent or a
guide for a conclusion of fact in another, because the facts can never be alike
in any two cases however alike they may seem. There is no such thing as a
judicial precedent on facts though counsel, and even judges, are sometimes
prone to argue and to act as if there were.
Endeavour was made in the argument to draw a
distinction between cases falling under section 34 of the Indian Penal Code and
those under section 149 of the Indian Penal Code.
It was contended that even if no separate
charge is necessary when section 34 is called in aid because section 34 does
not create a separate offence, one is essential for a conviction under section
149 and that there, at any rate, the absence of a separate charge is fatal.
This is not a case under section 149 of the
Indian Penal Code so the question does not really arise but it is necessary to
advert to the argument because, on the view we take of sections 225, 535 and
537, it is immaterial what the offence is and whether there is a charge at all.
The only question is whether the irregularity occasioned prejudice.
We now turn to an examination of the cases of
this Court that are said to give rise to a conflict of view. In our opinion,
there is in reality no conflict and (1)  L.R. 57 I.A. 71, 74.
(2)  L.R. 54 I.A. 96,104, 110.
1170 though the language used in one case
might suggest that, a close consideration of its reasons will disclose that
there was in fact no difference of view in the type of case where there is a
charge to start with. None of the cases deals with the position where there is
no charge at all.
The following cases afford no difficulty
because they directly accord with the view we have set out at length above. In
Lachman Singh v. The State(1) it was held that when there is a charge under
section 302 of the Indian Penal Code read with section 149 and the charge under
section 149 disappears because of the acquittal of some of the accused, a
conviction under section 302 of the Indian Penal Code read with section 34 is
good even though there is no separate charge under section 302 read with
section 34, provided the accused could have been so charged on the facts of the
The decision in Karnail Singh v. The State of
Punjab(2) is to the same effect and the question about prejudice was also
Pandurang, Tukia and Bhillia v. State of
Hyderabad(3) also presents no difficulty because though the point was taken in
that case it was expressly left open at page 1093.
From there we come to Suraj Pal v. The, State
of U.P. (4).
That was a case in which a number of accused
were charged under sections 307/149 and sections 302/149 of the Indian Penal
Code. It was found that there was no common object to kill, so all the accused
were acquitted under section 149.
But the evidence disclosed that the appellant
had himself made an attempt on the life of one man and had himself shot another
dead. Accordingly the High Court convicted him under sections 307 and 302 of
the Indian Penal Code respectively, though there was no separate charge under
either of those sections.Those convictions were challenged here. This Court
held that the omission to frame a charge is a serious lacuna but despite that
the real question is whether that caused prejudice. The learned Judges then
(1) S.C.R. 839, 848.
(2) S.C.R. 904,911 (3)  1 S.C.R.
(4) I.S.C.R, 1332 1171 proceeded to
determine the question of prejudice on the facts of that case. The conclusion
reached on the facts was that prejudice was disclosed, so an acquittal was
It was argued before us that the ground of
the decision there was that the absence of charges under sections 307 and 302
simpliciter was in itself conclusive to establish prejudice and that therefore
one need go no further. It is enough to say that that was not the decision and
though that was one of the matters taken into consideration, the conclusion was
based on a careful and lengthy investigation of all the facts in the case
including the way in which it was conducted, the evidence of several witnesses,
the medical evidence, the first information report and certain documents
including two filed by the accused.
Next comes Nanak Chand v. The, State of
Punjab(1). That was also a case in which the charge was under section 302/149
of the Indian Penal Code with the conviction under section 302 simpliciter
without any separate charge under that section.
The Sessions Judge had convicted under
section 302/34 of the Indian Penal Code holding that the charge of rioting was
not proved. The High Court held that no common intention was proved either but
as the evidence indicated that the appellant had done the actual killing he was
convicted under section 302.
Now it is true that there are observations
there which, without close examination, would appear to support the learned
counsel for the appellant. But those observations must be construed in the
light of the facts found, the most crucial fact being that/ patent prejudice
was disclosed. It was found that the appellant there was in fact misled in his
defence and one of the factors taken into consideration, as indeed must always be
the case, was that when he was told that he was to be tried under section 302
read with section 149 of the Indian Penal Code that indicated to him that he
was not being tried for a murder committed by him personally but that he was
only being (1)  I S.C.R. 1201.
148 1172 made vicariously liable for an act
that another had done in prosecution of the common object of an unlawful
assembly of which he was a member. But that was only one of the matters
considered and it does not follow that every accused will be so misled. It all
depends on the circumstances. The entire evidence and facts on which the
learned Judges founded are not set out in the judgment but there is enough to
indicate that had the appellant's attention been drawn to his own part in the actual
killing he would probably have cross examined the doctor with more care and
there was enough in the medical evidence to show that had that been done the
appellant might well have been exonerated. As judges of fact they were
entitled, and indeed bound, to give the accused the benefit of every reasonable
doubt and so were justified in reaching their conclusion on the facts of that
case. Illustrations (c) and (e) to section 225 of the Criminal Procedure Code
show that what the accused did or omitted to do in defence are relevant on the
question of prejudice. If the Court finds that a vital witness was not
cross-examined when be might have been, and that if he had been, the further
facts elicited might well have been crucial, then material from which prejudice
can be inferred is at once apparent: that is exactly Illustrations (c) and (e).
That, however, was, and remains, a pure conclusion of fact resting on the
evidence and circumstances of that particular case. The decision was special to
the facts of that case and no decision on facts can ever be used as a guide for
a conclusion on facts in another case.
Now having reached the conclusion that there
was prejudice, the learned Judges were of the opinion that the irregularity, if
it can be so called when prejudice is disclosed was incurable and from that
they concluded that an incurable irregularity is nothing but an illegality: a
perfectly possible and logical conclusion when the words
"irregularity" and "illegality" are not defined. As we have
already said, section 535 of the Criminal Procedure Code says that no finding
or sentence "shall be deemed to be invalid" unless etc. and it can
well be argued from this that this indicates 1173 that an omission to follow
the provisions of the Code does in truth and in fact render the decision
invalid but because of section 535 that which is in truth and in fact invalid
must be deemed to be valid unless prejudice is disclosed.
As there was prejudice in that case, the
decision was invalid and being invalid it was illegal. We do not say that that
is necessarily so but it is a reasonably plausible conclusion and was what the
learned Judges had in mind.
It is to be. observed that section 535 of the
Code is mandatory in its terms, just as mandatory as section 233.
If it be accepted that an absence of a charge
would, but for its provisions, render a conviction invalid, this section cures
such an invalidity when there is in fact, not in theory but in fact, no failure
of justice. The section is just as mandatory as section 233 and we can see no
justification for giving it less weight than section 237.
If section 237 validates a departure from
section 233 and saves it from the stigma of an irregularity, then so does
section 535, for it says very expressly that no conviction shall be deemed
invalid merely on the ground that no charge was framed unless that in fact
occasioned a failure of justice; and if section 535 is held not to apply to
cases covered by sections 237 and 238, then it must apply to cases that lie
outside the scope of those' sections and the only kind of case left is a case
in which there is a total absence of a charge, for any other type of case would
be excluded because of misjoinder. If section 233 is mandatory, that part of it
which prohibits misjoinder except in the cases mentioned in sections 234, 235)
236 and 239 is just as mandatory as the portion that requires a separate charge
for each offence. It is unfortunate that we have no definition of the terms
"illegality", "irregularity" and "in-. validity"
because they can be used in differing senses, but however that may be, the
decision we are now examining and the remarks made in that case must be read in
the light of this background. We agree that some of the expressions used in the
judgment appear to travel wider than this but in order to dispel misconception
we would now hold that the 1174 true view is the one we have propounded at
length in the, present judgment.
We now turn to the question of fact: is there
material in this case to justify a finding of prejudice? that will turn largely
on the differences between section 302 of the Indian Penal Code and section 302
read with section 34 of the Indian Penal Code and on the measure of criminal
liability to which the appellant would be exposed in those two cases;
and here again, the matter must be viewed
broadly and not in any technical or pettifogging way.
Now what is an accused person entitled to
know from the charge and in what way does the charge in this case fall short of
that? All he is entitled to get from the charge is(1) the offence with which he
is charged, section 221(1),Criminal Procedure Code, (2) the law and, section of
the law against which the offence is said to have been committed, section
221(4), (3) particulars of the time, section 222(1) and (4) of the place,
section 222(1), and (5) of the person against whom the offence is said to have
been committed, section 222(1), and (6) when the nature of the case is such
that those particulars do not give him sufficient notice of the matter with which
he is charged, such particulars of the manner in which the alleged offence was
committed as will be sufficient for that purpose, section 223.
He is not entitled to any further information
in the charge:
see Illustration (e) to section 223 of the
"A is accused of the murder of B at a
given time and place.
The charge need not state the manner in which
A murdered B".
It is clear from this that when the case is
one of murder, the accused is not entitled to be told in the charge how it was
committed, whether with a pistol or a lathi or a sword.
He is not entitled to know from the charge
simpliciter any further circumstance. How then is he expected to defend
himself? He has the police challan, he has the evidence recorded in the 1175
Committal Court, he hears the prosecution witnesses and he is examined under
section 342 of the Code. It is these proceedings that furnish him with all the
necessary, and indeed vital, information, and it is his duty to look into them
and defend himself. It will be seen that if the logic of the appellant's
contention is carried to its fullest extent the accused could complain of
prejudice because be was not told in the charge whether a pistol was used for
the crime or a sword and if a pistol, its calibre and bore and the type of
Now when several persons join in the
commission of a crime and share a common intention, it means that each has the
requisite intention in himself; the fact that others share it does not absolve
any one of them individually, and when the crime is actually committed in
pursuance of the common intention and the accused is present at its commission,
the crime becomes the offence actually committed because of section 114 of the
Indian Penal Code. Section 114 does not create the offence nor does section 34.
These sections enunciate a principle of criminal liability. Therefore, in such
cases all that the charge need set out is the offence of murder punishable
under section 302 of the Indian Penal Code committed by the accused with
another and the accused is left to gather the details of the occurrence as
alleged by the prosecution from other sources. The fact that be is told that he
is charged with murder committed by himself with another imports that every
legal condition required by law to constitute the offence of murder committed
in this way was fulfilled: section 221(5) of the Criminal Procedure Code.
Now what are those legal conditions? What is
the effect of charging two persons with a murder committed in pursuance of a
common intention? It means that the accused is unmistakably told that be
participated in the crime; exactly how is no more a matter for the charge than
it is to set out the circumstances in which the murder was committed. It also
means that he is informed that it is immaterial who struck the fatal blow. The
charges here against the appel1176 lant and his brother Ronnie are identical.
'As there was only one fatal blow and as only one person could have inflicted
it and as both are charged in this way, it can only mean that each is put on
his guard and made to realise that the prosecution allege that one of the two
was responsible for that and which must be discovered from the evidence and not
from the charge, just as surely as it must when the question turns on who
possessed or used a pistol and who a sword.
It is true that if it cannot be ascertained
who struck the fatal blow, then the accused cannot be convicted unless the
common intention is proved and in that type of case an acquittal of the
co-accused may be fatal to the prosecution.
But the converse does not hold good, and if
the part that the accused played can be clearly brought home to him and if it
is sufficient to convict him of murder simpliciter he cannot escape liability
because of the charge unless he can show prejudice.
Put at its highest, all that the appellant
can urge is that a charge in the alternative ought to have been framed, which
in itself imports that it could have been so framed. As was said by the Privy
Counsel in Begu v. King-Emperor(1) and also by this Court in Lachman Singh v.
The State(2)"A man may be convicted of an offence, although there has been
no charge in respect of it, if the evidence is such as to establish a charge
that might have been made. That is what happened here............ They were not
charged with that formally, but they were tried on evidence which brings the
case under section 237"(1).
The variation between murder and concealing
evidence after the crime is no more than the variation between killing a man
jointly with another, sharing his intention, or allowing the other to do the
actual killing with the same common intention.
Now what do the proceedings in this case
show? The police charge-sheet states that the appellant hit the deceased with a
hockey stick while his brother (1)  I.L.R. 6 Lah. 226, 231.
(2)  S.C.R. 839, 848.
1177 only threw stones. From there we go to
his examination under section 342 of the Criminal Procedure Code in the
Committal Court. He is specifically told that the only eyewitness in the case
accuses him and not his brother of having hit the deceased over the head with a
No one could misunderstand that. In the
Sessions Court we find the same evidence repeated. No witness suggests that
anyone else hit the deceased on the head. There was no possibility of
misunderstanding or mistake. The fact that the appellant did not attempt to
confront any of the witnesses with their statements before either the
Committing Magistrate or the police on this point shows that the witnesses told
a consistent story from the start. Next, the appellant was examined under
section 342 in the Sessions Court and was asked the same questions and was
confronted in his examination with the same eye-witness. He was told clearly
and unambiguously that the evidence was that he hit the deceased over the head.
Now what was his defence? A curious procedure
was adopted, a procedure that has been condemned by the Nagpur High Court in
other cases and which we regret to see still persists.
Instead of the accused speaking for himself
he made a statement through his advocate. However, the defence was this:
(1) an alibi: "I wasn't there".
(2) It was dark and the deceased rushed at
the appellant (who is now said to have been there despite the alibi), fell down
the stairs and broke his head;
(3) The deceased was the aggressor and the
appellant struck him in self defence.
There is no suggestion here that the other
accused hit the deceased or that anyone other than the appellant did. The
appellant places it beyond doubt that he knew that the case against him was
that he is said to have struck the fatal blow.
Next, what was the cross-examination of the
only eyewitness? There was no suggestion that she was mistaken in her identity,
whereas she was crossexamined about this very matter of self defence and
questions were put to show that the deceased 1178 and not his brother had
threatened the appellant with his fist.
In the High Court the plea of alibi was
dropped and the only argument advanced was self defence. There was no hint of
prejudice even in the grounds of appeal. There was no pretence in the arguments
that the appellant did not know he was being accused of having hit the
deceased. On the contrary, there was a clear admission in the High Court that
he did hit the man but that he acted in self defence.
As the appellant knew that the case against
him was that he is the one who is said to have struck the fatal blow, and as he
was told in the charge that the offence he is said to have committed was that
of murder and was informed of the date and place and person, we find it
impossible to infer prejudice. As the Privy Council said in Atta Mohammad v.
Emperor(1)I "He appeared by an advocate on the appeal and had been legally
defended at the trial, and it is as clear as possible that, with full knowledge
of the course which the trial had taken, neither the appellant himself nor
those who represented him bad any sense whatever of the injustice that is now
urged or any idea of his having been deprived of the opportunity of knowing the
charge on which he was tried or of raising defences appropriate to that
We would hold that there was no prejudice and
that the conviction is not invalid because of the nature of the charge.
We now come to the merits, and the question
is whether this is a case under section 302 or under the second part of section
304 of the Indian Penal Code. The injury was inflicted with a hockey stick. The
head was fractured but the deceased lived for ten days. The doctor says"I
consider the head injury on the head of Smythe was of a very serious nature and
was likely to result in fatal consequences".
Therefore, the doctor in whose care the
patient was (1)  L.R. 57 I.A. 71, 74.
1179 till he died places the injury no higher
than "likely" to cause death.
The learned Sessions Judge exonerated the
appellant of any intention to kill and the learned High Court Judges say that
they agree with his findings. If there was no intention to kill, then it can be
murder only if (1) the accused knew that the injury inflicted would be likely
to cause death or (2) that it would be sufficient in the ordinary course of
nature to cause death or (3) that the accused knew that the act must in all
probability cause death.
If the case cannot be placed as high as that
and the act is only likely to cause death and there is no special knowledge,
the offence comes under the second part of section 304 of the Indian Penal
The doctor thought that it was only likely to
The appellant is only 22 years old and not a
doctor and can hardly be presumed to have bad this special knowledge at the
time he struck the blow. All blows on the head do not necessarily cause death,
and as the deceased lived for ten days, we are unable to deduce from the nature
of the injury and from the mere fact of death that the appellant had, or should
have had, the special knowledge that section 300 of the Indian Penal Code
requires. Admittedly, there was no premeditation and there was a sudden fight,
so we are unable to ascribe the necessary knowledge to the appellant; nor was
the injury sufficient in the ordinary course of nature to cause death. So the
offence falls under the second part of section 304 of the Indian Penal Code.
On the question of sentence. There was no
enmity according to the finding of the learned Sessions Judge. The appellant
did not go there armed with a stick. He was in love with the deceased's sister
who reciprocated his affection but could not marry him be-cause her husband had
turned her out in England ,and she had no divorce. The deceased, who was the
girl's brother, resented this. The appellant went to the house and asked the
sister to come down. The 1180 brother came instead and there was a quarrel. The
appellant slapped the deceased across the face. The deceased, who was a big and
strong man, shook his fist in the appellant's face and the appellant snatched a
hockey stick from his younger brother Ronnie and hit the deceased one blow over
the bead and two blows on the hips. In the circumstances, we think five years'
rigorous imprisonment will suffice.
We would acquit the appellant on the-charge
of murder and alter the conviction to one under the second part of section 304
of the Indian Penal Code and reduce the sentence to one of five years' rigorous
CHANDRASEKHARA AIYAR J.-This appeal comes
before us on a reference owing to a conflict between two decisions of this
Court, Nanak Chand v. The State of Punjab(1) and Suraj Pal v. The State of U.
Where there is a charge against an accused
under section 302, read with section 149, if section 149 of the Indian Penal
Code is inapplicable to the facts, can the accused be convicted under section
302 without a separate charge? In the first case, it was held that the omission
to have a specific charge under section 302 amounted to an illegality.
In the latter case, the view was taken that
it was a mere irregularity, curable if no prejudice was caused to the accused.
Section 149 creates a specific offence and
without applying its provisions a member of an unlawful assembly could not be
made liable for the offence committed not by him but by another member of that
assembly. Therefore the case is not similar to the one where there is a charge
under section 302, read with section 34 of the Indian Penal Code. When section
149 is ruled out, the liability for murder ceases to be constructive; it
becomes direct and there must be a separate charge therefor under section 302
of the Indian Penal Code. This was the line of reasoning in Nanak Chand's case.
In Suraj Pal's case, the same line is taken but the absence of a specific
charge (1)  1 S.C R. 1201.
(2)  1 S.C.R. 1332.
1181 is treated as a serious lacuna merely;
and not regarded as an illegality.
This conflict does not arise in the case before
us where the offence charged against two brothers, William and Ronnie for the
murder of Donald was under section 302, read with section 34 of the Indian
Penal Code. Ronnie was acquitted.
But William was found guilty and sentenced to
transportation for life. As pointed out by Lord Sumner in his classic judgment
in Barendra Kumar Ghosh v. The King-Emperor(1), there is much difference in the
scope and applicability of sections 34 and 149, though they have some
resemblance and are to some extent overlapping. The two sections are again
compared and contrasted in Karnail Singh and another v. The State of Punjab(2).
Section 34 does not by itself create any offence, whereas it has been held that
section 149 does.
In a charge under section 34, there is active
participation in the commission of the criminal act; under section 149, the
liability arises by reason of 'the membership of the unlawful assembly with a
common object, and there may be no active participation at all in the
perpetration or commission of the crime. The overlapping arises in those cases
where two or more persons commit a murder in furtherance of the common
intention, but it is not possible to say which of them was responsible for the
fatal injury, or whether any one injury by itself was responsible for the
death. There may also be a case where it is known that out of the assailants
one in particular was responsible for the fatal injury and the others are
sought to be made liable for the result owing to the common intention involved.
But whereas in this case, the appellant has been individually charged with
murder and there is proof that his band caused the injury, the fact that his
brother was also sought to be made liable owing to the existence of a common
intention, is neither here nor there, so far as the legality of the conviction
is concerned, as there has been no prejudice by way of failure of justice.
It is, however, necessary having regard to
the (1)  L.R. 52 I.A. 40.
(2)  S.C.R. 904.
1182 lengthy arguments addressed to us, to
consider the main question arising on the reference. Though the two cases which
gave rise to this reference were cases relating to section 149 of the Indian
Penal Code and not to section 34 of the Indian Penal Code, as the Present case
is, the order of reference was occasioned by the fact that in Nanak Chand's
case it was stated specifically that the parallel case under section 34 also
stood on the same footing. In our attempt to resolve the conflict, we covered a
wide area of sections and decisions. A detailed discussion of all the decisions
cited at the Bar is not of much use as it is not possible to gather from a
study of those cases anything very decisive by way of any guiding principle.
But a few of them, more important than the rest, must be noticed.
The Criminal Procedure Code does not use the
word "illegality". Even defects or violations that vitiate the
proceedings and render them void are spoken of only as irregularities in
section 530. The word illegality was used almost for the first time in the
judgment of the Privy Council, L.R. 28 Indian Appeals 257 (familiarly known as
Subramania Aiyar's case), where they speak of a contravention of section 234 of
the Code, resulting in a misjoinder of charges, as an illegality. The idea that
it was a mere irregularity was repelled in these words:"Their Lordships
are unable to regard the disobedience to an express provision as to a mode of
trial as a mere irregularity. Such a phrase as irregularity is not appropriate
to the illegality of trying an accused person for many different offences at
the same time, and those offences being spread over a longer period than by law
could have been joined together in one indictment. The illustration of the
section itself sufficiently shows what was meant".
Again, they say:"........ it would be an
extraordinary extension of such a branch of administering the criminal law to
say that when the Code positively enacts that such a trial as that which has
taken place here shall not be permitted that this contravention of the Code
comes 1183 within the description of error, omission, or irregularity".
Subsequently, however, there have been
systematic attempts to explain away the said decision and restrict its scope to
narrow limits. This was possibly because it was realised even by the Judicial
Committee itself that the view taken by them to the effect that a violation of
the mandatory provisions of the Code would be an illegality was rather an
extreme one. It may be pointed out that even in that case the question of prejudice
was not entirely absent from their Lordships' minds. Both sides referred to it
in the course of the arguments, and the Lord Chancellor alludes to the
prejudice inherent in the trial on a multitude of charges.
In passing, it may be mentioned here that the
legislature has now specifically included misjoinder of charges in subclause
(b) of section 537. The exact effect of this inclusion may require
consideration in an appropriate case.
Before dealing with the other relevant
sections of the Code, let us examine some of the later decisions of the Privy
Council which seem to indicate a swing of the pendulum to the other side. In
Abdul Rahman v. The King-Emperor(1), there was a violation of section 360 of
the Code which provides that the deposition of each witness shall be read over
to him in the presence of the accused or his pleader.
The High Court held that this was a mere
irregularity, and confirmed the conviction as no failure of justice had
resulted. It was contended on appeal before the Privy Council that the section
was obligatory, and that noncompliance with such a mandatory provision was
illegal, on the principle laid down in Subramania Aiyar's case(2). But their
Lordships rejected this contention pointing out that in the earlier case the
procedure adopted was one which the Code positively prohibited, and it was
possible that it might have worked actual injustice to the accused; and they
confirmed the conviction. The question was again raised in Babulal Choukhani v.
The King-Emperor(3) (1)  L.R. 54 I.A. 96. (2)  L.R. 28 I.A. 257.
(3)  65 I.A. 158.
1184 as to what would be an illegality as
distinguished from an irregularity. Lord Wright who delivered the judgment of
the Board assumed that an infringement of section 239(b) of the Code would be
an illegality, and proceeded to state that the question did not, however,
arise, and it was hence unnecessary to discuss the precise scope of what was
decided in Subramania Aiyar's case(1). The matter cropped up once again in
Pulukuri Kotayya and others v. KingEmperor (2) where there was a breach of the
statutory requirement found in section 162 of the Code, inasmuch as the accused
were not supplied with copies of the statements first recorded by a police
officer for cross-examining the prosecution witnesses. The defect was
recognized to be a matter of gravity, and if the statements bad been completely
destroyed, or if there had been a total refusal to supply copies to the
accused, the convictions were liable to be quashed. But in the case before
them, as the statements were made available, though too late to be effective,
and the Circle Inspector's notes of the examination of witnesses were put into
the hands of the accused, it was taken to be an irregularity merely. Referring
to the contention that the breach of a direct and important provision of the
Code cannot be cured but must lead to the quashing of the conviction, Sir John
Beaumont observed:"............ In their Lordships' opinion, this argument
is based on too narrow a view of the operation of section 537.
When a trial is conducted in a manner
different from that prescribed by the Code (as in N. A. Subramania Iyer's
case(1)), the trial is bad, and no question of curing an irregularity arises;
but if the trial is conducted substantially in the manner prescribed by the
Code, but some irregularity occurs in the course of such conduct, the
irregularity can be cured under section 537, and nonetheless so because the
irregularity involves, as must nearly always be the case, a breach of one or
more of the very comprehensive provisions of the Code. The distinction drawn in
many of the cases in India between an illegality and (1)  L. R. 28 I.A.
(2)  L.R. 74 I.A. 65.
1185 ail irregularity is one of degree rather
than of kind. This view finds support in the decision of their Lordships' Board
in Abdul Rahman v. The King-Emperor (1) where failure to comply with section
360 of the Code of Criminal Procedure was held to be cured by sections 535 and
537. The present case falls under section 537, and their Lordships hold the
trial valid notwithstanding the breach of section 162".
Of course, lack of competency of
jurisdiction, absence of a complaint by the proper person or authority
specified, want of sanction prescribed as a condition precedent for a
prosecution, in short, defects that strike at the very root of jurisdiction
stand on a separate footing, and the proceedings taken in disregard or
disobedience would be illegal. The difficulty arises only when we have to
consider the other provisions in the Code Which regulate procedure and which
are found in a mendatory form, positive or negative. It is in this class of
cases that the distinction becomes important and material. The scope of the
decision in Subramania Aiyar's case(2) has' become so circumscribed that it is
dobutful if it applies to the generality of cases of omissions and defects that
come before the courts, excepting where they bring about the result that the
trial was conducted in a manner different from that prescribed by the Code.
Let us now turn our attention to the relevant
sections of the Code bearing on the requirement of a charge, the omission of a
charge and the effect thereof. Section 233 provides as follows:"For every
distinct offence of which any person is accused there shall be a separate
charge, and every such charge shall be tried separately, except in the cases
mentioned in sections 234, 235, 236 and 239". A power to alter or add to a
charge, at any time before judgment is pronounced, is conferred on a court
under section 227. Sections 228 to 231 provide for the steps to be taken
consequent on such alteration. Section 225 shows what would be the effect of
any errors in the framing of a charge. It runs as follows:(1)  L.R. 51
(2)  L.R. 28 I.A. 257.
1186 "No error in stating either the
offence or the particulars required to be stated in the charge, and no omission
to state the offence or those particulars, shall be regarded at any stage of
the case as material, unless the accused was in fact misled by such error or
omission, and it has occasioned a failure of justice".
Section 232(1) of the Code of Criminal
Procedure refers more specifically to the effect of such error where an
appellate Court or the High Court in revision or in confirmation proceedings,
notices such an error and is in the following terms:"If any Appellate
Court, or the High Court in the exercise of its powers of revision or of its
powers under Chapter XXVII, is of opinion that any person convicted of an
offence was misled in defence by the absence of a charge or by an error in the
charge, it shall direct a new trial to be had upon a charge framed in whatever
manner it thinks fit".
Then we have section 237, dealing with a case
where an accused charged with one offence for which he might have been charged
under the provisions of section 236 could be convicted of a different offence.
This applies only to cases where it is doubtful which of several offences the
facts which can be proved will constitute. Begu's case(1) is an example; the
conviction was under section 201 of the Indian Penal Code for causing the
disappearance of evidence relating to a murder, though the charge was under
section 302 of the Indian Penal Code. Viscount Haldane observes:"............
A man may be convicted of an offence, although there has been no charge in
respect of it, if the evidence is such as to establish a charge that might have
been made. That is what happened here. The three men who were sentenced to
rigorous imprisonment were convicted of making away with the evidence of the
crime by assisting in taking away the body. They were not charged with that
formally, but they were tried on evidence which brings the case under section
(1) 11925] L.R. 52 I.A. 191.
1187 Finally, we come to sections 535 and 537
of the Code. The former is in these terms:" (1) No finding or sentence
pronounced or passed shall be deemed invalid merely on the ground that no
charge was framed, unless, in the opinion of the Court of appeal or revision, a
failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks
that a failure of justice has been occasioned by an omission to frame a charge,
it shall order that a charge be framed, and that the trial be recommenced from
the point immediately after the framing of the charge".
The latter runs thus:"Subject to the
provisions hereinbefore contained, no finding, sentence or order passed by a
Court of competent Jurisdiction shall be reversed or altered under Chapter
XXVII or on appeal or revision on account(a) of any error, omission or
irregularity in the complaint, summons, warrant, charge, proclamation, order,
judgment or other proceedings before or during trial or in any inquiry or other
proceedings under this Code, or (b)....................................
(c) of the omission to revise any list of
jurors or assessors in accordance with section 324, or (d) of any misdirection
in any charge to a jury, unless such error, omission, irregularity or
misdirection has in fact occasioned a failure of justice".
A case of complete absence of a charge is
covered by section 535, whereas an error or omission in a charge is dealt with
by section 537. The consequences seem to be slightly different. Where there is
no charge, it is for the court to determine whether there is any failure of
justice. But in the latter, where there is mere error or omission in the
charge, the court is also bound to have regard to the fact whether the
objection could and should have been raised at an earlier stage in the
The sections referred to indicate that in the
generality of cases the omission to frame a charge is 150 1188 not per se
fatal. We are unable, therefore, to accept as sound the very broad proposition
advanced for the appellants by Mr. Umrigar that where there is no charge, the
conviction would be illegal, prejudice or no prejudice. On the other hand, it
is suggested that the wording of section 535 of the Code of Criminal Procedure
is sufficiently wide to cover every case of 'no charge'. It is said that it
applies also to the case of a trial in which there has been no charge of any
kind even from the very outset. We are unable to agree that section 535 of the
Code of Criminal Procedure is to be construed in such an unlimited sense. It
may be noticed that this group of sections relating to absence of a charge,
namely, sections 225, 226 and 232 and the powers exercisable there under' are
with reference to a trial which has already commenced or taken place. They
would, therefore, normally relate to errors or omissions which occur in a trial
that has validly commenced. There is no reason to think that section 535 of the
Code of Criminal Procedure is not also to be understood with reference to the
same context. There may be cases where, a trial which proceeds without any kind
of charge at the outset can be said to be a trial wholly contrary to what is
prescribed by the Code. In such cases the trial would be illegal without the
necessity of a positive finding of prejudice. By way of illustration the
following classes of cases may be mentioned:-(a) Where there is no charge at
all as required by the Code from start to finish-from the Committing
Magistrate's court to the end of the Sessions trial; the Code contemplates in
section 226 the possibility of a committal without any charge and it is not
impossible to conceive of an extreme case where the Sessions trial also
proceeds without any formal charge which has to be in writing and read out and
explained to the accused (section 210(2) and section 251 (A) (4) and section
The Code requires that there should be a
charge and it should be in writing. A deliberate breach of this basic
requirement cannot be cured by the assertion that everything was orally
explained to the accused and the assessors or jurors, and there was 1189 no
possible or probable prejudice. (b) Where the conviction is for a totally
different offence from the one charged and not covered by sections 236 and 237
of the Code. On a charge for a minor offence, there can be no conviction for a
major offence, e.g., grievous hurt or rioting and murder.
The omission to frame a separate and specific
charge in such cases will be an incurable irregularity amounting to an
Sections 34, 114 and 149 of the Indian Penal
Code provide for criminal liability viewed from different -angles as regards
actual participants, accessories and men actuated by a common object or a
common intention; and the charge is a rolled-up one, involving the direct
liability and the constructive liability without specifying who are directly
liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge
under one or other of the ,various heads of criminal liability for the offence
cannot be said to be fatal by itself, and before a conviction for the
substantive offence, without a charge, can be set aside, prejudice will have to
be made out. In most of the cases of this kind, evidence is normally given from
the outset as to who was primarily responsible for the act which brought about
the offence and such evidence is of course relevant.
After all, in our considering whether the
defect is illegal or merely irregular, we shall have to take into account
several factors, such as the form and the language of the mandatory provisions,
the scheme and the object to be achieved, the nature of the violation, etc.
Dealing with the question whether a provision in a statute is mandatory or
directory, Lord Penzance observed in Howard v.
Bodington(1). "There may be many
provisions in Acts of Parliament which, although they are not strictly obeyed,
yet do not appear to the court to be of that material importance to the
subject-matter to which they refer, as that the legislature could have intended
that the non-observance of them should be followed by a total failure of the
whole proceedings. On the other hand, there are (1)  2 P D. 203.
1190 some provisions in respect of which the
court would take an opposite view, and would feel that they are matters which
must be strictly obeyed, otherwise the whole proceedings that subsequently
follow must come to an end". These words can be applied mutatis mutandis
to cases where there is no charge at all. The gravity of the defect will have
to be considered to determine if it falls within one class or the other. Is it
a mere unimportant mistake in procedure or is it substantial and vital? The
answer will depend largely on the facts and circumstances of each case. If it
is so grave that prejudice will necessarily be implied or imported, it may be
described as an illegality. If the seriousness of the omission is of a lesser
degree, it will be an irregularity and prejudice by way of failure of justice
will have to be established.
This judgment should not be understood by the
subordinate courts as sanctioning a deliberate disobedience to the mandatory
requirements of the Code, or as giving any license to proceed with trials
without an appropriate charge. The omission to frame a charge is a grave defect
and should be vigilantly guarded against. In some cases, it may be so serious
that by itself it would vitiate a trial and render it illegal, prejudice to the
accused being taken for granted. In the main, the provisions of section 535
would apply to cases of inadvertence to frame a charge induced by the belief
that the matter on record is sufficient to warrant the conviction for a
particular offence without express specification, and where the facts proved by
the prosecution constitute a separate and distinct offence but closely relevant
to and springing out of the same set of facts connected with the one charged.
Coming now to the facts of the present case;
William was on terms of intimacy with Beryl P.W. 13. She was the sister of
Donald Smythe. The accused was practically living with her in her house. The
brother did not like their intimacy and was making attempts to separate Beryl
from the accused. On the evening of the day of the occurrence, Donald and his
mother went to Beryl's house, There was a quarrel 1191 between them and the
accused was asked to get away. He left the place but returned a little later
with his brother (Ronnie) and asked Beryl who was on the first floor to come
down to him. She did not come but Donald came down into the courtyard. There
was a heated exchange of words. The accused slapped Donald on the cheek. Donald
lifted his fist. The accused gave one blow on his head with a hockey stick with
the result that his skull was fractured. Donald died in the hospital ten days
later. A plea of alibi was given up in the High Court. The suggestion that
Donald fell down and sustained the head injury while descending the stairs was
ruled out by the evidence of the eye-witnesses.
Nothing was established to justify any
exercise of the right of private defence.
On these facts, which have been proved, the
only question that arises is whether the appellant is guilty of murder under
section 302 of the Indian Penal Code, or guilty only of culpable homicide, not
amounting to murder, under the second part of section 304. The High Court did
not address itself to the nature of the offence. It is obvious that the
appellant did not intend to kill the deceased. The evidence of the doctor is
that the injury was likely to result in fatal consequences. This by itself is
not enough to bring the case within the scope of section 300. There is nothing
to warrant us to attribute to the appellant knowledge that the injury was
liable to cause death or that it was so imminently dangerous that it must in
all probability cause death. The fact that Donald lived for ten days afterwards
shows that it was not sufficient in the ordinary course of nature to cause
death. The elements specified in section 300 of the Indian Penal Code are thus
wanting. We take the view, considering all the circumstances that the offence
is the lesser one.
The appellant is acquitted of the charge of
murder but is convicted under the second part of section 304, and sentenced to
five years' rigorous imprisonment.
IMAM J.-I agree with the judgment just
delivered by my learned brother, Chandrasekhara Aiyar, J. but 1192 would add
some observations of my own as I was party to the judgment of this Court in
Nanak Chand's case.
The appellant was charged with murder and
nothing short of it, although it was stated in the charge that the offence was
committed by him in furtherance of a common intention.
If the evidence failed to prove that the
offence committed by him was in furtherance of a common intention, it would be
nonetheless his offence, namely, murder, if his act in law amounted to murder.
The law does not require in such a case that a separate charge for murder
should be framed, because the charge of murder was already on the record.
Strictly speaking, on the facts of the
present case, the question raised by the reference does not arise. Since it has
been raised, it must be considered. In Nanak Chand'8 case the view taken was
that when an accused is charged under section 302 read with section 149 of the
Indian Penal Code, it is illegal to convict him under section 302 of the Indian
Penal Code without a charge having been framed against him under that section.
It was also held that if this was only an irregularity then on the facts of the
case, the accused was misled in his defence. In Suraj Pal's case, in similar
circumstances, it was held that failure to frame a charge under section 302 was
a serious lacuna and the conviction was set aside on the ground that the
accused had been prejudiced. A careful examination of these two cases does not
reveal any substantial conflict between them.
As I understand the provisions of the Code of
Criminal Procedure, a separate procedure is set out for various class of cases
triable by a court exercising powers under the Code. So far as the framing of a
charge is concerned, the Code expressly states the kind of cases in which no
charge is to be framed. In trial of warrant cases, cases before a Court of
Sessions and a High Court, a charge must be framed.
Failure to frame a charge in such cases would
be a contravention of the mandatory provisions of the Code.
Would such contravention amount to an
illegality? Prima 1193 facie a conviction of an accused person for an offence
with which he had not been charged but for which he ought to have been charged,
is invalid. It is said that by virtue of the provisions of sections 535 and 537
of the Code failure to frame a charge or an omission or irregularity in a
charge, which is framed, does not by itself invalidate the conviction, unless
the Court is satisfied that in fact a failure of justice has resulted. It is,
therefore, necessary to examine how far these provisions of the Code override
its provisions relating to the framing of charges.
Section 233 of the Code expressly states that
for every distinct offence of which any person is accused there shall be a
separate charge and every such charge shall be tried separately, except in the
cases mentioned in sections 234, 235, 236 and 239. There is no ambiguity in the
language of this section. While it insists upon a separate charge for every
distinct offence it permits a single trial on several charges in the cases
mentioned in sections 234, 235, 236 and 239. Section 233 is a mandatory
provision and the force of its direction is not weakened by the fact that
another provision of the Code does permit a conviction of an accused for an offence
with which he had not been charged. In such a case no question of illegality or
irregularity arises, as the conviction is expressly authorized by the Code. The
conviction is valid because of the statute itself and not because of section
The framing of a charge in trial of crises in
which a charge is required to be framed, is one of the important elements in
the mode of a trial. On the charge framed, after it has been explained to the
accused, the plea of guilty or not guilty is recorded. If the accused pleads
guilty, certain consequences follow. If he pleads not guilty, the trial must
proceed according to law. When a charge is not framed, obviously no plea of the
accused with reference to it is taken and the trial has proceeded without such
a plea. Is the framing of a charge and the recording of the plea of the accused
merely a ritual or a fundamental provision of the Code concerning procedure
1194 in a criminal trial? I think it is the latter. Are the express provisions
of the Code as to the manner in which a trial is to proceed to be ignored, or
considered as satisfied, merely because the Court explained to the accused as
to what he was being tried for? I a prehend not. For to do so is to replace the
provisions of the Code by a procedure unwarranted by the statute itself. In my
opinion, a total absence of a charge from start to finish in a case where the
law requires a charge to be framed, is a contravention of the provisions of the
Code as to the mode of trial and a conviction of the accused of an offence in
such a case is invalid and the question of prejudice does Dot arise. None of
the decisions of the Privy Council suggest that in such a case the conviction
will be deemed to be valid by virtue of the provisions of section 535, unless
the Court is satisfied that there has been a failure of justice.
In cases where a charge has been framed and
there is an omission or irregularity in it, it is difficult to see how the mode
of trial is affected. In any event, the Code expressly provides that in such
cases the conviction need not be set aside, unless, in fact, a failure of
justice has resulted.
Under the provisions of section 232 of the
Code an appellate Court or a High Court exercising its powers of revision or
its powers under Chapter XXVII, must direct a new trial of a case in which an
accused person has been convicted of an offence with which he had not been
charged, if it is satisfied that he had been misled in his defence by the
absence of a charge. In such a case a court is bound to act according to its
provisions. But this does not mean that by virtue of these provisions that
which was invalid shall be deemed to be valid, unless, prejudice was shown. It
is the provision of section 535 to which reference must be made in order to
ascertain whether that which was invalid shall be deemed to be valid, unless
the court was satisfied that there had been a failure of justice. I regard with
concern, if not with dismay, a too liberal application of its provisions to all
cases in which there is an absence of a charge, 1195 although a charge ought to
have been framed. It is difficult to lay down any hard and fast rule as to when
the provisions of section 535 will or will not be applicable.
The facts of each case, as they arise, will
have to be carefully considered in order to decide that that which was prima
facie invalid is deemed to be valid by virtue of its provisions. There may be
cases where the omission to frame a charge was merely a technical defect in
which case section 535 would apply. On the other band, there may be cases where
failure to frame a charge affects the mode of trial or it is such a substantial
contravention of the provisions of the Code relating to the framing of charges
that prejudice may be inferred at once and the conviction which was prima facie
invalid continued to be so. In a criminal trial innocence of an accused is
presumed, unless there is a statutory presumption against him, and the
prosecution must prove that the accused is guilty of the offence for which he
is being tried. The prosecution is in possession of all the evidence upon which
it relies to establish its case against the accused. It has the privilege to
ask the Court to frame charges with respect to the offences which it wishes to
establish against the accused. On the Court itself a duty is cast to frame
charges for offences which, on the evidence, appear to it prima facie to have
If in spite of this a charge under section
302 read with 149 of the Indian Penal Code only is framed against an accused
person and not under section 302 of the Indian Penal Code, it will be
reasonable to suppose that neither the prosecution nor the Court considered the
evidence sufficient to prove that murder was committed by the accused and the
omission to frame a charge under section 302 must be regarded as a deliberate
act of the Court by way of notice to the accused that he was not being tried
for that offence.
It would not be a case of mere omission to
frame a charge.
If, therefore, the accused is convicted under
section 302, I would consider his conviction as invalid, as he was misled in
In conclusion I would point out that the
provisions of the Code of Criminal Procedure are meant to be 151 1196 obeyed.
Contravention of its provisions are unnecessary and neither the prosecution nor
the Courts of trial should ignore its provisions in the hope that they might
find shelter under sections 535 and 537 of the Code. Where the contravention is
substantial and a retrial becomes necessary, public time is wasted and the
accused is put to unnecessary harassment and expense.
I agree that the appellant's conviction be
altered from section 302 of the Indian Penal Code to 304 of the Indian Penal
Code and that he be sentenced to five years' rigorous imprisonment.