The total absence of a written charge ought not to be treated as a mere irregularity.

But where there is a charge contained in a warrant or in a report, even if in the one case the accused appears before the warrant is executed, and in the other the offence is one punishable with imprisonment for more than three months or fine over Rs. 50, the. failure to frame a separate written charge may amount to nothing more than a mere irregularity, and it is the duty of the Appeal Court, under section 425 of the Criminal Procedure Code, to inquire whether in the particular case under consideration the irregularity led to a " failure of justice." Anything which has proved prejudicial to the interests of the accused In the trial should be considered to have led to a failure of justice.

Where the facts disclosed the offence of keeping a brothel under section 1 of Ordinance No. 5 of 1889, the charge in the report read to the accused was laid under section 9 of the Criminal Law Amendment Ordinance, No. 21 of 1919.

, in the circumstances of this case the failure to frame a written charge by the Magistrate was a fatal irregularity.

T