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The difficulty arises only when we have to consider the other provisions in the Code Which regulate procedure and which are found in a mendatory form, positive or negative. Ratio |
It is in this class of cases that the distinction becomes important and material. Ratio |
The scope of the decision in Subramania Aiyar 's case(2) has ' become so circumscribed that it is dobutful if it applies to the generality of cases of omissions and defects that come before the courts, excepting where they bring about the result that the trial was conducted in a manner different from that prescribed by... |
Let us now turn our attention to the relevant sections of the Code bearing on the requirement of a charge, the omission of a charge and the effect thereof. Ratio |
Section 233 provides as follows: "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239". Ratio |
A power to alter or add to a charge, at any time before judgment is pronounced, is conferred on a court under section 227. Ratio |
Sections 228 to 231 provide for the steps to be taken consequent on such alteration. Ratio |
Section 225 shows what would be the effect of any errors in the framing of a charge. Ratio |
It runs as follows: (1) [1926] L.R. 51 I.A. 96. Ratio |
(2) [1901] L.R. 28 I.A. 257. Ratio |
1186 "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 was in fact misled by such error or omission, and it has occasioned a failure of just... |
Section 232(1) of the Code of Criminal Procedure refers more specifically to the effect of such error where an appellate Court or the High Court in revision or in confirmation proceedings, notices such an error and is in the following terms: "If any Appellate Court, or the High Court in the exercise of its powers of re... |
Then we have section 237, dealing with a case where an accused charged with one offence for which he might have been charged under the provisions of section 236 could be convicted of a different offence. Ratio |
This applies only to cases where it is doubtful which of several offences the facts which can be proved will constitute. Ratio |
Begu 's case(1) is an example; the conviction was under section 201 of the Indian Penal Code for causing the disappearance of evidence relating to a murder, though the charge was under section 302 of the Indian Penal Code. Ratio |
Viscount Haldane observes: ". Ratio |
A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. Ratio |
That is what happened here. Ratio |
The three men who were sentenced to rigorous imprisonment were convicted of making away with the evidence of the crime by assisting in taking away the body. Ratio |
They were not charged with that formally, but they were tried on evidence which brings the case under section 237". Ratio |
(1) 11925] L.R. 52 I.A. 191. Ratio |
1187 Finally, we come to sections 535 and 537 of the Code. Ratio |
The former is in these terms: " (1) 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. Ratio |
(2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge". Ratio |
The latter runs thus: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent Jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, p... |
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. Ratio |
The consequences seem to be slightly different. Ratio |
Where there is no charge, it is for the court to determine whether there is any failure of justice. Ratio |
But in the latter, where there is mere error or omission in the charge, the court is also bound to have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Ratio |
The sections referred to indicate that in the generality of cases the omission to frame a charge is 150 1188 not per se fatal. Ratio |
We are unable, therefore, to accept as sound the very broad proposition advanced for the appellants by Mr. Umrigar that where there is no charge, the conviction would be illegal, prejudice or no prejudice. Ratio |
On the other hand, it is suggested that the wording of section 535 of the Code of Criminal Procedure is sufficiently wide to cover every case of 'no charge '. Ratio |
It is said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset. Ratio |
We are unable to agree that section 535 of the Code of Criminal Procedure is to be construed in such an unlimited sense. Ratio |
It may be noticed that this group of sections relating to absence of a charge, namely, sections 225, 226 and 232 and the powers exercisable thereunder ' are with reference to a trial which has already commenced or taken place. Ratio |
They would, therefore, normally relate to errors or omissions which occur in a trial that has validly commenced. Ratio |
There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. Ratio |
By way of illustration the following classes of cases may be mentioned: (a) Where there is no charge at all as required by the Code from start to finish from the Committing Magistrate 's court to the end of the Sessions trial; the Code contemplates in section 226 the possibility of a committal without any charge and it... |
The Code requires that there should be a charge and it should be in writing. Ratio |
A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and the assessors or jurors, and there was 1189 no possible or probable prejudice. Ratio |
(b) Where the conviction is for a totally different offence from the one charged and not covered by sections 236 and 237 of the Code. Ratio |
On a charge for a minor offence, there can be no conviction for a major offence, e.g., grievous hurt or rioting and murder. Ratio |
The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality. Ratio |
Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one, involving the direct liability and the constructive liability without sp... |
In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant. Ratio |
After all, in our considering whether the defect is illegal or merely irregular, we shall have to take into account several factors, such as the form and the language of the mandatory provisions, the scheme and the object to be achieved, the nature of the violation, etc. Ratio |
Dealing with the question whether a provision in a statute is mandatory or directory, Lord Penzance observed in Howard vs Bodington(1). Ratio |
"There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non observance of them should be followed by a total failure ... |
On the other hand, there are (1) 1190 some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end". Ratio |
These words can be applied mutatis mutandis to cases where there is no charge at all. Ratio |
The gravity of the defect will have to be considered to determine if it falls within one class or the other. Ratio |
Is it a mere unimportant mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case. Ratio |
If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. Ratio |
If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established. Ratio |
This judgment should not be understood by the subordinate courts as sanctioning a deliberate disobedience to the mandatory requirements of the Code, or as giving any license to proceed with trials without an appropriate charge. Ratio |
The omission to frame a charge is a grave defect and should be vigilantly guarded against. Ratio |
In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. Ratio |
Coming now to the facts of the present case; William was on terms of intimacy with Beryl P.W. 13. Ratio |
She was the sister of Donald Smythe. Ratio |
The accused was practically living with her in her house. Ratio |
The brother did not like their intimacy and was making attempts to separate Beryl from the accused. Ratio |
On the evening of the day of the occurrence, Donald and his mother went to Beryl 's house, There was a quarrel 1191 between them and the accused was asked to get away. Ratio |
She did not come but Donald came down into the courtyard. Ratio |
There was a heated exchange of words. Ratio |
The accused slapped Donald on the cheek. Ratio |
Donald lifted his fist. Ratio |
The accused gave one blow on his head with a hockey stick with the result that his skull was fractured. Ratio |
Donald died in the hospital ten days later. Ratio |
A plea of alibi was given up in the High Court. Ratio |
The suggestion that Donald fell down and sustained the head injury while descending the stairs was ruled out by the evidence of the eye witnesses. Ratio |
Nothing was established to justify any exercise of the right of private defence. Ratio |
On these facts, which have been proved, the only question that arises is whether the appellant is guilty of murder under section 302 of the Indian Penal Code, or guilty only of culpable homicide, not amounting to murder, under the second part of section 304. Ratio |
The High Court did not address itself to the nature of the offence. Ratio |
It is obvious that the appellant did not intend to kill the deceased. Ratio |
The evidence of the doctor is that the injury was likely to result in fatal consequences. Ratio |
This by itself is not enough to bring the case within the scope of section 300. Ratio |
There is nothing to warrant us to attribute to the appellant knowledge that the injury was liable to cause death or that it was so imminently dangerous that it must in all probability cause death. Ratio |
The elements specified in section 300 of the Indian Penal Code are thus wanting. Ratio |
We take the view, considering all the circumstances that the offence is the lesser one. Ratio |
The appellant is acquitted of the charge of murder but is convicted under the second part of section 304, and sentenced to five years ' rigorous imprisonment. Ratio |
IMAM J. Ratio |
The appellant was charged with murder and nothing short of it, although it was stated in the charge that the offence was committed by him in furtherance of a common intention. Ratio |
If the evidence failed to prove that the offence committed by him was in furtherance of a common intention, it would be nonetheless his offence, namely, murder, if his act in law amounted to murder. Ratio |
The law does not require in such a case that a separate charge for murder should be framed, because the charge of murder was already on the record. Ratio |
Strictly speaking, on the facts of the present case, the question raised by the reference does not arise. Ratio |
Since it has been raised, it must be considered. Ratio |
In Nanak Chand '8 case the view taken was that when an accused is charged under section 302 read with section 149 of the Indian Penal Code, it is illegal to convict him under section 302 of the Indian Penal Code without a charge having been framed against him under that section. Ratio |
It was also held that if this was only an irregularity then on the facts of the case, the accused was misled in his defence. Ratio |
In Suraj Pal 's case, in similar circumstances, it was held that failure to frame a charge under section 302 was a serious lacuna and the conviction was set aside on the ground that the accused had been prejudiced. Ratio |
A careful examination of these two cases does not reveal any substantial conflict between them. Ratio |
As I understand the provisions of the Code of Criminal Procedure, a separate procedure is set out for various class of cases triable by a court exercising powers under the Code. Ratio |
So far as the framing of a charge is concerned, the Code expressly states the kind of cases in which no charge is to be framed. Ratio |
In trial of warrant cases, cases before a Court of Sessions and a High Court, a charge must be framed. Ratio |
Failure to frame a charge in such cases would be a contravention of the mandatory provisions of the Code. Ratio |
Would such contravention amount to an illegality? Prima 1193 facie a conviction of an accused person for an offence with which he had not been charged but for which he ought to have been charged, is invalid. Ratio |
It is said that by virtue of the provisions of sections 535 and 537 of the Code failure to frame a charge or an omission or irregularity in a charge, which is framed, does not by itself invalidate the conviction, unless the Court is satisfied that in fact a failure of justice has resulted. Ratio |
It is, therefore, necessary to examine how far these provisions of the Code override its provisions relating to the framing of charges. Ratio |
Section 233 of the Code expressly states that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. Ratio |
There is no ambiguity in the language of this section. Ratio |
While it insists upon a separate charge for every distinct offence it permits a single trial on several charges in the cases mentioned in sections 234, 235, 236 and 239. Ratio |
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