Wednesday, 5 August 2020

Whether criminal trial will be vitiated if there is a misjoinder of charges?

MISJOINDER OF CHARGES:

45. Mr. Ram Jethmalani, learned senior counsel, contended that Section 218 Cr.P.C. prescribes that for every distinct offence there shall be a separate charge and every charge shall be tried separately, which has not been done in the present case. According to him, the first injunction contained in Section 218 is incurable either under Sections 464 or under Section 465 Cr.P.C. In other words, if the charge is framed in contravention of Section 218 it is the breach of mandate of Section 218 and is illegal and not misjoinder of charges and therefore it is incurable either under Section 464 or Section 465 Cr.P.C.

46. We are unable to countenance with this contention of Mr. Ram Jethmalani. It is true that Section 218 Cr.P.C. prescribes for every distinct offence there shall be a separate charge and every charge shall be tried separately. Chapter XVII of the Code deals with the charge. Section 218 is under the Heading - "misjoinder of Charges". Therefore, if misjoinder of charges is in contravention of procedure prescribed under Section 218, it would be misjoinder of charges and curable under Section 464 and Section 465 Cr.P.C., provided no failure of justice has in fact been occasioned thereby.

47. Reliance has been heavily placed on the decision of this Court in W. Slaney v. State of M.P. MANU/SC/0038/1955 : 1956CriLJ291 particularly the observation of Justice Imam in paragraphs 97 and 99. That was a case where this Court was considering the error and irregularity in which there was conviction with no charge at all from start to the finish down to cases in which there was a charge but with errors, irregularities and omissions in it. Therefore, the decision in Slaney (supra) was not based on misjoinder of charges. There was no charge under Section 302 IPC from start to finish and in that context this Court said that a trial must be examined on the touchstone whether the trial is fair. It was pointed out in paragraph 44 as under:-

"44 Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice.

It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the 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."

48. Justice Imam in paragraphs 97 and 99 observed that even if there is 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. As already said in Slaney (supra) there was no charge under Section 302 from start to finish of the case. That is not the case here; here the charge was framed on all counts. Therefore, the facts of the case in Slaney (supra) are not applicable in the present facts. However, in Slaney (supra) Justice Imam also observed in paragraph 98 as under:-

"98. In cases where a charge has been framed and there is an omission or irregularity in it, it is difficult to see how the mode of trial is affected. In any event, the Code expressly provides that in such cases the conviction need not be set aside, unless, in fact, a failure of justice has resulted."
49. In the case of Birichh Bhuian v. State of Bihar, MANU/SC/0158/1962 : AIR1963SC1120, a five Judge Bench of this Court, where Justice Imam was a party, considered the distinction between an illegality and an irregularity in such misjoinder of charges. This Court, after considering the divergent views of the Privy Council as to whether misjoinder of charges is not saved by Section 537(o1d) and 465 (new), the Court then said at p.335 (2) SCR as under:-

"In this state of law, the Parliament has intervened to set at rest the conflict by passing Act XXVI of 1955 making a separate provision in respect of errors, omissions or irregularities in a charge and also enlarging the meaning of the expression such errors etc. so as to include a misjoinder of charges. After the amendment there is no scope for contending that misjoinder of charges is not saved by Section 537 of the Criminal Procedure Code if it has not occasioned a failure of justice.".
This Court summarised its finding at p.337 (2) SCR as under:-

"To summarise : a charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him. Sections 234 to 239 permit the misjoinder of such charges under specified conditions for the purpose of a single trial. Such a misjoinder may be of charges in respect of different offences committed by a single person or several persons. If the misjoinder of charges was contrary to the provisions of the Code it would be a misjoinder of charges. Section 537 prohibits the revisional or the appellate court from setting aside a finding, sentence, or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice."
50. Again in the case of State of Andhra Pradesh v. Cheemalapati Ganeswara RaoMANU/SC/0070/1963 : [1964]3SCR297, the Court noticed the decisions rendered in Slaney (supra) and Birichh Bhuian (supra) and said at p.332 (3) SCR as under:-

"Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of Sections 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson's case (1960) 1 All.E.R.558. Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of justice. For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges."
51. The question was again examined by this Court in the case of State of West Bengal v. Laisal Haque MANU/SC/0508/1988 : 1989CriLJ865, where the earlier views of this Court including the views of Justice Vivian Bose in Slaney (supra) were reiterated.

52. It is clear from the aforesaid decisions that misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an 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.

53. In the light of the aforesaid principle, let us now examine the facts of the present case, as to whether any failure of justice had occasioned thereby or whether any prejudice is caused to the accused. The accused was represented by a very senior and ambled criminal lawyer. All the prosecution witnesses were subjected to incisive cross-examination. The accused put up 49 defence witnesses. In his cross-examination under Section 313 altogether 445 questions were put to him, affording an opportunity to explain all the circumstances appearing against him. Having regard to these facts, in our opinion, no failure of justice has occasioned and both the Courts below are justified in rejecting the contention.
IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 611-612 of 2003

Decided On: 05.04.2005

Kamalanantha  Vs.  State of Tamil Nadu


Hon'ble Judges/Coram:
B.N. Agrawal and H.K. Sema, JJ.

Citation: MANU/SC/0259/2005,(2005)5 SCC 194, AIR 2005 SC 2132.
Read full judgment here: Click here
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