Indian Kanoon - Search engine for Indian Law

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) [1955] 1 S.C.R. 1201, 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 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 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-

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.

(2) [1955] 1 S.C.R. 1332.

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 v. 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 v. 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. But whereas in this case, the appellant has been individually charged with murder and there is proof that his band caused the injury, the fact that his brother was also sought to be made liable owing to the existence of a common intention, is neither here nor there, so far as the legality of the conviction is concerned, as there has been no prejudice by way of failure of justice.

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.-I agree with the judgment just delivered by my learned brother, Chandrasekhara Aiyar, J. but would add some observations of my own as I was party to the judgment of this Court in Nanak Chand's case. 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 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