# Indira Solumlal v. Custodian of Evacute Propm,, Delhi and others

- **Citation:** [1955] 2 S.C.R. 1140
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** S. R. DAs, Acrrna C.J, V1vrAN BosE, }Agannadha· Das, }Afer Imam, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indira-solumlal-v-custodian-of-evacute-propm-delhi-and-others-1239
- **Pages:** 57

## Headnote

Sessions
Trial-Charge under s. 304 read evith s. 34 of the
Indian Penal Code against tevo persons-Acquittal of one-Omission
to frame alternative charge against the other-Conviction under s.
302 simpliciter-Validity-Code of Criminal Procedure (Act V of
~898), ss. 225, 226, 227, 228, 232, 233, 237, 238, 535, 537-lndian
· Penal Code (Act XLV of 1860), ss. 34, 149, 302.
The appellant and his brother were put up for trial on charges
under s. 302 read with s. 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 s. 302 and
sentenced to transportation for life. The High Court upheld the convietion and sentence and dismissed the appeal.
The question was
whether the
omission to frame an alternative charge under s. 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 s. 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 s. 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'i case
must be read with reference to the facts of that case where the court·
2 S.C.R.
SUPREME COURT REPORTS
1141
found prejudice, and the apparent conflict of view between the ju?gment in that case and that in Suraj Pal's case had really no bearing
on the present one.
Nanak Chand v. The State of Punjab ([1955] 1 S.C.R. 1~01),
and Suraj Pal v. The State of U.P. ([1955] 1 s.C.R. 1332), explamed.
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 s. 304 of the Indian Penal Code and not s. 302 and
the conviction must be altered to one under that section.
N. A. Subramania Iyer v. King-Emperor ([1901] L.R. 28 I.A.
257), explained.
Babula/ Choukhani v. The King-Emperor ([1938] L.R. 65 I.A.
158), Pulukuri Kotayya v. King-Emperor ([1947] L.R. 74 I.A. 65),
Abdul Rahman v. King-Emperor ( [ 1926] L.R. 54 I. A. 96), Atta
Mohammad v. King-Emperor ([1929] L.R. 57 I.A. 71),
Karnail
Singh v. The State of Punjab ([1954] S.C.R. 904) and Begu v. KingEmperor ([1925] I.L.R. 6 Lah. 226), referred to.
Per S. R. DAs, AcTJNG C.J. and BosE J.-Like
all procedural
htws the Code of Criminal Procedure is designed to subserve the
ends of justice and not to frustrate them by mere 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 ss. 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

## Text

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1955
Indira Solumlal
v.
Custodian of
Evacute Propm,,
Delhi and others
Jagannadhadas J.
1955
October 31.
1140
SUPREME COURT REPORTS
[1955]
The appeal is allowed and the order of the CustodianGeneral is set aside. The case is remanded to him so
that he may reconsider and dispose of the same in the
light of this judgment. There will be no order as to
costs.
WILLIE (WILLIAM) SLANEY
v.
THE STATE OF MADHYA PRADESH.
[S. R. DAs, Acrrna C.J., V1vrAN BosE, }AGANNADHA·
DAS, }AFER IMAM and CHANDRASEKHARA AIYAR JJ.]
Sessions
Trial-Charge under s. 304 read evith s. 34 of the
Indian Penal Code against tevo persons-Acquittal of one-Omission
to frame alternative charge against the other-Conviction under s.
302 simpliciter-Validity-Code of Criminal Procedure (Act V of
~898), ss. 225, 226, 227, 228, 232, 233, 237, 238, 535, 537-lndian
· Penal Code (Act XLV of 1860), ss. 34, 149, 302.
The appellant and his brother were put up for trial on charges
under s. 302 read with s. 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 s. 302 and
sentenced to transportation for life. The High Court upheld the convietion and sentence and dismissed the appeal.
The question was
whether the
omission to frame an alternative charge under s. 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 s. 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 s. 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'i case
must be read with reference to the facts of that case where the court·
2 S.C.R.
SUPREME COURT REPORTS
1141
found prejudice, and the apparent conflict of view between the ju?gment in that case and that in Suraj Pal's case had really no bearing
on the present one.
Nanak Chand v. The State of Punjab ([1955] 1 S.C.R. 1~01),
and Suraj Pal v. The State of U.P. ([1955] 1 s.C.R. 1332), explamed.
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 s. 304 of the Indian Penal Code and not s. 302 and
the conviction must be altered to one under that section.
N. A. Subramania Iyer v. King-Emperor ([1901] L.R. 28 I.A.
257), explained.
Babula/ Choukhani v. The King-Emperor ([1938] L.R. 65 I.A.
158), Pulukuri Kotayya v. King-Emperor ([1947] L.R. 74 I.A. 65),
Abdul Rahman v. King-Emperor ( [ 1926] L.R. 54 I. A. 96), Atta
Mohammad v. King-Emperor ([1929] L.R. 57 I.A. 71),
Karnail
Singh v. The State of Punjab ([1954] S.C.R. 904) and Begu v. KingEmperor ([1925] I.L.R. 6 Lah. 226), referred to.
Per S. R. DAs, AcTJNG C.J. and BosE J.-Like
all procedural
htws the Code of Criminal Procedure is designed to subserve the
ends of justice and not to frustrate them by mere 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 ss. 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 s. 535 of the Code has no application to a case in both which there is no charge at all or that it cannot
apply except where ss. 237 and 238 apply or that it is governed by
s. 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
1955
Willie (William)
Slaney
v.
The Stale of
Madhya Pradesh.
1955
Willie (William)
Slane;i
v.
The State of
Madhya Pradesh.
1142
SUPREME COURT REPORTS
[1955]
departure from the rules set out in Chapter XIX ranging from error,
omissions and
irregularities
in charges that are framed, do\vn 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 n1ust 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 \\'hat he \Vas being tried for, \Vhether the
main facts sought to be
established against him \Vere
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 v. The State
of Punjab and Su.-aj Pal v: The State of U.P. and a close consideration of the reasons
given in Nanak Chand's case show that, ~here
¥.'as in fact no difference of opinion as regards cases where therC 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 expres-
.sions 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 s. 34 of the Indian Penal
Code is that the accused is unmistakably told that he participated in
the crime. Where it cannot be ascertained \vho struck the fatal blow
no conviction can follow unless a comn1on intention is proved. But
the converse does not hold good.
Per
JAGANNADHADAS
and
CHANDRASEKHARA
AIYAR
JJ.-
(IMAM J. agreeing).
Sections
225,
227, 232( I), 237, 535 and 537
indicate that in the generality of cases the omissions 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 <'orrect to say that s. 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 ss. 225, 226
and 232, that is, with reference to a trial that validity commenced,
for there may be cases where a trial without any kind of charge fron1
the outset
\vill be \vholly
contrary to the provisions
of the Code
and as such illegal \Vithout the necessity of a positive finding of prejudice.
The provisions of s. 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 \vhere 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
2 S.C.R.
SUPREME COURT REPORTS
1143
charge in wntmg.
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 ss. 236 and 237
of the Code, the omission to frame a separate charge would be an
incurable irregularity amounting to illegality.
In cases rnming under ss. 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 v. Bodington ([1877] 2 P.D. 203), 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 has resulted. _ It is difficult to Jay down any
hard and fast rule as to the applicability of s. 535.
That will depend on the facts of each case.
CRIMINAL
APPELLATE
J URISD!CTiON :
Criminal
Appeal No. 6 of 1955.
Appeal by special
order dated the 3rd
Court of Judicature
leave from
November,
at Nagpur
the judgment and
1953
of the
High
m Criminal Appeal
1955
Willie (William)
Slaney
v.
The State of
Madi!)la Pradtsk
1955
Willie (William)
Slaney
v.
The State of
Madhya Pradesh
1144
SUPREME COURT REPORTS
[1955]
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. /. Umrigar and Rajinder Narain, for the appellant. The courts below were wrong in convicting
the appellant of murder under s. 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 s.
302 read with s. 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 ss.
236,
237 and
238 of the Code of Criminal Procedure. The offence
of murder under s. 302 of the Indian Penal Code
being separate,
distinct
and different from
an offence under s. 302 read with 34 or an offence under
s. 302 read with 149 which creates a distinct head
of criminal
liability
known as
constructive liability, a
conviction
under
s.
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
ss.
233
to
239 it is an illegality which is not cured by the
provisions of ss. 535 and 537. There is no difference
in principle between a charge under s. 302 read
with 34 and a charge under s. 302 read with 149
[See: Nanak Chand v. State of Punjab ([1955] 1 S.C.R.
1201), Suraj Pal.
v. State of 71. P. ([1955]
1 S.C.R.
1332) ]. 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-
2S.C.R.
SUPREME COURT REPORTS
1145
quent
decisions of the Privy Council, and, in fact, in
Babu!al 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 s. 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. Similarly the courts in
India have also taken the view that a breath of any of
the mandatory provisions relating to ss. 233 to 239 of
the Code, would be an 'illeg;ility' in the mode of trial
which would vitiate the tri?l, as opposed to an 'irregularity' in the course of trial which could be cured. [See
N.A. Subramania Iyer v. King-Emperor ([1901] 28 I.A.
257), Abdul Rahman v. The King-Emperor ([1926]
54
I.A. 96), Purukuri Kotayya and Others v. King-Emperor
([1946] 74 I. A. 65), Babula! C/iowkhani v. King-Emperor ([1938] L.R. 65 I.A. 158), Chintaman v. KingEmperor
([1945]
I.L.R. 24
Patna 303), Begu and
Others v. The King-Emperor ([1925] I.L.R. 6 Lahore
226), In re Boreddi Kondamma and Another (A.LR.
1948 Mad. 293),
Tha~ur Singh and Others v. Emperor
(A.LR. 1939 All. 665), Govind Prasad v. Gomti and
Others ([1908] I.LR. 30 Cal. 288),
Lang v.
Willis
([1934] 52 C.W.N. 637), Sita Ahir v. Emperor ([1917]
I.L.R. 40 Cal. 168), Bijo Gape and Others v. Emperor
(A.LR.
1945 Pat. 376)]
Section
535 appears in
Chapter XL V of the Code and is headed "Of irregular
proceedings" and cannot
possibly apply to breaches
of the
mandatory provisions of ss. 233 to 239 of the
Code ; it may relate to those cases where it is optional
to frame a charge. See ss. 263, 362 ( 4).
Assuming that actual prejudice is necessary, then
as
the only charge against the appellant being one
under s. 302 read with s. 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
s. 34 of
the Indian Penal Code prejudice is bound to occur
due to his conviction under s. 302 simpliciter, with
which. he was
never charged.
In any event,
the
1955
Willie (William)
Slaney
v.
The State of
Madhya Pradesh
1955
Willie (William)
Slaney
v.
T hei
State
of
Madh;•a
Pradesh
1146
SUPREME COURT REPORTS
[1955]
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 head
miury "was likely"
to result in fatal consequences.
The offence committed would either be one of grievous hurt under s. 325, or alternatively, it is covered
by exception 4 to s. 300, and punishable under the
second part of s. 304.
B. Sen and /. 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
s. 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 tl1e 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
s. 302 read with s.
149 is a distinct and separate
offence from an offence under s. 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 heen caused.
In N. A. Subramania Iyer v. 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
2S.C.R.
SUPREME COURT REPORTS
1147
decisions of the Privy Council in the later cases : [See
Abdul Rahman v. The King-Emperor ([19261 54 I.A.
96) and Pulukuri Kotay)'a and Others v. The 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 ss.
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 he is being
tried for. When a person i~ charged with an offence
under s. 302 read with s. 149 of the Indian Penal Code
there is no objection to his being convicted under
s. 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 s. 342 he understood that he
was actually being tried for murder:
[See
Karnail
Singh and Another v. The State of Punjab ([1954] S.C.R904) and Lachman Singh and Others v. The State ([1952]
S.C.R. 839) ].
A case
of
this nature may even be
covered by the provisions of s. 237 of the Code of
Criminal Procedure.
The cases
of Nanak Chand v.
State of Puniab ([1955] 1 S.C.R. 1201) and Suraj
Pal v.
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 s. 302 who
is charged
with an offence under s. 302 read with s. 149, would
be ipso facto illegal. Whatever view the Court takes
in respect of a conviction under s. 302 when a person
is charged with s. 302 read with s. 149, it is quite
clear that a person can be validly convicted of murder
when he is charged with s. 302 read with s. 34.
Section 34 does not create a specific offence and a person
who is charged under s. 302 read with
s. 34 is really
being charged for his act in the murder itself. It is
therefore not necessary to frame
a separate charge
:inder s. 302.
The Privy Council as well as the High
18-Wi S. C. Indirt/ 59
1955
Willie (William) ·
Slaney
v.
The State of
Mcdhya Pradesh
1955
WiUU (William)
Slaney
v.
The State of
.Yadh.)·a Pra,/esh
1148
SUPREME COURT REPORTS
[1955]
Courts in India have always taken this view.
See
The King-Emperor v. Barendra Kumar Ghose
(A.LR.
1924 Cal. 257), Emperor v. Destrali ([1930] 58 Cal. 822),
Debiprasad Kalowar v. Emperor ([1932] 59 Cal. 1192),
Devki Nandan
and Others v. Emperor (A.I.R. 1941
Lah. 423) and Bhondu Das v. King-Emperor ([19281 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 tren<l of cross-examinations of witnesses and his examination un<ler s. 342
of the Co<le 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 an<l
the injury was sufficient
to cause death
according to
the <loctor's evidence.
Umrigar in reply. If s. 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 conivcted
of a major offence, whereas s. 238(2) only allows
conviction
of a minor offence
without a charge, if the
major offence with which the person is charged is nor
made out.
It would further mean that the elaborate
procedure set out in ss. 226 to 231 as to the alteration
and amendment of charges could be ignored. Further
s. 271 ( 1) which /rovides that the charge shall be read
out and explalne
to the accused would also become
meaningless.
Such a wide meaning which would lead
to absurdities should not be given to s. 535.
1955. October 31. The
judgment of S. 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.
BosE J.-This appeal was referred to a Bench o~
five Judges in order to <letermine whether there was
a conflict of view between Nanak Chand v. The St{lte
of Punjab(1) and Suraj Pal v. The State of U.P.(') and
(1) [1955] I S.C.R. 120!.
(2) [1955] I S.C.R. !332.
2 S.C.R.
SUPREME COURT REPORTS
1149
if so, to <letermine' it.
The appeal ·is against a conviction for murder in
·which
the
lesser
sentence
was
given.
The
ma111
ground is
that the appellant was
charged under section 302 of the Indian Penal Code read with section
34.
His co-accuse<l was acquitted, so, it was
urged
the element of common intention drops out and ac-
.cordingly section 34 cannot be called in · aid.
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 he cannot
he convicted under section 302.
He relies on certain
observations in Nanak Chand v. 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 he 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.\V. 20) at about 7 p. m. and in furthereance of the
common intention did commit murder by intentionally or knowingly causing
the death of
her
brothe~
D. Smythe and thereby committed an offence punish~
able un<ler section 302 -0f 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
11) (1955] I S.C.R. 1201.
1955
Willie (William)
Slm1ry
v.
The State of
Madl!J'a Pradesh
Bose J.
1955
1'Vi!lie (William)
Slane)'
v.
The State of
Madhya Pradesh
Bose J.
1150
SUPREME COURT REPORTS
[1955J
Penal C<;ide and that the references to common intention and to section 34 arc 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, name! y 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 it 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, of any departur"
in it from
the
strict and technical requirement, 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 funher 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 he 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 inconsequential errors and omissions
•
2 S.C.R.
SUPREME COURT REPORTS
1151
1n 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
.1re regarded
as vital.
Disregard of a provision
of
that nature is fatal to the trial :rnd at once invalidates
the conviction.
Others are
not vital and whatever
-rhe irtegularity 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
(\ealt 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
-ef 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 be-
.cause 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,
foll 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
effet 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 justi<::e and convenience, but in general
the words used
read
in their context must prevail".
Babula/ Choukhani v. The King-Emperor(').
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
11sed".
!I) [1938) L.R. 65 I.A. 158, 175.
1955
Willie (William)
Sla11ey
v.
The State of
Maahya Prades/i
Bose].
1955
Willit (William)
Slaney
v.
TheStiite of
Madh)'a Pradesh
Bose J.
1152
SUPREME COURT REPORTS
[19551
Next comes. a class of case for which there is n<>
express provision in the Code, or where
there is
ambiguity.
In that event, the· question is whether
the trial has
been conducted
the 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 l1w'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 prov1s10ns
of the
Code". Pulukuri Kotayya v. KingEmperor( 2).
Now it is obvious that the question of curing an
irregularity can only arise when one or more of the
express provisions of the Cooe is violated. 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 COOe 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 v. KingEmperor( 1 ).
Later this was construed to mean that that only
applies
when
there
1s
an
express
prohibition and
there is prejudice.
In Subramania lyer's case('), the
Privy Council said-
.
"The remedying of mere
( l) [1901] L.R. 28 I.A. 257, 263.
irreegularities is familiar
(2) [1947] L.R. 74 I.A. 65,75.
'·
2 S.C.R.
SUPREME COURT REPORTS
1153
in most systems of jurisprudence, but it would be an
extraordinary extension
of s,uch
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
m
Abdul Rahman
v. King-Emperor(1) as follows:
"The procedure adopted was one which the Code
positively
prohibited,
and
it
was
possible
that it
might have UJorked actual injustice to the acrnsed".
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 he struck down as
illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established 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.
Jn still another
class of case, the matter may be
so
near the
border
line that very slight evidence of a reasonable
possibility 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
ludia.
The swing of the pendulum has been
(I) [ 1926] L.R. 54 I._A: 96, 109.
1955
Willie' 11 ·riliam\
Sla111.1
...
The State of
Madl!Ya Pra:tesh
Bost].
1955
f.Villit 1William)
Stoney
.,,
T !1e State of
11tfadl~pa Pradesh
Bost].
1154
SUPREME COURT REPORTS
[19551
away from technicality, and a greater endeavour has
been made to regard the substance rather than the
shadow and to
administer
justice fairly
am!
impartially
as
it should be administered; fair to
the
accused, fair to the State and fair to the vast ma55 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 v. King-Emperor(') where
he says
that-
"The distinction drawn
in many of
the cases
111
India between an illegality and an irregularity
IS one
of degree rather than of kind"
and by Viscount Sumner in Atta Mohammad v. KingEmperor(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 Lordsihps find it impossible to advise His
Maiesty 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 eqaully
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 rubstantial
denial of a trial as contemplated by the Code and
understood
by the comprehensive expression "natural justice". It will be observed that disregard of an
express
prohibition was
regarded
as
curable
in
Zahiruddin
v. King-Emperor('), so the question whether a particular provision is stated in positive or in
negative terms is not the true criterion.
It is possible (though we need not so decide in this
case)
that the recent amendment to section 537 in
the Code of Criminal Procedure
(Amendment)
Act
XXVI of 1955 (where misjoinder of charges has been
placed in the curable category, will set at rest the
(!) [1947] L.R. 74 I.A. 65, 75.
(2) [1929] L.R. 57 I.A. 71, 76.
(3) [1947] L.R 74 I.A. BO.
2S.C.R.
SUPREME COURT REPORTS
1155
controversy that has raged around the true meaning
of N. A. Subramania Iyer v. Kmg-Emperor(l}. 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 Babula/ Choukhani v. 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
f acie a right of recourse to the superior courts by
way of appeal or revision; and the cases show how
vigilant and resolute the High Courts are in seeing
that the accused is not prejudiced or embarrassed by
unsubstantial
departures from
the
Code and how
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 UJith
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 prejudiced.
We now proceed to examine the relevant sections
of the Code.
Chapter XL V 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
(I) [19011L.R.231.A. 257.
(2) [1938] L.R. 65 I.A. 158, 177.
1955.
Willie (William)
Slaney
v.
The State of
Madhya PrOdesh
Bose],
1955
lVillie (William!
Slaney
v.
The State of
Mad/~)1a Pradesh
Bost].
1156
SUPREME COURT REPORTS
[19551
in this class of case because the section states categorically
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 how
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 cas·e is concerned with the nature of
the charge and we find that the Code expressly deals
with this in several
of its section.
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
01nn1on,
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
therfore
is
whether the
"charge" must
be
formally
reduced
to wnt1ng
and
expressed
as
a
ritualistic formula in order to save the trial from the
fundamental
defect
of
an
in~urable illegality
or
2 S.C.R.
SUPREME COURT REPORTS
1157
whether the information that is the substance of the
matter can
be conveyed in other way&. The question
is whether we are to grasp at
the substance or play
hide and seek among the shadows of procedure.
First of all, sections 221 to 223 of the Code, which
undoubtedly envisage a formal
written charge, set out
what a charge must contain.
A perusal of them
reveals the reasons why a charge is required.