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But judges and magistrates are fallible and make mistakes and the question is what is to be done in the exceptional class of case in which there has been a disregard of some express provision. Ratio |
As an illustration, we give a case in which a Sessions Judge in a sessions trial having no charge 1167 before him from the committal court omits to frame one himself but instead, carefully and painstakingly, explains the particulars and the substance of the offence as in section 242 and complies with the spirit and obj... |
Then, when the witnesses are examined, the accused shows by his cross examination that he knows just what he is being tried for. Ratio |
He is examined fully and fairly under section 342 and his answers show that he is under no delusion. Ratio |
He calls witnesses in defence to meet the very point or points the prosecution seek to make out against him. Ratio |
He puts in a written statement and is defended by an able lawyer who raises no objection from start to finish. Ratio |
Will a technical defect in a case like that vitiate the trial? If the Code says Yes, then there is an end of the matter. Ratio |
We have put a case in which there neither is, nor can be, prejudice. Ratio |
Surely it would be a travesty of justice to brand a conviction in a case like that as illegal. Ratio |
And yet that must be done if these words that are otherwise plain are construed in a strained and unnatural manner. Ratio |
On the other hand, there is nothing in the view we take to imperil or harass an accused however innocent he may be. Ratio |
How does the technical formula of a charge afford greater protection than the "explaining" under section 271 (1) and the examination under section 342? And yet, on the argument before us, an omission to observe these other rules that are of the substance is curable when there is no prejudice but not the sacred ritual o... |
Surely, this cannot be right. Ratio |
Now, as we have said, sections 225, 232, 535 and 537(a) between them, cover every conceivable typo, of error and irregularity referable to a charge that 1168 can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with... |
The Code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice. Ratio |
It is the substance that we must seek. Ratio |
Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Ratio |
Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Ratio |
Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Ratio |
Every reasonable presumption must be made infavour of an accused person; he must be given the benefit of every reasonable doubt. Ratio |
The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. Ratio |
But when all is said and done, what we are concerned to see is whether the accused bad a fair trial, whether he knew what be was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Ratio |
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. Ratio |
If it was not, and particularly where the accused is defended by counsel [Atta Mohammad vs King Emperor(1)], it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is... |
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. Ratio |
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. Ratio |
Endeavour was made in the argument to draw a distinction between cases falling under section 34 of the Indian Penal Code and those under section 149 of the Indian Penal Code. Ratio |
This is not a case under section 149 of the Indian Penal Code so the question does not really arise but it is necessary to advert to the argument because, on the view we take of sections 225, 535 and 537, it is immaterial what the offence is and whether there is a charge at all. Ratio |
The only question is whether the irregularity occasioned prejudice. Ratio |
We now turn to an examination of the cases of this Court that are said to give rise to a conflict of view. Ratio |
In our opinion, there is in reality no conflict and (1) [1929] L.R. 57 I.A. 71, 74. Ratio |
(2) [1926] L.R. 54 I.A. 96,104, 110. Ratio |
1170 though the language used in one case might suggest that, a close consideration of its reasons will disclose that there was in fact no difference of view in the type of case where there is a charge to start with. Ratio |
None of the cases deals with the position where there is no charge at all. Ratio |
The following cases afford no difficulty because they directly accord with the view we have set out at length above. Ratio |
In Lachman Singh vs The State(1) it was held that when there is a charge under section 302 of the Indian Penal Code read with section 149 and the charge under section 149 disappears because of the acquittal of some of the accused, a conviction under section 302 of the Indian Penal Code read with section 34 is good even... |
The decision in Karnail Singh vs The State of Punjab(2) is to the same effect and the question about prejudice was also considered. Ratio |
Pandurang, Tukia and Bhillia vs State of Hyderabad(3) also presents no difficulty because though the point was taken in that case it was expressly left open at page 1093. Ratio |
From there we come to Suraj Pal vs The, State of U.P. (4). Ratio |
That was a case in which a number of accused were charged under sections 307/149 and sections 302/149 of the Indian Penal Code. Ratio |
It was found that there was no common object to kill, so all the accused were acquitted under section 149. Ratio |
But the evidence disclosed that the appellant had himself made an attempt on the life of one man and had himself shot another dead. Ratio |
Accordingly the High Court convicted him under sections 307 and 302 of the Indian Penal Code respectively, though there was no separate charge under either of those sections. Ratio |
Those convictions were challenged here. Ratio |
The learned Judges then (1)[1952] S.C.R. 839, 848. Ratio |
(2)[1954] S.C.R. 904,911 (3) ; (4)[1955] I.S.C.R, 1332 1171 proceeded to determine the question of prejudice on the facts of that case. Ratio |
The conclusion reached on the facts was that prejudice was disclosed, so an acquittal was ordered. Ratio |
It was argued before us that the ground of the decision there was that the absence of charges under sections 307 and 302 simpliciter was in itself conclusive to establish prejudice and that therefore one need go no further. Ratio |
It is enough to say that that was not the decision and though that was one of the matters taken into consideration, the conclusion was based on a careful and lengthy investigation of all the facts in the case including the way in which it was conducted, the evidence of several witnesses, the medical evidence, the first... |
Next comes Nanak Chand vs The, State of Punjab(1). Ratio |
That was also a case in which the charge was under section 302/149 of the Indian Penal Code with the conviction under section 302 simpliciter without any separate charge under that section. Ratio |
The Sessions Judge had convicted under section 302/34 of the Indian Penal Code holding that the charge of rioting was not proved. Ratio |
The High Court held that no common intention was proved either but as the evidence indicated that the appellant had done the actual killing he was convicted under section 302. Ratio |
It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration, as indeed must always be the case, was that when he was told that he was to be tried under section 302 read with section 149 of the Indian Penal Code that indicated to him that he was not being tried... |
148 1172 made vicariously liable for an act that another had done in prosecution of the common object of an unlawful assembly of which he was a member. Ratio |
But that was only one of the matters considered and it does not follow that every accused will be so misled. Ratio |
It all depends on the circumstances. Ratio |
The entire evidence and facts on which the learned Judges founded are not set out in the judgment but there is enough to indicate that had the appellant 's attention been drawn to his own part in the actual killing he would probably have cross examined the doctor with more care and there was enough in the medical evide... |
As judges of fact they were entitled, and indeed bound, to give the accused the benefit of every reasonable doubt and so were justified in reaching their conclusion on the facts of that case. Ratio |
Illustrations (c) and (e) to section 225 of the Criminal Procedure Code show that what the accused did or omitted to do in defence are relevant on the question of prejudice. Ratio |
That, however, was, and remains, a pure conclusion of fact resting on the evidence and circumstances of that particular case. Ratio |
The decision was special to the facts of that case and no decision on facts can ever be used as a guide for a conclusion on facts in another case. Ratio |
Now having reached the conclusion that there was prejudice, the learned Judges were of the opinion that the irregularity, if it can be so called when prejudice is disclosed was incurable and from that they concluded that an incurable irregularity is nothing but an illegality: a perfectly possible and logical conclusion... |
and it can well be argued from this that this indicates 1173 that an omission to follow the provisions of the Code does in truth and in fact render the decision invalid but because of section 535 that which is in truth and in fact invalid must be deemed to be valid unless prejudice is disclosed. Ratio |
As there was prejudice in that case, the decision was invalid and being invalid it was illegal. Ratio |
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. Ratio |
It is to be. Ratio |
observed that section 535 of the Code is mandatory in its terms, just as mandatory as section 233. Ratio |
If it be accepted that an absence of a charge would, but for its provisions, render a conviction invalid, this section cures such an invalidity when there is in fact, not in theory but in fact, no failure of justice. Ratio |
The section is just as mandatory as section 233 and we can see no justification for giving it less weight than section 237. Ratio |
If section 237 validates a departure from section 233 and saves it from the stigma of an irregularity, then so does section 535, for it says very expressly that no conviction shall be deemed invalid merely on the ground that no charge was framed unless that in fact occasioned a failure of justice; and if section 535 is... |
If section 233 is mandatory, that part of it which prohibits misjoinder except in the cases mentioned in sections 234, 235) 236 and 239 is just as mandatory as the portion that requires a separate charge for each offence. Ratio |
It is unfortunate that we have no definition of the terms "illegality", "irregularity" and "in . Ratio |
validity" because they can be used in differing senses, but however that may be, the decision we are now examining and the remarks made in that case must be read in the light of this background. Ratio |
We agree that some of the expressions used in the judgment appear to travel wider than this but in order to dispel misconception we would now hold that the 1174 true view is the one we have propounded at length in the, present judgment. Ratio |
We now turn to the question of fact: is there material in this case to justify a finding of prejudice? that will turn largely on the differences between section 302 of the Indian Penal Code and section 302 read with section 34 of the Indian Penal Code and on the measure of criminal liability to which the appellant woul... |
Now what is an accused person entitled to know from the charge and in what way does the charge in this case fall short of that? All he is entitled to get from the charge is (1) the offence with which he is charged, section 221(1),Criminal Procedure Code, (2) the law and, section of the law against which the offence is ... |
He is not entitled to any further information in the charge: see Illustration (e) to section 223 of the Code: "A is accused of the murder of B at a given time and place. Ratio |
The charge need not state the manner in which A murdered B". Ratio |
It is clear from this that when the case is one of murder, the accused is not entitled to be told in the charge how it was committed, whether with a pistol or a lathi or a sword. Ratio |
He is not entitled to know from the charge simpliciter any further circumstance. Ratio |
How then is he expected to defend himself? He has the police challan, he has the evidence recorded in the 1175 Committal Court, he hears the prosecution witnesses and he is examined under section 342 of the Code. Ratio |
It is these proceedings that furnish him with all the necessary, and indeed vital, information, and it is his duty to look into them and defend himself. Ratio |
Now when several persons join in the commission of a crime and share a common intention, it means that each has the requisite intention in himself; the fact that others share it does not absolve any one of them individually, and when the crime is actually committed in pursuance of the common intention and the accused i... |
Section 114 does not create the offence nor does section 34. Ratio |
These sections enunciate a principle of criminal liability. Ratio |
Therefore, in such cases all that the charge need set out is the offence of murder punishable under section 302 of the Indian Penal Code committed by the accused with another and the accused is left to gather the details of the occurrence as alleged by the prosecution from other sources. Ratio |
The fact that be is told that he is charged with murder committed by himself with another imports that every legal condition required by law to constitute the offence of murder committed in this way was fulfilled: section 221(5) of the Criminal Procedure Code. Ratio |
Now what are those legal conditions? What is the effect of charging two persons with a murder committed in pursuance of a common intention? It means that the accused is unmistakably told that be participated in the crime; exactly how is no more a matter for the charge than it is to set out the circumstances in which th... |
It also means that he is informed that it is immaterial who struck the fatal blow. Ratio |
The charges here against the appel 1176 lant and his brother Ronnie are identical. 'As there was only one fatal blow and as only one person could have inflicted it and as both are charged in this way, it can only mean that each is put on his guard and made to realise that the prosecution allege that one of the two was ... |
It is true that if it cannot be ascertained who struck the fatal blow, then the accused cannot be convicted unless the common intention is proved and in that type of case an acquittal of the co accused may be fatal to the prosecution. Ratio |
But the converse does not hold good, and if the part that the accused played can be clearly brought home to him and if it is sufficient to convict him of murder simpliciter he cannot escape liability because of the charge unless he can show prejudice. Ratio |
Put at its highest, all that the appellant can urge is that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed. Ratio |
That is what happened here. Ratio |
They were not charged with that formally, but they were tried on evidence which brings the case under section 237"(1). Ratio |
The variation between murder and concealing evidence after the crime is no more than the variation between killing a man jointly with another, sharing his intention, or allowing the other to do the actual killing with the same common intention. Ratio |
Now what do the proceedings in this case show? The police charge sheet states that the appellant hit the deceased with a hockey stick while his brother (1) Lah. 226, 231. Ratio |
(2) ; , 848. Ratio |
1177 only threw stones. Ratio |
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