Summarize the following court judgment. Parties will hear their own costs	 V.P.S. 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. H.J. 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 S.C.R.1201)	 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	 362(4). 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. B.Sen 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	 e.g.	 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 I.A. 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 I.A. 96) and Pulukuri Kotayya and Others vs King Emperor ([1946] 74 I.A. 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	 254	271	 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 C.R. 904) and Lachman Singh and Others vs The State ([1952] S.C.R. 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 S.C.R. 1201) and Suraj Pal vs State of U.P. ([1955] 1 S.C.R. 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 (A.I.R. 	 Emperor vs Destrali ([1930] 	 Debiprasad Kalowar vs Emperor ([1932] 	 Devki Nandan and Others vs Emperor (A.I.R. 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 238(2) 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 C.J. 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 Punjab(1) and Suraj Pal vs The State of U.P.(2) and (1) [1955] I S.C.R. 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 Punjab(1) and contends that the conviction is an illegality which cannot be cured and claims that he must either be acquitted or	 at the most	 be retried	 though be adds further that in the circumstances of this case the Court should not in the exercise 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 (P.W. 20) at about 7 p.m. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her 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] L.R. 65 I.A. 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 case(1))	 the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code	 but some irregularity occurs in the course of 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 Emperor(2). 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 N.A. Subramania Iyer vs KingEmperor(1). Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice. (2) [1917] L.R. 74 I.A. 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 Emperor(1) as follows: "The procedure adopted was one which the Code positively prohibited	 and it was possible that it might have worked actual injustice to the accused". 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] L.R. 54 I.A. 96	 109. 1154 away from technicality	 and a greater endeavour has been made to regard the substance rather than the shadow and to administer Justice fairly and impartially as it should be administered; fair to the accused	 fair to the State and fair to the vast 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 Emperor(1) where he says that "The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind" and by Viscount Sumner in Atta Mohammad vs King Emperor(2) "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 Emperor(3)	 so the question whether a particular provision is stated in positive or in negative terms is not the true criterion. (2) [1929] L.R. 57 I.A. 71	 76. (3) [1947] L.R. 74 I.A. 80	 1155 controversy that has raged around the true meaning of N. A. Subramania Iyer vs King Emperor(1). 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 KingEmperor(2) 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 537(a) 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] L.R. 28 I.A. 257. 146 (2) [1938] L.R. 5 I.A. 158	177. 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 "When.the 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 KingEmperor(1) and repeated in Babulal Choukhani vs King Emperor(2 ) and in Pulukuri Kotayya vs King Emperor(3)	 but it is to be observed that the Code does not use the term "illegality". 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] L.R. 28 I.A. 257. (2) [1938] L.R. 65 I.A. 158	 174. (3) [1947] L.R. 74 I.A. 65	75. 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 232(1) and 237 and 238 save departures from section 233 from being irregularities	 then there is nothing left for sections 535 and 537 to operate on. In our opinion	 the truth is that the Code deals with the same subject matter under different heads	 so there is some overlapping. 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 233	234	 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 271(1) in sessions trials	 section 255(1) 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 537(a) between them	 cover every conceivable typo	 of error and irregularity referable to a charge that 1168 can possibly arise	 ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with 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 Emperor(1)]	 it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars	 provided it is 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 Emperor(2)]. 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] L.R. 57 I.A. 71	 74. (2) [1926] L.R. 54 I.A. 96	104	 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 State(1) it was held that when there is a charge under section 302 of the Indian Penal Code read with section 149 and the charge under section 149 disappears because of the acquittal of some of the accused	 a conviction under section 302 of the Indian Penal Code read with section 34 is good even 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 Punjab(2) is to the same effect and the question about prejudice was also considered. Pandurang	 Tukia and Bhillia vs State of Hyderabad(3) also presents no difficulty because though the point was taken in that case it was expressly left open at page 1093. From there we come to Suraj Pal vs The	 State of U.P. (4). That was a case in which a number of accused were charged under sections 307/149 and sections 302/149 of the Indian Penal Code. 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 (1)[1952] S.C.R. 839	 848. (2)[1954] S.C.R. 904	911 (3) ; (4)[1955] I.S.C.R	 1332 1171 proceeded to determine the question of prejudice on the facts of that case. 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 Punjab(1). That was also a case in which the charge was under section 302/149 of the Indian Penal Code with the conviction under section 302 simpliciter without any separate charge under that section. The Sessions Judge had convicted under section 302/34 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 S.C.R. 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 221(1)	Criminal Procedure Code	 (2) the law and	 section of the law against which the offence is said to have been committed	 section 221(4)	 (3) particulars of the time	 section 222(1) and (4) of the place	 section 222(1)	 and (5) of the person against whom the offence is said to have been committed	 section 222(1)	 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 221(5) 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 237"(1). 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 Emperor(1) 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] L.R. 57 I.A. 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 Punjab(1) 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 Emperor(1)	 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 Punjab(2). 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] L.R. 52 I.A. 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	 L.R. 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 Emperor(1)	 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 case(2). 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 Emperor(3) (1) [1926] L.R. 54 I.A. 96. (2) [1901] L.R. 28 I.A. 257. (3) [1938] 65 I.A. 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 239(b) 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 case(1). 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 case(1))	 the trial is bad	 and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code	 but some irregularity occurs in the course of 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 I.A. 257. (2) [1947] L.R. 74 I.A. 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 case(2) has ' become so circumscribed that it is dobutful if it applies to the generality of cases of omissions and defects that come before the courts	 excepting where they bring about the result that the trial was conducted in a manner different from that prescribed by 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] L.R. 51 I.A. 96. (2) [1901] L.R. 28 I.A. 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 232(1) of the Code of Criminal Procedure refers more specifically to the effect of such error where an appellate Court or the High Court in revision or in confirmation proceedings	 notices such an error and is in the following terms: "If any Appellate Court	 or the High Court in the exercise of its powers of 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 case(1) is an example; the conviction was under section 201 of the Indian Penal Code for causing the disappearance of evidence relating to a murder	 though the charge was under section 302 of the Indian Penal Code. 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] L.R. 52 I.A. 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 210(2) 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	 e.g.	 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 Bodington(1). "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 P.W. 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 presumed	unless 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.

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 S.C.R. 1201)	 and SurajPal vs The State of U.P. ([1955] 1 S.C.R. 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] L.R. 28 I. A. 257)	 explained. Babulal Choukhani vs The King Emperor ([1938] L.R. 65 I. A. 158)	 Pulukuri Kotayya vs King Emperor ([1947] L.R. 74 I.A. 65)	 Abdul Rahman vs King Emperor ([1926] L.R. 54 I. A. 96)	 Atta Mohammad vs King Emperor ([1929] L.R. 57 I.A. 71)	 Karnail Singh vs The State of Punjab ([1954] S.C.R. 904) and Begu vs KingEmperor ([1925] I.L.R. 	 referred to. Per section R. DAS	 ACTING C.J. 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 U.P. 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	 232(1)	 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 225	226 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.