Parties will hear their own costs VPS Appeals dismissed
Appeal by special leave from the judgment and order dated the 3rd November 1953 of the High Court of Judicature at Nagpur in Criminal Appeal 1144 No 220 of 1953 arising out of the judgment and order dated the 21st July 1953 of the Court of Sessions Judge at Jabalpur in Sessions Trial No 32 of 1953
HJ Umrigar and Rajinder Narain for the appellant
The courts below were wrong in convicting the appellant of murder under section 302 of the Indian Penal Code in the absence of a charge framed for the offence
The charge framed against the appellant was different and he was never charged individually of having committed murder
When the other person was acquitted the charge of an offence under section 302 read with section 34 of the Indian Penal Code falls and the appellant is bound to be acquitted
It is a fundamental principle of criminal law as administered in India that there should be a separate charge for every distinct offence as the accused person must have notice of the charge which he has to meet
The only exceptions are contained in sections 236 237 and 238 of the Code of Criminal Procedure
The offence of murder under section 302 of the Indian Penal Code being separate distinct and different from an offence under section 302 read with 34 or an offence under section 302 read with 149 which creates a distinct head of criminal liability known as constructive liability a conviction under section 302 simpliciter without a charge being framed therefor is an illegality in the mode of trial
Where a person has been convicted of an offence with which he has not been charged unless allowed by exceptions the prejudice is inherent in the absence of the charge itself and it is unnecessary to look any further
Where there is an illegality in the mode of trial as contemplated in sections 233 to 239 it is an illegality which is not cured by the provisions of sections 535 and 537
There is no difference in principle between a charge under section 302 read with 34 and a charge under section 302 read with 149 See Nanak Chand vs State of Punjab 1955 1 SCR1201 Suraj Pal vs State of U P  It is incorrect to say that the decision of the Privy Council in Subramania Iyer s case as to what is an illegality has been modified by the subse 1145 quent decisions of the Privy Council and in fact in Babulal Chowkhani s case Lord Wright in delivering the judgment of the Board actually stated that it was taken as settled law by both sides that the breach of the provisions of section 239 of the Code of Criminal Procedure would be an illegality  which would vitiate the trial as opposed to a mere irregularity  which would not vitiate the trial
Section 535 appears in Chapter XLV of the Code and is headed Of irregular proceedings and cannot possibly apply to breaches of the mandatory provisions of sections 233 to 239 of the Code it may relate to those cases where it is optional to frame a charge
See sections 263 3624
Assuming that actual prejudice is necessary then as the only charge against the appellant being one under section 302 read with section 34 and that having failed due to the acquittal of the co accused and the appellant having successfully shown that there was no common intention as contemplated by section 34 of the Indian Penal Code prejudice is bound to occur due to his conviction under section 302 simpliciter with which he was never charged
In any event the 1146 offence committed in the case even though the blow was struck on the head could never be murder as even the medical evidence showed that the bead injury was likely to result in fatal consequences
The offence committed would either be one of grievous hurt under section 325 or alternatively it is covered by exception 4 to section 300 and punishable under the second part of section 304
BSen and I N Shroff for the respondent
The word illegality  which is frequently used in the judgments is nowhere defined in the Code of Criminal
Procedure
This word had been used by the judges to convey that the trial has been irregular and the irregularity is not curable under the provisions of the Code
The word has been used in three senses namely a In cases where the trial and conviction are ab initio void due to some inherent defect which goes to the root and is by itself enough to vitiate the trial as in cases of lack of jurisdiction eg where section 197 of the Code has not been complied with b In cases where a mandatory prohibition of the Code has been disregarded and it is apparent from the provision itself that having regard to its objects and purposes such disregard is bound to lead to prejudice c In a more popular sense that is in respect of a particular case or cases where having regard to the facts and circumstances whether it be due to prejudice or otherwise the conviction cannot be sustained
Proceeding on the basis that an offence under section 302 read with section 149 is a distinct and separate offence from an offence under section 302 the question is whether in the absence of actual prejudice the conviction of a person of the latter offence when he is only charged with the former is illegal
The answer depends on the determination as to whether the failure to frame a charge is such a disregard of the mandatory Provisions of the Code so as to lead to the conclusion that prejudice must have been caused
In N A Subramania Iyer vs King Emperor 1901 28 IA 257 the decision was based on the facts of the case in which actual prejudice was caused
In any event that decision stands modified by the 1141 decisions of the Privy Council in the later cases See Abdul Rahman vs The King Emperor 1926 54 IA 96 and Pulukuri Kotayya and Others vs King Emperor 1946 74 IA 65
It is clear from those decisions that every breach of a mandatory provision is not such as would ipso facto vitiate a trial
If one looks at the relevant sections the object behind the enactment of those provisions and the intention of the legislature it is clear that the framing of a charge though mandatory is not of a vital nature
See sections 210 254271 221 222 223 225 226 227 232 and 535
All that the Code contemplates is that an accused person must in fact receive notice of what be is being tried for
When a person is charged with an offence under section 302 read with section 149 of the Indian Penal Code there is no objection to his being convicted under section 302 without a charge being framed if it appears from the evidence that he has committed the actual murder and it appears from the record that either by the trend of cross examination or by reason of questions being put to him under section 342 he understood that he was actually being tried for murder See Karnail Singh and Another vs The State of Punjab 1954
8 CR 904 and Lachman Singh and Others vs The State 1952 SCR 839
A case of this nature may even be covered by the provisions of section 237 of the Code of Criminal Procedure
The cases of Nanak Chand vs State of Punjab 1955 1 SCR 1201 and Suraj Pal vs State of UP 1955 1 SCR 1332 do not lay down the proposition that even in the absence of prejudice conviction of a person under section 302 who is charged with an offence under section 302 read with section 149 would be ipso facto illegal
Whatever view the Court takes in respect of a conviction under section 302 when a person is charged with section 302 read with section 149 it is quite clear that a person can be validly convicted of murder when he is charged with section 302 read with section 34
Section 34 does not create a specific offence and a person who is charged under section 302 read with section 34 is really being charged for his act in the murder itself
It is therefore not necessary to frame a separate charge under section 302
The Privy Council as well as the High 1148 Courts in India have always taken this view
See  The King Emperor vs Barendra Kumar Ghose AIR  Emperor vs Destrali 1930  Debiprasad Kalowar vs Emperor 1932  Devki Nandan and Others vs Emperor AIR 1941 Lah 423 and Bhondu Das vs King Emperor 1928 7 Patna 758
In this case there was no actual prejudice as the accused knew that he was being charged with murder which is clear from the trend of cross examinations of witnesses and his examination under section 342 of the Code of Criminal Procedure
The facts clearly show that the offence committed by the accused is one of murder as the deceased died as a result of injuries and the injury was sufficient to cause death according to the doctor s evidence
Umrigar in reply
If section 535 is given its literal meaning it would mean that a trial for any offence could be held and terminated without the framing of any charge whatsoever
It would also mean that a person could be charged with a minor offence and convicted of a major offence whereas section 2382 only allows conviction of a minor offence without a charge if the major offence with which the person is charged is not made out
Such a wide meaning which would lead to absurdities should not be given to section 535
October 31
The judgment of section R Das Acting CJ and Bose J was delivered by Bose J
The judgment of Jagannadhadas and Chandrasekhara Aiyar JJ
was delivered by Chandrasekhara Aiyar J Jafer Imam J delivered a separate judgment
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 Punjab1 and Suraj Pal vs The State of UP2 and 1 1955 I SCR 1201
2  1149 if so to determine it
The appeal is against a conviction for murder in which the lesser sentence was given
The main ground is that the appellant was charged under section 302 of the Indian Penal Code read with section 34
But the Courts below hold that the appellant inflicted the fatal blow and have made him directly liable for the murder
He contends that as he was not charged with having murdered the man personally be cannot be convicted under section 302
He relies on certain observations in Nanak Chand vs The State of Punjab1 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 of its discretion order a retrial
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
Therefore the only matter for determination is a question of fact whether there was prejudice in this case
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 PW 20 at about 7 pm and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D Smythe and thereby committed an offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code  
An exactly similar charge with the necessary change of name was framed against the co accused Ronnie Slaney
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
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
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 there was prejudice
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 regulations designed to ensure a fair and proper trial so that substantial as opposed to purely technical compliance with the spirit and requirements of the Code in this behalf is enough to cure departures from the strict letter of the law Before we proceed to set out our answer and examine the provisions of the Code we will pause to observe that the Code is a code of procedure and like all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities
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
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 with the outward forms of the law mere mistakes in procedure mere in consequential errors and omissions 1151 in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice
That broadly speaking is the basic principle on which the Code is based
Now here as in all procedural laws certain things are regarded as vital
Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction
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
Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions
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 has been moulded by their observations
In our opinion the general effect of those decisions can be summarised as follows
First comes a class of case in which the Code deals with the matter expressly
In that event full effect must be given to the plain meaning of the words used
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
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
And at page 177 But even so that can be no ground why the Court should misconstrue the section
and at page 178 Their Lordships decide the question on what they regard as the plain meaning of the language used
1 1938 LR 65 IA 158 175
1152 Next comes a class of case for which there is no express provision in the Code or where there is ambiguity
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
When a trial is conducted in a manner different from that prescribed by the Code as in N A Subramania Iyer s case1 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 such conduct the irregularity can be cured under section 537 and none the less so because the irregularity involves as must nearly always be the case a breach of one or more of the very comprehensive provisions of the Code
Pulukuri Kotayya vs King Emperor2
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
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
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
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
That was due to the language of the Judicial Committee in NA Subramania Iyer vs KingEmperor1
Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice
2 1917 LR 74 IA 66 75
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 error omission or irregularity
This was examined and explained in Abdul Rahman vs King Emperor1 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
In our opinion the key to the problem lies in the words underlined
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
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
These go to the foundations of natural justice and would be struck down as illegal forthwith
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
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
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
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
The swing of the pendulum has been 1 1926 LR 54 IA 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 mass of the people for whose protection penal laws are made and administered
The more recent attitude of the Judicial Committee is summed up by Sir John Beaumont in Pulukuri Kotayya vs King Emperor1 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 King Emperor2 In the complete absence of any substantial injustice in the complete absence of anything that outrages what is due to natural justice in criminal cases their Lordships find it impossible to advise His Majesty to interfere
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
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
It will be observed that disregard of ail express Prohibition was regarded as curable in Zahiruddin vs King Emperor3 so the question whether a particular provision is stated in positive or in negative terms is not the true criterion
2 1929 LR 57 IA 71 76
3 1947 LR 74 IA 80 1155 controversy that has raged around the true meaning of N A Subramania Iyer vs King Emperor1
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
Slightly to alter the language of the Privy Council in Babulal Choukhani vs The KingEmperor2 we would say It must be hoped and indeed assumed that magistrates and judges will exercise their jurisdiction fairly and honestly
Such is the implied condition of the exercise of judicial power
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 Code and bow closely and jealously the Supreme Court guards the position of the accused
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
This we feel is the true intent and purpose of section 537a which covers every proceeding taken with jurisdiction in the general phrase or other proceedings under this Code
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 other cases a closer examination of all the circumstances will be called for in order to discover whether the accused has been pre judiced
We now proceed to examine the relevant sections of the Code
Chapter XLV deals generally with irregular proceedings
There are certain irregularities which do not vitiate the proceedings
They are set out in section 529
No question of prejudice arises 1 1901 LR 28 IA 257
146 2 1938 LR 5 IA 158177
1156 in this class of case because the section states cate gorically that they shall not vitiate the proceedings
Certain other irregularities are treated as vital and there the proceedings are void irrespective of prejudice
These are set out in section 530
A third class is dealt with in sections 531 532 533 535 536 2 and 537
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
The examples we have given are illustrative and not exhaustive
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
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
The only class of case in which the Courts are free to reach a decision is that for which no express provision is made
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
Our only task therefore is to interpret them and having propounded their meaning to give effect to whatever they say
Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it
The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms section 271 1
There can be no shirking that or slurring over it and this must appear on the face of the record
It cannot be established by evidence taken after the trial
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
This is repeatedly reiterated in a number of sections
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
of an incurable illegality or 1157 whether the information that is the substance of the matter can be conveyed in other ways
The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure
A perusal of them reveals the reasons why a charge is required
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
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 Whenthe nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose
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
But there are other ways of conveying this information
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
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 ways provided always that it is in fact conveyed in a clear and unambiguous man ner and in circumstances that the court will regard 1158 as fair and in substantial as opposed to purely technical compliance with the requirements of the Code
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
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 was in fact misled by such error or omission and it has occasioned a failure of justice
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
That in our opinion is reasonably plain language
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
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 provided neither side is prejudiced section 228
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
That is impossible when the error is so vital as to cut at the root of the trial
It follows that errors in the charge and even a total absence of a charge are not placed in the non curable class
1159 Next we have a case in which the error is not observed and corrected during the trial and the accused is convicted
It is to be observed that this is so whether there was a total absence of a charge or merely an error in it
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
From there we proceed to section 535
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
Here again the language is clear and wide and emphatic
The section summarises what was already indicated in sections 226 227 228 and 232
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         unless such error omission irregularity has in fact occasioned a failure of justice
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
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 fact occasioned a failure of justice
Reading these provisions as a whole there is in our opinion no room left for doubt about what was intended
It was argued on behalf of the appellant that these sections must be read along with sections 236 237 and 238
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
He put his argument as follows
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
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
It is limited to cases in which sections 237 and 238 permit a conviction without a charge
In answer to this the following argument was put to counsel and be was asked to meet it
The point was put this way
Section 535 cures convictions that would be invalid but for its provisions
This it was said follows from the words shall be deemed invalid
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
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 1161 irregular
Therefore section 535 cannot apply to cases covered by sections 237 and 238
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
We do not agree with either view
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
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
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
It will be seen that though sections 234 235 and 236 are expressly mentioned section 237 is not referred to nor is section 238
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 something else for which be was not charged
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
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
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
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
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 terms but what are the consequences of such disregard
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
They were first used by the Privy Council in N A Subramania Iyer vs KingEmperor1 and repeated in Babulal Choukhani vs King Emperor2  and in Pulukuri Kotayya vs King Emperor3 but it is to be observed that the Code does not use the term illegality
It refers to both classes as irregularities some vitiate the proceedings section 530 and others do not section 529
Proceedings that come under the former head are void
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
Section 537 does not use any of these expressions but merely says that no conviction or 1 1901 LR 28 IA 257
2 1938 LR 65 IA 158 174
3 1947 LR 74 IA 6575
1163 sentence shall be reversed or altered unless there has in fact been a failure of justice
We do not attach any special significance to these terms
They are convenient expressions to convey a thought and that is all
The essence of the matter does not lie there
It is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules
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 thought and tradition
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 justice
When so struck down the conviction is invalid when not it is good whatever the irregu larity
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
Turning next to the second branch of the argument about section 535
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
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 2321 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
147 1164 Sections 222 to 224 deal with the form of a charge and explain what a charge should contain
Section 225 deals with the effect of errors relating to a charge
Sections 233 to 240 deal with the joinder of charges
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 unless there is prejudice
But apart from that if we examine the learned counsel s contention more closely the fallacy in his argument becomes clear
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 of it
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
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 of A there is none in respect of B for clearly you cannot do indirectly that which you are prohibited from doing directly
In our opinion sections 233 to 240 deal with joinder of charges and they must be read together and not in isolation
They all deal with the same subject matter and set out different aspects of it
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
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 233234 235 and 239 read as a whole for the reasons we have just given
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
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
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
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
In all these cases the only question is about prejudice
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
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
That would necessitate reading into the section words that are not there
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
We are unable to find any magic or charm in the ritual of a charge
It is the substance of these provisions that count and not their outward 1166 form
To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent
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 2711 in sessions trials section 2551 in warrant cases but to say that a technical jargon of words whose significance no man not trained to the law can grasp or follow affords him greater protection or assistance than the informing and the explain ing that are the substance of the matter is to base on fanciful theory wholly divorced from practical reality and the same applies to the vast bulk of jurors who attend our courts
They are none the wiser because of a formal charge except in a vague and general way that is of no practical account
The essence of the matter is not a technical formula of words but the reality
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
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
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 matter is not explained to him as section 271 requires
Of course the rules should and ought to be punctually observed
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
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 object of section 271 but omits to observe its technical form
Then when the witnesses are examined the accused shows by his cross examination that he knows just what he is being tried for
He is examined fully and fairly under section 342 and his answers show that he is under no delusion
He calls witnesses in defence to meet the very point or points the prosecution seek to make out against him
He puts in a written statement and is defended by an able lawyer who raises no objection from start to finish
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
We have put a case in which there neither is nor can be prejudice
Surely it would be a travesty of justice to brand a conviction in a case like that as illegal
And yet that must be done if these words that are otherwise plain are construed in a strained and unnatural manner
On the other hand there is nothing in the view we take to imperil or harass an accused however innocent he may be
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 of the framing of the charge once that is there the accused cannot be heard to say that be did not understand however much that may be the fact
Surely this cannot be right
Now as we have said sections 225 232 535 and 537a 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 errors irregularities and omissions in it
The Code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice
It is the substance that we must seek
Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence
Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities
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
Every reasonable presumption must be made infavour of an accused person he must be given the benefit of every reasonable doubt
The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt
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
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
If it was not and particularly where the accused is defended by counsel Atta Mohammad vs King Emperor1 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 always borne in mind that no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused Abdul Rahman vs King Emperor2
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
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
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
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
The only question is whether the irregularity occasioned prejudice
We now turn to an examination of the cases of this Court that are said to give rise to a conflict of view
In our opinion there is in reality no conflict and 1 1929 LR 57 IA 71 74
2 1926 LR 54 IA 96104 110
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
None of the cases deals with the position where there is no charge at all
The following cases afford no difficulty because they directly accord with the view we have set out at length above
In Lachman Singh vs The State1 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 though there is no separate charge under section 302 read with section 34 provided the accused could have been so charged on the facts of the case
The decision in Karnail Singh vs The State of Punjab2 is to the same effect and the question about prejudice was also considered
Pandurang Tukia and Bhillia vs State of Hyderabad3 also presents no difficulty because though the point was taken in that case it was expressly left open at page 1093
From there we come to Suraj Pal vs The State of UP 4
That was a case in which a number of accused were charged under sections 307149 and sections 302149 of the Indian Penal Code
It was found that there was no common object to kill so all the accused were acquitted under section 149
But the evidence disclosed that the appellant had himself made an attempt on the life of one man and had himself shot another dead
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
Those convictions were challenged here
The learned Judges then 11952 SCR 839 848
21954 SCR 904911 3  41955 ISCR 1332 1171 proceeded to determine the question of prejudice on the facts of that case
The conclusion reached on the facts was that prejudice was disclosed so an acquittal was ordered
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
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 information report and certain documents including two filed by the accused
Next comes Nanak Chand vs The State of Punjab1
That was also a case in which the charge was under section 302149 of the Indian Penal Code with the conviction under section 302 simpliciter without any separate charge under that section
The Sessions Judge had convicted under section 30234 of the Indian Penal Code holding that the charge of rioting was not proved
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
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 for a murder committed by him personally but that he was only being 1 1955 I SCR 1201
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
But that was only one of the matters considered and it does not follow that every accused will be so misled
It all depends on the circumstances
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 evidence to show that had that been done the appellant might well have been exonerated
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
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
That however was and remains a pure conclusion of fact resting on the evidence and circumstances of that particular case
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
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 when the words irregularity and illegality are not defined
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
As there was prejudice in that case the decision was invalid and being invalid it was illegal
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
It is to be
observed that section 535 of the Code is mandatory in its terms just as mandatory as section 233
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
The section is just as mandatory as section 233 and we can see no justification for giving it less weight than section 237
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 held not to apply to cases covered by sections 237 and 238 then it must apply to cases that lie outside the scope of those  sections and the only kind of case left is a case in which there is a total absence of a charge for any other type of case would be excluded because of misjoinder
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
It is unfortunate that we have no definition of the terms illegality irregularity and in 
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
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
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 would be exposed in those two cases and here again the matter must be viewed broadly and not in any technical or pettifogging way
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 2211Criminal Procedure Code 2 the law and section of the law against which the offence is said to have been committed section 2214 3 particulars of the time section 2221 and 4 of the place section 2221 and 5 of the person against whom the offence is said to have been committed section 2221 and 6 when the nature of the case is such that those particulars do not give him sufficient notice of the matter with which he is charged such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose section 223
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
The charge need not state the manner in which A murdered B
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
He is not entitled to know from the charge simpliciter any further circumstance
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
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
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 is present at its commission the crime becomes the offence actually committed because of section 114 of the Indian Penal Code
Section 114 does not create the offence nor does section 34
These sections enunciate a principle of criminal liability
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
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 2215 of the Criminal Procedure Code
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 the murder was committed
It also means that he is informed that it is immaterial who struck the fatal blow
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 responsible for that and which must be discovered from the evidence and not from the charge just as surely as it must when the question turns on who possessed or used a pistol and who a sword
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
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
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
That is what happened here
They were not charged with that formally but they were tried on evidence which brings the case under section 2371
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
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
2   848
1177 only threw stones
From there we go to his examination under section 342 of the Criminal Procedure Code in the Committal Court
He is specifically told that the only eye witness in the case accuses him and not his brother of having hit the deceased over the head with a hockey stick
No one could misunderstand that
In the Sessions Court we find the same evidence repeated
No witness suggests that anyone else hit the deceased on the head
There was no pos sibility of misunderstanding or mistake
The fact that the appellant did not attempt to confront any of the witnesses with their statements before either the Committing Magistrate or the police on this point shows that the witnesses told a consistent story from the start
Next the appellant was examined under section 342 in the Sessions Court and was asked the same questions and was confronted in his examination with the same eye witness
He was told clearly and unambiguously that the evidence was that he hit the deceased over the head
Now what was his defence A curious procedure was adopted a procedure that has been condemned by the Nagpur High Court in other cases and which we regret to see still persists
Instead of the accused speaking for himself he made a statement through his advocate
However the defence was this 1 an alibi I wasn t there
2 It was dark and the deceased rushed at the appellant who is now said to have been there despite the alibi fell down the stairs and broke his head 3 The deceased was the aggressor and the appellant struck him in self defence
There is no suggestion here that the other accused hit the deceased or that anyone other than the appellant did
The appellant places it beyond doubt that he knew that the case against him was that he is said to have struck the fatal blow
Next what was the cross examination of the only eye witness There was no suggestion that she was mistaken in her identity whereas she was crossexamined about this very matter of self defence and questions were put to show that the deceased 1178 and not his brother had threatened the appellant with his fist
In the High Court the plea of alibi was dropped and the only argument advanced was self defence
There was no hint of prejudice even in the grounds of appeal
There was no pretence in the arguments that the appellant did not know he was being accused of having hit the deceased
On the contrary there was a clear admission in the High Court that he did hit the man but that he acted in self defence
As the appellant knew that the case against him was that he is the one who is said to have struck the fatal blow and as he was told in the charge that the offence he is said to have committed was that of murder and was informed of the date and place and person we find it impossible to infer prejudice
As the Privy Council said in Atta Mohammad vs Emperor1 I He appeared by an advocate on the appeal and had been legally defended at the trial and it is as clear as possible that with full knowledge of the course which the trial had taken neither the appellant himself nor those who represented him bad any sense whatever of the injustice that is now urged or any idea of his having been deprived of the opportunity of knowing the charge on which he was tried or of raising defences appropriate to that charge
We would hold that there was no prejudice and that the conviction is not invalid because of the nature of the charge
We now come to the merits and the question is whether this is a case under section 302 or under the second part of section 304 of the Indian Penal Code
The injury was inflicted with a hockey stick
The head was fractured but the deceased lived for ten days
Therefore the doctor in whose care the patient was 1 1929 LR 57 IA 71 74 1179 till he died places the injury no higher than likely to cause death
The learned Sessions Judge exonerated the appellant of any intention to kill and the learned High Court Judges say that they agree with his findings
If there was no intention to kill then it can be murder only if 1 the accused knew that the injury inflicted would be likely to cause death or 2 that it would be sufficient in the ordinary course of nature to cause death or 3 that the accused knew that the act must in all probability cause death
If the case cannot be placed as high as that and the act is only likely to cause death and there is no special knowledge the offence comes under the second part of section 304 of the Indian Penal Code
The doctor thought that it was only likely to cause death
All blows on the head do not necessarily cause death and as the deceased lived for ten days we are unable to deduce from the nature of the injury and from the mere fact of death that the appellant had or should have had the special knowledge that section 300 of the Indian Penal Code requires
Admittedly there was no premeditation and there was a sudden fight so we are unable to ascribe the necessary knowledge to the appellant nor was the injury sufficient in the ordinary course of nature to cause death
So the offence falls under the second part of section 304 of the Indian Penal Code
On the question of sentence
There was no enmity according to the finding of the learned Sessions Judge
The appellant did not go there armed with a stick
He was in love with the deceased s sister who reciprocated his affection but could not marry him be cause her husband had turned her out in England and she had no divorce
The deceased who was the girl s brother resented this
The appellant went to the house and asked the sister to come down
The 1180 brother came instead and there was a quarrel
The appellant slapped the deceased across the face
The deceased who was a big and strong man shook his fist in the appellant s face and the appellant snatched a hockey stick from his younger brother Ronnie and hit the deceased one blow over the bead and two blows on the hips
In the circumstances we think five years  rigorous imprisonment will suffice
This appeal comes before us on a reference owing to a conflict between two decisions of this Court Nanak Chand vs The State of Punjab1 and Suraj Pal vs The State of U P 2
Where there is a charge against an accused under section 302 read with section 149 if section 149 of the Indian Penal Code is inapplicable to the facts can the accused be convicted under section 302 without a separate charge
In the first case it was held that the omission to have a specific charge under section 302 amounted to an illegality
Section 149 creates a specific offence and without applying its provisions a member of an unlawful assembly could not be made liable for the offence committed not by him but by another member of that assembly
Therefore the case is not similar to the one where there is a charge under section 302 read with section 34 of the Indian Penal Code
When section 149 is ruled out the liability for murder ceases to be constructive it becomes direct and there must be a separate charge therefor under section 302 of the Indian Penal Code
This was the line of reasoning in Nanak Chand s case
In Suraj Pal s case the same line is taken but the absence of a specific charge 1  2  1181 is treated as a serious lacuna merely and not regarded as an illegality
This conflict does not arise in the case before us where the offence charged against two brothers William and Ronnie for the murder of Donald was under section 302 read with section 34 of the Indian Penal Code
Ronnie was acquitted
But William was found guilty and sentenced to transportation for life
As pointed out by Lord Sumner in his classic judgment in Barendra Kumar Ghosh vs The King Emperor1 there is much difference in the scope and applicability of sections 34 and 149 though they have some resemblance and are to some extent overlapping
The two sections are again compared and contrasted in Karnail Singh and another vs The State of Punjab2
Section 34 does not by itself create any offence whereas it has been held that section 149 does
In a charge under section 34 there is active participation in the commission of the criminal act under section 149 the liability arises by reason of the membership of the unlawful assembly with a common object and there may be no active participation at all in the perpetration or commission of the crime
The overlapping arises in those cases where two or more persons commit a murder in furtherance of the common intention but it is not possible to say which of them was responsible for the fatal injury or whether any one injury by itself was responsible for the death
There may also be a case where it is known that out of the assailants one in particular was responsible for the fatal injury and the others are sought to be made liable for the result owing to the common intention involved
It is however necessary having regard to the 1 1924 LR 52 IA 40
2 1182 lengthy arguments addressed to us to consider the main question arising on the reference
Though the two cases which gave rise to this reference were cases relating to section 149 of the Indian Penal Code and not to section 34 of the Indian Penal Code as the Present case is the order of reference was occasioned by the fact that in Nanak Chand s case it was stated specifically that the parallel case under section 34 also stood on the same footing
In our attempt to resolve the conflict we covered a wide area of sections and decisions
A detailed discussion of all the decisions cited at the Bar is not of much use as it is not possible to gather from a study of those cases anything very decisive by way of any guiding principle
But a few of them more important than the rest must be noticed
The Criminal Procedure Code does not use the word illegality
Even defects or violations that vitiate the proceedings and render them void are spoken of only as irregularities in section 530
The word illegality was used almost for the first time in the judgment of the Privy Council LR 28 Indian Appeals 257 familiarly known as Subramania Aiyar s case where they speak of a contravention of section 234 of the Code resulting in a misjoinder of charges as an illegality
The idea that it was a mere irregularity was repelled in these words Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity
Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment
The illustration of the section itself sufficiently shows what was meant
Again they say   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 1183 within the description of error omission or irregu larity
Subsequently however there have been systematic attempts to explain away the said decision and restrict its scope to narrow limits
This was possibly because it was realised even by the Judicial Committee itself that the view taken by them to the effect that a violation of the mandatory provisions of the Code would be an illegality was rather an extreme one
It may be pointed out that even in that case the question of prejudice was not entirely absent from their Lordships  minds
Both sides referred to it in the course of the arguments and the Lord Chancellor alludes to the prejudice inherent in the trial on a multitude of charges
The exact effect of this inclusion may require consideration in an appropriate case
Before dealing with the other relevant sections of the Code let us examine some of the later decisions of the Privy Council which seem to indicate a swing of the pendulum to the other side
In Abdul Rahman vs The King Emperor1 there was a violation of section 360 of the Code which provides that the deposition of each witness shall be read over to him in the presence of the accused or his pleader
The High Court held that this was a mere irregularity and confirmed the conviction as no failure of justice had resulted
It was contended on appeal before the Privy Council that the section was obligatory and that non compliance with such a mandatory provision was illegal on the principle laid down in Subramania Aiyar s case2
But their Lordships rejected this contention pointing out that in the earlier case the procedure adopted was one which the Code positively prohibited and it was possible that it might have worked actual injustice to the accused and they confirmed the conviction
The question was again raised in Babulal Choukhani vs The King Emperor3 1 1926 LR 54 IA 96
2 1901 LR 28 IA 257
3 1938 65 IA 158
1184 as to what would be an illegality as distinguished from an irregularity
Lord Wright who delivered the judgment of the Board assumed that an infringement of section 239b of the Code would be an illegality and proceeded to state that the question did not however arise and it was hence unnecessary to discuss the precise scope of what was decided in Subramania Aiyar s case1
The matter cropped up once again in Pulukuri Kotayya and others vs KingEmperor 2 where there was a breach of the statutory requirement found in section 162 of the Code inasmuch as the accused were not supplied with copies of the statements first recorded by a police officer for cross examining the prosecution witnesses
The defect was recognized to be a matter of gravity and if the statements bad been completely destroyed or if there had been a total refusal to supply copies to the accused the convictions were liable to be quashed
But in the case before them as the statements were made available though too late to be effective and the Circle Inspector s notes of the examination of witnesses were put into the hands of the accused it was taken to be an irregularity merely
Referring to the contention that the breach of a direct and important provision of the Code cannot be cured but must lead to the quashing of the conviction Sir John Beaumont observed  
In their Lordships  opinion this argument is based on too narrow a view of the operation of section 537
When a trial is conducted in a manner different from that prescribed by the Code as in N A Subramania Iyer s case1 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 such conduct the irregularity can be cured under section 537 and nonetheless so because the irregularity involves as must nearly always be the case a breach of one or more of the very comprehen sive provisions of the Code
The distinction drawn in many of the cases in India between an illegality and 1 1901 L R 28 IA 257
2 1947 LR 74 IA 65 1185 ail irregularity is one of degree rather than of kind
This view finds support in the decision of their Lordships  Board in Abdul Rahman vs The King Emperor 1 where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537
The present case falls under section 537 and their Lordships hold the trial valid notwithstanding the breach of section 162
Of course lack of competency of jurisdiction absence of a complaint by the proper person or authority specified want of sanction prescribed as a condition precedent for a prosecution in short defects that strike at the very root of jurisdiction stand on a separate footing and the proceedings taken in disregard or disobedience would be illegal
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
It is in this class of cases that the distinction becomes important and material
The scope of the decision in Subramania Aiyar s case2 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 the Code
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
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
A power to alter or add to a charge at any time before judgment is pronounced is conferred on a court under section 227
Sections 228 to 231 provide for the steps to be taken consequent on such alteration
Section 225 shows what would be the effect of any errors in the framing of a charge
It runs as follows 1 1926 LR 51 IA 96
2 1901 LR 28 IA 257
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 justice
Section 2321 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 revision or of its powers under Chapter XXVII is of opinion that any person convicted of an offence was misled in defence by the absence of a charge or by an error in the charge it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit
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
This applies only to cases where it is doubtful which of several offences the facts which can be proved will constitute
Begu s case1 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
Viscount Haldane observes 
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
That is what happened here
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
They were not charged with that formally but they were tried on evidence which brings the case under section 237
1 11925 LR 52 IA 191
1187 Finally we come to sections 535 and 537 of the Code
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
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
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 proclamation order judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code or b      c of the omission to revise any list of jurors or assessors in accordance with section 324 or d of any misdirection in any charge to a jury unless such error omission irregularity or misdirection has in fact occasioned a failure of justice
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
The consequences seem to be slightly different
Where there is no charge it is for the court to determine whether there is any failure of justice
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
The sections referred to indicate that in the generality of cases the omission to frame a charge is 150 1188 not per se fatal
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
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 
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
We are unable to agree that section 535 of the Code of Criminal Procedure is to be construed in such an unlimited sense
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
They would therefore normally relate to errors or omissions which occur in a trial that has validly commenced
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
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 is not impossible to conceive of an extreme case where the Sessions trial also proceeds without any formal charge which has to be in writing and read out and explained to the accused section 2102 and section 251 A 4 and section 227
The Code requires that there should be a charge and it should be in writing
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
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
On a charge for a minor offence there can be no conviction for a major offence eg grievous hurt or rioting and murder
The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality
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 specifying who are directly liable and who are sought to be made constructively liable
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
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
Dealing with the question whether a provision in a statute is mandatory or directory Lord Penzance observed in Howard vs Bodington1
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 of the whole proceedings
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
These words can be applied mutatis mutandis to cases where there is no charge at all
The gravity of the defect will have to be considered to determine if it falls within one class or the other
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
If it is so grave that prejudice will necessarily be implied or imported it may be described as an illegality
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
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
The omission to frame a charge is a grave defect and should be vigilantly guarded against
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
Coming now to the facts of the present case William was on terms of intimacy with Beryl PW 13
She was the sister of Donald Smythe
The accused was practically living with her in her house
The brother did not like their intimacy and was making attempts to separate Beryl from the accused
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
She did not come but Donald came down into the courtyard
There was a heated exchange of words
The accused slapped Donald on the cheek
Donald lifted his fist
The accused gave one blow on his head with a hockey stick with the result that his skull was fractured
Donald died in the hospital ten days later
A plea of alibi was given up in the High Court
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
Nothing was established to justify any exercise of the right of private defence
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
The High Court did not address itself to the nature of the offence
It is obvious that the appellant did not intend to kill the deceased
The evidence of the doctor is that the injury was likely to result in fatal consequences
This by itself is not enough to bring the case within the scope of section 300
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
The elements specified in section 300 of the Indian Penal Code are thus wanting
We take the view considering all the circumstances that the offence is the lesser one
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
IMAM J
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
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
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
Strictly speaking on the facts of the present case the question raised by the reference does not arise
Since it has been raised it must be considered
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
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
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
A careful examination of these two cases does not reveal any substantial conflict between them
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
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
In trial of warrant cases cases before a Court of Sessions and a High Court a charge must be framed
Failure to frame a charge in such cases would be a contravention of the mandatory provisions of the Code
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
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
It is therefore necessary to examine how far these provisions of the Code override its provisions relating to the framing of charges
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
There is no ambiguity in the language of this section
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
Section 233 is a mandatory provision and the force of its direction is not weakened by the fact that another provision of the Code does permit a conviction of an accused for an offence with which he had not been charged
In such a case no question of illegality or irregularity arises as the conviction is expressly authorized by the Code
The conviction is valid because of the statute itself and not because of section 535
On the charge framed after it has been explained to the accused the plea of guilty or not guilty is recorded
If the accused pleads guilty certain consequences follow
If he pleads not guilty the trial must proceed according to law
Is the framing of a charge and the recording of the plea of the accused merely a ritual or a fundamental provision of the Code concerning procedure 1194 in a criminal trial I think it is the latter
Are the express provisions of the Code as to the manner in which a trial is to proceed to be ignored or considered as satisfied merely because the Court explained to the accused as to what he was being tried for
I a prehend not
For to do so is to replace the provisions of the Code by a procedure unwarranted by the statute itself
In my opinion a total absence of a charge from start to finish in a case where the law requires a charge to be framed is a contravention of the provisions of the Code as to the mode of trial and a conviction of the accused of an offence in such a case is invalid and the question of prejudice does Dot arise
None of the decisions of the Privy Council suggest that in such a case the conviction will be deemed to be valid by virtue of the provisions of section 535 unless the Court is satisfied that there has been a failure of justice
In any event the Code expressly provides that in such cases the conviction need not be set aside unless in fact a failure of justice has resulted
Under the provisions of section 232 of the Code an appellate Court or a High Court exercising its powers of revision or its powers under Chapter XXVII must direct a new trial of a case in which an accused person has been convicted of an offence with which he had not been charged if it is satisfied that he had been misled in his defence by the absence of a charge
In such a case a court is bound to act according to its provisions
It is the provision of section 535 to which reference must be made in order to ascertain whether that which was invalid shall be deemed to be valid unless the court was satisfied that there had been a failure of justice
I regard with concern if not with dismay a too liberal application of its provisions to all cases in which there is an absence of a charge 1195 although a charge ought to have been framed
It is difficult to lay down any hard and fast rule as to when the provisions of section 535 will or will not be applicable
The facts of each case as they arise will have to be carefully considered in order to decide that that which was prima facie invalid is deemed to be valid by virtue of its provisions
There may be cases where the omission to frame a charge was merely a technical defect in which case section 535 would apply
On the other band there may be cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions of the Code relating to the framing of charges that prejudice may be inferred at once and the conviction which was prima facie invalid continued to be so
In a criminal trial innocence of an accused is presumedunless there is a statutory presumption against him and the prosecution must prove that the accused is guilty of the offence for which he is being tried
The prosecution is in possession of all the evidence upon which it relies to establish its case against the accused
It has the privilege to ask the Court to frame charges with respect to the offences which it wishes to establish against the accused
On the Court itself a duty is cast to frame charges for offences which on the evidence appear to it prima facie to have been committed
If in spite of this a charge under section 302 read with 149 of the Indian Penal Code only is framed against an accused person and not under section 302 of the Indian Penal Code it will be reasonable to suppose that neither the prosecu tion nor the Court considered the evidence sufficient to prove that murder was committed by the accused and the omission to frame a charge under section 302 must be regarded as a deliberate act of the Court by way of notice to the accused that he was not being tried for that offence
It would not be a case of mere omission to frame a charge
If therefore the accused is convicted under section 302 I would consider his conviction as invalid as he was misled in his defence
In conclusion I would point out that the provisions of the Code of Criminal Procedure are meant to be 151 1196 obeyed
Contravention of its provisions are unnecessary and neither the prosecution nor the Courts of trial should ignore its provisions in the hope that they might find shelter under sections 535 and 537 of the Code
Where the contravention is substantial and a retrial becomes necessary public time is wasted and the accused is put to unnecessary harassment and expense


Summary:
The appellant and his brother were put up for trial on charges under section 302 read with section 34 of the Indian Penal Code
The appellant was specifically charged with murder in prosecution of the common intention
There was evidence to show that he and not his brother had struck the fatal blow
The brother was acquitted and the appellant was convicted under section 302 and sentenced to transportation for life
The High Court upheld the conviction and sentence and dismissed the appeal
The question was whether the omission to frame an alternative charge under section 302 simpliciter was an illegality that vitiated the trial and invalidated the conviction and whether there was a conflict of decisions of this Court on the matter in controversy
Held per curiam that the omission to frame an alternative charge under section 302 in the facts and circumstances of the case was not an illegality that vitiated the trial but was a curable irregularity as it had not occasioned any prejudice to the appellant and the conviction was not liable to be set aside
That section 34 of the Indian Penal Code by itself does not create any offence and where as in the present case it is possible to ascertain who struck the fatal blow the fact that another was also sought to be made liable does not invalidate a conviction for murder unless there was prejudice
That the expression illegality  used in Nanak Chand s case must be read with reference to the facts of that case where the court 1141 found prejudice and the apparent conflict of view between the judgment in that case and that in Suraj Pal s case had really no bearing on the present one
Nanak Chand vs The State of Punjab 1955 1 SCR 1201 and SurajPal vs The State of UP 1955 1 SCR 1332 explained
That the Code does not use the word illegality  nor define irregularity  and illegality  can only mean an incurable irregularity incurable because of prejudice leading to a failure of justice
The question of prejudice is a question of fact to be decided by the court in each particular case
That the offence committed by the appellant fell under the second part of section 304 of the Indian Penal Code and not section 302 and the conviction must be altered to one under that section
N A Subramania Iyer vs King Emperor 1901 LR 28 I A 257 explained
Babulal Choukhani vs The King Emperor 1938 LR 65 I A 158 Pulukuri Kotayya vs King Emperor 1947 LR 74 IA 65 Abdul Rahman vs King Emperor 1926 LR 54 I A 96 Atta Mohammad vs King Emperor 1929 LR 57 IA 71 Karnail Singh vs The State of Punjab 1954 SCR 904 and Begu vs KingEmperor 1925 ILR  referred to
Per section R DAS ACTING CJ and BOSE J
Like all procedural laws the Code of Criminal Procedure is designed to subserve the ends of justice and not to frustrate them by more technicalities
It regards some of its provisions as vital but others not and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby
It places errors in the charge or even a total absence of a charge in the curable class
This is made clear by sections 535 and 537 of the Code
The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction
If therefore the necessary information is conveyed to him in other ways and there is no prejudice the trial is not invalidated by the mere fact that the charge was not formally reduced to writing
The essential part of this part of the law is not any technical formula of words but the reality whether the matter was explained to the accused and whether he understood what he was being tried for
It is not correct to say that section 535 of the Code has no application to a case in which there is no charge at all or that it cannot apply except where sections 237 and 238 apply or that it is governed by section 233
Sections 237 238 535 and 537 should not be read disjunctively
They 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
Sections 535 and 537 apply to every case in which there is a 1142 departure from the rules set out in Chapter XIX ranging from error 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
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 knew what he 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
There is no conflict of view between Nanak Chand vs The State of Punjab and Suraj Pal vs The State of UP and a close consideration of the reasons given in Nanak Chand s case show that there was in fact no difference of opinion as regards cases where there is a charge to start with
Neither case however deals with the position where there is no charge at all
The remarks made in Nanak Chand s case must be read in the perspective indicated and expressions which appear to travel wider do not give a correct exposition of the law
The effect of charging two persons with murder committed in pursuance of a common intention under section 34 of the Indian Penal Code is that the accused is unmistakably told that he participated in the crime
Where it cannot be ascertained who struck the fatal blow no conviction can follow unless a common intention is proved
But the converse does not hold good
Per JAGANNADHADAS and CHANDRASEKHARA AIYAR JJ
IMAM J agreeing
Sections 226 227 2321 237 535 and 537 indicate that in the generality of cases the omission to frame a charge is not per se fatal
It is not therefore correct to say that where there is no charge the conviction must be illegal prejudice or no prejudice
Nor is it correct to say that section 535 is sufficiently wide to apply to every case where there is no charge of any kind from the outset
The section cannot be construed in such an unlimited sense and must normally be read in the same context as sections 225226 and 232 that is with reference to a trial that validly commenced for there may be cases where a trial without any kind of charge from the outset will be wholly contrary to the provisions of the Code and as such illegal without the necessity of a positive finding of pre judice
The provisions of section 535 mainly apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particular offence without express specification and where the facts proved constitute a separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged
The Code requires that in a sessions trial there should be a 1143 charge in writing
A deliberate breach of this basic requirement cannot be covered by the assertion that every thing was orally explained to the accused the assessors or jurors and there was no prejudice
So also where the conviction is for a totally different offence from the one charged and not covered by sections 236 and 237 of the Code the omission to frame a separate charge would be an incurable irregularity amounting to illegality
In cases coming under sections 34 114 and 149 of the Indian Penal Code the charge against persons actuated by a common intention is a rolled up one
It involves direct liability and constructive liability without distinct specification
The absence of a charge under one or other of the various heads of criminal Liability for the offence in such cases is not fatal and a conviction for the substantive offence without a charge can be set aside only where there is prejudice
In considering whether a defect is illegal or merely irregular several facts will have to be considered including its gravity to determine if it falls within one class or the other
The answer must depend on the facts and circumstances of each case
If the defect is so grave that prejudice would necessarily be implied it is an illegality
If less serious it will be an irregularity and prejudice by way of failure of justice must be established
Howard vs Bodington 1877  referred to
Per IMAM J On the facts of the present case the question raised by the reference does not arise
There is no substantial conflict of view between the two decisions of this court in Nanak Chand s case and Suraj Pal s case
Section 233 of the Code is a mandatory provision and the force of its direction is not weakened by the fact that another provision of the Code permits the conviction of the accused for an offence with which he had not been charged
The total absence of a charge from the beginning to the end where it is incumbent that a charge must be framed is a contravention of the Code regarding the mode of trial it prescribes and a conviction of the accused in such a case is invalid and no question of prejudice can arise
In cases however where a charge is framed but there is an omission or irregularity but the mode of trial is not affected the Code provides that the conviction may be set aside if in fact a failure of justice as resulted
It is difficult to lay down any hard and fast rule as to the applicability of section 535
That will depend on the facts of each case