LexWILLIE (WILLIAM) SLANEY versus THE STATE OF MADHYA PRADESH.
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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 Custodian- General 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 appel- lant was specifically charged with murder in prosecution of the com- mon 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 trans- portation for life. The High Court upheld the convietion and sen- tence 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 con- viction 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 ascer- tain 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?g- ment 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. King- Emperor ([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, there- fore, 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.
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