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October 31. Ratio |
The judgment of section R. Das, Acting C.J. and Bose J. was delivered by Bose J. FAC |
The judgment of Jagannadhadas and Chandrasekhara Aiyar JJ. FAC |
was delivered by Chandrasekhara Aiyar J. Jafer Imam J. delivered a separate judgment. FAC |
This appeal was referred to a Bench of five Judges in order to determine whether there was a conflict of view between Nanak Chand vs The State of Punjab(1) and Suraj Pal vs The State of U.P.(2) and (1) [1955] I S.C.R. 1201. Ratio |
(2) ; 1149 if so, to determine it. Ratio |
The appeal is against a conviction for murder in which the lesser sentence was given. FAC |
The main ground is that the appellant was charged under section 302 of the Indian Penal Code read with section 34. FAC |
But the Courts below hold that the appellant inflicted the fatal blow and have made him directly liable for the murder. FAC |
He contends that as he was not charged with having murdered the man personally be cannot be convicted under section 302. ARG |
He relies on certain observations in Nanak Chand vs The State of Punjab(1) and contends that the conviction is an illegality which cannot be cured and claims that he must either be acquitted or, at the most, be retried, though be adds further that in the circumstances of this case the Court should not in the exercise o... |
As against this it is contended for the State that an omission to frame a separate charge in the alternative under section 302 simpliciter is a curable irregularity provided there is no prejudice to the accused. Ratio |
Therefore, the only matter for determination is a question of fact whether there was prejudice in this case. Ratio |
The charge was as follows: "That you, on or about the 12th day of February 1953, at Civil Lines, Jabalpur, went with your brother Ronnie Slaney to the house of Mrs. Waters (P.W. 20) at about 7 p.m. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brothe... |
An exactly similar charge with the necessary change of name was framed against the co accused Ronnie Slaney. Ratio |
It was contended on behalf of the State that this is really a charge under section 302 of the Indian (1) ; , 1150 Penal Code and that the references to common intention and to section 34 are mere surplusage. ARG |
There is much to be said for this but we will assume in this case (without so deciding) that the charge is ambiguous and that it means what the appellant says it means, namely a charge under section 302 read with section 34 and not one under section 302 simpliciter. Ratio |
On that assumption the question for our decision is whether the omission to frame an alternative charge under section 302 of the Indian Penal Code is an illegality that cuts at the root of the conviction and makes not invalid or whether it is a curable irregularity in which all that we are concerned to see is whether t... |
What it narrows down to is this: Is the charge to be regarded as a ritualistic formula so sacred and fundamental that a total absence of one, or any departure in it from the strict and technical requirements of the Code, is so vital as to cut at the root of the trial and vitiate it from the start, or is it one of many ... |
The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. Ratio |
If he does, if he is tried by a competent court, if be is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance w... |
That, broadly speaking, is the basic principle on which the Code is based. Ratio |
Now here, as in all procedural laws, certain things are regarded as vital. Ratio |
Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Ratio |
Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Ratio |
Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions. Ratio |
The question here is, does the Code deal with the absence of a charge and irregularities in it, and if so, into which of the two categories does it place them? But before looking into the Code, we deem it desirable to refer to certain decisions of the Privy Council because much of the judicial thinking in this country ... |
In our opinion, the general effect of those decisions can be summarised as follows. Ratio |
First comes a class of case in which the Code deals with the matter expressly. Ratio |
In that event, full effect must be given to the plain meaning of the words used. Ratio |
"The language of that Code is conclusive, and must be construed according to ordinary principles, so as to give effect to the plain meaning of the language used. Ratio |
No doubt, in the case of an ambiguity, that meaning must be preferred which is more in accord with justice and convenience, but in general the words used read in their context must prevail". Ratio |
And at page 177 "But, even so, that can be no ground why the Court should misconstrue the section". Ratio |
and at page 178 ,"Their Lordships decide the question on what they regard as the plain meaning of the language used". Ratio |
(1) [1938] L.R. 65 I.A. 158, 175. Ratio |
1152 Next comes a class of case for which there is no express provision in the Code, or where there is ambiguity. Ratio |
In that event, the question is whether the trial has been conducted in substantial compliance with the Code or in a manner substantially different from that prescribed. Ratio |
"When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case(1)), the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of s... |
Pulukuri Kotayya vs King Emperor(2). PRE |
The question in such cases is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. Ratio |
It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice. Ratio |
In any case, the courts must be guided by the plain provisions of the Code without straining at its language wherever there is an express provision. Ratio |
For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. Ratio |
That was due to the language of the Judicial Committee in N.A. Subramania Iyer vs KingEmperor(1). Ratio |
Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice. Ratio |
(2) [1917] L.R. 74 I.A. 66, 75. PRE |
1153 in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of... |
This was examined and explained in Abdul Rahman vs King Emperor(1) as follows: "The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused". PRE |
In our opinion, the key to the problem lies in the words underlined. Ratio |
Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Ratio |
Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. Ratio |
These go to the foundations of natural justice and would be struck down as illegal forthwith. Ratio |
It hardly matters whether this is be cause prejudice is then patent or because it is so abhorrent to well establisbed notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Ratio |
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. Ratio |
In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possi bility of prejudice would swing the balance in favour of the accused. Ratio |
This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of latter day criminal jurisprudence in England as well as in India. Ratio |
The swing of the pendulum has been (1) [1926] L.R. 54 I.A. 96, 109. 1154 away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer Justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast... |
The more recent attitude of the Judicial Committee is summed up by Sir John Beaumont in Pulukuri Kotayya vs King Emperor(1) where he says that "The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind" and by Viscount Sumner in Atta Mohammad vs K... |
We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. Ratio |
The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expression "Natural justice". Ratio |
It will be observed that disregard of ail express Prohibition was regarded as curable in Zahiruddin vs King Emperor(3), so the question whether a particular provision is stated in positive or in negative terms is not the true criterion. Ratio |
(2) [1929] L.R. 57 I.A. 71, 76. Ratio |
(3) [1947] L.R. 74 I.A. 80, 1155 controversy that has raged around the true meaning of N. A. Subramania Iyer vs King Emperor(1). Ratio |
In any case, our opinion is that the real object of the Code is to leave these matters to the discretion and vigilance of the courts. Ratio |
Slightly to alter the language of the Privy Council in Babulal Choukhani vs The KingEmperor(2) we would say "It must be hoped, and indeed assumed, that magistrates and judges will exercise their jurisdiction fairly and honestly. Ratio |
Such is the implied condition of the exercise of judicial power. Ratio |
If they do not, or if they go wrong in fact or in law, the accused has prima facie a right of recourse to the superior courts by way of appeal or revision; and the cases show bow vigilant and resolute the High Courts are in seeing that the accused is not prejudiced or embarrassed by unsubstantial departures from the Co... |
These safeguards may well have appeared to the Legislature to be sufficient when they enacted the remedial provisions of the Code and have now left them substantially unaltered in the new Code recently introduced". Ratio |
This, we feel, is the true intent and purpose of section 537(a) which covers every proceeding taken with jurisdiction in the general phrase "or other proceedings under this Code". Ratio |
It is for the Court in all these cases to determine whether there has been prejudice to the accused; and in doing so to bear in mind that some violations are so obviously opposed to natural justice and the true intendment of the Code that on the face of them and without anything else they must be struck, down, while in... |
We now proceed to examine the relevant sections of the Code. Ratio |
Chapter XLV deals generally with irregular proceedings. STA |
There are certain irregularities which do not vitiate the proceedings. Ratio |
They are set out in section 529. STA |
No question of prejudice arises, (1) [1901] L.R. 28 I.A. 257. Ratio |
146 (2) [1938] L.R. 5 I.A. 158,177. Ratio |
1156 in this class of case because the section states cate gorically that they shall not vitiate the proceedings. Ratio |
Certain other irregularities are treated as vital and there the proceedings are void irrespective of prejudice. Ratio |
These are set out in section 530. Ratio |
A third class is dealt with in sections 531, 532, 533, 535, 536 (2) and 537. Ratio |
There, broadly speaking, the question is whether the error has caused prejudice to the accused or, as some of the sections put it, has occasioned a failure of justice. Ratio |
The examples we have given are illustrative and not exhaustive. Ratio |
What we are seeking to demonstrate is that the Code has carefully classified certain kinds of error and expressly indicates bow they are to be dealt with. Ratio |
In every such case the Court is bound to give effect to the express commands of the legislature: there is no scope for further speculation. Ratio |
The only class of case in which the Courts are free to reach a decision is that for which no express provision is made. Ratio |
The present case is concerned with the nature of the charge and we find that the Code expressly deals with this in several of its sections. Ratio |
Our only task therefore is to interpret them and, having propounded their meaning, to give effect to whatever they say. Ratio |
Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it. Ratio |
The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms: section 271 (1). Ratio |
There can be no shirking that or slurring over it, and this must appear on the face of the record. Ratio |
It cannot be established by evidence taken after the trial. Ratio |
But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. Ratio |
This is repeatedly reiterated in a number of sections. Ratio |
The whole question therefore is whether the "charge" must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the ' fundamental defect. Ratio |
of an incurable illegality or 1157 whether the information that is the substance of the matter can be conveyed in other ways. Ratio |
The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure. Ratio |
A perusal of them reveals the reasons why a charge is required. Ratio |
It must set out the offence with which the accused is charged and if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated "as to give the accused notice of the matter with which he is charged". Ratio |
The charge must also contain such particulars of date, time, place and person "as are reasonably sufficient to give the accused notice of the matter with which he is charged"; and section 223 says "When.the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused suffici... |
It is clear to us that the object of the charge is not to introduce a provision that goes to the root of jurisdiction as, for example, the requirement of previous sanction under section 197, but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. Rati... |
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