Whether trial will be vitiated if the court fails to hear accused on the point of sentence?

 From the above abstract, it may be seen that the Apex Court, as a general Rule, has held that the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. However, in the instant case, the learned Trial Court proceed to pronounce the sentence immediately after convicting the appellant on the same day. {Para 8}

[9.] The Apex Court in Santa Singh Vs. State of Punjab (1976) 4 SCC 190, held that hearing contemplated by Section 235 (2) of the Cr.PC is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the Court facts and material relating various factors bearing on the question of sentence and if they are contested by other side, then to produce evidence for the purpose of establishing the same. At the same time, care would have to be taken by the Court to see that hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonized with the requirement of expeditious disposal of proceedings.

The non-compliance with the mandatory provisions of Section 235 (2) cannot be treated as a mere irregularity curable under Section 465 of the Code of Criminal Procedure, 1973. It is much more serious. It amounts to bypassing an important stage of the trial and omitting it altogether so that the trial cannot be said to be that contemplated in the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial. It goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence.

THE GAUHATI HIGH COURT

Case No. : CRL.A(J)/8/2020

Zothanpuia Council Veng Vs State of Mizoram Aizawl

BEFORE

 MR. JUSTICE NELSON SAILO

 MRS. JUSTICE MARLI VANKUNG

Author: (Nelson Sailo, J)

Date of Judgment : 31.01.2022.

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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

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Whether the court should pass specific order for new trial/de novo trial after alteration or addition of charge?

 The matter can be viewed from another angle also. Section 216 of the Code empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration or addition of the charge the Court is required to read and explain the same to the accused in accordance with Sub-section (2) thereof. It is further laid down under Sub-section (3) that if in the opinion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding immediately with the trial is likely to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that whenever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the Court for reasons to be recorded in writing considers that the desire to recall or re-examine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over and explained to the accused has been made. Indeed the order dated April 30, 1987 shows that while directing the prosecution to examine the 4 witnesses afresh the 5th Court adjourned the case for further trial and did not direct fresh trial. This apart, any such direction given by the Court has to be judged on the touchstone of prejudice to the accused or the prosecution. In the instant case, as has already been noticed after the addition of charges the prosecution expressly stated that they did not want to further examine the four witnesses already examined but they were willing to produce them if the accused so wanted. The accused, however, did not avail of this opportunity in accordance with Section 217 of the Code and, therefore, it is too late in the day for them to raise a grievance on that score. We hasten to add that even if we had found that there was any irregularity in the continuation of the trial against the appellants after the additional charges were framed, we would not have been justified in setting aside the impugned judgment on that ground alone for there is not an iota of material on record wherefrom it can be said that a failure of justice has occasioned thereby. To put if differently, in our view in such a case Section 465 of the Code would have squarely applied.{Para 23}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 34 of 1992

Decided On: 21.03.1995

Ranbir Yadav  Vs.   State of Bihar

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