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In adjudging the question of prejudice the fact that the absence of a charge,or a substantial mistake in it,is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was,or was reasonably likely to have been,misled in the circumstances... |
But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another,because the facts can never be alike in any two cases however alike they may seem RLC |
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 RLC |
In Gurbachan Singh v PRE |
State of Punjab [AIR 1957 SC 623 1957 Indlaw SC 181] following Willie Slaney,this Court held: "In judging a question of prejudice,as of guilt,courts must act with a broad vision and look to the substance and not to technicalities,and their main concern should be to see whether the accused had a fair trial,whether he kn... |
In Shamnsaheb M.Multtani vs PRE |
State of Karnataka -2001 PRE |
2) SCC 577 PRE |
2001 Indlaw SC 19904,this Court considered the meaning of the expression "failure of justice" occurring in s.464 of Cr PRE |
PC.This Court held thus : "The crux of the matter is this : Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence,although he was not charged with the sa... |
a conviction would be valid even if there is any omission or irregularity in the charge,provided it did not occasion a failure of justice PRE |
The criminal court,particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage PRE |
One of the cardinal principles of natural justice is that no man should be condemned without being heard,(audi alteram partem).But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect... |
However,if the aspect is of such a nature that non-explanation of it has contributed to penalizing an individual,the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice PRE |
The above principles are reiterated in several decisions of this Court,including State of West Bengal vs PRE |
Laisal Haque -AIR 1989 SC 129 1988 Indlaw SC 706,State of A.P.vs PRE |
Thakkidiram Reddy PRE |
6) SCC 554 1998 Indlaw SC 1286,Dalbir Singh v PRE |
State of UP [2004 (5) SCC 334 2004 Indlaw SC 247],Dumpala Chandra Reddy vs PRE |
Nimakayala Bali Reddy -2008 PRE |
8) SCC 339 2008 Indlaw SC 1064 and Sanichar Sahni vs PRE |
State of Bihar -2009 (7) SCC 198 2009 Indlaw SC 736 PRE |
The following principles relating to sections 212,215 and 464 of the Code,relevant to this case,become evident from the said enunciations: (i Ratio |
The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet Ratio |
The charge must also contain the particulars of date,time,place and person against whom the offence was committed,as are reasonably sufficient to give the accused notice of the matter with which he is charged Ratio |
ii Ratio |
The accused is entitled to know with certainty and accuracy,the exact nature of the charge against him,and unless he has such knowledge,his defence will be prejudiced Ratio |
Where an accused is charged with having committed offence against one person but on the evidence led,he is convicted for committing offence against another person,without a charge being framed in respect of it,the accused will be prejudiced,resulting in a failure of justice Ratio |
But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error Ratio |
Such knowledge can be inferred from the defence,that is,if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge Ratio |
iii Ratio |
In judging a question of prejudice,as of guilt,the courts must act with a broad vision and look to the substance and not to the technicalities,and their main concern should be to see whether the accused had a fair trial,whether he knew what he was being tried for,whether the main facts sought to be established against ... |
The respondent relied upon the decision of this court in State of Himachal Pradesh v PRE |
Geeta Ram [2000 (7) SCC 452 2000 Indlaw SC 408].In that case PRE |
the respondent was chargesheeted for an offence u/s.376 IPC and s.3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities PRE |
Act,1989.The Magistrate committed the case to Sessions Court which was specified as a special court under the Act PRE |
The special court framed a charge only for an offence u/s.376 IPC and after trial convicted the respondent u/s.376 IPC and sentenced him to ten years imprisonment PRE |
The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the SC & ST (Prevention of Atrocities) Act PRE |
This Court reversed the decision of the High Court on the ground that a special court under the Act being a sessions court,it continued to have jurisdiction to try the case for the offence u/s.376 PRE |
IPC.That matter was considered u/s.465 of the Code and not relevant on the facts of this case PRE |
As noticed above,in this case,the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi,and assaulted the said Prakashi Devi and outraged her modesty Ratio |
The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of Prakashi Devi Ratio |
He did not try to challenge the evidence let in to show that he had tried to outrage the modesty of Sheela Devi,as he was not charged with such an offence Ratio |
The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse Prakashi Devi Ratio |
Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away Ratio |
When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi,the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted Sheela Devi and outrag... |
When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true,he cannot be convicted for having assaulte... |
The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty Ratio |
Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi Ratio |
One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge Ratio |
An accused cannot be punished for committing an offence against 'Y' when he is charged with having committed the offence against 'X' and the entire defence of the accused was with reference to charge of having committed offence against 'X Ratio |
The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision STA |
Illustration (e) u/s.215 of the Code,as contrasted from illustration (d) under that section,throws some light on this issue STA |
The said illustrations are extracted below : "(d) A is charged with the murder of Khoda Baksh on the 21st January,1882.In fact,the murdered person's name was Haidar Baksh,and the date of the murder was the 20th STA |
January,1882.A was never charged with any murder but one,and had heard the inquiry before the Magistrate,which referred exclusively to the case of Haidar Baksh STA |
The Court may infer from these facts that A was not misled,and that the error in the charge was immaterial STA |
e) A was charged with murdering Haidar Baksh on the 20th January,1882,and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January,1882.When charged for the murder of Haidar Baksh,he was tried for the murder of Khoda Baksh STA |
The witnesses present in his defence were witnesses in the case of Haidar Baksh STA |
The Court may infer from this that A was misled,and that the error was material STA |
Applying the guidance offered by the said illustrations and the legal principles evolved by this Court,the position will be as follows Ratio |
If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi,but in the charge the name of the victim had been erroneously mentioned,say as Sushila Devi or Prakashi Devi (though there was no person by such name),and the inq... |
On the other hand,if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi,and assaulting and outraging the modesty of the said Prakashi Devi,and the witnesses refer only to the assault and outra... |
The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty,convicts him on the ground that though he did not assault or outrage the modesty of Pr... |
There was a material error in the charge as it violated the requirement of sub-s.(1) of s.212 of the Code,that the charge shall contain particulars as to the person against whom the offence was committed Ratio |
There were two women present at the house at the time of the alleged incident,namely Prakashi Devi and her daughter-in-law Sheela Devi Ratio |
In view of the specific charge,the accused concentrated on showing that the charge was false Ratio |
He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi Ratio |
The accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice Ratio |
Therefore,we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of Sheela Devi Ratio |
The appeal is therefore allowed,the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words "her daughter-in-law Sheela Devi" for the words "abovenamed Prakashi Devi",in the second part of the charge RPC |
Appeal allowed RPC |
This appeal is directed against the final judgment and order dated 03.10.2007 passed by the High Court of Judicature,Andhra Pradesh at Hyderabad in Criminal Appeal No.436 of 2001 whereby the High Court dismissed the appeal filed by the appellant herein and confirmed the judgment dated 19.03.2001 passed by the Special J... |
Brief facts: "(a) The appellant-accused was working as a Head Clerk in the Traffic Cadre Section in the Office of the Senior Divisional Personnel Officer,South Central Railway,Vijayawada during the period from April,1992 to November,1997.The nature of duties of the appellant-accused included dealing with and processing... |
b Ratio |
One K.Rama Rao-the Complainant,who was examined as PW-1,was posted as Yard Points Man,Grade 'A' under Station Superintendent,South Central Railway,Tanuku from December,1995 to June,1997.In June,1997,due to excess staff at Tanuku FAC |
he was instructed to report at Head Quarters,Vijayawada and accordingly,when he reported there,he was asked to go back to Tanuku FAC |
Thereafter,he went back to Tanuku from where he was subsequently transferred to Rajahmundry FAC |
Thereafter,PW-1 made a representation to his senior officer requesting him for posting at Vijayawada,Cheerala,Vetapalam or Tenali FAC |
Later,PW-1 was transferred to Vijayawada FAC |
c Ratio |
As the appellant-accused was dealing with the transfers,the complainant (PW-1) met him on 05.11.1997 at his office to pursue about the issuance of the said transfer order FAC |
The appellant-accused asked him to come on 10.11.1997.When he met him on 10.11.1997,the appellant asked him to come on the next day as he was busy in pay-fixation work FAC |
On 11.11.1997,again he went to the office of the appellant but he could not find him on his seat FAC |
Again a day after i.e.on FAC |
13.11.1997,when he met the appellant-accused,he informed him that his request for transfer has been processed and the order is ready and the same has been placed before the A.P.O.for signature and asked him to come on the next day,i.e.,on 14.11.1997,and demanded Rs.200/-for releasing the said office order FAC |
d Ratio |
On the same day,(PW-1) reported the matter in writing to the Inspector of Police,Central Bureau of Investigation (in short 'the CBI),Vijayawada FAC |
On 14.11.1997,a trap was laid by the CBI officials along with panchas and when the accused demanded and accepted a sum of Rs.200/-as illegal gratification,he was caught red handed along with the money which was recovered from the right hand side pocket of his pant FAC |
e Ratio |
On 15.11.1997,at 7.30 a.m.,an FIR was registered by the Inspector,CBI,Visakhapatnam Branch in Crime No.RC 20(A)/97-VSP.After recording the statements of the witnesses,Inspector of Police,CBI,Visakhapatnam filed charge sheet being No.2/98-YTR dated 29.04.1998 against the appellant-accused for an offence punishable under... |
f Ratio |
The Special Judge,CBI,by order dated 19.03.2001,convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/-and,in default,to suffer simple imprisonment for one month for the offence punishable u/s.7 of the Act and one year rigorous imprisonment wit... |
read with S.13(2) of the Act FAC |
g) Against the said order,the appellant-accused filed Criminal Appeal No.436 of 2001 before the High Court of Andhra Pradesh FAC |
The High Court,by impugned judgment dated 03.10.2007 dismissed the appeal filed by the appellant-accused and confirmed the conviction passed by the trial Court FAC |
Hence,the appellant-accused has preferred this appeal by way of special leave petition before this Court FAC |
Heard Mr FAC |
ATM Rangaramanujam,learned senior counsel for the appellant and Mr FAC |
Harish Chandra,learned senior counsel for the respondent FAC |
Notice only on quantum of sentence-hearing on all aspects FAC |
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