Indira Solumlal v. Custodian of Evacute Propm,, Delhi & Ors.

First comes a class of case with the matter expressly. must be given used. the Code deals foll effect the plain meaning of the words in which In that event, that Code "The language of to the plain meaning is conclusive. and must be construed according . to ordinary principles, to give the case of an ambi language used. No doubt, guity, is more justi<::e and convenience, but in general in accord with the words used in their context must prevail". Babula/ Choukhani v. The King-Emperor('). And at page 177- that meaning must be preferred which "But, even so, . that can be no ground why Court should misconstrue the section", and at page 178- "Their Lordships decide the plain meaning of the question on what language they regard as 11sed". !I) [1938) L.R. 65 I.A. 158, 175. 1152 SUPREME COURT REPORTS [19551 1955 Willit (William) Slaney v. TheStiite of Madh)'a Pradesh Bose J. Next comes. a class of case for which there is n<> there is is whether the substantial compli the Code or in a manner substantially diff express provision In ambiguity. the trial has been conducted ance with erent from that prescribed. the Code, or where the· question that event, "When a trial that prescribed by the Code in a manner different is conducted (as in N. A. Subra mania l1w's case ( 1 ), the trial is bad and no question) the trial of curing an irregularity arises ; but prescribed by conducted substantially the manner the Code, but some irregularity occurs the course irregularity can be cured under of such conduct, section 537, and none the irregu larity the case, a breach of one or more of the very comprehensive pro the Code". Pulukuri Kotayya v. King v1s10ns Emperor( 2 the less so because involves, as must nearly always be ). is whether in such cases Now it is obvious irregularity can only arise when one or more of express provisions of the Cooe violent as it no trial at all or is of a impossible down to one of prejudice. be guided by the plain provisions of out straining at express provision. the question of curing an is violated. The ques the departure is so to strike at the root of the trial and make It is rule but the question usually narrows In any case, the courts must the COOe with is an lay down any hard and fast less vital character• language wherever ·by and '· the mode of For a time it was Code about make any departure Judicial Committee Emperor( 1 ). thought that all provisions of the trial were so vital as therefrom an illegality that could language of the in N. A. Subramania Iyer v. King be cured. That was due to the Later this was construed applies when is prejudice. Privy Council said- . to mean that only an express prohibition and 1s In Subramania lyer's case('), the "The remedying of mere ( l) [1901] L.R. 28 I.A. 257, 263. irreegularities is familiar (2) [1947] L.R. 74 I.A. 65,75. 1955 Willie' 11 ·riliam\ Sla111.1 ... The State of Madl!Ya Pra:tesh Bost]. 2 S.C.R. SUPREME COURT REPORTS 1153 the criminal law to say that when in most systems of jurisprudence, but extraordinary extension of nistering positively enacts taken place here shall not be permitted travention of the Code comes within of error, omission or irregularity". This was examined and explained m Abdul Rahman v. King-Emperor(1) as follows: it would be an s,uch a branch of admi the Code that which has this con the description that .such a trial as "The procedure adopted was one which the Code it was possible prohibited, and positively might have UJorked actual injustice to the acrnsed". In our opinion, to what one might the key to Except where the root of in the the problem words underlined. is something so vital as to cut jurisdiction or so abhorrent term natural justice. itself the matter resolves to a question of prejudice. Some violations of the Code will be so obvious they will speak for themselves as, for example, a refusal the accused a hearing, a refusal to allow him to to give defend himself, a refusal to explain the nature of charge to him and so forth. These go to the founda justice and would he struck down as tions of natural It hardly matters whether this is be illegal forthwith. cause prejudice is then patent or because it is so abhor to well-established notions of natural justice a trial of that kind is only a mockery of a trial and not the kind envisaged by the laws of our land, because either way they would be struck down at once. Other it may be pos violations · will not be so obvious and to all that occurred that having regard there was no no prejudice was occasioned or Jn still another reasonable probability so near the border class of case, the matter may be reasonable possi line that very slight evidence of a bility of prejudice would swing the balance in favour of the accused. This, recent decisions of latter-day criminal as in in our opinion, has been the trend of the more the Privy Council and indeed of in England as well the pendulum has been ludia. The swing of jurisprudence of prejudice. to show (I) [ 1926] L.R. 54 I._A: 96, 109. 1955 f.Villit 1William) Stoney .,, T !1e State of 11tfadl~pa Pradesh Bost]. 1154 SUPREME COURT REPORTS [19551 justice the substance rather fairly am! it should be administered; technicality, and a greater endeavour has to regard to the vast ma55 of laws are made away from been made shadow and to administer tially accused, fair to the State and fair the people and administered. The more mittee Pulukuri Kotayya v. King-Emperor(') where that- recent attitude of the Judicial Com for whose protection penal John Beaumont is summed up by Sir 111 IS one "The distinction drawn in many of the cases irregularity India between an illegality and an of degree rather than of kind" and by Viscount Sumner in Atta Mohammad v. King Emperor(2)- "In injustice, outrages what is due cases, their Lordsihps find Maiesty substantial in criminal to advise His the complete absence of anything justice impossible to natural absence of any to interfere". complete in negative is not whether a matter We prefer this way of stating that was once sought for-the dis the law, tinction to be drawn between an express prohibition and an eqaully express pro vision positively stated strikes us as unreal. The real question is expressed posi terms but whether dis tively or is stated to rubstantial regard of a particular provision amounts denial of a trial as contemplated by the Code and understood the comprehensive expression "natu that disregard of an express Zahiruddin v. King-Emperor('), so the question whe ther a particular provision is stated negative terms is not the true criterion. justice". It will be observed prohibition was in positive or regarded curable It is possible (though we need not so decide in this to section 537 in recent amendment case) (Amendment) Act the Code of Criminal Procedure XXVI of 1955 (where misjoinder of charges has been the curable category, will set at rest the placed (2) [1929] L.R. 57 I.A. 71, 76. (!) [1947] L.R. 74 I.A. 65, 75. (3) [1947] L.R 74 I.A. BO. 2S.C.R. SUPREME COURT REPORTS 1155 controversy that has raged around the true meaning Iyer v. Kmg-Emperor(l}. In any of N. A. Subramania case, our opinion is that the real object of the Code is and vigilance to leave these matters the courts. language of in Babula/ Choukhani v. The King the Privy Council Emperor(2) we would say- to the discretion to alter Slightly 1 955. Willie (William) Slaney v. The State of Madhya PrOdesh Bose], resolute departures be hoped, and in fact or in law, judges will exercise the Supreme Court guards indeed assumed, to the Legislature "It must jurisdiction magistrates and fairly and honestly. Such is the implied condition of If they do not, or the exercise of judicial power. the accused has prima they go wrong f acie a to the superior courts by right of recourse the cases show how way of appeal or revision; and vigilant and the High Courts are in seeing that the accused is not prejudiced or embarrassed by the Code and how unsubstantial closely and jealously These safeguards may well position of the accused. have appeared to be sufficient when the Code they enacted and have now the new Code recently introduced". is the true intent and purpose of section This, we feel, taken UJith 537(a) which covers every proceeding jurisdiction in the general phrase "or other proceed this Code". ings under It is for the Court in all these has been prejudice to determine whether in doing so to bear in mind that some violations are so obviously opposed to natural justice and the true that on the face of them and without anything else they must in other cases a closer exami be struck down, while for in nation of all the circumstances will be called the accused has been pre judiced. them substantially unaltered intendment of the Code remedial provisions of to discover whether the accused; and to examine We now proceed the relevant sections of the Code. Chapter XL V deals generally with irregularities regular proceedings. There are which do not vitiate out in section 529. No question of prejudice arises (2) [1938] L.R. 65 I.A. 158, 177. the proceedings. They are (I) [19011L.R.231.A. 257. certain 1955 lVillie (William! Slaney v. The State of Mad/~)1a Pradesh Bost]. 1156 SUPREME COURT REPORTS [19551 the question the error has caused prejudice the section states cate in this class of case because they shall not vitiate the proceedings. gorically treated as vital and irregularities are Certain other the proceedings are void irrespective of pre judice. These are set out in section 530. A third class in sections 531, 532, 533, 535, 536(2) and is dealt with 537. There, broadly speaking, is whe to the accused or, as some of the sections put it, has occasioned a failure of justice. The examples we have given are illustra tive and not exhaustive. What we are demonstrate is the Code has carefully classified certain kinds of error and expressly indicates how to be dealt with. they are Court the express com is bound there is no scope for further mands of the legislature: speculation. The only class of case in which that for which Courts are no express provision is made. to reach a decision is In every such case to give effect seeking The present cas·e is concerned with the nature of the Code expressly deals to interpret them and, having propounded this in several of its section. Our only the charge and we find that therefore their meaning, to whatever they say. to give effect is a most taken after Now there is no doubt that a charge forms the found important step ation of a sessions trial and in it. The accused must know and understand what he tried for and must be told is being in clear and unam terms: section 271 ( 1). There can be no shirk biguous this must appear on ing that or slurring over it, and the face of the record. It cannot be established by evidence in our 01nn1on, equally no doubt the Code expressly this and expressly provides that no error, deals with omission or the charge or even total absence of a. charge, shall vitiate a trial unless pre judice repeatedly reiterated in a number of sections. The whole ques formally as a ritualistic the trial from the fundamental to wnt1ng and expressed to save in order in~urable illegality reduced formula "charge" must defect of an the accused is shown. This is whether trial. But irregularity there is, therfore '9:i5 ll'il/ie r William". Slaney v. 1iie State e( Madltra Pra; lesl1 Bo.«]. 2 S.C.R. SUPREME COURT REPORTS 1157 the information whether is the substance of the matter can be conveyed in other way&. The question is whether we are the substance or play hide and seek among the shadows of procedure. to grasp at the accused so much of First of all, sections 221 to 223 of the reasons why a charge the offence with which the Code, which undoubtedly envisage a formal written charge, set out what a charge must contain. A perusal of is required. ft must reveals set out is charged the offence does not give' an1i if the law which creates the definition of the it any specific name, to give offrnce must be stated "as the accused notice of the matter with 111/iic/1 lie is charged". The charge time, pbce 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 cul:irs mentioned the accused sufficient notice of he is charged, culars committed as will be sufficient for that purpose". is such that the parti-· sections 221 and ZZ2 do not give the matter with which the charge shall also contain such parfr the alleged offence was. also contain such particulars of d'ate, of the manner in which It is clear to us that the object of the charge is not to enable is necessary that he has for example, to meet. But this information. that goes to the root of juris to introduce a provision diction as, the requirement of previous sa;;ction under section 197, but the accused idea of what he is being tried for and to have a clear or the essential facts For are other ways of conveying summons cases no formal charge is re ex:.imple, quired: all to tell the accused the (sec substance of tio;i 242). The whole question is whether, in warrant information casc:s and in sessions must be conveyed in one way and one way only, n:i.mely the entire trial may not be ipso facto vitiated because of an in curable other and less formal! ways, provided always is in fact conveyed ner and in circumstance~ that in a clear and unambiguous man the court will regard the accusation made against him that can be done illegality, or whether in a formal charge the necessary in order trials, 1158 SUPREME COURT REPORTS [1955] 1955 ;J'flillie ·William) Slaney "" T!te State of _Vadizya Pr0ffe3h in substantial as, opposed technical, compliance with Code. Tbe easily as an0ther, but what it has chosen out in the following sections. to purely law could have provided one way as is set requirements of to do Bose J. The marginal note to section 225 is headed "Effect require to state failure of that errors of errors." and ·"No err.or the section states that- in stating either to be stated the accused has in fact been misled by the offence or the offence or the charge, and particulars those particulars, 1TO ·0mission shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or justice". omission, and it has occasioned a failure is either Therefore, when there error or om1sswn natllre, regarded as material unless it is not two conditions are fulfilled both of which are matters of fact: (1) and (2) -it has occasioned a justice. That, in our opinion, is reasonably plain language. Next, sections 226 and 227 show is a charge and there in it or both, and whatever to be in a charge, and even the total absence of a charge, do r.ot so as to render it cio the start vitiate a trial trial at all as would the absence section 197. This is evident because these errors and omissions can be time during rhe remedied at any (section 226) course of or even at the very end of the trial (section 227), a:-id is done the trial need not proceed de novo when this the alteration but can go on from the stage at which is prejudiced (section was made provided neither side 228). That is conclusive that no error or the charge, and not even a total absence omission the trial. The pro of a charge, cuts at ceedings up to the stage of we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice; imperfections. That is impossible when despite to cut at the root of the trial. the error It follows in the charge, and even a total in the non-curable absence class. 'Of a charge, are not placed the alteration, which, in the sessions Court the root of that errors of sanction is so vital they are the trial to show 1955 l11illie (U'illiam~ Slanry v. The State of Mltdhya Ptades/r. Bo.re]. 2 S.C.R. SUPREME COURT REPORTS 1159 in which Next, we have a case to direct a retrial only if, the error is not ob trial and the accused served and corrected during the the High Court is convicted. In such a case, empowered in its opinion, the accused was "misled in his defence" (section 232). It is to be observed that there was or merely an error in it. a total absence of a charge It is evident therefore defect& defect cuts at C\ en of this nature are not regarded as fatal.. that a conviction cannot stand the root of the trial, this is so whether From there we proceed to section 535. The margi charge" •. is "Effect of omission to prepare nal note and the section says- framed, unless, "No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no' charge was in the opinion of the Court of a appeal or revision, a failure of justice has in fact been occasioned thereby". Here again the language tic. The section summarises what was already cated in sections 226, 227, 228 and 232. is clear and wide and emphar Next, there is section 537: "Subject to etc .... no finding, sentence passed by a Court of competent reversed or altered under Chapter XXVII or on or revision on account- or order jurisdiction shall be appeal. ( a) of any error, omission or the· .... charge .... or other proceedings before or during: trial. ..... irregularitiy such error, omission, unless fact occasioned a failure of justice". The Explanation is also important: irregularity ...... has m "In determining whether any error, om1ss1on or this Code has shall have the objection could and irregularity in any proceeding under occasioned a failure of justice, regard to the fact whether should have been proceedings". raised at an earlier stage the Court This repeats what was set out the more section 225 and is all in greater detail in impressi\'e because SUPREME COURT REPORTS [ 19551 1955 Willie riVilliam) S/an.~ v. 1-he State of ,},;/adhya P1adesh .Bose]. review is under proceedings under Chapter XXVII in con even when a death sentence firmation to regard any error, Court is expressly directed not the charge as fatal unless omission or irregularity m it has in fact occasioned a failure of justice. Reading in our opinion, these pf(l)visions as a whole, 1no room left for doubt about what was intended. is, the appellant It was argued on behalf of ·sections must be .238. Counsel conceded an accused person can be convicted charge but he said sections 237 and 238 and he contended that no 1ther departure as follows. He said ·with cases in which ·Court feels :tions convict ithat particular offence. When section 535 along with :apply to a case can it apply two sections. 237 and 238 permit a conviction without a charge. that these read along with sections 236, 237 and there are occasions when in the absence of a they are expressly set out in fur- is permissible. He put his argument that sections 237 and 238 deal is a charge to start with but the evidence. These sec the Court may there is no charge for that it cannot is no charge at all, nor in which that is not covered by these to any case It is limited to cases in which sections to support a conviction for an offence which define the limits within which these two sections it is seen in spite of the fact that is made out by to this follows In answer It was suggested that the. words "shall be deemed the following argument was put -ro counsel • and he was asked to meet it. The point was put this way. Section 535 cures convictions that it was would be invalid but for its provisions. This, said. -valid". these words show that a conviction without a charge is in truth and in fact it can be cured in certain cases, and invalid but invalid is when that is done, deemed not to be invalid because of this section. But ·as sections 237 and 238 expressly permit convictions for those offences, in certain cases without a charge in the case to start with, J'.rovided the conv1ct10ns is, or can be. that which invalid it would be wrong to say the Code expressly allows so permitted cannot be irregular because that which is a charge in truth is 1955 Willie ( Willim} Slaney v. The State of Madhya Pradesh Bose]. 2 S.C.R. SUPREME COURT REPORTS 1161 It is in which that even

#238. The result to that part of the the cases mentioned from section 233 as are section 535 cannot apply is made separate charges irregular. Therefore, cases covered by sections 237 and .that in these cases no question of prejudice can arise ; the convictions are good, prejudice or no prejudice. is so, section 535 is Council replied still governed by section 233 and so cannot apply there is no charge at all. W<;. do not agree with either view. In our opinion, the cases just as contemplated by section 237 are those en much a departure visaged in sections 225, 226, 227, 228, 535 and 537. joinder.of charges Sections 236, 237 and 238 deal "'ith and so does section 233. The first condition is there shall be a separate charge for each offence and that each charge must be tried sepa the second rately except in sections 234, 235 and 236. to be observed that the exceptions to the rule about joinder of charges and .are confined that no exception that requires It will be seen that though sections 234, 235 and 236 are to, expressly mentioned, section 237 is section 238. Therefore, so far as section 233 is concerned, it requires a separate charge for each offence and does not envisage a situation in which there is either no ~arge at all or there being a charge for some other offence of where, is acquitted, he can be convicted the accused for which he was not instead of something else the Code regards to hold charged. We are unable sections 237 and 238 as part of the normal procedure. if there is some depar the normal procedure ? In our opinion, ture from sections 225, ·226, 227, 228, 535 and 537 furnish answer and they apply with equal force to every kind that re of departure from quires a separate charge for each offence. Section 237 is only a corollary to section 236 and is there to em that even when a number of charges could be phasise in the cases set out in section 236 and joined together there can be one or more ·are not put in, even then, in respect of convictions What then is the position that part of section 233 there can be no doubt those offences despite for each offence. referred is not 1955 Willie (William) Slaney v. The State of Madhya Pradesh Bost]. 1162 SUPREME COURT REPORTS [1955} to hold form or another in one 228, 535 and 537. We think these sections absence of a charge or charges. But all rule about prejudice governed by the overriding in sections 225, mentioned it would be 226, 227, monstrous is proved in cases aside even when gross prejudice it does not speak covered by section 237 just because of prejudice. We can envisage cases where that section just as would be grave prejudice under clearly as we can see cases where there would be none under the others. that a conviction cannot be terms, but what are The sort of problem is expressed that we are now examining can only arise when an express provision of the Code is violatd and is not the ·root of the matter is violation of an express provision, whether there must be, nor b for the problem postulates in positive or it whether the provision the consequences of in negative such disregard. Does it result illegality that in an the root of the trial and cannot be cured or strikes at is it an irregularity We .have used that is curable? the terms "illegality" and "irregu they have acquired a technical signi larity" because a distinction ficance and are convenient to demarcate between two classes of case. They were first used by the Privy Council in N. A. S11bramania Iyer v. King Emperor( 1 in Babula! Chot4khani v. ) in Pt1lt4kt1ri Kotayya v. King King-Emperor() and the Code Emperor('), but it is to be observed to both does not use the proceed classes as "irregularities"; some vitiate do not ings (section 530) and (section 529). Proceedings the former head are the words "shall be deemed "void". Section 535 uses that a total omission to frame indicate invalid" which invalid but for the conviction a charge would render that sort section 535 which serves to validate "failure of of "irregulariy" has not occasioned a Section 537 does not use any of these ex- justice". but merely pressions (I) [1901] L.R. 28 !..\, 257. that no conviction 12) r1938] L,R. 65 L\. 158, 174. others that come under the term "illegality". It refers repeated it when (3) [1947] L.R. 7-1 I..\. 65, 75. Willie (William) Slaney v. The State of Madhya Prarlt1h Boie]• ....... ~ .... , 2 S.C.R. SUPREME COURT REPORTS sentence "shall be has in fact been a failure of justice. reversed or altered" unless 1163 "natural indefinite expression are convenient expressions incapable of being reduced It is embedded that cannot be We do not attach any special significance to these to convey a terms. They thought and is all. The essence of the matter in broader consi does not there. reduced to a set derations of justice It is a feeling, a way of formula of words or rules. thinking and of living that has been crystallized into judicial thought and is summed up in the admittedly justice": to a set something recognisable formula of words and yet which those steeped in tradition. things In the end, are "illegal", them so; others are struck down Code expressly makes by the good sense of judges who, whatever expressions things occasion they may use, do so because fair play and prejudice and offend justice. When so good whatever the "irregu "invalid"; when not, is called an larity". be cured" "illegality", an or an "invalidity", so are used in a clearly defined sense. it all narrows down that is that cannot the terms their sense of struck down, it is to say, not curable, because the conviction little whether to this: some "irregularity It matters long as thought is easily judicial expressly permit they lift the cases with which section 535. We cannot agree Turning next to the second branch of of the argument that because convictions sections 237 and 238 the cases contemplated by them, without a charge them out of the Chapter on Irregu therefore they do, then so does section 232 ( 1) larities, because, them, it deals. Between these sections cover every kind of case in which there in a charge and is an error. omission or irregularity if sections 232(1) to frame a charge, so, an omission and 237 and 238 from section 233 save departures is nothing left from. being for sections 535 and 537 to operate on. In our opinion, that the Code deals with the same sub the truth ject-matter under different heads, over~apping. 19-85 S. C. India/59 irregularities,, so there 1955 H7illie (William) SI~ v. The State of Madhya Pradrsh :...._ Bo~tJ. 1164 SUPREME COURT REPORTS (1955J Sections 222 the Chapter to 224 deal with the form of a charge Section the effect of errors relating to a charge. joinder of charges. that deals two sections the charge and make it clear to frame a charge as well as irregu in a charge are all irregu that do not vitiate or invalidate a conviction and explain what a charge should contain. 225 deals with Sections 233 to 240 deal with the Sections 535 and 537 are that an omission larities, errors and omission larities unless there is prejudice. But, apart from irregularities generally and specifically with the learned in his counsel's contention more closely Sections 237 and 238 deal argument becomes clear. with cases to start with in which there and then they go on l'o say the matter actually charged trial can proceed beyond the evi and a conviction for an offence disclosed of case will be good despite the absence of a charge in respect of it. But what are those cases? Only the additional charge or charges could have been framed start; and is controlled by sections 234, 235 and 239 which set out joinder of charges and persons. is a charge in certain cases the rules about if we examine in which fallacy that, It is evident together because of read with sections 234, 235 and 239, if charges A and B cannot be the prohibition in section then no con is the case when specific charges are drawn up it the more so when though there is a charge is none in respect of B, for clearly that which you are prohi 233 viction could be sustained on either A or B, and is all respect of A there you cannot do indirectly bited from doing direct! y. They all deal with In our opinion, sections 233 to 240 deal with joinder of charges and they must be read together and not in isolation. subject matter and set out different aspects of it. When they are read as a whole, it becomes clear that sections 237 type of case in which a convic and 238 cover every tion can be sustained when is no charge for that offence provided to start with. is a charge the same 1 955 Willir, William) Slaney v. The Stale of Madh;·a Pradesh Bose]. 2 S.C.R. SUPREME COURT REPORTS 1165 J:3ut to observe that relates they between them In our opinion, left for it to operate on except cases the charge and the rules about in which travelling beyond is a total omission sections is no They do not deal with a case charge at all, and anything is a charge w_ould be hit by sections 233, 234, when there 235 and 239 read as a whole, for the reasons we have is so, and if section 535 is ex if that just given. then what cluded where sections 237 and 238 apply, in which to frame a charge? We do should be · regarded dis (in junctively. cluding sections 535 and 537) cover every possible they place failures the charge in the irregularities. Chapter XIX deals 5'.ategory of curable charges and sections 535 and comprehensively with 537 cover every case is a departure in which that Chapter. Such depar and irregularities tures range frpm errors, omissions in charges to charges framed, down that are might have been framed and were not and include a total omissi:on to frame a charge at all at any stage the only question is In all these cases of the trial. this because the Code re about prejudice. We say peatedly says so terms and because that is the foundation on which rules of pro that accords cedure are based. We the structure of touches justice is erected and maintained. logic and principle and reason and because the deep verities on which in express and emphatic the rules set out say it because framed" With the utmost respect we cannot read the words in section 232(1) and "by the absence of a charge" "no charge was 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 ronvicted". That would ne cessitate that are not there. We see no reason for straining at the mean these plain and emphatic provisions unless ing of the essence to be regarded as of ritual and form are in criminal trials. We are unable to find any magic It is the substance or charm in the ritual of a charge. of these provisions their outward into the section words that count and not reading - 1 955 H··itlie ~William) Slaney v. Tiu State of Marlhya Pradesh Bose J. 1166 SUPREME COURT REPORTS [1955] is only section 255 ( 1) form. To hold otherwise to provide avenues for the guilty and afford no protection to of escape 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 to him'" so be "explained that he really understands (section 271 ( 1) trials, in sessions warrant cases) but to say jargon of that a technical words whose -significance no man not trained to the law can grasp or follow affords him greater protec tion or assistance than the informing and the explain the substance of the matter, is to base on fanciful theory wholly divorced reality; from practical to the vast bulk of jurors who and the same applies attend our courts. They are none the wiser because of a formal charge except in a vague and general way The essence of the matter formula of words but the reality. Was he told? Was it explained to him? Did he understand? Was it done is of no practical account. is not a technical in a fair way? that are that are We attach equal importance to other sections of just as emphatic as section 233, the Code namely, sections 342 and 364; and yet no one doubts that irregularities there are curable. the spirit of section 271 in a sessions the essence of that lies in the words "and explained to him". that must be observed rather than its letter and It is the matter of We do not mean to imply than this Court encourages that laxness of procedure the charge any should be encouraged it in matters relat ing to section 342; nor do we mean to suggest that a trial can be regarded as good when the accused does not know what he is being tried for and is not, told to him as section 271 and the matter is ·not explained requires. Of course, rules should and ought to be punctually observed. But judges and magistrates are fallible and make mistakes and the question what is to be done in the exceptional class of case there has been a disregard of some express provision. As an Sessions Judge illustration we give a case in which a trial having no charge in a sessions - 1955 Willie iWi//iam) . Sl~nry .v. Tht Stale of Madfrya Prfl<lesh Bost J. 2 S.C.R. SUPREME COURT REPORTS 1167 even if for. He to observe that vitiate substance of Then, when the witnesses is defended by the committal court omits to frame before him from instead, carefully and painstakingly, one himself but explains the particulars ~md the offence as in section 242 and complies with the spirit and object of section 271 but form. technical the accused shows by his cross-exan1ination examined, that he knows just what he is being tried and fairly under section 342 and his examined that he is under answers show no delusion. He calls to meet the very point, or points witnesses in defence the prosecution seek to make out against him. He :m puts in a written statement and lawyer who raises no objection from start to finish. Will a technical defect in a case trial ? If the Code says Yes, then there is an end of the - in our opinion, the Code very emphati matter. But, the case and cally says No; but the very plain and clear words of sections 232 and 535 are susceptible of two meanings, surely 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 to brand a conviction it would be a travesty of justice in a case that must be these words that are otherwise plain are con strued in a strained and unnatural manner. On other hand, the view we take to imperil or harass innocent he may be. How does the technical formula of a charge afford greater protection the "explaining" under section 271 ( 1) and the examination under section 342? And yet, on the argument before us, an omission that are of the substance is observe sacred curable when .there is no prejudice but not the ritual of is there, that he did not the accused cannot be heard understand fact. Surely, however much this cannot be right. the framing of the charge; once that to say that may be that as illegal. And yet an accused however there is nothing in these other rules is not Now, as we have said, sections 225, 232, 535 and charge that them, cover every conceivable 537 (a) between of ermr and irregularity referable to a 1955 Willie '1Vi/liam, Slaney Vf Thr State of Mmll~va Pradesh )Jost J. 1168 SUPREME COURT REPORTS (19551 · can possibly arise, ranging from cases society lost m to cases in which from start is emphatic the goal is regarded as technicalities. to the Every the substance that whatever just as much as from harassment the risks of unjust conviction. is a coi; viction with no charge at all in which there is a charge but finish down it. The with errors, irregularities and omissions irregularity it i~ Code fatal unless there is prejudice. not to be It is that we must seek. Courts have the punish includes to administer justice and justice the protection of in ment of guilt nocence. Neither can be done the shadow 1s mis a taken for the substance and Broad labyrinth unsubstantial vision is required, a nice balancing of the rights of in general the State and the protection of individual against protection reasonable in favour of an accused presumption must be made the benefit of every reason person: he must be gi,·cn able doubt. The same broacl principles of justice and to bear when determining fair play must be brought adjudging guilt. But a matter of prejudice as when all is said and done, what we are concerned trial, whether see is whether he knew what he was being main facts to be established against him were sought fairly and clearly and whether he explained to him to defend himself. If was given a full and fair chance all these clements are there and no prejudice is the conviction must stand whatever the irregularities to the charge or to a want of one. whether traceable In adjudging the question of prejudice substantial absence of lacnna will naturdly it, the benefit of the accused and if there is about · whether reasonably likely to have been, mis in the circumstances of any particular case, he is to the benefit of it here as elsewhere ; facts, likelihood .not disclosed the conviction must stand; also to consider w4ether objec- mistake operate any reasonable and substantial doubt he was, or was as much entitled hut if, on a careful consideration of all prejudice, or a reasonable and substantial it will always be material the accused had a fair ~ charge, or a for, whether serious 111 it, a 1955 Willir 'Williami Slaney v. The Stale af MrrrfJ,ra Prmirslz Bos<] 2' S.C.R. SUPREME COURT REPORTS 1169 stage. to conclude is always borne taken at an early further in mind in a given case be proper him and wanted no tion to the nature of the charge, or a total want of If one, was it was not, and particularly· where the accused is defended [Atta Mohammad v. King-Emperor(')], it by counsel n1ay that the just what he' was satisfied and knew accused was for and kriew what was being alleged particulars, .against provided "no in the mode of conducting a criminal serious defect trial can be justified or cured by the consent of the advocate of the accused" [Abdul Rahman v. King Emperor(2) j. But these arc matters of fact which will to each different case and no conclusion. on be special these questions of fact in any one case can ever be regarded as a precedent or a guide fo~ a conclusion of the facts can never be alike in any 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. two cases however alike in another, because they may Endeavour was made in the argument to draw a distinction between cases falling uncle section 34 of the Indian Penal Code and those under section 149 that even of the Indian Penal Code. It was contended if no separate charge section 34 is section 34 does not create a called in aid because for a conv1ct1on is essential separate offence, one under section 149 and rate, the absence of a Separate charge is fatal. is necessary when there, at any This is not a case under section 149 of the Indian Penal Code so the question does not really arise but it is necessary the argument because, take of sections 225, 535 and 537, it is the view we there is immaterial what the offence a charge at all. The only question irregularity occasioned prejudice. is and whether is whether to advert •. We now turn to an examination of that are said Court In our opinion, to give (I) [1929]L.R. 57 I.A. 71, H. (2) [1926] L.R. 54 I.A. 96, 104, 110. the cases of this rise to a conflict of view. reality no conflict and 1 955 w;uu \ U-'illiam) Slar1ey v. The State of J\ladhJ·a Pradesh 80,>eJ, 1170 SUPREME COURT REPORTS [1955] though that, a close consideration of its that there was type of case where None of the cases deals with is no charge at all. the language used in one case might suggest reasons will disclose of view in the to start with. the position where there .in fact no difference is a charge the acquittal of some of The following cases afford no difficulty because the view we have they directly accord with set out In Lachman Singh v. The State(') at length above. it was held that when there is a charge under section 302 of the Indian Penal Code read with section 149 the charge under section 149 disappears because the accused, a conviction under section 302 of read witb section 34 is good even though is no separate section 34, pro charge under section 302 rea<t with vided the accused could have been so chargc1\ on the facts of the case. The decision in Karnail Singh v. The State of Punjab(') js to the same effect and the question about prejudice was also considered. the Indian Penal Code Pandurang. Tukia and Bhillia v. State of Hydera though it was expressly difficu~ty because that case bad(') also presents no point was open at page 1093. From disclosed there we come Indian Penal Code. to Suraj Pal v. The State of in which a number of U. P.('). That was a case accused were charged under sections 307 /149 and tions 302/149 of It was found there was no common object to kill, so all accused were acquitted under section 149. But the appellant had himself evidence life of one man and had made an attempt on the High himself shot another dead. Accordingly, Court convicted him under sections 307 and 302 of though there was the Indian Penal Code no separate charge under either of section' Those convictions were challenged here. This Court held that the omission is a serious the real question is whether lacuna but despite caused Judges then The prejudice. to frame a charge respectively, learned (2) [1954] s.c.R. 904, 911. (4) [1955] I s.c.R. 1332, (1) [1952] s.c.R.839, 848. 13) [1955] I S.C.R. 1083. 1955 Willie (William) Slaney v. T!teState of Madhya Pradesh Bose]. 2 S.C.R. SUPREME COURT REPORTS 1171 to determine the question of prejudice on proceeded the facts of facts was that prejudice was disclosed, so an acquittal was ordered. that case. The conclusion reached on there was establish prejudice and It the decision and It was argued before us that the ground of the de the absence of charges under itself conclu therefore one that that to say though that was one of the the conclusion was investigation of all in which it the evidence of several witnesses, the information report and two filed by the accused. cision sections 307 and 302 simpliciter was need go no further. was not matters based on a careful and the facts was conducted, medical evidence, certain documents into consideration, lengthy including in the case is enough including the way charge in which Indian Penal Code with Next comes Nanak Chand v. The State of Punjab('). the charge was under That was also a case section 302/149 of the conviction under section 302 simpliciter without any that section. The Sessions separate under section 302/34 of the Judge had Indian Penal Code holding that the charge of rioting was not proved. The High Court held that no com mon intention was proved either but as the evidence indicated the actual the appellant had done killing he was convicted under section 302 . convicted found, Now it is true learned counsel there are observations close examination, would appear which, without support for the appellant. But those observations must be construed in the light of the facts the most crucial patent prejudice was disclosed. It was found that the appellant there was in fact misled in his defence and taken into consideration, as indeed one of the factors that when he was told must always be the case, was that he was read with section 149 of indicated to him that he was not being tried for a murder com mitted by him personally but that he was only being to be tried under section 302 the Indian Penal Code that fact being (I) [1955] I S.C.R. 1201. 1955 ... fi'illie ·:Williani) Slane_}· The Slate o)· Mttd}~;·a Pradtlh Bose J. 1172 SUPREME COURT REPORTS [1955J an act to give the accused indeed there was enough the circumstances. to do in defence are relevant on that every accused will be so misled. that another had the common object of an un made .vicariously liable done m prosecution of lawful assembly of which he was a member. But that . the matters considered and it does was only one of It not follow all depends. on The entire evi facts on which the learned Judges founded dence and judgment but are · not set out in the there is enough the appellant's attention been that had to indicate to his own part in the actual killing he would the doctor with more cross-examined probably have the medical evidence to care and the appellant might well show that had that been done they were en have been exonerated. As judges of fact bound, titled, and rt:asonable doubt and so were justi benefit their conclusion on the facts of that fied in reaching to section 225 of the Illustrations ( c) and ( e) case. the accused that what Criminal Procedure Code show did or omitted finds that a vital question of prejudice. witness was not cross-examined when he might have that if he had been, the further facts elicited been, and might well then material from inferred is at once apparent: which prejudice (c) and (e). That, how a pure conclusion of fact ever, was, resting on particular case. The decision was special the facts that case and no decision on facts can ever be used in another case. as a guide Now having reached the conclusion that there was Judges were of the opinion prejudice, it can be so called when pre is disclosed, was incurable and from tl1at they judice nothing concluded but an illegality: a perfectly possible and logical conclu "irregularity" and "illegality" sion when the words 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. indicates and it can well be argued from the evidence and circumstances of can be is exactly Illustrations remains, the irregularity, for a conclu; ion on facts If the Court been crucial, this that this irregularity incurable that an learned 2 S.C.R. SUPREME COURT REPORTS 1173 render in fact to· follow the provisions of the Code that an omission does in truth and the decision invalid but because of section 535 that which is in truth and in fact invalid must be deemed .to be valid unless pre judice in that is disclosed. As there was prejudice 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. Willir \William·• stanry v. Th•State ~f Madhya Praddt Bese ]. If fact, not for giving irregularity, is held not its provisions, this section cures such an It is to be obsen•ed terms, in its section 233 and saves so does that section 535 of the Code is as mandatory as section mandatory If it be accepted that an absence of a charge 233. render a conviction would, but invalidity when invalid, in theory but in fact, no failure of justice. The section is just as mandatory as section 233 and we can see no justification it less section 237 validates a than section 237. weight departure it from the stigma of an section 535, for it says very expressly that no conviction shall be deemed invalid merely on the ground that no charge in fact occasioned a failure of wa' framed unless justice; and if section 535 sections 237 and 238, then it must cases covered by the scope of those sec in which tions and the only kind of case left for any other absence of a charge, type of case would be excluded because of misjoinder. If section 233 it which prohibits misjoinder except sections 234, 235, 236 and 239 just . as mandatory that we have no defini each offence. the terms "illegality", "irregularity" and "in tion of validity" because they .can be used in differing senses, the decisions we are but however in that case now examining and must be read this background. We in the judg agree that some of in order ment appe; ir that the to dispel this but tnisconception we would now hold requires a separate charge in the cases mentioned the expressions used light of It is unfortunate that may be, remarks made that lie outside is mandatory, that part of travel wider the portion to apply is a total is a case to cases 1955 Willie 1 WiUiam Slaney v. Tht:Slalt o.f Mad~ya Pradt:jh Bose]. 1174 SUPREME COURT REPORTS true view in the present judgment. the one we have propounded at [1955 j length fact: is largely on the questi9f1 of We now this case to justify a finding of prejudice? the differences between sec the Indian Penal Code and section 302 the Indian Penal Code and on the appel liability to which two cases; and here the matter must be viewed broadly and not in material that will tion 302 of read ·with section 34 of the measure of criminal lant would be exposed again, any technical or pettifogging way. in those Now what from the charge and this case fall short of from the charge is- is an accused person entitled to know in what way does the charge to get that? All he is entitled ( 1) the offence with which he is charged, section 221(1), Criminal Procedure Code, (2) the law and section of the law against which have been committed, section is said the offence 221(4), (3) parti~ulars of (4) of the place, section 222(1), and (5) of the person against whom the offence is said section 222(1), and the time, to have been committed, section 222(1), and (6) when the nature of the case is such that tho;e particulars do not give him sufficient notice of matter with which he is charged, such particulars of the manner in , which the alleged offence was com mitted as will be sufficient that purpose, section 223. He is not entitled charge: "A further to any see Illustration (e) to section 223 of the Code. is accused of the murder of B at a given time and place. The charge need not state the manner which A murdered B." It is clear from the accused the case is one of murder, to be told in charge bow it was committed, whether with a pistol or a latbi or a sword. He to know the charge simpliciter any further circumstance. to defend himself? He has How then is he expected recorded in the the police challan, he has the evidence is not entitled information in is not entitled that when 2 S.C.R. SUPREME COURT REPORTS 1175 furnish him with all information, and Committal Court, he hears the prosecution witnesses and he is examined under section 342 of the Code. It is these proceedings it is his necessarv, and indeed vital, It will duty to, look into them and defen<l himself. the logic of the appellant's contention be seen that if the accused could com is carried in the not told plain of prejudice charge whether a pistol was used for the crime or a if a pistol, sword and type of cartridge. its calibre and bore and to its fullest extent because he was 1955 Willie (Willis"'' Slarey v. TheStauof , Madhya Pradeslt Bo.re]. requisite intention intention, the crime in himsef; the Indian Penal Code. Now when several persons join the common its commission, the commission it means of a crime and share a common that each has the it does not absolve any one of fact that others is actually them in<lividually, and when intention and committed in pursuance of the accused the crime is present at the offence actually committed because of becomes Section 114 section 114 of the offence nor does section 34. These does not create liability. sections enunciate a principle the charge need set Therefore, in such cases all out is the offence of murder punishable. under section 302 of the Indian Penal Code committed by the ac to gather cused with another and the details of the pro secution from other sources. The fact that he is told that he is charged with murder committed by himself legal condition re with another to constitute the offence of murder quired by this way was fulfilled: section 221(5) of committed in the Criminal Procedure Code. is left the occurrence as alleged by of criminal the accused that every imports legal conditions? What is the Now what are two persons with a murder com• effect of charging of a common intention? It means mitted in pursuance that he parti that the accused cipated in the crime; exactly how is no more a matter for the charge the circumstances It also means in which that he is informed that immaterial who struck the appel- the fatal blow. The charges here against the murder was committed. is unmistakably it is to set out 1t 1s 1 955 1}Villit \ iVilliam) Slaney '" The Stale of .l.Jadhya P1ariesh Bust]. 1176 SUPREME COURT REPORTS [1955] the evidence identical. As just as surely as !ant and his brother Ronnie are 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 arid that the prosecution allege to realise that one responsible for that and which must the two was be discovered and not from the charge, it must when the question turns on who possessed or used a pistol and who a sword. if it cannot be ascertained who It the accused cannot be struck is proved and intention the common ·convicted unless in that the co-accused type of case an acquittal of may be the converse does not hold good, and if the part that the accused ·played can be clearly brought home to him and if it to convict him of murder simpliciter he 'is sufficient cannot escape liability because of the charge unless he can show prejudice. true that the fatal blow, to the prosecution. But Put at its highest, all that in itself the appellant can urge the alternative ought to hav.e been is that a charge framed, which it could have 'been so framed. As was said by the Privy Council in Begu v. King-Emperor(1) and also by this Court in Lachman Singh v. Tht: State(')- ·imports is such as to establish a charge "A man may be convicted of an offence, although in respect of it, if the evi there has been no charge that might have been made. That is what happened here ........ They were not charged with they were brings the case under sec tion 237" (1). The variation between murder and concealing evi the variation is no more the crime dence after jointly with another, sharing between killing a man his intention, or allowing the actual killing with the same common intention. that formally, but on evidence which the other to do Now what do the proceedings this case show? The police that the appellant hit the deceased with a hockey stick while his brother charge-sheet states (I) [1925] I.L.R. 6 Lah. 226, 231. (2) [1952] s.c.R. 839, 848. IYillie (William) Slar.ey \'. The State of Madhya Pradesh Bose J. 2 S.C.R. SUPREME COURT REPORTS 1177 From there we go the deceased over In the Sessions Court we find repeated. No witness suggests to his exami Qnly threw stones. nation under section 342 of the Criminal Procedure Code in· the Committal Court. He is specifically that the only eye-witness in the case accuses him and not his brother of having hit head, with a hockey stick. No one could misunder stand that. the same evidence that anyone else hit the deceased on the head. There was no pos sibility of misunderstanding or mistake. The to confront any their statements before either of the witnesses with the Committing Magistrate or the police on this point told a consistent story from the start. Next, the appellant was examined under section 342 in the Sessions Court and was asked the in his examina same questions and was confronted tion with the same eye-witness. He was told clearly and unambiguously that he hit the deceased over the head. the appellant di<l not attempt the evidence was the witnesses Now what was his defence? A curious procedure that has been condemned was adopted, a procedure by the Nagpur High Court in other cases and which we regret Instead of the accused speaking for himself he made a statement through his advocate. However, the defence was this: to see still persists. (1) an alibi: "I wasn't there". (2) It was dark and the deceased rushed at (who is now said to .have been there despite the stairs and broke his head; the aggressor and deceased was appellant the alibi), fell down (3) The ;tppellant struck him in self defence. There is no suggestion here hit the deceased or that anyone other lant did. The appellant places it beyond doubt he knew to have struck the fatal blow. the other accused than the appel that the case against him was that he is said Next, what was the cross-examination of the only eye-witness ? There was no suggestion that she was mistaken self defence examined about the deceased and questions were put to show identity, whereas she was this very matter of . that in her 1 955 JVillie (William) Sl=y v. The Stale of Madll)'O Pradesh Bose]. 1178 SUPREME COURT REPORTS [19551 and not with his fist. his brother had threatened the appellant In the High Court the on! y argument the plea of alibi was dropped advanced was self defence. in the grounds the arguments the appellant did not know he was being accused the contrary, the High Court that he did There was no hint of prejudice even of appeal. of having hit the deceased. On was a clear admission hit the man but that he acted in self defence. There was no pretence As the appellant knew the one who the case against him said to have struck was that he is the fatal blow, and as he was the charge the offence he is said to have committed was of murder and was of the date and informed place and person, we to infer pre· it impossible judice. As the Privy Council said in Atta Mohammad v. Emperor( 1 ) - trial, and the trial had taken, neither that, with full knowledge of "He appeared by an advocate on the appeal and it is as had been legally defended at clear as possible course which the appel lant himself nor those who represented him had any sense whatever of the injustice is now urged or any idea of his having been deprived of the opportu nity of knowing the charge on which he was tried or of raising defences appropriate We would hold the conviction the charge. is not invalid because of the nature of that there was no prejudice and that charge." We now come 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. inflicted with a hockey stick. The The injury was head was fractured but days. The doctor says- the deceased "I consider the head Smythe was of a very serious nature and was result in fatal consequences." Therefore, the doctor in whose care injury on the head of likely to the patient was (1) [1929] L.R. 57 I.A. 71, 74. 2 S.C.R. SUPREME COURT REPORTS 1179 till he died places to cause death. the injury no higher than "likely" The learned Sessions Judge exonerated the appel learned High lant of any intention to kill and the that they agree with his findings. If Court Judges say there was no intention to kill, then it can be murder only if 1955 Willie (William) Slaney v. The Staie of Madhya Pradesh Bose]. (1) the accused knew to cause death or would be likely injury inflicted (2) that it would be sufficient 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 the second part comes under of section 304 of the Indian Penal Code. the deceased that it was only likely The doctor thought to cause death. The appellant is only 22 years old and not a doctor and can hardly be presumed to have had this special knowledge at the time he struck the blow. All blows on the head do not necessarily cause death, and as for ten days, we are unable the nature of the injury and from the to deduce from the appellant had, or should mere fact of death that section 300 of have had, Indian Penal Code requires. Admittedly, there was a sudden fight, so was no premediation and the necessary knowledge we are unable to ascribe the appellant; nor was injury sufficient to cause - death. ordinary course of nature offence falls under the second part of section 304 of the Indian Penal Code. the special knowledge So On the question of sentence. There was no enmity accordingly to the finding of the learned Sessions Judge. there armed with a stick. The appellant did ,not go He was in love with procated his affection but could not marry him be in England cause her husband had and she had no divorce. girl's brother, resented to come down. The the house and asked turned her out The deceased, who was this. The appellant went the sister the deceased's sister who 20-85 S. C. India/59 1955 Willie (William) Slaney v. The State of Madhya Pradesh Bose]. 1180 SUPREME COURT REPORTS [1955] and there was a quarrel. The instead brother came appellant slapped the deceased across The qeceased, 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 head and two blows on the circumstances, we think In five years' rigorous imprisonment will suffice. the face. the hips. acquit the appellant on the charge of We would murder and alter to one under the the conviction second part of section 304 of the Indian Penal Code to one of five years' rigorous imprisonment. the sentence reduce CHANDRASEKHARA 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(') and Suraj Pal v. The State of U.P.(2). AIYAR Indian Penal Code Where there is a charge against an accused under section 302, read with section 149, if section 149 of to the facts, can the accused be convicted under section 302 with out a separate charge? it was held to have a specific charge under sec that the omission latter case, tion 302 amounted to an illegality. irregularity, the view was curable In the it was a mere if no prejudice was caused In the first case, to the accused. inapplicable liable the case Therefore one where Section 149 creates a specific offence and without its p~ovisions a member of an unlawful applying assembly could not be made for the offence committed not by him but by another member of that assembly. there is charge under section 302, Indian Penal Code. read with When secticm · 149 the liability for murder ceases it becomes direct and there must be a separate charge therefore under section 302 of the Indian Penal Code. This was the line of reason In Suraj Pal's case , same line is taken but the absence of a specific charge (1) [1955] 1 S. C.R. 1201. in Nanak Chand's case. to be constructicve; (2) [1955] 1 S. C. R. 1332. section 34 of is not similar is ruled out, regarded 1955 Willie (William) Slaney v. The State of Madhya Pradesh Chanarasekhara A!Jiar J. 2 S.C.R. SUPREME COURT REPORTS 1181 is treated as a serious lacuna merely; and not as an illegality. itself transportation against by Lord Sumner resemblance and are This conflict does not arise the case before us where the offence charged two brothers Wil liam and Ronnie for the murder of Donald was under the 'Indian Penal section 302, read with sectioµ 34 of Code. Ronnie was acquitted. But William was found guilty and sentenced to life. As pointed out in his classic judg in Barendra Kumar Ghosh v. The King-Empe ror(1 ), there is much difference in the scope and ap plicability of sections 34 and 149, though they have to some extent overlap ping. The two sections are again compared and con in Karnail Singh and another v. The State of trasted create any Punjab(2). Section 34 does not by section 149 offence, whereas it has been held is active In a charge under section 34, there does. criminal act; participation in the commission of the under section 149, reason of the liability the membership of the unlawful assembly with · a there may be no active parti common object, and in the perpetration or commission of cipation at all in those cases arises the crime. The overlapping commit a murder persons two or more furtherance of is not say which of them was responsible for the possible 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 the fatal injury and the particular was responsible for result others are sought owing· to the common intention involved. But where as in this case, individually charged with murder and there is proof that his hand the fact that his brother was also caused sought to be made liable owing to the existence of a common intention, is neither here nor there, so far as the legality of has been no prejudice by way of failure of justice. the conviction is concerned, as the common . intention, but it the appellant has been to be made liable for arises by injury, It is, however, necessary (1/ [1924] L. R. 52 I. A. 40. having (2) [1954] S. C.R. 90~. regard 1955 Willie (William) Slaney v. The Stat1 of Madhya Pradesh Chandrasekhara A!J>ar J. 1182 SUPREME COURT REPORTS [1955} to us, addressed is, stood on to consider the lengthy arguments main question arising on the reference. Though the two cases which gave rise to this reference were cases to section 149 of the Indian Penal Code and relating not to section 34 of the Indian Penal Code, as present case the order of reference was occasioned in Nanak Chand's case it was stated by the fact the parallel case under section 34 specifically In our attempt to the same footing. · the conflict, we covered a wide area of sections resolve and decisions. A detailed discussion the deci the Bar is not of much use as it is not sions cited at possible those cases any thing very decisive by way of any guiding principle. But a few of the rest, must be noticed. to gather from a study of them, more important of all irregularities Even defects or violations The Criminal Procedure Code does not use the word that vitiate "illegality". them void are spoken of the proceedings and render only as section 530. The word illegality was used almost for the first time in the judg ment 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 in a misjoinder of charges, as an Code, it was a mere illegality. The idea irregularity was repelled in these words:- resulting to regard is not appropriate to an express provision as "Their Lordships are unable the dis to a mode of obedience trial as a mere irregularity. Such a phrase as irregu larity to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a· longer than by law could have been joined period together in one the section itself sufficiently shows what was meant": Again, indictment. The illustration of they say:- " ...... it would be an extraordinary extension of law to such a branch of administering say that when that such a trial as that which has taken place here shall not be his contravention of the Code comes permitted the Code positively enacts the criminal l955 Willi~ (William) Sbmey v. The State of Madhya Pradesh Chandrasekhtrra A!Yar J. 2 S.C.R. SUPREME COURT REPORTS 1183 within the description of error, omission, or larity". irregu its scope it was to narrow realised Subsequently, however, to explain away there have been systematic the said decision and res attempts limits. This was possibly even by the Judicial Com because the view taken by them to the effect mittee itself that that a violation 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 arguments, and the Lord Chancellor the course of alludes the trial on a the prejudice multitude of charges. it may be men legislature has now specifically tioned here that included misjoinder of charges in sub-clause (b) of inclusion may section 537. The exact effect of require consideration in an appropriate case. inherent In passing, the accused or his Before dealing with the conviction as no the Code which provides the other relevant sections of the Code, let us examine some of the later decisions 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 sec tion 360 of that the deposi tion of each witness shall be read over to him in the presence of pleader. The High this was a mere irregularity, and con Court held that failure of justice had firmed resulted. Privy Council the section was obligatory, and that non-compliance with such a mandatory provi illegal, on the principle laid down in Subra sion , was rejected mania Aiyar's case(Z ). But th~r Lordships in the earlier case this contention pointing out the Code posi the procedure adopted was one which tively prohibited, and that it might have worked actual to the accused; and they confirmed the conviction. The question was again raised ) It was contended on appeal before in Babula! Choukhani v. The King-Emperor( 9 (2) [1901] L. R. 28 I. A. 257. (I) [1926] L. R. 54 I. A. 96. it was possible injustice (3) [1938] 65 I. A. 158. 1955 Willi• (William) Slll1llly v. The State of Madhya Praduh Chandrasekhara Abar J. ll84 SUPREME COURT REPORTS [1955} to state that an the Code, to what would be an ill<;,gality as distinguished from an irregularity. Lord Wright who delivered the judgment of the Board assume infringement of section 239 (b) of the Code would be an illegality, and proceeded the question did not, it was hence unnecessary to dis however, arise, and in Subra cuss the precise scope of what was decided mania Aiyar' s case('). The matter cropped up once in Pulukuri Kotayya and others v. King Emperor(•) where there was a breach of the statutory requirement found in section 162 of much as the accused were not supplied with copies of the statements cross-examining The de fect was to be a matter of gravity, and if the statements had been completely destroyed, or if there had been a total to be quashed. the accused, the convictions were But in the case before them, as the statements were to be effective, and made available, though too late Inspector's notes of the Circle the examination of witnesses were put the hands of the accused, it irregularity merely. Referring to the contention the breach of a direct and important provision of the Code carmot be cured but must lead to the quashing of the conviction, Sir John Beaumont observed:- the prosecution witnesses. recorded by a police officer to be an to supply copies recognized refusal liable opm10n, their Lordships' is conducted substantially that prescribed by the Code " ...... In this argu- ment is based on too narrow a view of the operation of section 537. When an trial is conducted in a man (as ner different from N. A. Subramania Iyer's case('), the is bad, and no question of curing an irregularity arises; but if the the manner pre irregularity occurs in scribed the irregularity can be the course of such conduct, cured under section 537, and nonetheless so because involves, as must nearly always be the the irregularity case, a breach of one or more of the very comprehen the Code. The distinction drawn in sive provisions of in India between an illegality and many of the cases by the Code, but some (1) [1901] L. R. 28 I. A. 257. (2) (1947] L. R. 74 I. A. 56. 2 S.C.R. SUPREME COURT REPORTS 1185 is one of degree rather than of kind. an irregularity support in the decision of their Lord This view finds ships' Board in Abdul Rahman v. The King-Emperor( 1 ) to comply with section 360 of the Code where failure of Criminal Procedure was held to be cured by sec tions 535 and 537. The present case falls under sec tion 537, and their Lordships hold the trial valid not withstanding the breach of section 162". 1955 Willie (William) Slaney v. The State of Madhya Pradesh Chandrasekhara A!Jar J. Of course, footing, and the proceedings taken lack of competency of jurisdiction, ab the proper person or autho sence of a complaint by specified, want of sanction prescribed as a condi tion precedent for a prosecution, in short, defects that the very root of jurisdiction stand on sepa strike at in disregard or disobedience would be illegal. The difficulty arises only when we the other provisions to consider the Code which regulate procedure and which are in a mandatory form, positive or negative. It the distinction becomes important and material. The scope of the decision in Subramania Aiyar's case( 2 ) has become so circum to the genera it applies it is doubtful if scribed that lity of cases of omissions and defects that come before the courts, excepting where result the trial was conducted in a .manner diff erent from that prescribed by the Code. they bring about class of cases -' Let us now turn our attention to the relevant sec the requirement of a the effect tions of the omission of a charge and charge, of Section 233 provides as follows :- the Code bearing on to ·alter or add to a charge, at any be tried separately, except in sections 234, 235, 236 and 239". "For every distinct offence of which any person is accused there shall be a separate charge, and every in the such charge shall cases mentioned time be A power is conferred on a court fore judgment under section 227. 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. ft runs as follows:- (2\ [1901] L. R. 28 I. A. 257. Sections 228 to 231 provide (1) [1926] L. R. 54 I. A. 96. is pronounced, 1955 Willie (William) Slaney v. The State of Madhya Pradesh Chandrasekhara A!Jar J. 1186 , SUPREME COURT REPORTS [1955] to state required "No error the offence or in stating either to be stated the charge, and particulars no omission the offence or those particulars, shall be regarded at any stage of the case as material, the accused was in fact misled by such error or unless omission, and it has occasioned a failure of justice". Section 232(1) of the Code of Criminal Procedure re fers more specifically to the effect of such error where in revision or an appellate Court or confirmation proceedings, notices such an error and is in the following terms:- the High Court the High Court "If any Appellate Court, or the exercise of its powers of revision or of its powers that any person under ·Chapter XXVII, is of opinion in defence by the convicted of an offence was misled absence of a charge or by an error the charge, to be had upon a charge shall direct a new framed in whatever manner it thinks lit". Then we have section 237, dealing with a case where an accused charged with one offence for which he might have been charged unc\er the provisions of sec tion 236 could be convicted of a different offence. to cases where This applies only it is doubtful which the facts which can be proved will of several offences constitute. Begu's case(') the convic the Indian Penal Code tion was under section 201 of for causing .the disappearance of evidence a murder, though the charge was under section 302 of the serves:- Indian Penal Code. Viscount Haldane is ~n example; relatffig such as to establish a charge " ...... A man may be convicted of an offence, although there has been no charge . in respect of it, if the evidence might have been . made. That is what happened here. The three men who were sentenced ·to rigorous im prinsonment were convicted of making away with the the crime by assisting in taking away the evidence of body. that formally tried on evidence which brings the case but they were under section 237". They were not charged with (1) [1925] L. R. 521. A. 191. t 2 S.C.R. SUPREME COURT REPORTS 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 the opinion of the Court charge was framed, unless, of appeal or revision, a failure of justice has in fact been occasioned thereby. 1955 Willie (William) Slanty v. The State ef Madhya Pradesh Chandrasekhara Aryar J. (2) If the Court of appeal or revision thinks :a failure of justice has; been occasioned by an omis to frame a charge, it shall order that a charge be framed, and that the charge". The latter runs the trial be recommenced from the framing of · immediately after thus:- "Subject to the provisions herein before contained, or order passed by a Court of no finding, sentence competent reversed or altered under Chapter XXVII or on appeal or revision on account- jurisdiction shall be ( 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 32.4, or ( d) of any misdirection unless such error, omission, tion has in fact occasioned a failure of justice". to a jury, irregularity or misdirec in any charge to be slightly different. Where 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 is no charge, it is for the court to determine whether there latter where in the is any failure of there is mere error or omission regard to the fact whe ther the objection could and should have been raised at an earlier stage in the proceedings. is also bound justice. But the charge, to have The sections ref erred indicate generality, of cases the omission to frame a charge 1955 Willie (William) Slamy v. TheSttJteof Madhya Pradesh Chandrasekhara Abar J. 1188 SUPREME COURT REPORTS [19551 therefore, in which It is said that it applies also that section 535 of to be understood with the powers exercisable by Mr. Umrigar that where there accept not per se fatal. We are unable, the very broad. proposition advanced for the as sound appellants is no the conviction would be illegal, prejudice or charge, no prejudice. On the other hand, it is suggested the wording of section 535 of the Code of Criminal Procedure is sufficiently wide to cover every case of 'no charge'. to the case there has been no charge of any of a trial kind even from the very outset. We are unable to the Code of Criminal Pro to be construed in such an unlimited serise. cedure this group of sections relating It may be noticed to absence of a charge, namely, sections 225, 226 and 232 and thereunder, are with to a trial which has already commenced or reference taken place. They would, therefore, normally relate to in a trial that has errors or omissions which occur validly commenced. There is no reason to think section 535 of the Code of Criminal Procedure is not reference to the same con text. There may be cases where, a trial which pro ceeds wihout any kind of charge at the outset can to what is pres be said to be a trial wholly contrary trial would be cribed by the Code. finding of illegal without the necessity of a positive prejudice. the following classes of cases may be mentioned:-(a) Where there is no from start to charge at all as required · by the Code finish-from the end of the Sessions the Code contemplates trial; in section 226 the possibility of a committal without any charge and it is not to conceive of an extreme case where trial also proceeds the Seisions without any formal charge which has to be in writing and read out and explained (section 210(2) and section 251(A) (4) and section 227). The there should be a charge and Code it should be in writing. A deliberate breach of this the assertion accused and there was requirement cannot be cured by everything was orally the assessors . or the Committing Magistrates court ,By way of illustration explained · to In such cases jurors, and the accused impossible requires 2S.C.R. SUPREME COURT REPORTS 1189 the con (b) Where no possible or probable prejudice the one for a totally different offence from viction is 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. 1955 Willie (William) Slaney v. The State of Madhya Pradesh Chandrasekhara A~ar J. liability viewed Sections 34, 114 and 149 of Indian Penal Code different provide for criminal angles as regards actual participants, accessories and men actuated by a common object or a common tention; and the charge is a rolled-up one involving the liability without the constructive direct liability and specifying who are directly liable and who are sought In such a situation, to be made constructively liable. the absence of a charge under one or other of for the offence can various heads of criminal to be fatal by itself, and before a convic not be said substantive offence, without a charge, tion for can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is noramlly given from to who was primarily res ponsible for the offence and such evidence is of course relevant. the outset as the act which brought about liability form and several factors, in our considering whether irregular, we shall have such as the mandatory proviswns, to be achieved, the defect is After• all, to take into illegal or merely account the scheme language the nature of the viola and the object the question whether a pro tion, etc. Dealing with is mandatory or directory, Lord vision in statute Penzance observed in Howard v. Bodington(1). "There may be many provisions in Acts of Parliament which, they are not strictly obeyed yet do not although appear important to the subject-matter to which they the non-observ l~gislature could have ance of them should be followed by a total failure of the whole proceedings. On the other hand, there are court to be of that material refer, as that intended fl) [1877]2P.D.203. 1955 Wiilie (William) Slanry v. The State of Madhya Pradesh Chandrasekhara Afyar J. 1190 SUPREME COURT REPORTS [1955] in respect proceedings to cases where some provisions of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the follow must that subsequently to an end". These words can be applied mutatis is no charge at all. mutandis the defect will have The grwity of to be considered it falls within one class or the other. to determine Is it· a mere unimportant mistake The answer will depend it substantial and vital? largely on the facts and circumstances of each case. If it is so grave that prejudice will necessarily be im it may be described as an illegality. plied or imported, If the seriousness of is of a lesser degree, the omission it will be an irregularity and prejudice by way of failure of justice will have to be established. in procedure or In the main, the accused In some cases, the mandatory requirements of it 'would vitiate a trial and render This judgment should not be understood by sanctioning a deliberate dis the Code trials with to frame a is a grave defect and should be vigilantly it may be so serious the provisions of section 535 to frame a the matter on record for a particular constitute a separate to and the same set of facts connected with subordinate courts obedience or as giving any license to proceed with out an appropriate charge. The omission charge guarded against. that by itself illegal, prejudice granted. cases of would apply charge induced by the belief is sufficient offence, without express specification, and where by the prosecution offence but springing out of the one charged. Coming now inadvertence the conviction to the facts of the present case; Wil intimacy with Bery I P. W. 13. liam was on terms of She was the sister of Donald Smythe. The aceused was practically living with her in her house. The br<> intimacy and was making ther did not the ac.cused. On the attempts evening of the day of and his the oceurrence, Donald to Beryl's house. There was a quarrel mother went to separate Beryl from proved distinct to warrant relevant closely 2S.C.R. SUPREME COURT REPORTS 1191 the first floor them and the accused was the· place but to get between returned a little later away. He left with his brother (Ronnie) and asked Beryl who was to come down to him. She did not come but Donald came down the courtyard. There was !! heated exchange of words. The accused slapped Donald on lifted his fist. The accused gave one blow on his head with a hockey fractured. stick with later. A plea of Donald died alibi was given up the High Court. The suggestion that Donald fell down and sustained the head injury while descending t~e stairs was ruled out by the evi dence of the eye-witnesses. Nothing was established the right of private detence. to justify any exercise of in the hospital that his skull was the check. Donald the result ten days 1955 Willie !William} Slaney v. The State of Madhya Pradesh Chandrasekhara Aryar J. It On these guilty only the appellant the offence. intend the doctor fatal consequences. This by the case within facts, which have been proved, the only question that arises is whether is guilty Indian Penal of murder under section 302 of culpable homicide, not Code, amounting to murder, under the second part of sec tion 304. The High Court did not address itself to is obvious that the ap the nature of to kill the deceased. The evi pellant did not likely to dence of result in is not enough the scope of section 300. There to attribute the appellant that the injury was liable it was so imminently danger to cause death or in all probability cause death. The ous that it must lived for ten days afterwards shows the ordinary course of nature to cause death. The elements specified in sec thus wanting. tion 300 of the Indian Penal Code are We take the circumstances that the offence is' the lesser one. that Donald it was not sufficient the injury was itself the view, considering all knowledge to warrant us is nothing to bring The appellant is acquitted of the charge of murder the second Part of section 304, but is convicted under and sentence to five years' rigorous imprisonment. IMAM J.-I agree with by my learned brother, Chandrasekhara Aiyar, the judgment just delivered J. but 1955 Willie (William) Slanry v. The SJate of Madh;'a Pradesh Imam ]. 1192 SUPREME COURT REPORTS [1955] would add case. some observations of my own as I was the judgment of this Court in Nanak Chand's the offence was committed by The appellant was charged with murder and no it was stated in the charge him in further failed the offence committed by him was in a common intention, it would be none for murder should the charge of murder was alerady thing short of it, although ance of a common intention. to prove furtherance of theless his offence, namely, murder, if his act in amounted such a case be framed, because on the record. to murder. The that a separate charge law does not require If the evidence raised, Strictly speaking, on facts of the present case, raised by the reference does not anse. the question it must be considered. In Since it has been the view taken was that when an Nanak Chand's case is charged under section 302 read with sec accused tion 149 of the Indian Penal Code, it is illegal to con vict him under section 302 Qf the Indian Penal Code without a charge having been framed against him that if this was under that section. the case, the only an irregularity In Suraj Pal's case, accused was 11Jisled in similar circumstances, lacuna frame a charge under section 302 was a serious and the conviction was ·set aside on the accused had been prejudiced. A careful exami nation of not reveal any sub stantial conflict between them. It was also held then on the facts of in his defence. these two cases does it was held the ground failure the Code. is c;oncerned, As I undrstand the prov1s10ns of the Code of Cri is set out for minal Procedure, a separate procedure triable by a court exercising various class of cases So far as the framing of a powers under charge In kind of cases 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 contraven tion of the mandatory provisions of the Code. Would an illegality? Prima such contravention amount the Code expressly states is to be framed. in which no charge 2S.C.R. SUPREME COURT REPORTS \ 1193 to have been charged, f acie a conviction of an accused person for an offence he had not been, charged but for which he with which It is said that is invalid. by virtue of the provisions of sections 535 and 537 of to frame a charge or an omission or the Code failure irregularity is framed, does not by itself the Court justice has resulted. satisfied It far these its provisions relating provisions of to the framing of charges. is, therefore, necessary the conviction, unless in fact a failure of invalidate in a charge, which the Code override to examine how 1955 Willie (William) Slaney v. The State of Madhya Pradesh Imam J. except separately Section 233 of the Code expressly states it permits a single trial on several charges that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be the cases men tioned in secti9ns 234, 235, 236 and 239. There is no the language of this section. While it ambiguity distinct. insist upon a separate charge offence the cases mentioned in sections 234, 235, 236 and 239. Section 233 is a mandatory provision and the force of its direction that another is not weakened by the fact provision of the Code does permit a conviction of an for an offence with which he had not been accused charged. of illegality or irregularity expressly authorized by the Code. The conviction is valid be cause of the statute itself and not because of section 535. In such a case no question the conviction arises, as it has been explained The framing of a charge the plea of guilty or not guilty in trial of cases in which to be framed, is one of the a charge is required the mode of a trial. On the portant elements charge framed, after accused, is recorded. If the accused pleads guilty, certain consequences follow. the trial must proceed to law. When a charge is not framed, ob according to it is viously no plea of the accused with reference has proceeded without such a taken and plea. the recording of the plea of the accused mere! y a ritual or a funda the Code concerning procedure mental provision of Is the framing of a charge and If he pleads not guilty, the trial 1955 Willie (William) Slaney v. The State of Madhya Pradesh Imam ]. 1194 SUPREME COURT REPORTS [19551 it is to do so the Code as satisfied, merely because latter. Are the in a criminal trial ? I think the manner in express provisions of to be ignored, or considered which a trial is to proceed the Court explained the accused to what he was being tried for? I For apprehend not. is to replace the pro the Code by a procedure unwarranted by visions of In my opinion, a total absence of tpe statute itself. to finish in a case where the law a charge from requires a charge to be framed, is a contravention of the Code as to the mode of trial and the provisions of a conviction of the accused of an offence in such a the question of prejudice does not case is invalid and of the Privy Council arise. None of the conviction will be suggest deemed the provisions of sec tion 535, unless the Court is satisfied that there has been a failure of justice. to be valid by virtue of the decisions in such a case In cases where a charge has been framed and there ·event, in fact a is an omission of irregularity see how the mode of trial the Code expressly provides conviction need not be set aside, unless, failure of justice has resulted. it, it is difficult In any is affected. in such cases it is satisfied trial of a case in his defence by the Code an Under the provisions of section 232 of its powers appellate Court or a High Court exercising of revision or its powers under Chapter XXVII, must direct a new in which an accused per son has been convicted of an offence with which he had not been charged, that he had been misled a charge. In such a case to act according to its prov1S1ons. But this does not mean that by virtue of that which was to be valid, unless, prejudice invalid shall be deemed It is the provision of section 535 to which was shown. reference must be made to ascertain whether that which was to be valid, that there had been a unless the court was satisfied failure of justice. if not with dismay, a too liberal application of is an absence of a charge, all cases in order invalid shall be deemed the absence of is. bound I regard with concern, these provisions its provisions in which a . court ti).ere 1955 Willie (William) Slaney v. Tkl State of Madhya Pradesh Imam J. 2S.C.R. SUPREME COURT REPORTS 1195 f acie the Code in order is guilty of the omission to frame a charge affects to be carefully considered that which was prima to have been to lay down any hard and it is such a substantial contravention of relating framed. It is .although a charge ought fast rule as to .difficult when the provisions of section 535 will or will not be applicable. The facts of each case, as they arise, will to decide invalid is deemed to be valid by virtue of its provisions. There may be frame a charge was cases where in which case section 535 merely a technical defect hand, there may be cases would apply. On the other the mode of where failure trial or the framing of provisions of charges that prejudice may be inferred at once and th~ conviction which was prima facie invalid continued In a criminal innocence of an accuse( to be so. is a statutory presumptior. is presumed, unless against him, and the prosecution must prove accused the offence for which he is being in possession of all tried.. The prosecution evidence upon which to establish against the accused. to frame charges with respect to the offences Court the accused. On it wishes the Court itself a duty is cast to it prima offences which, on f acie this a charge under section 302 read with 149 of the Indian Penal Code only is framed against an accused person the Indian Penal Code, it and not under section 302 of the prosecu that neither to suppose will be reasonable the Court considered tion nor the evidence sufficient to prove that murder was committed by the accused and the omission to frame a charge under section 302 the Court by must be regarded as a deliberate act of way of notice that he was not being It would not be a case of mere tried for the accused omission to frame a charge. is convir.ted under section 302, I would consider his invalid, as he was misled in his defence. conviction as the provisions to be to have been committed. If in spite of In conclµsion I would point out that of Criminal Procedure are meant it relies It has the evidence, appear to establish against frame charges to ask to the accused that offence. the privilege therefore, If, of the Code 11-65 S. C. India/59 J '( ' 1955 Willie {W.1liam) Sl1m9 .v. The Stattof Madhya Pradesh Imam J. - 1196 : , SUPREME· COURT· REPORTS .· [1955] • , Where the hope the · contravention obeyed Contravention oC.· its . provisions are unneces the . prosecution nor the Courts of sary and neither trial should . ignore - 'its. provisions they might find shelter under sections 535 and 537 of substantial the · Code. is wasted and a retrial. becomes necessary, public time to unnecessary harassment . and expense. . 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 . the accused ·is · put I agree . . - J . ' ' . - ', 1955 December 20. A. THANGAL KUNJU MUSALIAR v. M. VENKITACHALAM.POTTI AND ANOTHER (with connected appeal) [S. R. DAS, AcnNG C.J, VIVIAN BosE, J AGANNADIIADAS and B. P. S1NHA JJ.] BHAGWATI, Constitution of India-Article 14-Travancore Taratioh on Income (Investigatian Commissian) Act, 1124 (Act XIV. of 1124), s. 5(1)-Whether ultra vires the·Constitution -Read along with s. 47(1) of Travancore Income-tar Act, 1121 (Act· XXlll of 1121) High Court-Jurisdiction-Article 226 of the Constitution-Writ Petition against authorised Official-Appointet! under s. 6_ of the Tra· vancore· Act (XIV of 11'24)-Investigation Commission-Whether competent under the provisions of the Travancore Act XIV of 1124 to inv~stigate cases_ not referred to it ~y Government. · The petitioncr...:..:i native 0£ Qllilon ·within the Travancore State -'-had been assesied' to income-tax for the years 1942 and 1943, the final orders in his assessment having been passed by· the Chief Rcvc· nue authority of Travancore in December )946 and November 1946 lnc'?mc - (Investigation _<;om r~spectively. Travan~orc ~Taxation on mission) Act, 1124. {Act XIV of 1124) modelled on.the Indian Act XXX of 1947,.was passed by the Travancore Legislature, to provide for an investigation .into matters r,elating·to taxation on inc6me. In July 1949, 'the United State ofTravancore and -Cochin was brwght into existence as , a result of i.Iltegration · hetweeri · the two States. All existing la\vS of Travancorc were to contin_ue in force by virtue of Ordinance I of 1124 which was later enacted as Act VI of 1125. In, November· 1949 the Government of the United State: of Travanc~re- (