Umer Saheb Bura Saheb Inamdar And Others, Accused v. State, .

Shah, J.:— (After stating the facts his Lordship proceeded)—It is urged that the second head of the charge infringed the express provision contained in the proviso to section 222(2) of the Code of Criminal Procedure, and on that account the trial held before the Court of Session was illegal. Originally the charge related to a period between 6th March 1949 and 31st March 1951. It appears that the attention of the learned trial Judge was invited on 2nd June 1958 to the fact that after 30th June 1950 no advance was made to the fourth accused or to his firm and therefore, the charge should have been restricted to a period between 6th March 1949 and 30th June 1950. The learned Judge then amended the charge by striking out the figures “31-3-1951” and substituting therefor the figures “30-6-1950” in the second head of the charge and proceeded with the trial. It appears that by that time a large number of witnesses were examined for the prosecution, but no objection was raised on behalf of the accused to the amendment of the charge because it was in substance a formal amendment. But it is urged that even after the amendment of the charge the period covered exceeded one year and that the charge therefore infringed section 222 of the Code of Criminal Procedure.

2. Section 222(1) of the Code of Criminal Procedure provides that particulars as to time, place and person relating to the offence alleged are to be set out in the charge. By sub-section (2) it is provided.

“When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234.:

Provided that the time included between the first and the last of such dates shall not exceed one year”.

3. This provision was incorporated for the first time when the Code of Criminal Procedure, 1898, was enacted. Under the Code of 1882 there was no provision similar to sub-section (2) of section 222 and in cases where there was a charge of criminal misappropriation or criminal breach of trust it was necessary to frame a distinct charge in respect of each item of money misappropriated and a charge specifying an aggregate sum alleged to have been misappropriated when the sum misappropriated consisted of separate items misappropriated on different occasions was held by some courts to be illegal. The Legislature then intervened and enacted sub-section (2) whereby a charge against an accused person for the offence of criminal breach of trust or dishonest msiappropriation of money specifying the gross sum in respect of which the offence was alleged to have been committed, but not specifying the particular items or the exact dates on which the amounts were misappropriated fulfilled the requirements of section 222(1). But the Legislature by the proviso to sub-section (2) provided that the time included between the first and the last dates shall not exceed one year. For the purpose of section 234 of the Code of Criminal Procedure, a charge in respect of a gross sum was to be regarded as a charge of one offence. Section 234 by the first sub-section enables the Court to try a person accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, were the offences do not exceed three in number. Evidently in this case the period for which the charge was framed originally by the learned Judge and even after it was amended covered a period exceeding one year, and prima facie the charge contravened section 222(2) of the Code of Criminal Procedure.

4. In Subrahmanya Iyer v. King Emperor, ILR 25 Mad 61 (PC), their Lordships of the Council held that an indictment which contravened the provisions of sections 233 and 234 of the Code of Criminal Procedure and which did not fall within the provisions of section 235(1) of the Code was bad and the trial held on such a charge was illegal. The Judicial Committee held that the Court having disregarded an express provision of law as to the mode of trial, it was not merely an irregularity such as could be remedied by section 537 of the Code of Criminal Procedure, and, therefore, the conviction should be set aside. In that case, there were 41 charges against the accused for extortion and bribery extending over a period of two years. This, the Lord Chancellor stated, was

“Plainly in contravention of the Code of Criminal Procedure, section 234, which provided that a person may only be tried for three offences of the same kind if committed within a period of twelve months.”

5. It was observed by their Lordships that the defect, if any, in the trial was not cured by section 537 of the Code of Criminal Procedure. Their Lordships observed:

“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 remedying of mere irregularities is familiar 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.”

6. This view was taken by their Lordships of the Privy Council on the terms of section 537 of the Code of Criminal Procedure before it was amended by act 26 of 1955. As we will presently point out, the amendment has made no substantial difference except on one point to which we will advert.

7. Under cl. (a) of S. 537 of the Code of Criminal Procedure, as it stood before the amendment by Act 26 of 1955, no finding, sentence, or order passed by a Court of competent jurisdiction was liable to be reversed or altered under Chapter XXVII or on appeal or revision on account 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 the Code. But their Lordships held that the disobedience of an express provision as to a mode of trial was not a mere irregularity but it amounted to an illegality in trying the case, and that a trial of an accused person in a manner contrary to an express provision made in the Code did not come within the description of error, omission or irregularity within the meaning of S. 537 of the Code of Criminal Procedure. In that case, it is evident that contrary to the provision of S. 234 of the Code there were as many as 41 charges and those 41 charges were spread over a period exceeding one year, and their Lordships held that the trial which contravened the provision of S. 234 amounted to an illegality and as the trial “was prohibited in the mode in which it was conducted” the conviction should be set aside. By parity of reasoning, in this case also it must be held that when the trial was prohibited in the mode in which it was conducted in the court below, viz., by framing a charge in respect of a period exceeding one year, the conviction recorded at the trial must be set aside.

8. But the learned Govt. Pleader urged before us that since the judgment in Subrahmanya Ayyar's case ILR 25 Mad. 61 (P.C) was delivered the Privy Council itself has taken a different view as to the true effect of mandatory provisions contained in the Code of Criminal Procedure and this Court may not be justified in extending the rule in Subrahmanya Ayyar's case, ILR 25 Mad. 61 (P.C) to cases not governed by S. 234 of the Code, and our attention was invited to two subsequent judgments of their Lordships of the Privy Council. In Abdul Rahman v. Emperor, 54 Ind App 96 : (AIR 1927 P.C 44), the contravention which was relied upon was the non-reading of depositions of witnesses in the presence of the accused and his pleader. It was held by the High Court at Rangoon that the failure to read the depositions of the witnesses examined at the trial in the presence of the accused and his pleader amounted to an irregularity within the meaning of S. 537 of the Code of Criminal Procedure, and that as no failure of justice was occasioned S. 537 saved the conviction from challenge. Their Lordships observed in dealing with the question whether there was compliance with the terms of S. 360 of the Code of Criminal Procedure:

“…..it is dangerous in cases of criminal law to accept equivalents, and except in cases in which reading over to the witness would be absurd, as, for example, with a stone deaf person, the provision should be complied with.”

9. They then considered whether the non-compliance vitiated the trial. After a consideration of the case law and the statutory provisions, they observed that the bare fact of such an omission or irregularity as occurred in the case under appeal, unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, was not enough to warrant the quashing of a conviction which in the view of the Judicial Committee may be supported by the curative provisions of Ss. 535 and 537 of the Code. This case is evidently an authority for the proposition that a breach of every mandatory provision does not render the trial of an accused person illegal, however regrettable it may appear that the breach should have occurred:

10. These two cases were considered in a subsequent judgment reported in Pulukuri Kotayya v. Emperor, 74 Ind App 65 : (AIR 1947 PC 67). Sir John Beaumont in delivering the judgment of the Judicial Committee observed:

“When a trial is conducted in a manner different from that prescribed by the Code (as in N.A Subrahmanya Iyer's case, 28 Ind App 257 (PC)) 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 S. 537, and none the less so because the irregularity involves, and must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.”

11. In that case there had been a breach of the proviso to S. 162 of the Code of Criminal Procedure, in that the accused were not supplied with copies of the statements of witnesses to enable the counsel for the accused to cross-examine them, and when the same were supplied at a late stage they were not of much use. It is clear from the judgment in Pulukuri Kotayya's case 74 Ind App 65 : (AIR 1947 PC 67) that there is a clear distinction between provisions which prescribe the manner of a trial and provisions which provide for the conduct of the trial. An infringement of a provision as to the manner of a trial cannot be cured by S. 537 of the Code of Criminal Procedure, but an infringement of a provision which prescribes even mandatorily a matter relating to the conduct of a trial can be cured by S. 537, if there be no prejudice caused to the accused. In the present case, it cannot be said that section 222(2), proviso, relates merely to the conduct of trial. In our judgment, it is one relating to the manner in which the trial is to be held, and when there is an infringement of a provision which prescribes the manner of the trial, such an infringement cannot be cured by S. 537 of the Code of Criminal Procedure, and in so holding we are amply supported by Subramanya Iyer's case, ILR 25 Mad 61 (PC).

12. Our attention was invited by the learned Government Pleader to certain observations made by their Lordships of the Supreme Court in Willie (William) Slaney v. The State Of Madhya Pradesh , 1956 SCJ 182: ((S) AIR 1956 SC 116). In that case the accused was convicted of an offence of murder. At the trial, the appellant Slaney and another person were charged under S. 302 read with S. 34 of the Indian Penal Code. The trial Court acquitted the co-accused and, therefore, against Slaney S. 34 could not be called in aid. But the court of first instance holding that the appellant had inflicted the fatal blow & was, therefore, directly liable for the murder of the victim, convicted him of the offence of murder, even though no charge was framed against the accused in that behalf. It was held by the Supreme Court that an omission to frame a separate charge in the alternative under S. 302 simpliciter was “a curable irregularity” if no prejudice was caused to the accused by the omission. Interrupting the narrative of the case, it may he observed that on the evidence before the Court a charge under S. 302 read with S. 34 of the Indian Penal Code, and, in the alternative, under S. 302 of the Indian Penal Code, against the accused could by the terms of S. 236 of the Criminal Procedure Code have been framed. But the charge framed was only under S. 302 read with section 34 of the Indian Penal Code against Slaney and the co-accused; and it was on those facts that the Supreme Court held that even though there was no alternative charge against the accused under section 302 simpliciter, that was an irregularity which was curable, no prejudice being caused to the accused, by the omission to frame the charge. Mr. Justice Bose who delivered the principal judgment of the Court observed on page 186 (of SCJ): (at p. 122 of AIR) after referring to the judgment of their Lordships of the Privy Council in Subramanya Iyer's case ILR 25 Mad 61 (PC) and Pulukuri Kotayya's case, 74 Ind App 65 : (AIR 1947 PC 67):

“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.”

13. Referring to S. 537 of the Code of Criminal Procedure, Mr. Justice Bose observed that the true intent and purpose of S. 537(a) covered every proceeding taken with jurisdiction in the general phrase” or other proceedings under this Code,” and it was for the Court in all such cases to determine whether there had been prejudice to the accused, and in doing so to bear in mind that some violations were 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 had been prejudiced. After entering upon a detailed analysis of the provisions of Chapter XLV of the Code of Criminal Procedure and also the provisions relating to the framing of charges, Mr. Justice Bose observed on p. 194 (of SCJ): (at p. 128 of AIR):

“Broad vision is required, a nice balancing of 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 in favour 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 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. 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.”

14. His Lordship then held that in that case the conviction resulted in no prejudice to the accused, and on the evidence the conviction under S. 302 of the Indian Penal Code was justified. With that view, the acting Chief Justice Das agreed.

15. But Mr. Justice Chandrasekhara Iyer, with whom Mr. Justice Jagannadhadas agreed, appeared to approach the case from a somewhat different angle. Their Lordships observed:

“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.”

16. They then observed that:

“… the provisions of section 535, Criminal Procedure Code, would 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 by the prosecution constitute a separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged.”

Their Lordships then observed:

“…..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 footings 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 mandatory form, positive or negative. It is in this class of cases that the distinction becomes important and material.”

17. After referring to the provisions relating to the framing of a charge and the power to alter or add to the charge, it was observed that where there was no charge, it was for the Court to determine whether there was any failure of justice, but where there was a mere error or omission in the charge, the Court was also bound to have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. On that view, Mr. Justice Chandrasekhara Aiyar hell that failure to frame a charge per se was not fatal, even though it was a grave defect which should be vigilantly guarded against.

18. Mr. Justice Imam expressed the view that “, . . 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 not arise …. On the other hand, 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.”

19. His Lordship, however, observed that where the contravention of a provision of the Code was substantial the Court should not treat what was an invalid trial as a valid trial by resorting to the provision of S. 535 of the Code, on the assumption that there had been no failure of justice. It appears that Mr. Justice Imam was willing to accept the view which appealed to Mr. Justice Chandrasekhara Aiyar and Mr. Justice Jagannadhadas.

20. The question which falls to be determined in these appeals is not the one which fell to be determined in William Slaney's case, 1956 SCJ 182: ((S) AIR 1956 SC 116). That was a case in which even though on the evidence a charge could have been framed against the accused under S. 302 of the Indian Penal Code it was not so framed, and the prosecution proceeded to bring the accused to trial for an offence under S. 302 read with S. 34 of the Indian Penal Code, and the accused was ultimately convicted of the offence under S. 302. The Supreme Court held that no prejudice having resulted in consequence of the failure to frame an express charge under S. 302 I.P.C, the conviction was not invalid. In the present case, however, we find that there has been a disregard of a mandatory provision in the Code of Criminal Procedure, which has been enacted with a view to avoid a possible hardship to the prosecution in being required to prosecute an accused person in respect of every individual misappropriation or criminal breach of trust. An exception has been engrafted by the Legislature upon what is supposed to be the normal rule; and in our judgment, in order that the case may be brought within the exception, all the requirements prescribed by the Legislature to make the exception available should be strictly complied with. It will not be sufficient to say that there may not have been prejudice caused to the accused by reason of the circumstance that the requirements of the various components which go to make the exception effective have not been strictly complied with. In Subramanya Iyer's case ILR 25 Mad 61 (PC) the Privy Council held that failure strictly to comply with the terms of S. 234 of the Code of Criminal Procedure was not an error or omission or irregularity within the meaning of S. 537 of the Code; and if that view be correct, it is impossible to hold that a charge which is framed in flagrant violation of the terms of sub-s. (2) of S. 222 of the Code can still be regarded as resulting in a mere error, omission or irregularity.

21. The learned Government Pleader invited our attention to two other cases, one of the Allahabad High Court and the other of the Bombay High Court, in support of the contention that not every infringement of a mandatory provision of the Code of Criminal Procedure may vitiate a trial irrespective of the question whether there has been failure of justice occasioned thereby. These two cases are Nurmahomed Kadarbhai v. Emperor, 32 Bom LR 1279 : (AIR 1930 Bom 595) and Munshi Lal v. Emperor, ILR (1948) All 80 : (AIR 1948 All 278. In Nurmahomed's case, 32 Bom LR 1279 : (AIR 1930 Bom 595) the trial Court had used statements recorded by the investigating officer in a manner not justified by S. 162 of the Code of Criminal Procedure, and it was held by a Division Bench of this Court that the procedure resulted in an irregularity which had not occasioned a failure of justice and that irregularity was cured under S. 537 of the Code. It may at once be observed that the use of statements recorded under S. 162 of the Code of Criminal Procedure was (before the amendment of the Code) prohibited, except at the instance of the defence. But if contrary to the terms of S. 162 of the Code of Criminal Procedure evidence was brought on the record which was inadmissible, the Court is always entitled to ignore that evidence and to decide the case on the evidence which is admissible. Admission of evidence which in law is inadmissible does not affect the validity of the trial: it cannot be said to be an infringement of a law which lays down the manner of a trial. Nurmahomed's case 32 Bom LR 1279 : (AIR 1930 Bom 595), therefore, does not justify the contention that every infringement of a mandatory provision contained in the Code of Criminal Procedure, especially a provision enacted in the form in which the proviso to S. 222(2) has been enacted, may be regarded as an irregularity which can be rectified by the provision of S. 537 of the Code.

22. In Munshi Lal's case ILR (1948) All 80 : (AIR 1948 All 278), a trial which should have been held by the Magistrate as a summary trial was held in the manner of a regular trial. Under the Holding & Profiteering Prevention Ordinance, the trial of the accused who was arraigned for breach of that Ordinance, had to take place in the manner of a summary trial unless otherwise authorised by the District Magistrate, but the accused did not raise any objection at the trial as to the form in which the evidence was recorded, and it was held that the irregularity was cured by S. 537 of the Code. The only difference between the procedure followed in a summary trial and the procedure followed in the case of an ordinary warrant trial is that in the former case the Magistrate is not obliged to maintain any record of the evidence, whereas in a regular trial he has to maintain a complete record of the evidence led before him. That, again, does not affect the manner of a trial prescribed by the Code. If in a summary trial the Magistrate for reasons of his own maintains a full and detailed record, he does not thereby act irregularly or illegally. It would then be difficult to hold that there was even an irregularity committed by the Court in maintaining a full record of the evidence when it was not bound to do so. We are, therefore, unable to hold that the principle of the case in ILR (1948) All 80 : (AIR 1948 All 278) has any application to the facts of the present case.

23. Chapter XIX of the Code of Criminal Procedure deals with the form of charges and the joinder of charges. The charge in a criminal case where the statute prescribes that a charge “shall be framed” is the very foundation of the trial. It is true that a mere error or omission or irregularity in a charge, in the absence of any prejudice to the accused arising out of the error, omission or irregularity, may not justify a Court of appeal in setting aside the conviction otherwise duly recorded. But it cannot be said that every infringement of the provisions contained in Chapter XIX of the Code which are mandatorily framed justifies the Court in holding that the infringement amounts to an error, omission or irregularity within the meaning of S. 537. In section 234 of the Code, which is an exception to S. 233, it is enacted that a person who is accused of more offences than one of the same kind committed within the space of twleve months may be charged with and tried at one trial, provided the number of offences does not exceed three. Even though in terms section 222 is not made an exception to S. 233, by reason of the incorporation of S. 234 in sub-s. (2) of S. 222 it must substantially be regarded as an exception to S. 233: and if a charge which contravenes section 234 of the code be regarded as illegal and the trial on such a charge as vitiated, we fail to see any reason for holding that a contravention of the provision of S. 222(2) is rectified by the curative provision of S. 537.

24. Our attention was invited by the learned Government Pleader to the amendment which has been made in S. 537 of the Code by Act 26 of 1955. It was urged that the earlier authorities must be regarded as superseded by the amendment made in section 537. under cl. (a) of section 537 as it stood before the amendment, by reason of an error, omission or irregularity inter alia in a charge, a judgment of a Court of a competent jurisdiction was not liable to be reversed or altered on appeal or revision. By Act 26 of 1955, the word “charge” was deleted from clause (a) of section 537 and a new clause (b) was enacted as follows:—

“(b) of any error, omission or irregularity in the charge, including any misjoinder of charges”.

25. In substance, by the amendment it is provided that a misjoinder of charges is to be regarded merely as an irregularity and not an illegality. To that extent, the cases decided before the amendment may be regarded as superseded. But where a trial has been held on a charge which is vitiated not on account of misjoinder of charges, but on the score of failure to comply with an express direction concerning the manner of holding the trial, the provision of sec. 537 will not be attracted thereto.

26. The learned Government Pleader also urges before us that section 529 sets out the irregularities which do not vitiate the proceedings and section 530 sets out the irregularities which vitiate the proceedings and that it is not provided in section 530 that an infringement of section 222(2) vitiates the proceeding in which it occurs. The learned Government Pleader, therefore, urges that the Legislature having failed expressly to provide that an infringement of the provision of section 222(2) is an irregularity which vitiates the proceedings, the Court would not be justified in holding that it has that effect. But a contravention of section 234 of the code is not one of the contraventions referred to in section 530, and it was still held by the Privy Council that the contravention vitiated the trial. We are, therefore, unable to accept the argument of the learned Government Pleader based on section 530 of the Code of Criminal Procedure.

27. It was also urged by the learned Government Pleader that the trial for the offence of conspiracy was severable from the trial for the offences under sections 406 and 408 of the Indian Penal Code, and, therefore, this Court, notwithstanding the illegality committed in the trial for the offences under sections 406 and 408 of the Indian Penal Code, can still maintain the conviction of the accused for the offence of conspiracy under section 120B of the Indian Penal Code. We are again unable to accept that contention. The accused have been tried on a composite charge, and the charge of criminal conspiracy and the charge of criminal breach of trust are so inextricably connected with each other that it is impossible to separate the trial and hold that the trial in so far as the offence under section 120B of the Indian Penal Code is concerned is not vitiated even though the trial for the offences under sections 406 and 408 of the Indian Penal Code is vitiated. (The rest of the judgment is not material for this report.)

KC/V.S.B

Conviction set aside.