KAMIL versus STATE OF UTTAR PRADESH

Citation: [2018] 13 S.C.R. 1093 · Decided: 31-10-2018 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Dismissed

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Judgment (excerpt)

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1093
KAMIL
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 1568 of 2015)
OCTOBER 31, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973: s. 464 – Effect of omission
to frame, or absence of, or error in, charge – On facts, conviction
of accused u/s. 302/34 IPC – However, omission to frame charge
u/s. 302, though the gist of the charge sheet filed against the accused
clearly showed that the accused has been charged for the said
offence – Maintainability of conviction u/s. 302 – Held: 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 – No such submission
was ever made before the trial court or before the High Court – No
prejudice caused to the accused nor failure of justice shown to
have been occasioned – Furthermore, the gist of the charge sheet
clearly alleged their sharing of common intention in committing the
murder of victim with the co-accused and the appeal by the similarly
situated co-accused has been dismissed by this Court – Thus, the
order passed by the High Court upholding the conviction of the
accused u/s. 302/34 does not warrant interference – Penal Code,
1860 – s. 302/34.
Dismissing the appeal, the Court
HELD: 1.1 Section 464 Cr.P.C. relates to the effect of
omission to frame, or absence of, or error, in charge. Sub-section
(1) thereof provides that no finding, sentence or order of 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
charge, unless, in the opinion of the court of appeal, confirmation
or revision, a failure of justice has in fact been occasioned thereby.
Absence of charge would vitiate the conviction only if it has caused
prejudice to the accused and has in fact been occasioned thereby.
[Para 10, 11][1098-F-G; 1099-B]
[2018] 13  S.C.R. 1093
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
1.2 The charge was not framed against the appellant under
Section 302 read with Section 34 IPC. But it is for the accused to
prove that omission to frame charge has occasioned in a failure
of justice. Though specific charge under Section 302/34 was not
framed, the gist of the charge sheet filed against the appellant/
accused clearly shows that the accused has been charged for the
offence under Section 302/34. In the charges framed, even if the
appellant and co-accused were charged only under Section 323/
34, the gist of the charge sheet clearly alleges their sharing of
common intention in committing the murder of victim with the
first accused. [Para 18][1104-F-G; 1105-E]
1.3 After filing of the charge sheet, case was committed to
the court of Sessions. 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 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. Appellant has not raised
the objection as to non-framing of charges at the earliest point of
time namely the trial court and the High Court. [Para 19]
[1105-F-G]
1.4 The procedure followed by the Court has neither caused
prejudice to the appellant nor deprived him of principles of Natural
Justice. In the High Court, the appellant did not raise any
grievance as to non-framing of charge under Section 302 read
with Section 34 IPC and that it has caused prejudice to him. On
the other hand, the counsel appearing for the appellant only
contended that the appellant ought not to have been convicted
by invoking the principle of vicarious liability enshrined by Section
34. All these aspects clearly show that the appellant clearly
understood that charge under Section 302 read with Section 34
has been framed against him and throughout he has been
defending himself only for the charge under Section 302. [Para
20, 21][1106-D, F]
1.6 The appeal preferred by the similarly situated co-
accused has been dismissed by this Court. A conviction for the
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substantive offence without a charge can be set a

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