31 October 1955
Supreme Court


Case number: Appeal (crl.) 6 of 1955






DATE OF JUDGMENT: 31/10/1955


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 1141



found  prejudice, and the apparent conflict of view  between the  judgment in that case and that in Suraj Pal’s case  had really no bearing on the 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 1144 No. 220 of 1953 arising out of the judgment and order  dated the  21st  July  1953  of the Court  of  Sessions  Judge  at Jabalpur in Sessions Trial No. 32 of 1953. H.J.  Umrigar and Rajinder Narain, for the  appellant.   The courts  below  were  wrong in convicting  the  appellant  of murder under s. 302 of the Indian Penal Code in the  absence of  a  charge  framed for the offence.   The  charge  framed against the appellant was different and he was never charged individually  of  having committed murder.  When  the  other person  was acquitted the charge of an offence under s.  302 read  with  s.  34 of the Indian Penal Code  falls  and  the appellant  is  bound to be acquitted.  It is  a  fundamental principle  of  criminal law as administered  in  India  that there should be a separate charge for every distinct offence as  the accused person must have notice of the charge  which he  has to meet.  The only exceptions are contained  in  ss. 236,  237  and 238 of the Code of Criminal  Procedure.   The offence  of  murder under s. 302 of the  Indian  Penal  Code being separate, distinct and different from an offence under s. 302 read with 34 or an offence under s. 302 read with 149 which creates a distinct head of criminal liability known as constructive liability a conviction under s. 302 simpliciter without  a charge being framed therefor is an illegality  in the mode of trial.  Where a person has been convicted of  an offence  with which he has not been charged (unless  allowed by  exceptions) the prejudice is inherent in the absence  of the charge itself and it is unnecessary to look any further. Where  there  is  an  illegality in the  mode  of  trial  as contemplated in ss. 233 to 239 it is an illegality, which is not cured by the provisions of ss. 535 and 537.  There is no difference  in principle between a charge under s. 302  read with 34 and a charge under s. 302 read with 149 [See:  Nanak



Chand v. State of Punjab ([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- 1145 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 1141 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. 1149 if so, to determine it. The  appeal is against a conviction for murder in which  the lesser  sentence  was given.  The main ground  is  that  the appellant was charged under section 302 of the Indian  Penal Code read with section 34. His co-accused was acquitted, so, it was urged, the element of common intention drops out  and accordingly  section  34 cannot be called in aid.   But  the Courts  below  hold that the appellant inflicted  the  fatal blow  and have made him directly liable for the murder.   He contends that as he was not charged with having murdered the man personally be cannot be convicted under section 302.  He relies  on certain observations in Nanak Chand v. The  State of  Punjab(1)  and  contends  that  the  conviction  is   an illegality  which  cannot be cured and claims that  he  must either  be acquitted or, at the most, be retried, though  be adds  further  that in the circumstances of  this  case  the Court  should not in the exercise of its discretion order  a retrial.  As against this it is contended for the State that an  omission to frame a separate charge in  the  alternative under  section  302 simpliciter is  a  curable  irregularity provided  there is no prejudice to the accused.   Therefore, the  only  matter for determination is a  question  of  fact whether there was prejudice in this case.   The charge was as follows: "That  you,  on or about the 12th day of February  1953,  at Civil Lines, Jabalpur, went with your brother Ronnie  Slaney to the house of Mrs. Waters (P.W. 20) at about 7 p.m. and in furtherance  of  the common intention did commit  murder  by intentionally or knowingly causing the death of her  brother D. Smythe and thereby committed an offence punishable  under section 302 of the Indian Penal Code read with section 34 of the Indian 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, 1150 Penal  Code and that the references to common intention  and to section 34 are mere surplusage.  There is much to be said for  this  but  we  will assume in  this  case  (without  so deciding)  that  the charge is ambiguous and that  it  means what  the  appellant says it means, namely  a  charge  under section  302 read with section 34 and not one under  section 302  simpliciter.  On that assumption the question  for  our decision  is  whether the omission to frame  an  alternative charge  under  section 302 of the Indian Penal  Code  is  an illegality that cuts at the root of the conviction and makes not invalid or whether it is a curable irregularity in which all  that  we  are concerned to see  is  whether  there  was prejudice.   What it narrows down to is this: Is the  charge to  be  regarded  as a ritualistic  formula  so  sacred  and fundamental that a total absence of one, or any departure in it  from the strict and technical requirements of the  Code, is  so vital as to cut at the root of the trial and  vitiate it from the start, or is it one of many regulations designed to  ensure a fair and proper trial so that  substantial,  as opposed to purely technical, compliance with the spirit  and requirements  of the Code in this behalf is enough  to  cure departures from the strict letter of the law? Before  we  proceed to set out our answer  and  examine  the provisions  of the Code, we will pause to observe  that  the Code  is a code of procedure and, like all procedural  laws, is  designed  to  further the ends of  justice  and  not  to frustrate    them   by   the   introduction    of    endless technicalities.  The object of the Code is to ensure that an accused  person  gets a full and fair  trial  along  certain well-established and well-understood lines that accord  with our notions of natural justice.  If he does, if he is  tried by a competent court, if be is told and clearly  understands the  nature of the offence for which he is being  tried,  if the  case against him is fully and fairly explained  to  him and he is afforded a full and fair opportunity of  defending himself, then, provided there is substantial compliance with the  outward forms of the law, mere mistakes  in  procedure, mere in consequential errors and omissions 1151 in the trial are regarded as venal by the Code and the trial is  not  vitiated unless the accused  can  show  substantial prejudice.   That, broadly speaking, is the basic  principle on which the Code is based. Now  here,  as in all procedural laws,  certain  things  are regarded as vital.  Disregard of a provision-of that  nature is   fatal  to  the  trial  and  at  once  invalidates   the conviction.    Others  are  not  vital  and   whatever   the irregularity  they  can  be cured; and  in  that  event  the conviction  must  stand unless the Court is  satisfied  that there  was prejudice.  Some of these matters are dealt  with by  the Code and wherever that is the case full effect  must be given to its provisions.  The question here is, does  the Code deal with the absence of a charge and irregularities in it,  and  if so, into which of the two  categories  does  it place  them?  But before looking into the Code, we  deem  it desirable to refer to certain decisions of the Privy Council because  much of the judicial thinking in this  country  has been  moulded  by their observations.  In our  opinion,  the general  effect  of  those decisions can  be  summarised  as follows.



First comes a class of case in which the Code deals with the matter expressly.  In that event, full effect must be  given to the plain meaning of the words used. "The  language  of  that Code is  conclusive,  and  must  be construed  according to ordinary principles, so as  to  give effect to the plain meaning of the language used.  No doubt, in the case of an ambiguity, that meaning must be  preferred which is more in accord with justice and convenience, but in general the words used read in their context 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. 1152 Next  comes  a class of case for which there is  no  express provision in the Code, or where there is ambiguity.  In that event, the question is whether the trial has been  conducted in  substantial  compliance  with the Code or  in  a  manner substantially different from that 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. 1153 in  most  systems  of  jurisprudence, but  it  would  be  an extraordinary  extension of such a branch  of  administering the criminal law to say that when the Code positively enacts that  such a trial as that which has taken place here  shall not  be permitted that this contravention of the Code  comes within the description of error, omission or 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. 1154 away  from  technicality, and a greater endeavour  has  been made  to regard the substance rather than the shadow and  to administer  Justice fairly and impartially as it  should  be administered;  fair  to the accused, fair to the  State  and fair  to  the vast mass of the people for  whose  protection penal laws are made and administered. The more recent attitude of the Judicial Committee is summed -up  by  Sir  John Beaumont in  Pulukuri  Kotayya  v.  King- Emperor(1) where he says that- "The distinction drawn in many of the cases in India between an  illegality and an irregularity is one of  degree  rather than of kind" and by Viscount Sumner in Atta Mohammad v. King-Emperor(2)- "In  the complete absence of any substantial  injustice,  in the  complete absence of anything that outrages what is  due to  natural justice in criminal cases, their Lordships  find it impossible to advise His Majesty to interfere". We  prefer this way of stating the law, for the  distinction that  was  once  sought  to  be  drawn  between  an  express prohibition  and  an equally  express  provision  positively stated  strikes  us  as unreal.  The real  question  is  not whether  a  matter is expressed positively or is  stated  in negative  terms  but  whether  disregard  of  a   particular provision  amounts  to  substantial denial  of  a  trial  as contemplated by the Code and understood by the comprehensive expression  "Natural  justice".  It will  be  observed  that disregard of ail express Prohibition was regarded as curable in Zahiruddin v. King-Emperor(3), so the question whether  a particular  provision is stated in positive or  in  negative terms is not the true criterion. It  is possible (though we need not so decide in this  case) that  the  recent amendment to section 537 in  the  Code  of Criminal  Procedure  (Amendment)  Act XXVI  of  1955,  where



misjoinder  of  charges  has  been  placed  in  the  curable category, will set at rest the (1) [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, 1155 controversy that has raged around the true meaning of N.  A. Subramania  Iyer  v.  King-Emperor(1).   In  any  case,  our opinion  is  that the real object of the Code  is  to  leave these matters to the discretion and vigilance of the courts. Slightly  to  alter  the language of the  Privy  Council  in Babulal Choukhani v. The KingEmperor(2) we would say- "It must be hoped, and indeed assumed, that magistrates  and judges will exercise their jurisdiction fairly and honestly. Such  is the implied condition of the exercise  of  judicial power.   If they do not, or if they go wrong in fact  or  in law, the accused has prima facie a right of recourse to  the superior courts by way of appeal or revision; and the  cases show bow vigilant and resolute the High Courts are in seeing that  the  accused  is  not  prejudiced  or  embarrassed  by unsubstantial  departures from the Code and bow closely  and jealously  the  Supreme  Court guards the  position  of  the accused.   These  safeguards may well have appeared  to  the Legislature to be sufficient when they enacted the  remedial provisions of the Code and have now left them  substantially unaltered in the new Code recently introduced". This,  we  feel, is the true intent and purpose  of  section 537(a) which covers every proceeding taken with jurisdiction in  the  general  phrase "or other  proceedings  under  this Code".  It is for the Court in all these cases to  determine whether  there  has been prejudice to the  accused;  and  in doing  so  to  bear  in mind that  some  violations  are  so obviously opposed to natural justice and the true intendment of  the Code that on the face of them and  without  anything else  they  must  be struck, down, while in  other  cases  a closer  examination of all the circumstances will be  called for  in order to discover whether the accused has been  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. 1159 Next, we have a case in which the error is not observed  and corrected during the trial and the accused is convicted.  In such a case, the High Court is empowered to direct a retrial only  if,  in its opinion, the accused was  "misled  in  his defence"  (section 232).  It is to be observed that this  is so  whether there was a total absence of a charge or  merely an  error  in it.  It is evident that  a  conviction  cannot stand if the defect cuts at the root of the trial, therefore defects even of this nature are not regarded as fatal. From there we proceed to section 535.  The marginal note  is "Effect  of  omission to prepare charge",  and  the  section says- "No finding or sentence pronounced or passed shall be deemed invalid  merely  on the ground that no  charge  was  framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been 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 1160 even  when a death sentence is under review in  confirmation proceedings  under  Chapter  XXVII the  Court  is  expressly directed  not to regard any error, omission or  irregularity in  the charge as fatal unless it has in fact  occasioned  a failure  of justice.  Reading these provisions as  a  whole, there is, in our opinion, no room left for doubt about  what was intended. It was argued on behalf of the appellant that these sections must be read along with sections 236, 237 and 238.   Counsel conceded that there are occasions when an accused person can be  convicted  in the absence of a charge but he  said  that they  are expressly set out in sections 237 and 238  and  he contended that no further departure is permissible.  He  put his argument as follows.  He said that sections 237 and  238 deal with cases in which there is a charge to start with but none to support a conviction for an offence which the  Court feels  is made out by the evidence.  These  sections  define the  limits within which the Court may convict in  spite  of the  fact  that  there  is no  charge  for  that  particular offence.   When  section 535 is read along  with  these  two sections it is seen that it cannot apply to a case in  which there is no charge at all, nor can it apply to any case that is  not  covered by these two sections.  It  is  limited  to cases  in  which sections 237 and 238  permit  a  conviction without a charge. In answer to this the following argument was put to  counsel and  be was asked to meet it.  The point was put  this  way. Section 535 cures convictions that would be invalid but  for its  provisions.  This, it was said, follows from the  words "shall  be  deemed invalid".  It was  suggested  that  these words  show that a conviction without a charge is  in  truth and  in  fact invalid but that it can be  cured  in  certain cases, and when that is done, that which in truth is invalid is deemed not to be invalid because of this section.  But as sections 237 and 238 expressly permit convictions in certain cases without a charge for those offences, provided there is a  charge  in  the case to start with,  the  convictions  so permitted  cannot  be invalid or even irregular  because  it would  be  wrong to say that that which the  Code  expressly allows is, or can be, 1161 irregular.   Therefore,  section 535 cannot apply  to  cases covered  by  sections 237 and 238.  The result  is  that  in these  cases  no  question  of  prejudice  can  arise;   the convictions  are good, prejudice or no  prejudice.   Counsel replied  that  even  if that is so,  section  535  is  still governed  by  section 233 and so cannot apply  to  cases  in which there is no charge at all. We do not agree with either view.  In our opinion, the cases contemplated  by  section 237 are just as much  a  departure from  section  233 as are those envisaged in  sections  225, 226,  227, 228, 535 and 537 Sections 236, 237 and  238  deal with joinder of charges and so does section 233.  The  first condition is that there shall be a separate charge for  each offence  and  the second is that each charge must  be  tried separately  except in the cases mentioned in  sections  234, 235  and 236.  It is to be observed that the exceptions  are confined  to the rule about joinder of charges and  that  no



exception  is  made to that part of the rule  that  requires separate  charges  for each offence.  It will be  seen  that though  sections 234, 235 and 236 are  expressly  mentioned, section  237  is  not  referred  to,  nor  is  section  238. Therefore, so far as section 233 is concerned, there can  be no doubt that it requires a separate charge for each offence and  does not envisage a situation in which there is  either no  charge  at all or where, there being a charge  for  some other  offence of which the accused is acquitted, he can  be convicted  instead  of something else for which be  was  not charged.   We  are  unable to hold  that  the  Code  regards sections 237 and 238 as part of the normal procedure. What  then is the position if there is some  departure  from the  normal procedure?  In our opinion, sections  225,  226) 227, 228, 535 and 537 furnish the answer and they apply with equal  force  to every kind of departure from that  part  of section  233  that  requires  a  separate  charge  for  each offence.  Section 237 is only a corollary to section 236 and is  there  to emphasise that even when a number  of  charges could be joined together in the cases set out in section 236 and  one  or more are not put in, oven then,  there  can  be convictions in respect of those offences despite the 1162 absence of a charge or charges.  But all these sections  are governed by the overriding rule about prejudice mentioned in one form or another in sections 225, 226, 227, 228, 535  and 537.   We  think  it  would be  monstrous  to  bold  that  a conviction cannot be set aside even when gross prejudice  is proved in cases covered by section 237 just because it  does not  speak of prejudice.  We can envisage cases where  there would be grave prejudice under that section just as  clearly as  we  can see cases where there would be  none  under  the others. The sort of problem that we are now examining can only arise when  an express provision of the Code is violated and  then the root of the matter is not whether there is violation  of an express provision, for the problem postulates that  there must  be,  nor is it whether the provision is  expressed  in positive or in negative terms, but what are the consequences of  such  disregard.  Does it result in an  illegality  that strikes  at the root of the trial and cannot be cured or  is it an irregularity that is curable? We  have  used  the terms  "illegality"  and  "irregularity" because they have acquired a technical significance and  are convenient to demarcate a distinction between two classes of case.   They were first used by the Privy Council in  N.  A. Subramania  Iyer v. KingEmperor(1) and repeated  in  Babulal Choukhani  v.  King-Emperor(2 ) and in Pulukuri  Kotayya  v. King-Emperor(3), but it is to be observed that the Code does not use the term "illegality".  It refers to both classes as "irregularities"; some vitiate the proceedings (section 530) and  others  do not (section 529).   Proceedings  that  come under  the  former head are "void".  Section  535  uses  the words "shall be deemed invalid" which indicate that a  total omission  to  frame  a charge would  render  the  conviction invalid but for section 535 which serves to validate it when that sort of "irregularity" has not occasioned a "failure of justice".  Section 537 does not use any of these expressions but merely says that no conviction or (1)  [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. 1163 sentence "shall be reversed or altered" unless there has  in fact been a failure of justice. We  do not attach any special significance to  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 1168 can  possibly arise, ranging from cases in which there is  a conviction  with no charge at all from start to finish  down



to  cases  in  which  there is a  charge  but  with  errors, irregularities  and omissions in it.  The Code  is  emphatic that  whatever the irregularity it is not to be regarded  as fatal  unless there is prejudice.  It is the substance  that we must seek.  Courts have to administer justice and justice includes  the  punishment  of  guilt just  as  much  as  the protection of innocence.  Neither can be done if the  shadow is  mistaken  for the substance and the goal is  lost  in  a labyrinth of unsubstantial technicalities.  Broad vision  is required,  a nice balancing of the rights of the  State  and the protection of society in general against protection from harassment  to  the  individual  and  the  risks  of  unjust conviction.   Every  reasonable  presumption  must  be  made infavour of an accused person; he must be given the  benefit of  every  reasonable doubt.  The same broad  principles  of justice  and  fair  play  must  be  brought  to  bear   when determining  a  matter of prejudice as in  adjudging  guilt. But when all is said and done, what we are concerned to  see is  whether  the accused bad a fair trial, whether  he  knew what  be was being tried for, whether the main facts  sought to  be established against him were explained to him  fairly and clearly and whether he was given a full and fair  chance to  defend himself.  If all these elements are there and  no prejudice  is shown the conviction must stand  whatever  the irregularities whether traceable to the charge or to a  want of one. In  adjudging  the question of prejudice the fact  that  the absence  of a charge, or a substantial mistake in it,  is  a serious lacuna will naturally operate to the benefit of  the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, be is as much  entitled to the benefit of it here as  elsewhere;  but if, on a careful consideration of all the facts,  prejudice, or  a  reasonable and substantial likelihood of it,  is  not disclosed the conviction must stand; also it will always  be material to consider whether objec- 1169 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. 1170 though  the language used in one case might suggest that,  a close consideration of its reasons will disclose that  there was in fact no difference of view in the type of case  where there  is a charge to start with.  None of the  cases  deals with the position where there is no charge at all. The  following  cases  afford  no  difficulty  because  they directly  accord  with the view we have set  out  at  length above.   In Lachman Singh v. The State(1) it was  held  that when there is a charge under section 302 of the Indian Penal Code read with section 149 and the charge under section  149 disappears because of the acquittal of some of the  accused, a conviction under section 302 of the Indian Penal Code read with  section  34 is good even though there is  no  separate charge under section 302 read with section 34, provided  the accused could have been so charged on the facts of the 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). That  was a case in which a number of accused  were  charged under  sections 307/149 and sections 302/149 of  the  Indian Penal Code.  It was found that there was no common object to kill,  so all the accused were acquitted under section  149. But the evidence disclosed that the appellant had himself made an attempt on the life of one man and had himself  shot another  dead.   Accordingly the High  Court  convicted  him under  sections  307  and  302  of  the  Indian  Penal  Code respectively,  though  there was no  separate  charge  under either  of those sections.Those convictions were  challenged here.   This Court held that the omission to frame a  charge is  a serious lacuna but despite that the real  question  is whether that caused prejudice.  The learned Judges then (1)[1952] S.C.R. 839, 848. (2)[1954] S.C.R. 904,911 (3)  [1955] 1 S.C.R. 1083. (4)[1955] I.S.C.R, 1332 1171 proceeded  to  determine the question of  prejudice  on  the facts of that case.  The conclusion reached on the facts was that prejudice was disclosed, so an acquittal was ordered. It  was  argued before us that the ground  of  the  decision there was that the absence of charges under sections 307 and 302  simpliciter  was  in  itself  conclusive  to  establish prejudice and that therefore one need go no further.  It  is enough to say that that was not the decision and though that was  one  of  the  matters  taken  into  consideration,  the conclusion was based on a careful and lengthy  investigation of  all the facts in the case including the way in which  it was  conducted,  the  evidence  of  several  witnesses,  the medical  evidence, the first information report and  certain



documents including two filed by the accused. Next comes Nanak Chand v. The, State of Punjab(1).  That was also a case in which the charge was under section 302/149 of the Indian Penal Code with the conviction under section  302 simpliciter without any separate charge under that  section. The Sessions Judge had convicted under section 302/34 of the Indian Penal Code holding that the charge of rioting was not proved.   The High Court held that no common  intention  was proved  either  but  as  the  evidence  indicated  that  the appellant had done the actual killing he was convicted under section 302. Now  it  is true that there are  observations  there  which, without  close  examination,  would appear  to  support  the learned  counsel for the appellant.  But those  observations must be construed in the light of the facts found, the  most crucial fact being that/ patent prejudice was disclosed.  It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration,  as indeed  must always be the case, was that when he  was  told that he was to be tried under section 302 read with  section 149  of the Indian Penal Code that indicated to him that  he was not being tried for a murder committed by him personally but that he was only being (1)  [1955] I S.C.R. 1201. 148                             1172 made vicariously liable for an act that another had done  in prosecution of the common object of an unlawful assembly  of which he was a member.  But that was only one of the matters considered and it does not follow that every accused will be so misled.  It all depends on the circumstances.  The entire evidence  and facts on which the learned Judges founded  are not set out in the judgment but there is enough to  indicate that  had  the appellant’s attention been drawn to  his  own part  in  the actual killing he would probably  have  cross- examined  the doctor with more care and there was enough  in the  medical  evidence to show that had that been  done  the appellant  might  well have been exonerated.  As  judges  of fact  they  were  entitled, and indeed bound,  to  give  the accused  the benefit of every reasonable doubt and  so  were justified in reaching their conclusion on the facts of  that case.   Illustrations  (c)  and (e) to section  225  of  the Criminal  Procedure Code show that what the accused  did  or omitted  to  do in defence are relevant on the  question  of prejudice.  If the Court finds that a vital witness was  not cross-examined  when be might have been, and that if he  had been,  the  further  facts elicited  might  well  have  been crucial, then material from which prejudice can be  inferred is  at once apparent: that is exactly Illustrations (c)  and (e).  That, however, was, and remains, a pure conclusion  of fact  resting  on  the evidence and  circumstances  of  that particular  case.  The decision was special to the facts  of that  case  and no decision on facts can ever be used  as  a guide for a conclusion on facts in another case. Now having reached the conclusion that there was  prejudice, the   learned   Judges  were  of  the   opinion   that   the irregularity,  if  it  can be so called  when  prejudice  is disclosed was incurable and from that they concluded that an incurable  irregularity  is  nothing but  an  illegality:  a perfectly  possible  and logical conclusion when  the  words "irregularity" and "illegality" are not defined.  As we have already  said,  section 535 of the Criminal  Procedure  Code says  that  no finding or sentence "shall be  deemed  to  be invalid"  unless  etc. and it can well be argued  from  this that this indicates



1173 that  an omission to follow the provisions of the Code  does in truth and in fact render the decision invalid but because of  section 535 that which is in truth and in  fact  invalid must  be deemed to be valid unless prejudice  is  disclosed. As  there  was  prejudice in that  case,  the  decision  was invalid  and  being invalid it was illegal.  We do  not  say that that is necessarily so but it is a reasonably plausible conclusion and was what the learned Judges had in mind. It  is  to  be. observed that section 535  of  the  Code  is mandatory  in its terms, just as mandatory as  section  233. If it be accepted that an absence of a charge would, but for its  provisions, render a conviction invalid,  this  section cures  such  an  invalidity when there is in  fact,  not  in theory  but in fact, no failure of justice.  The section  is just  as  mandatory  as  section  233  and  we  can  see  no justification  for giving it less weight than  section  237. If  section 237 validates a departure from section  233  and saves  it from the stigma of an irregularity, then  so  does section  535, for it says very expressly that no  conviction shall be deemed invalid merely on the ground that no  charge was  framed  unless  that in fact occasioned  a  failure  of justice;  and if section 535 is held not to apply  to  cases covered by sections 237 and 238, then it must apply to cases that  lie outside the scope of those’ sections and the  only kind  of  case  left is a case in which  there  is  a  total absence  of  a charge, for any other type of case  would  be excluded   because  of  misjoinder.   If  section   233   is mandatory, that part of it which prohibits misjoinder except in the cases mentioned in sections 234, 235) 236 and 239  is just  as mandatory as the portion that requires  a  separate charge for each offence.  It is unfortunate that we have  no definition  of  the terms "illegality",  "irregularity"  and "in-.  validity"  because  they can  be  used  in  differing senses,  but  however that may be, the decision we  are  now examining and the remarks made in that case must be read  in the  light  of this background.  We agree that some  of  the expressions used in the judgment appear to travel wider than this but in order to dispel misconception we would now  hold that the 1174 true view is the one we have propounded at length in the, present judgment. We  now turn to the question of fact: is there  material  in this case to justify a finding of prejudice? that will  turn largely on the differences between section 302 of the Indian Penal  Code  and  section 302 read with section  34  of  the Indian  Penal Code and on the measure of criminal  liability to which the appellant would be exposed in those two  cases; and here again, the matter must be viewed broadly and not in any technical or pettifogging way. Now  what  is an accused person entitled to  know  from  the charge  and  in what way does the charge in this  case  fall short  of that?  All he is entitled to get from  the  charge is- (1)  the offence with which he is charged, section 221(1),Criminal Procedure Code, (2)  the law and, section of the law against which the offence is said to have been committed, section 221(4), (3)  particulars of the time, section 222(1) and (4)  of the place, section 222(1), and (5)  of the person against whom the offence is said to  have been  committed, section 222(1), and (6) when the nature  of the  case  is such that those particulars do  not  give  him sufficient  notice of the matter with which he  is  charged,



such particulars of the manner in which the alleged  offence was  committed  as  will be  sufficient  for  that  purpose, section 223. He is not entitled to any further information in the charge: see Illustration (e) to section 223 of the Code: "A is accused of the murder of B at a given time and  place. The charge need not state the manner in which A murdered B". It  is clear from this that when the case is one of  murder, the accused is not entitled to be told in the charge how  it was committed, whether with a pistol or a lathi or a  sword. He  is not entitled to know from the charge simpliciter  any further  circumstance.   How then is he expected  to  defend himself?   He  has the police challan, he has  the  evidence recorded in the 1175 Committal  Court, he hears the prosecution witnesses and  he is  examined  under section 342 of the Code.   It  is  these proceedings  that  furnish him with all the  necessary,  and indeed  vital, information, and it is his duty to look  into them and defend himself.  It will be seen that if the  logic of  the  appellant’s contention is carried  to  its  fullest extent  the accused could complain of prejudice  because  be was not told in the charge whether a pistol was used for the crime  or a sword and if a pistol, its calibre and bore  and the type of 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 murder committed  by  himself with another imports that every legal condition required  by law  to constitute the offence of murder committed  in  this way was fulfilled: section 221(5) of the Criminal  Procedure Code. Now what are those legal conditions?  What is the effect  of charging two persons with a murder committed in pursuance of a   common  intention?   It  means  that  the   accused   is unmistakably told that be participated in the crime; exactly how is no more a matter for the charge than it is to set out the  circumstances  in which the murder was  committed.   It also  means  that he is informed that it is  immaterial  who struck the fatal blow.  The charges here against the appel- 1176 lant  and his brother Ronnie are identical.  ’As  there  was only  one  fatal  blow and as only  one  person  could  have inflicted  it  and as both are charged in this way,  it  can only mean that each is put on his guard and made to  realise that  the  prosecution  allege  that  one  of  the  two  was responsible  for that and which must be discovered from  the evidence and not from the charge, just as surely as it  must when  the question turns on who possessed or used  a  pistol and who a sword. It  is true that if it cannot be ascertained who struck  the fatal blow, then the accused cannot be convicted unless  the



common  intention  is  proved and in that type  of  case  an acquittal of the co-accused may be fatal to the prosecution. But  the converse does not hold good, and if the  part  that the accused played can be clearly brought home to him and if it  is  sufficient to convict him of murder  simpliciter  he cannot escape liability because of the charge unless he  can show prejudice. Put at its highest, all that the appellant can urge is  that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed.  As was said  by  the Privy Counsel in Begu v.  King-Emperor(1)  and also by this Court in Lachman Singh v. The State(2)- "A  man may be convicted of an offence, although  there  has been no charge in respect of it, if the evidence is such  as to  establish a charge that might have been made.   That  is what  happened here............ They were not  charged  with that formally, but they were tried on evidence which  brings the case under section 237"(1). The  variation between murder and concealing evidence  after the  crime is no more than the variation between  killing  a man jointly with another, sharing his intention, or allowing the  other  to do the actual killing with  the  same  common intention. Now  what do the proceedings in this case show?  The  police charge-sheet states that the appellant hit the deceased with a hockey stick while his brother (1) [1925] I.L.R. 6 Lah. 226, 231. (2) [1952] S.C.R. 839, 848. 1177 only  threw  stones.  From there we go  to  his  examination under  section  342 of the Criminal Procedure  Code  in  the Committal Court.  He is specifically told that the only 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 pos- sibility of misunderstanding or mistake.  The fact that  the appellant  did not attempt to confront any of the  witnesses with   their   statements  before  either   the   Committing Magistrate  or  the  police on this  point  shows  that  the witnesses told a consistent story from the start.  Next, the appellant  was  examined under section 342 in  the  Sessions Court and was asked the same questions and was confronted in his  examination  with the same eye-witness.   He  was  told clearly and unambiguously that the evidence was that he  hit the deceased over the head. Now what was his defence?  A curious procedure was  adopted, a procedure that has been condemned by the Nagpur High Court in  other cases and which we regret to see  still  persists. Instead  of  the  accused speaking for  himself  he  made  a statement  through his advocate.  However, the  defence  was this: (1)  an alibi: "I wasn’t there". (2)  It  was dark and the deceased rushed at  the  appellant (who is now said to have been there despite the alibi), fell down the stairs and broke his head; (3)  The deceased was the aggressor and the appellant struck him in self defence. There  is no suggestion here that the other accused hit  the deceased  or that anyone other than the appellant did.   The appellant places it beyond doubt that he knew that the  case against  him  was that he is said to have struck  the  fatal blow. Next,  what  was  the cross-examination  of  the  only  eye-



witness?   There was no suggestion that she was mistaken  in her identity, whereas she was crossexamined about this  very matter  of self defence and questions were put to show  that the deceased 1178 and  not his brother had threatened the appellant  with  his fist. In the High Court the plea of alibi was dropped and the only argument  advanced was self defence.  There was no  hint  of prejudice  even  in  the grounds of appeal.   There  was  no pretence in the arguments that the appellant did not know he was  being  accused  of having hit  the  deceased.   On  the contrary, there was a clear admission in the High Court that he did hit the man but that he acted in self defence. As the appellant knew that the case against him was that  he is the one who is said to have struck the fatal blow, and as he  was  told in the charge that the offence he is  said  to have  committed was that of murder and was informed  of  the date  and place and person, we find it impossible  to  infer prejudice.  As the Privy Council said in Atta Mohammad v. Emperor(1)-                I "He  appeared  by  an advocate on the appeal  and  had  been legally  defended  at  the  trial, and it  is  as  clear  as possible  that, with full knowledge of the course which  the trial had taken, neither the appellant himself nor those who represented him bad any sense whatever of the injustice that is now urged or any idea of his having been deprived of  the opportunity  of knowing the charge on which he was tried  or of raising defences appropriate to that 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 (1)  [1929] L.R. 57 I.A. 71, 74. 1179 till  he died places the injury no higher than  "likely"  to cause death. The  learned Sessions Judge exonerated the appellant of  any intention to kill and the learned High Court Judges say that they agree with his findings.  If there was no intention  to kill, then it can be murder only if (1)  the  accused  knew that the injury inflicted  would  be likely to cause death or (2)  that  it would be sufficient in the ordinary course  of nature to cause death or (3)  that  the  accused  knew  that  the  act  must  in  all probability cause death. If the case cannot be placed as high as that and the act  is only  likely  to  cause  death  and  there  is  no   special knowledge,  the  offence  comes under  the  second  part  of section 304 of the Indian Penal Code. The  doctor thought that it was only likely to cause  death. The appellant is only 22 years old and not a doctor and  can hardly be presumed to have bad this special knowledge at the time  he  struck  the blow.  All blows on the  head  do  not necessarily  cause death, and as the deceased lived for  ten days, we are unable to deduce from the nature of the  injury



and  from the mere fact of death that the appellant had,  or should  have had, the special knowledge that section 300  of the  Indian Penal Code requires.  Admittedly, there  was  no premeditation and there was a sudden fight, so we are unable to ascribe the necessary knowledge to the appellant; nor was the  injury sufficient in the ordinary course of  nature  to cause death.  So the offence falls under the second part  of section 304 of the Indian Penal Code. On the question of sentence.  There was no enmity  according to the finding of the learned Sessions Judge.  The appellant did  not go there armed with a stick.  He was in  love  with the  deceased’s  sister who reciprocated his  affection  but could not marry him be-cause her husband had turned her  out in  England ,and she had no divorce.  The deceased, who  was the  girl’s brother, resented this.  The appellant  went  to the house and asked the sister to come down.  The 1180 brother came instead and there was a quarrel.  The appellant slapped the deceased across the face.  The deceased, who was a big and strong man, shook his fist in the appellant’s face and  the appellant snatched a hockey stick from his  younger brother  Ronnie and hit the deceased one blow over the  bead and  two blows on the hips.  In the circumstances, we  think five years’ rigorous imprisonment will suffice. We  would acquit the appellant on the-charge of  murder  and alter the conviction to one under the second part of section 304 of the Indian Penal Code and reduce the sentence to  one of five years’ rigorous imprisonment. CHANDRASEKHARA  AIYAR  J.-This appeal comes before us  on  a reference owing to a conflict between two decisions of  this Court,  Nanak Chand v. The State of Punjab(1) and Suraj  Pal v. The State of U. P. (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 (1) [1955] 1 S.C R. 1201. (2) [1955] 1 S.C.R. 1332. 1181 is  treated as a serious lacuna merely; and not regarded  as an illegality. This conflict does not arise in the case before us where the offence charged against two brothers, William and Ronnie for the  murder  of  Donald was under  section  302,  read  with section 34 of the Indian Penal Code.  Ronnie was  acquitted. But William was found guilty and sentenced to transportation for  life.   As pointed out by Lord Sumner  in  his  classic judgment  in  Barendra Kumar Ghosh v.  The  King-Emperor(1),



there  is much difference in the scope and applicability  of sections  34 and 149, though they have some resemblance  and are to some extent overlapping.  The two sections are  again compared and contrasted in Karnail Singh and another v.  The State  of Punjab(2).  Section 34 does not by  itself  create any offence, whereas it has been held that section 149 does. In a charge under section 34, there is active  participation in  the commission of the criminal act; under  section  149, the  liability  arises by reason of ’the membership  of  the unlawful assembly with a common object, and there may be  no active   participation  at  all  in  the   perpetration   or commission  of the crime.  The overlapping arises  in  those cases  where  two  or  more  persons  commit  a  murder   in furtherance of the common intention, but it is not  possible to  say which of them was responsible for the fatal  injury, or whether any one injury by itself was responsible for  the death.  There may also be a case where it is known that  out of the assailants one in particular was responsible for  the fatal injury and the others are sought to be made liable for the  result  owing to the common  intention  involved.   But whereas  in this case, the appellant has  been  individually charged with murder and there is proof that his band  caused the injury, the fact that his brother was also sought to  be made liable owing to the existence of a common intention, is neither  here  nor  there, so far as  the  legality  of  the conviction  is concerned, as there has been no prejudice  by way of failure of justice. It is, however, necessary having regard to the (1) [1924] L.R. 52 I.A. 40. (2) [1954] S.C.R. 904. 1182 lengthy  arguments  addressed to us, to  consider  the  main question  arising  on the reference.  Though the  two  cases which  gave  rise to this reference were cases  relating  to section  149 of the Indian Penal Code and not to section  34 of the Indian Penal Code, as the Present case is, the  order of  reference  was  occasioned by the  fact  that  in  Nanak Chand’s  case it was stated specifically that  the  parallel case  under section 34 also stood on the same  footing.   In our attempt to resolve the conflict, we covered a wide  area of sections and decisions.  A detailed discussion of all the decisions  cited at the Bar is not of much use as it is  not possible to gather from a study of those cases anything very decisive  by  way of any guiding principle.  But  a  few  of them, more important than the rest, must be noticed. The   Criminal  Procedure  Code  does  not  use   the   word "illegality".   Even defects or violations that vitiate  the proceedings  and  render  them void are spoken  of  only  as irregularities in section 530.  The word illegality was used almost  for  the  first time in the judgment  of  the  Privy Council,  L.R.  28 Indian Appeals 257 (familiarly  known  as Subramania   Aiyar’s   case),   where  they   speak   of   a contravention  of  section 234 of the Code, resulting  in  a misjoinder  of charges, as an illegality.  The idea that  it was a mere irregularity was repelled in these words:- "Their Lordships are unable to regard the disobedience to an express  provision  as  to  a  mode  of  trial  as  a   mere irregularity.    Such  a  phrase  as  irregularity  is   not appropriate  to the illegality of trying an  accused  person for  many  different offences at the same  time,  and  those offences being spread over a longer period than by law could have   been   joined  together  in  one   indictment.    The illustration  of the section itself sufficiently shows  what was meant". Again, they say:-



"........  it would be an extraordinary extension of such  a branch  of administering the criminal law to say  that  when the  Code positively enacts that such a trial as that  which has  taken  place  here shall not  be  permitted  that  this contravention of the Code comes 1183 within  the  description  of  error,  omission,  or  irregu- larity". Subsequently,  however, there have been systematic  attempts to explain away the said decision and restrict its scope  to narrow  limits.  This was possibly because it  was  realised even by the Judicial Committee itself that the view taken by them  to  the  effect  that a  violation  of  the  mandatory provisions of the Code would be an illegality was rather  an extreme  one.  It may be pointed out that even in that  case the question of prejudice was not entirely absent from their Lordships’  minds.  Both sides referred to it in the  course of  the  arguments, and the Lord Chancellor alludes  to  the prejudice  inherent in the trial on a multitude of  charges. In  passing, it may be mentioned here that  the  legislature has now specifically included misjoinder of charges in  sub- clause  (b)  of  section  537.  The  exact  effect  of  this inclusion may require consideration in an appropriate case. Before dealing with the other relevant sections of the Code, let us examine some of the later decisions   of   the  Privy Council which seem to indicate a swing of    the pendulum to the other side.  In Abdul Rahman v.     The King-Emperor(1), there  was  a  violation of section 360 of  the  Code  which provides  that the deposition of each witness shall be  read over  to him in the presence of the accused or his  pleader. The  High Court held that this was a mere irregularity,  and confirmed  the  conviction  as no  failure  of  justice  had resulted.   It  was  contended on appeal  before  the  Privy Council  that  the  section was obligatory,  and  that  non- compliance  with such a mandatory provision was illegal,  on the principle laid down in Subramania Aiyar’s case(2).   But their  Lordships rejected this contention pointing out  that in the earlier case the procedure adopted was one which  the Code  positively  prohibited, and it was  possible  that  it might have worked actual injustice to the accused; and  they confirmed the conviction.  The question was again raised  in Babulal Choukhani v. The King-Emperor(3) (1) [1926] L.R. 54 I.A. 96.  (2) [1901] L.R. 28 I.A. 257.                   (3) [1938] 65 I.A. 158. 1184 as  to what would be an illegality as distinguished from  an irregularity.  Lord Wright who delivered the judgment of the Board assumed that an infringement of section 239(b) of  the Code would be an illegality, and proceeded to state that the question   did  not,  however,  arise,  and  it  was   hence unnecessary to discuss the precise scope of what was decided in  Subramania Aiyar’s case(1).  The matter cropped up  once again  in  Pulukuri Kotayya and others  v.  KingEmperor  (2) where there was a breach of the statutory requirement  found in section 162 of the Code, inasmuch as the accused were not supplied  with copies of the statements first recorded by  a police   officer   for   cross-examining   the   prosecution witnesses.   The  defect was recognized to be  a  matter  of gravity,   and  if  the  statements  bad   been   completely destroyed,  or if there had been a total refusal  to  supply copies  to  the accused, the convictions were liable  to  be quashed.   But  in the case before them, as  the  statements were  made available, though too late to be  effective,  and the Circle Inspector’s notes of the examination of witnesses were  put into the hands of the accused, it was taken to  be



an  irregularity merely.  Referring to the  contention  that the  breach of a direct and important provision of the  Code cannot  be  cured  but  must lead to  the  quashing  of  the conviction, Sir John Beaumont observed:- "............ In their Lordships’ opinion, this argument  is based on too narrow a view of the operation of section  537. When  a trial is conducted in a manner different  from  that prescribed  by  the  Code (as in  N.  A.  Subramania  Iyer’s case(1)),  the  trial is bad, and no question of  curing  an irregularity   arises;  but  if  the  trial   is   conducted substantially in the manner prescribed by the Code, but some irregularity  occurs  in  the course of  such  conduct,  the irregularity can be cured under section 537, and nonetheless so because the irregularity involves, as must nearly  always be the case, a breach of one or more of the very  comprehen- sive provisions of the Code.  The distinction drawn in  many of the cases in India between an illegality and (1) [1901] L. R. 28 I.A. 257. (2) [1947] L.R. 74 I.A. 65. 1185 ail irregularity is one of degree rather than of kind.  This view finds support in the decision of their Lordships’ Board in  Abdul  Rahman v. The King-Emperor (1) where  failure  to comply  with section 360 of the Code of  Criminal  Procedure was  held to be cured by sections 535 and 537.  The  present case  falls under section 537, and their Lordships hold  the trial valid notwithstanding the breach of section 162". Of course, lack of competency of jurisdiction, absence of  a complaint by the proper person or authority specified,  want of  sanction  prescribed  as a  condition  precedent  for  a prosecution, in short, defects that strike at the very  root of  jurisdiction  stand  on  a  separate  footing,  and  the proceedings  taken  in disregard or  disobedience  would  be illegal.   The  difficulty  arises  only  when  we  have  to consider  the  other provisions in the Code  Which  regulate procedure and which are found in a mendatory form,  positive or  negative.   It  is  in this  class  of  cases  that  the distinction  becomes important and material.  The  scope  of the  decision in Subramania Aiyar’s case(2) has’  become  so circumscribed  that  it  is dobutful if it  applies  to  the generality  of  cases  of omissions and  defects  that  come before  the  courts, excepting where they  bring  about  the result  that the trial was conducted in a  manner  different from that prescribed by the Code. Let  us now turn our attention to the relevant  sections  of the  Code  bearing  on  the requirement  of  a  charge,  the omission  of  a charge and the effect thereof.  Section  233 provides as follows:- "For  every distinct offence of which any person is  accused there  shall  be a separate charge, and  every  such  charge shall be tried separately, except in the cases mentioned  in sections 234, 235, 236 and 239".  A power to alter or add to a  charge,  at any time before judgment  is  pronounced,  is conferred on a court under section 227.  Sections 228 to 231 provide  for  the  steps  to be  taken  consequent  on  such alteration.   Section 225 shows what would be the effect  of any errors in the framing of a charge.  It runs as follows:- (1) [1926] L.R. 51 I.A. 96. (2) [1901] L.R. 28 I.A. 257. 1186 "No  error in stating either the offence or the  particulars required  to  be stated in the charge, and  no  omission  to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in



fact misled by such error or omission, and it has occasioned a failure of justice". Section 232(1) of the Code of Criminal Procedure refers more specifically to the effect of such error where an  appellate Court  or  the  High Court in revision  or  in  confirmation proceedings,  notices such an error and is in the  following terms:- "If  any Appellate Court, or the High Court in the  exercise of  its  powers of revision or of its powers  under  Chapter XXVII, is of opinion that any person convicted of an offence was  misled in defence by the absence of a charge or  by  an error  in the charge, it shall direct a new trial to be  had upon a charge framed in whatever manner it thinks fit". Then  we  have  section 237, dealing with a  case  where  an accused  charged  with one offence for which he  might  have been  charged under the provisions of section 236  could  be convicted  of  a different offence.  This  applies  only  to cases  where  it is doubtful which of several  offences  the facts  which can be proved will constitute.  Begu’s  case(1) is  an example; the conviction was under section 201 of  the Indian Penal Code for causing the disappearance of  evidence relating  to a murder, though the charge was  under  section 302 of the Indian Penal Code.  Viscount Haldane observes:- "............   A  man  may  be  convicted  of  an  offence, although  there has been no charge in respect of it, if  the evidence  is such as to establish a charge that  might  have been  made.  That is what happened here.  The three men  who were  sentenced to rigorous imprisonment were  convicted  of making  away with the evidence of the crime by assisting  in taking away the body.    They  were  not charged  with  that formally,  but they were tried on evidence which brings  the case under section 237". (1)  11925] L.R. 52 I.A. 191. 1187 Finally, we come to sections 535 and 537 of the Code.  The former is in these terms:- "  (1) No finding or sentence pronounced or passed shall  be deemed  invalid  merely  on the ground that  no  charge  was framed,  unless,  in the opinion of the Court of  appeal  or revision,  a failure of justice has in fact been  occasioned thereby. (2)  If  the  Court  of appeal or  revision  thinks  that  a failure  of  justice has been occasioned by an  omission  to frame a charge, it shall order that a charge be framed,  and that  the  trial be recommenced from the  point  immediately after the framing of the charge". The latter runs thus:- "Subject  to  the  provisions  hereinbefore  contained,   no finding,  sentence or order passed by a Court  of  competent Jurisdiction  shall  be reversed or  altered  under  Chapter XXVII or on appeal or revision on account- (a)  of   any  error,  omission  or  irregularity   in   the complaint,  summons, warrant, charge,  proclamation,  order, judgment  or other proceedings before or during trial or  in any inquiry or other proceedings under this Code, or (b).................................... (c)  of  the  omission  to  revise any  list  of  jurors  or assessors in accordance with section 324, or (d)  of  any  misdirection in any charge to a  jury,  unless such  error, omission, irregularity or misdirection  has  in fact occasioned a failure of justice". A case of complete absence of a charge is covered by section 535, whereas an error or omission in a charge is dealt  with by  section  537.   The consequences  seem  to  be  slightly different.  Where there is no charge, it is for the court to



determine  whether there is any failure of justice.  But  in the  latter,  where there is mere error or omission  in  the charge,  the court is also bound to have regard to the  fact whether  the objection could and should have been raised  at an earlier stage in the proceedings. The sections referred to indicate that in the generality  of cases the omission to frame a charge is 150 1188 not  per se fatal.  We are unable, therefore, to  accept  as sound the very broad proposition advanced for the appellants by Mr. Umrigar that where there is no charge, the conviction would  be illegal, prejudice or no prejudice.  On the  other hand, it is suggested that the wording of section 535 of the Code  of  Criminal Procedure is sufficiently wide  to  cover every case of ’no charge’.  It is said that it applies  also to the case of a trial in which there has been no charge  of any kind even from the very outset.  We are unable to  agree that section 535 of the Code of Criminal Procedure is to  be construed  in  such an unlimited sense.  It may  be  noticed that this group of sections relating to absence of a charge, namely, sections 225, 226 and 232 and the powers exercisable thereunder’ are with reference to a trial which has  already commenced  or taken place.  They would, therefore,  normally relate  to errors or omissions which occur in a  trial  that has  validly  commenced.  There is no reason to  think  that section 535 of the Code of Criminal Procedure is not also to be understood with reference to the same context.  There may be  cases where, a trial which proceeds without any kind  of charge  at  the  outset can be said to  be  a  trial  wholly contrary  to what is prescribed by the Code.  In such  cases the  trial  would  be illegal without  the  necessity  of  a positive  finding of prejudice.  By way of illustration  the following classes of cases may be mentioned:-(a) Where there is  no charge at all as required by the Code from  start  to finish-from the Committing Magistrate’s court to the end  of the Sessions trial; the Code contemplates in section 226 the possibility of a committal without any charge and it is  not impossible to conceive of an extreme case where the Sessions trial  also proceeds without any formal charge which has  to be  in  writing and read out and explained  to  the  accused (section  210(2) and section 251 (A) (4) and  section  227). The  Code  requires  that there should be a  charge  and  it should  be  in writing.  A deliberate breach of  this  basic requirement cannot be cured by the assertion that everything was  orally  explained to the accused and the  assessors  or jurors, and there was 1189 no possible or probable prejudice. (b) Where the  conviction is for a totally different offence from the one charged  and not  covered  by  sections 236 and 237 of the  Code.   On  a charge for a minor offence, there can be no conviction for a major  offence, e.g., grievous hurt or rioting  and  murder. The  omission  to frame a separate and- specific  charge  in such cases will be an incurable irregularity amounting to an 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 normally  given from the outset as to who was primarily responsible for  the act which brought about the offence and such evidence is  of course relevant.  After all, in our considering whether the defect is illegal or  merely  irregular, we shall have to  take  into  account several  factors, such as the form and the language  of  the mandatory  provisions,  the  scheme and  the  object  to  be achieved,  the nature of the violation, etc.   Dealing  with the  question whether a provision in a statute is  mandatory or   directory,   Lord  Penzance  observed  in   Howard   v. Bodington(1).   "There  may be many provisions  in  Acts  of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to  the  subject-matter  to which they refer,  as  that  the legislature  could have intended that the non-observance  of them  should  be followed by a total failure  of  the  whole proceedings.  On the other hand, there are (1)  [1877] 2 P D. 203. 1190 some provisions in respect of which the court would take  an opposite  view, and would feel that they are  matters  which must  be  strictly obeyed, otherwise the  whole  proceedings that subsequently follow must come to an end".  These  words can  be applied mutatis mutandis to cases where there is  no charge  at all.  The gravity of the defect will have  to  be considered to determine if it falls within one class or  the other.  Is it a mere unimportant mistake in procedure or  is it substantial and vital?  The answer will depend largely on the facts and circumstances of each case.  If it is so grave that  prejudice will necessarily be implied or imported,  it may  be described as an illegality.  If the  seriousness  of the  omission  is  of  a  lesser  degree,  it  will  be   an irregularity and prejudice by way of failure of justice will have to be established. This  judgment should not be understood by  the  subordinate courts  as  sanctioning  a deliberate  disobedience  to  the mandatory requirements of the Code, or as giving any license to  proceed with trials without an appropriate charge.   The omission  to frame a charge is a grave defect and should  be vigilantly  guarded  against.  In some cases, it may  be  so serious  that by itself it would vitiate a trial and  render it  illegal,  prejudice  to  the  accused  being  taken  for granted.   In the main, the provisions of section 535  would apply to cases of inadvertence to frame a charge induced  by the  belief  that  the matter on  record  is  sufficient  to warrant  the  conviction for a  particular  offence  without express  specification,  and where the facts proved  by  the prosecution  constitute a separate and distinct offence  but closely  relevant  to and springing out of the same  set  of facts connected with the one charged. Coming now to the facts of the present case; William was  on terms of intimacy with Beryl P.W. 13.  She was the sister of Donald Smythe.  The accused was practically living with  her in  her house.  The brother did not like their intimacy  and was making attempts to separate Beryl from the accused.   On the  evening  of the day of the occurrence, Donald  and  his mother went to Beryl’s house, There was a quarrel 1191 between them and the accused was asked to get away.  He left the  place  but  returned a little later  with  his  brother (Ronnie) and asked Beryl who was on the first floor to  come



down to him.  She did not come but Donald came down into the courtyard.   There  was  a heated exchange  of  words.   The accused  slapped  Donald on the cheek.   Donald  lifted  his fist.   The accused gave one blow on his head with a  hockey stick with the result that his skull was fractured.   Donald died  in the hospital ten days later.  A plea of  alibi  was given up in the High Court.  The suggestion that Donald fell down  and  sustained the head injury  while  descending  the stairs  was ruled out by the evidence of the  eye-witnesses. Nothing was established to justify any exercise of the right of private defence. On  these facts, which have been proved, the  only  question that  arises  is whether the appellant is guilty  of  murder under  section 302 of the Indian Penal Code, or guilty  only of  culpable  homicide, not amounting to murder,  under  the second part of section 304.  The High Court did not  address itself to the nature of the offence.  It is obvious that the appellant did not intend to kill the deceased.  The evidence of  the  doctor is that the injury was likely to  result  in fatal  consequences.  This by itself is not enough to  bring the case within the scope of section 300.  There is  nothing to  warrant us to attribute to the appellant knowledge  that the  injury  was  liable to cause death or that  it  was  so imminently  dangerous that it must in all probability  cause death.   The fact that Donald lived for ten days  afterwards shows  that it was not sufficient in the ordinary course  of nature  to cause death.  The elements specified  in  section 300 of the Indian Penal Code are thus wanting.  We take  the view, considering all the circumstances that the offence  is the lesser one. The  appellant is acquitted of the charge of murder  but  is convicted  under  the  second  part  of  section  304,   and sentenced to five years’ rigorous imprisonment. IMAM  J.-I  agree  with the judgment just  delivered  by  my learned brother, Chandrasekhara Aiyar, J. but 1192 would add some observations of my own as I was party to  the judgment of this Court in Nanak Chand’s case. The  appellant was charged with murder and nothing short  of it,  although it was stated in the charge that  the  offence was  committed by him in furtherance of a common  intention. If  the evidence failed to prove that the offence  committed by him was in furtherance of a common intention, it would be nonetheless  his offence, namely, murder, if his act in  law amounted to murder.  The law does not require in such a case that a separate charge for murder should be framed,  because the charge of murder was already on the record. Strictly  speaking,  on the facts of the present  case,  the question  raised by the reference does not arise.  Since  it has  been raised, it must be considered.  In  Nanak  Chand’8 case  the  view taken was that when an  accused  is  charged under section 302 read with section 149 of the Indian  Penal Code, it is illegal to convict him under section 302 of  the Indian  Penal  Code  without a  charge  having  been  framed against  him under that section.  It was also held  that  if this was only an irregularity then on the facts of the case, the accused was misled in his defence.  In Suraj Pal’s case, in similar circumstances, it was held that failure to  frame a  charge  under section 302 was a serious  lacuna  and  the conviction was set aside on the ground that the accused  had been  prejudiced.  A careful examination of these two  cases does not reveal any substantial conflict between them. As  I  understand  the provisions of the  Code  of  Criminal Procedure, a separate procedure is set out for various class of  cases  triable by a court exercising  powers  under  the



Code.   So far as the framing of a charge is concerned,  the Code  expressly states the kind of cases in which no  charge is to be framed.  In trial of warrant cases, cases before  a Court of Sessions and a High Court, a charge must be framed. Failure  to  frame  a  charge  in  such  cases  would  be  a contravention  of  the  mandatory provisions  of  the  Code. Would such contravention amount to an illegality?  Prima 1193 facie a conviction of an accused person for an offence  with which he had not been charged but for which he ought to have been charged, is invalid.  It is said that by virtue of  the provisions  of sections 535 and 537 of the Code  failure  to frame  a charge or an omission or irregularity in a  charge, which   is  framed,  does  not  by  itself  invalidate   the conviction,  unless  the Court is satisfied that in  fact  a failure of justice has resulted. It is, therefore, necessary to examine how far these provisions of the Code override its provisions relating to the framing of charges. Section  233  of the Code expressly states  that  for  every distinct offence of which any person is accused there  shall be  a separate charge and every such charge shall  be  tried separately,  except in the cases mentioned in sections  234, 235, 236 and 239.  There is no ambiguity in the language  of this  section.  While it insists upon a separate charge  for every distinct offence it permits a single trial on  several charges in the cases mentioned in sections 234, 235, 236 and 239.  Section 233 is a mandatory provision and the force  of its  direction  is  not weakened by the  fact  that  another provision of the Code does permit a conviction of an accused for an offence with which he had not been charged.  In  such a case no question of illegality or irregularity arises,  as the  conviction  is expressly authorized by the  Code.   The conviction  is valid because of the statute itself  and  not because of section 535. The framing of a charge in trial of crises in which a charge is  required to be framed, is one of the important  elements in the mode of a trial.  On the charge framed, after it  has been  explained  to the accused, the plea of guilty  or  not guilty  is recorded.  If the accused pleads guilty,  certain consequences  follow.   If he pleads not guilty,  the  trial must proceed according to law.  When a charge is not framed, obviously  no  plea of the accused with reference to  it  is taken  and the trial has proceeded without such a plea.   Is the framing of a charge and the recording of the plea of the accused  merely a ritual or a fundamental provision  of  the Code concerning procedure 1194 in  a  criminal trial?  I think it is the latter.   Are  the express  provisions of the Code as to the manner in which  a trial  is  to  proceed  to  be  ignored,  or  considered  as satisfied, merely because the Court explained to the accused as to what he was being tried for?  I a prehend not.  For to do  so  is  to  replace the provisions  of  the  Code  by  a procedure unwarranted by the statute itself.  In my opinion, a  total absence of a charge from start to finish in a  case where  the  law  requires  a  charge  to  be  framed,  is  a contravention  of the provisions of the Code as to the  mode of  trial and a conviction of the accused of an  offence  in such  a case is invalid and the question of  prejudice  does Dot  arise.   None  of the decisions of  the  Privy  Council suggest that in such a case the conviction will be deemed to be valid by virtue of the provisions of section 535,  unless the  Court  is satisfied that there has been  a  failure  of justice. In  cases  where a charge has been framed and  there  is  an



omission  or irregularity in it, it is difficult to see  how the  mode  of  trial is affected.  In any  event,  the  Code expressly  provides that in such cases the  conviction  need not be set aside, unless, in fact, a failure of justice  has resulted. Under the provisions of section 232 of the Code an appellate Court  or a High Court exercising its powers of revision  or its powers under Chapter XXVII, must direct a new trial of a case  in  which an accused person has been convicted  of  an offence  with  which  he  had not been  charged,  if  it  is satisfied  that  he had been misled in his  defence  by  the absence of a charge.  In such a case a court is bound to act according to its provisions.  But this does not mean that by virtue  of these provisions that which was invalid shall  be deemed to be valid, unless, prejudice was shown.  It is  the provision of section 535 to which reference must be made  in order  to ascertain whether that which was invalid shall  be deemed  to  be valid, unless the court  was  satisfied  that there had been a failure of justice.  I regard with concern, if  not  with  dismay,  a too  liberal  application  of  its provisions  to all cases in which there is an absence  of  a charge, 1195 although  a  charge  ought  to  have  been  framed.   It  is difficult to lay down any hard and fast rule as to when  the provisions  of section 535 will or will not  be  applicable. The  facts  of  each case, as they arise, will  have  to  be carefully considered in order to decide that that which  was prima  facie invalid is deemed to be valid by virtue of  its provisions.  There may be cases where the omission to  frame a charge was merely a technical defect in which case section 535  would  apply.  On the other band, there  may  be  cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions  of the  Code relating to the framing of charges that  prejudice may  be inferred at once and the conviction which was  prima facie  invalid  continued  to be so.  In  a  criminal  trial innocence  of  an  accused is  presumed,unless  there  is  a statutory presumption against him, and the prosecution  must prove that the accused is guilty of the offence for which he is being tried.  The prosecution is in possession of all the evidence upon which it relies to establish its case  against the accused.  It has the privilege to ask the Court to frame charges  with  respect to the offences which  it  wishes  to establish  against the accused.  On the Court itself a  duty is  cast  to  frame  charges  for  offences  which,  on  the evidence,  appear to it prima facie to have been  committed. If in spite of this a charge under section 302 read with 149 of  the Indian Penal Code only is framed against an  accused person  and not under section 302 of the Indian Penal  Code, it  will be reasonable to suppose that neither the  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 151                             1196 obeyed.  Contravention of its provisions are unnecessary and



neither  the  prosecution  nor the Courts  of  trial  should ignore  its  provisions  in the hope that  they  might  find shelter  under sections 535 and 537 of the Code.  Where  the contravention   is   substantial  and  a   retrial   becomes necessary,  public time is wasted and the accused is put  to unnecessary harassment and expense. I  agree  that the appellant’s conviction  be  altered  from section  302 of the Indian Penal Code to 304 of  the  Indian Penal Code and that he be sentenced to five years’  rigorous imprisonment.