‘A conviction for the substantive offence without a charge can be set aside only if the accused shows that prejudice has been caused to him and that “failure of justice” has occasioned thereby.’
The Supreme Court has held that a conviction for the substantive offence without a charge can be set aside only if the accused shows that prejudice has been caused to him and that “failure of justice” has occasioned thereby.
In Kamil vs. State of Uttar Pradesh, the bench comprising Justice R Banumathi and Justice Indira Banerjee were dealing with the contention of the accused that charge under Section 302 IPC was not framed against him and therefore the conviction of the appellant/accused under Section 302 IPC is not maintainable.
Referring to Section 464 CrPC, the bench observed that absence of charge would vitiate the conviction only if it has caused prejudice to the accused and has in fact been occasioned thereby. Perusing the charge sheet filed in this case, the bench said though specific charge under Section 302 read with Section 34 IPC was not framed, the gist of the charge sheet filed against the accused clearly shows that the accused has been charged for the offence under Section 302.
The bench said the procedure followed by the trial court has neither caused prejudice to the appellant nor deprived him of principles of natural justice. The bench said: “The trial court has pointed out that the accused persons were charged under Sections 302, 302/34, 323 and 323/34 IPC to which they pleaded not guilty and opted for trial. The appellant/accused has thus clearly understood that charge has been framed against him under Section 302 IPC read with Section 34 IPC. If really, the appellant was under the impression that no charge was framed against him under Section 302 read with Section 34 IPC, the appellant would have raised the objection for his committal to the Sessions Court. It is also to be pointed out that the appellant has not raised the objection as to nonframing of charges at the earliest point of time namely the trial court and the first appellate court - High Court.”
The court also noted that accused did not raise any grievance before the high court as to non-framing of charge under Section 302 read with Section 34 IPC and that it has caused prejudice to him, but his counsel had contended that the accused ought not to have been convicted by invoking the principle of vicarious liability enshrined by Section 34 IPC. “All these aspects clearly show that the appellant clearly understood that charge under Section 302 read with Section 34 IPC has been framed against him and throughout he has been defending himself only for the charge under Section 302 IPC. In such facts and circumstances, it cannot be said that the failure of justice has occasioned to him and the absence of a charge under Section 302 read with Section 34 IPC cannot be said to have caused any prejudice to him,” the court added.
The bench then dismissed the appeal holding that no prejudice has been caused to the accused nor failure of justice has been shown to have been occasioned in this case.