Document Fragment View

Matching Fragments

26. In appeal, the question that arose before the Supreme Court was that if the accused had been charged under Section 302 IPC and the said charge had not been established by evidence, having regard to Section 222 of the Cr.PC, would it be possible to convict him under Section 306 IPC. The observations made by the Supreme Court on this aspect are apposite and are reproduced hereinbelow:-

"14. Here the Court proceeded to examine the question that if the accused has been charged under Section 302 IPC and the said charge is not established by evidence, would it be possible to convict him under Section 306 IPC having regard to Section 222 Cr.P.C. Sub-section(1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of the same Section lays down that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 222 Cr.P.C. is in the nature of a general provision which empowers the Court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said Section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely Chapter XXXV which deals with Irregular Proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub- section (1) of this Section provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In Lakhjit Singh Vs. State of Punjab reported as 1994 Supp (1) SCC 173, though Section 464 Cr.P.C. has not been specifically referred to but the Court altered the conviction from 302 to 306 IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu (supra) the Court completely ignored to consider the provisions of Section 464 Cr.P.C. and keeping in view Section 222 Cr.P.C. alone, the conviction of the appellant therein under Section 306 IPC was set aside."

27. In the case of Dalbir Singh (supra), reference was also made to an earlier decision of the Supreme Court in the case of Willie Slaney vs. State of Madhya Pradesh reported as AIR 1956 SC 116, where a Constitution Bench had examined the question of absence of charge. After analysing the provisions of Sections 225, 232, 535, 537 of the Criminal Procedure Code, 1908 that correspond to Sections 215, 464(2), 464 and 465 of the 1973 Code, it was observed that courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. It was further observed that every reasonable presumption must be made in favour of an accused person and he must be given the benefit of every reasonable doubt and that the same broad principles of justice and fair play must be kept in mind while determining a matter of prejudice, as in adjudging guilt. So the Court‟s primary concern must be to satisfy itself as to 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. Taking a cue from the aforesaid decisions, in the case of Dalbir Singh (supra), the Supreme Court concluded as below:-

"17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."