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SUPREME COURT OF INDIA
31st October, 1955
S.R. DAS, ACTG. C.J.I., BOSE, JAGANNADHA DAS, IMAM AND CHANDRASEKHARA AIYAR, JJ.
Willie (William) Slaney, Appellant
Versus
State of M.P., Respondent.
Criminal Appeal No. 6 of 1955.
Advocates appeared
Mr. H. J. Umrigar and Mr. Rajinder Narain, Advocates, for Appellant; Mr. B. Sen and Mr. I N. Shroff, Advocates, for Respondent.
Held2 (per Chandersekhara Aiyar and Jagannadhadas JJ.): 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. 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 preparation or commission of the crime. - Preamble, Sections 225, 232, 535, 537(a)-Meaning and scope commission to frame a charge or error or omission in charge-Effect on trial and conviction of accused-Accused should not be prejudiced.
Charge under Ss. 302 and 34, Indian Penal Code-Co-accused acquitted-Omission to frame a separate charge in the alternative under S. 302 I.P.C.-Conviction sustained under section 304 I.P.C. on facts.
The appellant was charged under section 302 of the Indian Penal Code read with section 34. His co-accused was acquitted. It was urged that the element of common intention had dropped out and accordingly section 34 could not be called in aid. It was further contended that as the appellant was not charged with having murdered the man personally, he could not be convicted under section 302, and that the conviction was an illegality which could not be cured. He, therefore, claimed that he must either be acquitted, or, at the most, be retired, though he added further that in the circumstances of the case the court should not in the exercise of its discretion order a retrial. As against this it was contended for the State that an omission to frame a separate charge in the alternative under section 302 8impliciter is a curable irregularity provided there is no prejudice to the accused.
Held: 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.1
(Per S.R. Das Actg. C.J. and Bose J.) : (1) The Criminal Procedure 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 he 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 inconsequential errors and omissions in the trial are regarded as vena] 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.
As in all procedural laws, certain things are regarded as vital. Dis. Regard 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.
(3) 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, are fusels explain the nature of the charge to him and so forth. These go to the foundation 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 there was no reasonable probability of prejudice. In still another class of cases, 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 accused.
(4) Sections 225, 232 535 and 537 (a) of the Code between them cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from beginning to end 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.
Therefore what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main
1.Nanak Chand v. The State of Punjab, (1955) 1 S.C.R. 1201: A.I.R. 1954 S.C. 274 explained and distinguished. 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.
Per Chandrasekhara Aiyar and Jagannadhadas JJ.: (1) A case of complete absence of charge is covered by section 535, whereas an error or omission in a charge is dealt with by section 535. The consequences seem to be slightly different. Where there is no charge, it is for the court to deter mine 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 proceedings.
The sections referred to indicate that in the generality of cases the Omission to frame a charge is not per se fatal. The group of sections relating to absence of a charge, namely, sections 225, 226 and 232 and the lowers exercisable thereunder, are with reference to a trial which has already Commenced or taken place. They would, therefore, normally relate to errors of omissions which occur in a trial that has validly commenced. There is no reason to think that section 535 of the Code is not also to be understood with reference to the same context. There may be cases where as trial which proceeds without any kind of charge .at the outset can be said to be 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 Magistrates 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 227].
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 every thing was orally explained to the accused and the assessors or jurors, and there was 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 illegality.
(c) 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 criminal1iability for the offence cannot be said to be fatal by itself," and before a. conviction for the substantive offence, without a .charge, can be Bet 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.
(2). 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.
Per Imam J.- 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 again8t 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 been Committed. If in spite of this a charge under Section 302 read with S. 149 of the Indian Penal Code only is framed against an accused person and not under S.302, 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 case of mere omission to frame a charge. If, therefore, the accused is convicted under section 302, it must be considered that his conviction was invalid, as he was misled in his defence.
Judgement
BOSE J. (On behalf of himself and S. R. Das Actg. C. J.) : This appeal was referred to a Bench of Five Judges in order to determine whether there was a conflict of view between - Nanakchand v. State of Punjab , (S) AIR 1955 SC 274 (A) and - Surajpal v. State of U.P., AIR 1955 SC 419 (B) and if so, to determine it.
2. 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 he cannot be convicted under section 302. He relies on certain observations in (S) AIR 1955 SC 274 (A) 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 he 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 as 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.
3. 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 Penal Code......."
4. An exactly similar charge with the necessary change of name was framed against the co-accused Ronnie Slaney.
5. It was contended on behalf of the State that this is really a charge under section 302 of the Indian Penal Code and that the reference 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 it 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 on 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 if 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.?
6. 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 j
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