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11. It is pertinent to mention that omission to frame the charge or any error in the charge, would only be material, if prejudice has been caused. Section 464 Cr.P.C. is in mandatory terms and specifically provides what is to be done in cases where a charge is not framed or there is an error, omission or irregularity in framing of the charge. To put it in other way, omission to frame a charge or any error, omission or irregularity in the charge will be a ground for retrial, if it has occasioned a failure of justice. The real test is to find out whether the accused has been prejudiced.

14. It is settled law that in view of Section 464 Cr.P.C., the appellate or revisional Court is of opinion that a failure of justice has in fact been occasioned in deciding the question of prejudice, the Courts would see the substance and not to technicalities and to assess whether the accused was given a fair trial and that he knew about what he is being tried for and whether he was afforded full opportunity to defend himself or not. If the answers to the above questions are in the affirmative, then Section 464 Cr.P.C., would be applicable and the trial will not be vitiated. Moreover, if the accused has not taken any objection as to the omission to frame a charge or irregularity in framing the charge before the trial Court, nor was any prejudice caused to him, as a result of such omission or irregularity, the defect is certainly curable under Section 464 Cr.P.C.

20. In Chapter XXXV Cr.P.C., Sections 462 to 464 speak about the specific irregularities which would vitiate the proceedings and whereas Section 465 Cr.P.C., is a residuary provision that covers all irregularities that are not https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.14128 of 2018 covered by other provisions in Chapter XXXV. At this juncture, tt is necessary to refer the judgment of the Honourable Supreme Court in Pradeep S.Wodeyar Vs. the State of Karnataka reported in LL2021 SC 691 (Crl.A.Nos.1288 to 1290 of 2021, dated 29.11.2021) and the relevant passages are extracted hereunder:

21. There is a chance for interpretation that “omission to frame” found in Section 464(1) Cr.P.C., would not be applicable to the cases where charges were not at all framed. Even assuming for argument sake, that Section 464 Cr.P.C., would not applicable to the cases where the charges were not at all framed, considering the dictum of the Hon'ble Supreme Court, that irregularity can be considered under Section 465 Cr.P.C.