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Willie (William) Slaney vs The State Of Madhya Pradesh on 31 October, 1955

Supreme Court of India Willie (William) Slaney vs The State Of Madhya Pradesh on 31 October, 1955Equivalent citations: 1956 AIR 116, 1955 SCR (2)1140 Author: V Bose Bench: Das, Sudhi Ranjan, Bose, Vivian, Jagannadhadas, B., Imam, Syed Jaffer, Aiyar, N. Chandrasekhara

PETITIONER:

WILLIE (WILLIAM) SLANEY

Vs.

RESPONDENT:

THE STATE OF MADHYA PRADESH.

DATE OF JUDGMENT:

31/10/1955

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

AIYAR, N. CHANDRASEKHARA

DAS, SUDHI RANJAN

JAGANNADHADAS, B.

IMAM, SYED JAFFER

CITATION:

1956 AIR 116 1955 SCR (2)1140

ACT:

Sessions Trial-Charge under s. 304 read with s. 34 of the Indian Penal Code against two persons-Acquittal of one- Omission to frame alternative charge against the other- Conviction 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. 34,149,302.

HEADNOTE:

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 per curiam, 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 prejudice.

That the expression ‘illegality’ used in Nanak Chand’s case must be read with reference to the facts of that case where the court

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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 present one.

Nanak Chand v. The State of Punjab ([1955] 1 S.C.R. 1201), and SurajPal v. The State of U.P. ([1955] 1 S.C.R. 1332), explained.

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 ([1901] L.R. 28 I. A. 257), explained.

Babulal Choukhani v. The King-Emperor ([1938] L.R. 65 I. A. 158), Pulukuri Kotayya v. King-Emperor ([1947] L.R. 74 I.A. 65), Abdul Rahman v. King-Emperor ([1926] L.R. 54 I. A. 96), Atta Mohammad v. King-Emperor ([1929] L.R. 57 I.A. 71), Karnail Singh v. The State of Punjab ([1954] S.C.R. 904) and Begu v. KingEmperor ([1925] I.L.R. 6 Lah. 226), referred to. Per S. R. DAS, ACTING C.J. and BOSE J.-Like all procedural laws the Code of Criminal Procedure is designed to subserve 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 Code.

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. 233.

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 with. 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 good.

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 pre- judice.

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 every thing 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 ([1877] 2 P.D. 203), referred to. 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.

JUDGMENT:

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

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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 ([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 subse-

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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 ([1901] 28 I.A. 257), Abdul Rahman v. The King-Emperor ([1926] 54 I. A. 96), Pulukuri Kotayya and Others v. King-Emperor ([1946] 74 I. A. 65), Babulal Chowkhani v. King-Emperor ([1938] L.A. 65 I.A. 158), Chintaman v. KingEmperor ([1945] I.L.R. 24 Patna 303), Begu and Others v. The King-Emperor ([1925] 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 ([1908] I.L.R. 30 Cal. 288), Lang v. Willis ([1934] 52 C.W.N. 637 ), Sita Ahir v. Emperor ([1917] 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 sustained. 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 ([1901] 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

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decisions of the Privy Council in the later cases: [See, Abdul Rahman v. The King-Emperor ([1926] 54 I.A. 96) and Pulukuri Kotayya and Others v. King-Emperor ([1946] 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 ([1954]. 8 C.R. 904) and Lachman Singh and Others v. The State ([1952] 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 ([1955] 1 S.C.R. 1201) and Suraj Pal v. State of U.P. ([1955] 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 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.

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, Acting C.J. 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) [1955] I S.C.R. 1201.

(2) [1955] 1 S.C.R. 1332.

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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 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

(1) [1955] 1 S.C.R. 1201,

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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

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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 must prevail”. 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 used”.

(1) [1938] L.R. 65 I.A. 158, 175.

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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 prescribed. “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 therefrom an illegality that could not be cured. That was due- to the language of the Judicial Committee in N.A. Subramania Iyer v. KingEmperor(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) [1901] L.R. 28 I.A. 257, 263.

(2) [1917] L.R. 74 I.A. 66, 75.

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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 irregularity”. This was examined and explained in Abdul Rahman v. King- Emperor(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 be- cause prejudice is then patent or because it is so abhorrent to well-establisbed 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 possi- bility of prejudice would swing the balance in favour of the accused.

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) [1926] L.R. 54 I.A. 96, 109.

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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) [1947] L.R. 74 I.A. 65, 75. (2) [1929] L.R. 57 I.A. 71,

76. (3) [1947] L.R. 74 I.A. 80,

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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 pre- judiced.

We now proceed to examine the relevant sections of the Code. Chapter XLV deals generally with irregular proceedings. There are certain irregularities which do not vitiate the proceedings. They are set out in section 529. No question of prejudice arises,

(1) [1901] L.R. 28 I.A. 257. 146

(2) [1938] L.R. 5 I.A. 158,177.

1156

in this class of case because the section states cate- gorically 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 man- ner 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 following sections. 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 (section 228). 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.

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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 occasioned thereby”. 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 proceedings”.

This repeats what was set out in greater detail in section 225 and is all the more impressive because

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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,

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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) [1901] L.R. 28 I.A. 257. (2) [1938] L.R. 65 I.A. 158,

174. (3) [1947] L.R. 74 I.A. 65,75.

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sentence “shall be reversed or altered” unless there has in fact been a failure of justice.

We do not attach any special significance to these terms. 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 “irregu- larity”. 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 some overlapping. 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 those- in 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 and persons.

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 mean- ing 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 explain- ing 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

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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 objec-

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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) [1929] L.R. 57 I.A. 71, 74.

(2) [1926] L.R. 54 I.A. 96,104, 110.

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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 case. The decision in Karnail Singh v. The State of Punjab(2) is to the same effect and the question about prejudice was also considered.

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).

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