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But there are other ways of conveying this information. Ratio |
For example, in summons cases no formal charge is required: all that is necessary is to tell the accused the substance of the accusation made against him (section 242). Ratio |
The whole question is whether, in warrant cases and in sessions trials, the necessary information must be conveyed in one way and one way only, namely in a formal charge in order that the entire trial may not be ipso facto vitiated because of an incurable illegality, or whether that can be done in other and less formal... |
The law could have provided one way as easily as another, but what it has chosen to do is set out in the following sections. Ratio |
The marginal note to section 225 is headed "Effect of errors." and the section states that "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused... |
Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact: (1) the accused has in fact been misled by it and (2) it has occasioned a failure of justice. Ratio |
That, in our opinion, is reasonably plain language. Ratio |
Next, sections 226 and 227 show that errors in a charge, and even the total absence of a charge, do not vitiate a trial from the start so as to render it no trial at all as would the absence of sanction under section 197. Ratio |
This is evident because these errors and omissions can be remedied at any time during the course of the trial in the sessions Court (section 226) or even at the very end of the trial (section 227), and when this is done the trial need not proceed de novo but can go on from the stage at which the alteration was made pro... |
The proceedings up to the stage of the alteration, which, as ,we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice; they are good despite these imperfections. Ratio |
That is impossible when the error is so vital as to cut at the root of the trial. Ratio |
It follows that errors in the charge, and even a total absence of a charge, are not placed in the non curable class. Ratio |
1159 Next, we have a case in which the error is not observed and corrected during the trial and the accused is convicted. Ratio |
It is to be observed that this is so whether there was a total absence of a charge or merely an error in it. Ratio |
It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore defects even of this nature are not regarded as fatal. Ratio |
From there we proceed to section 535. Ratio |
The marginal note is "Effect of omission to prepare charge", and the section says "No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby". Rat... |
Here again the language is clear and wide and emphatic. Ratio |
The section summarises what was already indicated in sections 226, 227, 228 and 232. Ratio |
Next, there is section 537: "Subject to etc no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVLI or on appeal or revision on account (a) of any error, omission or irregularity in the . . charge. or other proceedings before or during trial. . . . . . ... |
The Explanation is also important: "In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings". Ratio |
This repeats what was set out in greater detail in section 225 and is all the more impressive because 1160 even when a death sentence is under review in confirmation proceedings under Chapter XXVII the Court is expressly directed not to regard any error, omission or irregularity in the charge as fatal unless it has in ... |
Reading these provisions as a whole, there is, in our opinion, no room left for doubt about what was intended. Ratio |
It was argued on behalf of the appellant that these sections must be read along with sections 236, 237 and 238. Ratio |
Counsel conceded that there are occasions when an accused person can be convicted in the absence of a charge but he said that they are expressly set out in sections 237 and 238 and he contended that no further departure is permissible. Ratio |
He put his argument as follows. ARG |
He said that sections 237 and 238 deal with cases in which there is a charge to start with but none to support a conviction for an offence which the Court feels is made out by the evidence. ARG |
When section 535 is read along with these two sections it is seen that it cannot apply to a case in which there is no charge at all, nor can it apply to any case that is not covered by these two sections. ARG |
It is limited to cases in which sections 237 and 238 permit a conviction without a charge. ARG |
In answer to this the following argument was put to counsel and be was asked to meet it. ARG |
The point was put this way. Ratio |
Section 535 cures convictions that would be invalid but for its provisions. Ratio |
This, it was said, follows from the words "shall be deemed invalid". Ratio |
It was suggested that these words show that a conviction without a charge is in truth and in fact invalid but that it can be cured in certain cases, and when that is done, that which in truth is invalid is deemed not to be invalid because of this section. Ratio |
But as sections 237 and 238 expressly permit convictions in certain cases without a charge for those offences, provided there is a charge in the case to start with, the convictions so permitted cannot be invalid or even irregular because it would be wrong to say that that which the Code expressly allows is, or can be, ... |
Therefore, section 535 cannot apply to cases covered by sections 237 and 238. Ratio |
Counsel replied that even if that is so, section 535 is still governed by section 233 and so cannot apply to cases in which there is no charge at all. Ratio |
We do not agree with either view. Ratio |
In our opinion, the cases contemplated by section 237 are just as much a departure from section 233 as are those envisaged in sections 225, 226, 227, 228, 535 and 537 Sections 236, 237 and 238 deal with joinder of charges and so does section 233. Ratio |
The first condition is that there shall be a separate charge for each offence and the second is that each charge must be tried separately except in the cases mentioned in sections 234, 235 and 236. Ratio |
It is to be observed that the exceptions are confined to the rule about joinder of charges and that no exception is made to that part of the rule that requires separate charges for each offence. Ratio |
It will be seen that though sections 234, 235 and 236 are expressly mentioned, section 237 is not referred to, nor is section 238. Ratio |
Therefore, so far as section 233 is concerned, there can be no doubt that it requires a separate charge for each offence and does not envisage a situation in which there is either no charge at all or where, there being a charge for some other offence of which the accused is acquitted, he can be convicted instead of som... |
What then is the position if there is some departure from the normal procedure? In our opinion, sections 225, 226) 227, 228, 535 and 537 furnish the answer and they apply with equal force to every kind of departure from that part of section 233 that requires a separate charge for each offence. Ratio |
Section 237 is only a corollary to section 236 and is there to emphasise that even when a number of charges could be joined together in the cases set out in section 236 and one or more are not put in, oven then, there can be convictions in respect of those offences despite the 1162 absence of a charge or charges. Ratio |
But all these sections are governed by the overriding rule about prejudice mentioned in one form or another in sections 225, 226, 227, 228, 535 and 537. Ratio |
We can envisage cases where there would be grave prejudice under that section just as clearly as we can see cases where there would be none under the others. Ratio |
The sort of problem that we are now examining can only arise when an express provision of the Code is violated and then the root of the matter is not whether there is violation of an express provision, for the problem postulates that there must be, nor is it whether the provision is expressed in positive or in negative... |
Does it result in an illegality that strikes at the root of the trial and cannot be cured or is it an irregularity that is curable? We have used the terms "illegality" and "irregularity" because they have acquired a technical significance and are convenient to demarcate a distinction between two classes of case. Ratio |
They were first used by the Privy Council in N. A. Subramania Iyer vs KingEmperor(1) and repeated in Babulal Choukhani vs King Emperor(2 ) and in Pulukuri Kotayya vs King Emperor(3), but it is to be observed that the Code does not use the term "illegality". Ratio |
It refers to both classes as "irregularities"; some vitiate the proceedings (section 530) and others do not (section 529). Ratio |
Proceedings that come under the former head are "void". Ratio |
Section 535 uses the words "shall be deemed invalid" which indicate that a total omission to frame a charge would render the conviction invalid but for section 535 which serves to validate it when that sort of "irregularity" has not occasioned a "failure of justice". Ratio |
Section 537 does not use any of these expressions but merely says that no conviction or (1) [1901] L.R. 28 I.A. 257. Ratio |
(2) [1938] L.R. 65 I.A. 158, 174. Ratio |
(3) [1947] L.R. 74 I.A. 65,75. Ratio |
1163 sentence "shall be reversed or altered" unless there has in fact been a failure of justice. Ratio |
We do not attach any special significance to these terms. Ratio |
They are convenient expressions to convey a thought and that is all. Ratio |
The essence of the matter does not lie there. Ratio |
It is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules. Ratio |
It is a feeling, a way of thinking and of living that has been crystallized into judicial thought and is summed up in the admittedly vague and indefinite expression "natural justice": something that is incapable of being reduced to a set formula of words and yet which is easily recognisable by those steeped in judicial... |
In the end, it all narrows down to this: some things are "illegal", that is to say, not curable, because the Code expressly makes them so; others are struck down by the good sense of judges who, whatever expressions they may use, do so because those things occasion prejudice and offend their sense of fair play and just... |
When so struck down, the conviction is "invalid"; when not, it is good whatever the "irregu larity". Ratio |
It matters little whether this is called an "illegality", an "irregularity that cannot be cured" or an "invalidity", so long as the terms are used in a clearly defined sense. Ratio |
Turning next to the second branch of the argument about section 535. Ratio |
We cannot agree that because sections 237 and 238 expressly permit convictions without a charge in the cases contemplated by them, therefore they lift them out of the Chapter on Irregularities, because, if they do, then so does section 232 (1) in the cases with which it deals. Ratio |
Between them, these sections cover every kind of case in which there is an error, omission or irregularity in a charge and an omission to frame a charge, so, if sections 232(1) and 237 and 238 save departures from section 233 from being irregularities, then there is nothing left for sections 535 and 537 to operate on. ... |
In our opinion, the truth is that the Code deals with the same subject matter under different heads, so there is some overlapping. Ratio |
147 1164 Sections 222 to 224 deal with the form of a charge and explain what a charge should contain. Ratio |
Section, 225 deals with the effect of errors relating to a charge. Ratio |
Sections 233 to 240 deal with the joinder of charges. Ratio |
Sections 535 and 537 are in the Chapter that deals with irregularities generally and these two sections deal specifically with the charge and make it clear that an omission to frame a charge as well as irregularities, errors and omission in a charge are all irregularities that do not vitiate or invalidate a conviction ... |
But, apart from that, if we examine the learned counsel 's contention more closely the fallacy in his argument becomes clear. Ratio |
Sections 237 and 238 deal with cases in which there is a charge to start with and then they go on to say that in certain cases the trial can proceed beyond the matter actually charged and a conviction for an offence disclosed in the evidence in that type of case will be good despite the absence of a charge in respect o... |
But what are those cases? Only those in which the additional charge or charges could have been framed from the start; and that is controlled by sections 234, 235 and 239 which set out the rules about joinder of charges and persons. Ratio |
It is evident that if charges A and B cannot be tried together because of the prohibition in section 233 read with sections 234, 235 and 239, then no conviction could be sustained on either A or B, and if that is the case when specific charges are drawn up it is all the more so when though there is a charge in respect ... |
In our opinion sections 233 to 240 deal with joinder of charges and they must be read together and not in isolation. Ratio |
They all deal with the same subject matter and set out different aspects of it. Ratio |
When they are read as a whole, it becomes clear that sections 237 and 238 cover every type of case in which a conviction can be sustained when there is no charge for that offence provided there is a charge to start with. Ratio |
1165 They do not deal with a case in which there is no charge at all, and anything travelling beyond that when there is a charge would be hit by sections 233,234, 235 and 239 read as a whole, for the reasons we have just given. Ratio |
But if that is so, and if section 535 is excluded where sections 237 and 238 apply, then what is there left for it to operate on except cases in which there is a total omission to frame a charge? We do not think these sections should be regarded disjunctively. Ratio |
In our opinion, they between them (including sections 535 and 537) cover every possible case that relates to the charge and they place all failures to observe the rules about the charge in the category of curable irregularities. Ratio |
Chapter XIX deals comprehensively with charges and sections 535 and 537 cover every case in which there is a departure from the rules set out in that Chapter. STA |
Such departures range from errors, omissions and irregularities ' in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. Ratio |
In all these cases the only question is about prejudice. Ratio |
We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based. Ratio |
We say it because that accords with logic and principle and reason and because it touches the deep verities on which the structure of justice is erected and maintained. Ratio |
That would necessitate reading into the section words that are not there. Ratio |
We see no reason for straining at the mean ing of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials. Ratio |
We are unable to find any magic or charm in the ritual of a charge. Ratio |
It is the substance of these provisions that count and not their outward 1166 form. Ratio |
To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent. Ratio |
We agree that a man must know what offence he is being tried for and that he must be told in clear and unambiguous terms and that it must all be "explained to him " so that he really understands (section 271(1) in sessions trials, section 255(1) in warrant cases) but to say that a technical jargon of words whose signif... |
They are none the wiser because of a formal charge except in a vague and general way that is of no practical account. Ratio |
The essence of the matter is not a technical formula of words but the reality. Ratio |
Was he told? Was it explained to him? Did he understand? Was it done in a fair way? We attach equal importance to other sections of the Code that are just as emphatic as section 233, namely, sections 342 and 364; and yet no one doubts that irregularities there are curable. Ratio |
It is the spirit of section 271 that must be observed in a sessions trial rather than its letter and the essence of that lies in the words "and explained to him". Ratio |
We do not mean to imply that laxness of procedure should be encouraged in the matter of the charge any more than this Court encourages it in matters relating to section 342; nor do we mean to suggest that a trial can be regarded as good when the accused does not know what be is being tried for and is not told and the m... |
Of course, the rules should and ought to be punctually observed. Ratio |
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