TMI Blog1955 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... te, 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 ([1955] 1 S.C.R.1201), Suraj Pal v. State of U. P. [1955] 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 subsequent decisions of the Privy Council, and, in fact, in Babulal Chowkhani's case Lord Wright in delivering the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond 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 sustained. Proceeding on the basis that an offence under s. 302 read with s. 149 is a distinct and separate offence from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Courts in India have always taken this view. See' The King- Emperor v. Barendra Kumar Ghose (A.I.R. 1924 Cal. 257), Emperor v. Destrali ([1930] 58 Cal. 822), Debiprasad Kalowar v. Emperor ([1932] 59 Cal. 1192), Devki Nandan and Others v. Emperor (A.I.R. 1941 Lah. 423) and Bhondu Das v. King- Emperor ([1928] 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 cross- examinations 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 evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Penal Code........... . 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 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudice. 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 must prevail . Babulal Choukhani v. The King-Emperor( [1938] L.R. 65 I.A. 158, 175.). And at page 177- But, even s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 irregularity . This was examined and explained in Abdul Rahman v. King- Emperor([1926] L.R. 54 I.A. 96, 109.) 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 be- cause prejudice is then patent or because it is so abhorrent to well-es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 controversy that has raged around the true meaning of N. A. Subramania Iyer v. King-Emperor([1901] L.R. 28 I.A. 257. 146). 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([1938] L.R. 5 I.A. 158,177.) 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 emba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ats what was set out in greater detail in section 225 and is all the more impressive because 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that offence provided there is a charge to start with. 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conflict and 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([1952] S.C.R. 839, 848.) 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 case. The decision in Karnail Singh v. The State of Punjab([1954] S.C.R. 904,911) is to the same effect and the question about prejudice was also considered. Pandurang, Tukia and Bhillia v. State of Hyderabad([1955] 1 S.C.R. 1083.) also presents no difficulty because though the point wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bein 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cartridge. 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 mur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 eye- witness in the case accuses him and not his brother of having hit the deceased over the head with a hockey stick. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opportunity of knowing the charge on which he was tried or of raising defences appropriate to that charge . 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 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 is treated as a serious lacuna merely; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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([1938] 65 I.A. 158.) 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([1901] L. R. 28 I.A. 257.). The matter cropped up once again in Pulukuri Kotayya and others v. KingEmperor ([1947] L.R. 74 I.A. 65.) 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se[1901] L.R. 28 I.A. 257.) 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:- 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, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Code, it will be reasonable to suppose that neither the prosecu- tion 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 his defence. In conclusion I would point out that the provisions of the Code of Criminal Procedure are meant to be 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 year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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