Supreme Court: What are leading principles for deciding application for amendment of pleading?

70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 Code of Civil Procedure operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred Under Order II Rule 2 Code of Civil Procedure is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the Code of Civil Procedure.

(iii) The prayer for amendment is to be allowed.

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi and Ors.,   MANU/DE/2236/2022)

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5909 of 2022 

Decided On: 01.09.2022

Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Ors.

Hon'ble Judges/Coram:

Aniruddha Bose and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: 2022 INSC 896, MANU/SC/1093/2022

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Can an adjudicatory body base its decision on any material unless they have given the affected person an opportunity to respond to it?

 It is a well-established principle of administrative law that an adjudicatory body cannot base its decision on any material unless the person against whom it is sought to be utilized has been apprised of it and given an opportunity to respond to it. Surveying the precedents extensively, MP Jain & SN Jain's treatise on Principles of Administrative Law1 notes that:

If the adjudicatory body is going to rely on any material, evidence or document for its decision against a party, then the same must be brought to his notice and he be given an opportunity to rebut it or comment thereon. It is regarded as a fundamental principle of natural justice that no material ought to be relied on against a party without giving him an opportunity to respond to the same. The right of being heard may be of little value if the individual is kept in the dark as to the evidence against him and is not given an opportunity to deal with it. The right to know the material on which the authority is going to base its decision is an element of the right to defend oneself. If without disclosing any evidence to the party, the authority takes it into its consideration, and decides the matter against the party, then the decision is vitiated for it amounts to denial of a real and effective opportunity to the party to meet the case against him. The principle can be seen operating in several judicial pronouncements where non-disclosure of materials to the affected party has been held fatal to the validity of the hearing proceedings. {Para 17}  (emphasis supplied)

39. The following principles emerge from the above discussion:

(i) A quasi-judicial authority has a duty to disclose the material that has been relied upon at the stage of adjudication; and

(ii) An ipse dixit of the authority that it has not relied on certain material would not exempt it of its liability to disclose such material if it is relevant to and has a nexus to the action that is taken by the authority. In all reasonable probability, such material would have influenced the decision reached by the authority.

Thus, the actual test is whether the material that is required to be disclosed is relevant for purpose of adjudication. If it is, then the principles of natural justice require its due disclosure.

(emphasis supplied)

19. On the issue of the impact of such non-disclosure, in T. Takano, summarizing the ratio of the Constitution Bench in B. Karunakar2, we noted that:

A Constitution Bench of this Court in Karunakar (supra) held that the non-disclosure of the relevant information is not in itself sufficient to warrant the setting aside of the order of punishment. It was held that in order to set aside the order of punishment, the aggrieved person must be able prove that prejudice has been caused to him due to non-disclosure. To prove prejudice, he must prove that had the material been disclosed to him the outcome or the punishment would have been different. The test for the extent of disclosure and the corresponding remedy for non-disclosure is dependent on the objective that the disclosure seeks to achieve. Therefore, the impact of nondisclosure on the reliability of the verdict must also be determined vis-à-vis, the overall fairness of the proceeding. While determining the reliability of the verdict and punishment, the court must also look into the possible uses of the undisclosed information for purposes ancillary to the outcome, but that which might have impacted the verdict.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 88-89 of 2023, 

Deepak Ananda Patil Vs.The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I. and Pamidighantam Sri Narasimha, J.

Author:Dr. D.Y. Chandrachud, C.J.I.

Decided On: 04.01.2023

Citation: MANU/SC/0020/2023

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Whether Appellate court should direct joint trial of accused even if the accused has not shown any prejudice due to separate trial?

 Even if it is conceded that the alleged offences committed in FIR 96 and FIR 197 were committed in the course of the same transaction, within the meaning of the phrase in Section 223(d), in view of the interpretation in Cheemalapati Ganeswara Rao (supra), it does not warrant the exercise of discretion to direct a retrial followed by a joint trial. It was imperative for the accused-respondents to prove that the separate trials caused a miscarriage of justice. The respondents have not been able to demonstrate before the Court that separate trials led to a miscarriage of justice. No explanation has been rendered on the aspect of a miscarriage of justice. Though the High Court has in the impugned judgment observed that the separate trials in FIR 96 and FIR 187 led to a miscarriage of justice, no analysis has been undertaken to explain the finding. Moreover, the High Court has only observed that there ‘may’ be a miscarriage of justice. Therefore, quite apart from the individual prejudice to the appellant which has been brought out before the Court, we are clearly of the view that the holding of separate trials was not contrary to law and that there was no resultant failure of justice demonstrated to the satisfaction of the High Court. {Para 47}

48. We are conscious of the fact that the State of Punjab is not in appeal before this Court against the retrial which has been ordered by the High Court. But as a matter of first principle, it is evident that even the appellant has been able to establish that a retrial would be a matter of serious prejudice since vital evidence which has been recorded during the course of the trial would be obliterated as a result of the death of the witnesses from the investigating team lead by the appellant. That apart, a retrial will not serve the ends of ensuring that justice is done in a heinous crime alleged to have been perpetrated on the prosecutrix resulting in her suicide.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos. 1051-1054 of 2021

Nasib Singh Vs The State of Punjab 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: October 08, 2021.

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Whether court can convict accused with the aid of S 34 of IPC if the court has framed charge against accused U/S 149 of IPC?

 In fact, the law on this point has continuously been delved into and reiterated by this Court from time to time. A three Judge

Bench of this Court in Karnail Singh v. State of Punjab AIR 1954 SC 204., held that:

“8. It is true that there is substantial difference between the two

sections but as observed by Lord Sumner in Barendra Kumar

Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some extent

overlap and it is a question to be determined on the facts of each

case whether the charge under section 149 overlaps the ground

covered by section 34. If the common object which is the subject matter of the charge under section 149 does not necessarily

involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence to be

adduced with reference to the charge under section 149

would be the same if the charge were under section 34,

then the failure to charge the accused under section 34

could not result in any prejudice and in such cases the

substitution of section 34 for section 149 must be held to

be a formal matter.”

(emphasis supplied)

20. The above extracted position of law was further concretised in

Willie (William) Slaney v. State of MP  AIR 1956 SC 116, ¶ 49. and by the majority in Chittarmal v. State of Rajasthan (2003) 2 SCC 266, ¶ 14.. The permissibility of convicting an accused individually under a simplicitor provision after group conviction

with the aid of Section 149 of IPC fails, was further explored in

Atmaram Zingaraji v. State of Maharashtra (1997) 7 SCC 41., wherein this Court

held that:

“4. The next question that falls for our determination is whether,

after having affirmed the acquittal of all others, the High Court

could convict the appellant under Section 302, I.P.C. (simpliciter).

The charges framed against the accused (quoted earlier) and the

evidence adduced by the prosecution to bring them home clearly

indicate that according to its case, the nine persons arraigned

before the trial Court and,  none others, either named or

unnamed (totalling minimum five or more persons) formed

the unlawful assembly. Consequent upon the acquittal of the other

eight the appellant could not be convicted with the aid of Section

149, I.P.C., more particularly, in view of the concurrent findings of

the learned Courts below that the other eight persons were not in

any way involved with the offences in question.

5. The same principle will apply when persons are tried with the

aid of Section 34, I.P.C. In the case of Krishna v. State of

Maharashtra [1964]1SCR678 , a four Judge Bench of this Court

has laid down that when four accused persons are tried on a

specific accusation that only they committed a murder in

furtherance of their common intention and three of them are

acquitted, the fourth accused cannot be convicted with the aid of

Section 34, I.P.C. for the effect of law would be that those who

were with him did not conjointly act with the fourth accused in committing the murder.

6. In either of the above situations therefore the sole convict can

be convicted under Section 302, I. P. C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 38 of 2011

Rohtas Vs Vs  State of Haryana 

Author: Surya Kant, J:

Dated: 10.12.2020

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Whether non-observance of principles of natural justice will invalidate the proceeding?

 An analysis of the aforesaid judgments thus reveals:

(1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

(3)No prejudice is caused to the person complaining of the breach of

natural justice where such person does not dispute the case against

him or it. This can happen by reason of estoppel, acquiescence,

waiver and by way of non-challenge or non-denial or admission of

facts, in cases in which the Court finds on facts that no real prejudice

can therefore be said to have been caused to the person complaining

of the breach of natural justice.

(4)In cases where facts can be stated to be admitted or indisputable,

and only one conclusion is possible, the Court does not pass futile

orders of setting aside or remand when there is, in fact, no prejudice

caused. This conclusion must be drawn by the Court on an appraisal

of the facts of a case, and not by the authority who denies natural

justice to a person.

(5)The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.{Para 39}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3498 OF 2020

STATE OF U.P. Vs SUDHIR KUMAR SINGH 

Author: R.F. Nariman, J.

Dated: 16th October 2020.

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Whether court can convict accused with the aid of S 34 of IPC in place of S 149 of IPC even though no charge was framed U/S 34 of IPC?

Effect of Failure to frame proper charges

39. In State of Andhra Pradesh v. Thakkidiram Reddy and Ors. MANU/SC/0490/1998 : (1998) 6 SCC 554, this Court considered the issue of failure to frame the proper charges. observing as under:

10. Sub-section (1) of Section 464 of the Code of criminal Procedure 1973 ('the Code', for short) expressly provides that no finding, sentence or order by 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 charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

The Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see 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. In the said case this Court ultimately came to the conclusion that despite the defect in the framing of charges, as no prejudice had been caused to the accused, no interference was required.

40. A Constitution Bench of this Court in Willie (William) Slaney v. State of Madhya Pradesh MANU/SC/0038/1955 : AIR 1956 SC 116, considered the issue of failure to frame charges properly and the conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:

86. ... In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out....

87. ... If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.

41. This Court in Gurpreet Singh v. State of Punjab MANU/SC/2515/2005 : (2005) 12 SCC 615, referred to and relied upon its earlier judgments in Willie (William) Slaney (supra) and Thakkidiram Reddy (supra), and held that unless there is a failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused was in any way prejudiced due to the errors and omissions in framing the charges against him.

A similar view has been re-iterated by this Court in Ramji Singh v. State of Bihar MANU/SC/0632/2001 : (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar MANU/SC/0888/2009 : (2009) 7 SCC 198.

42. There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of criminal Procedure, 1973. (Vide: Dalip Singh and Ors. v. State of Punjab MANU/SC/0031/1953 : AIR 1953 SC 364; Malhu Yadav and Ors. v. State of Bihar MANU/SC/0393/2002 : (2002) 5 SCC 724; Dhaneswar Mahakud and Ors. v. State of Orissa (2009) 9 SCC 307; and Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0640/2009 : AIR 2009 SC 2661).

43. Thus, the law on the issue can be summarised to the effect that unless the accused is able to establish that the defect(s) in framing the charge(s) has caused real prejudice to him; that he was not informed as to what was the real case against him; or that he could not defend himself properly, no interference is required on mere technicalities.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1243 of 2007

Decided On: 14.09.2010

 Abdul Sayeed  Vs.    State of Madhya Pradesh

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Citation: MANU/SC/0702/2010,(2010) 10 SCC 259

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Whether joint trial of accused will be vitiated if there is misjoinder of charges?

Before adverting to the submission with regard to the question of sentence we would like to point out that there is misjoinder of charges on account of a joint trial of these two appellants with Ravi Shankar. As rightly pointed out by Mr. Tewatia, no objection to the joint trial had been raised by these two appellants either at the trial stage or at the appellate stage or even before this Court, nor the appellants had shown any prejudice having been caused to them by such a trial. However, as contemplated under Section 464 Crl. P.C. in absence of proof that failure of justice had occasioned by the joint trial, the finding and the sentence recorded by the competent Court cannot said to be invalid.

IN THE SUPREME COURT OF INDIA

Criminal Appeals Nos. 544-545 of 1986

Decided On: 31.01.1989

Prem Chand  Vs  State of Haryana

Hon'ble Judges/Coram:

B.C. Ray and S.R. Pandian, JJ.

Citations: AIR 1989 SC 937, 1989 CriLJ 1246, 1989 (1) Crimes 398 SC, JT 1989 (1) SC 158, 1989 (1) SCALE 199, 1989 Supp (1) SCC 286

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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 court can convict accused of an offence, U/S 302 of IPC read with S 34 of IPC without charge U/S 34 of IPC?

Legal position as to whether in the absence of charge under Section 34 conviction could be maintained under Section 34 was cleared by the Constitution Bench in While Slaney vs. State of M.P. MANU/SC/0038/1955 : 1956CriLJ291 , where this Court observed at para 86:

"Sections 34 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

In such a situation, the absence of a charge under one or other of the various head of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."

This was reiterated by the Supreme Court a number of times. We may refer to Dhanna Vs. State of Madhya Pradesh MANU/SC/0626/1996, where this position is reiterated after referring to the other cases. It held:

"It is, therefore, open to the Court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149, IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. (Amar Singh v. State of Haryana MANU/SC/0036/1972 : AIR1973SC221 ; Bhoor Singh v. State of Punjab MANU/SC/0109/1974 : 1974CriLJ929 . The first submission of the learned counsel for the appellant has no merit."

Accordingly it is held that even in the absence of the charge under Section 34 the conviction could be maintained by the courts below:

The counsel for the appellants could not show that any prejudice was caused to either of the accused persons because of the non-framing of charge under Section 34.

15. It is true that the two injuries which proved to be fatal were no specifically attributed to either of the accused. The common intention can be formed at the spot. At time it is difficult to get direct evidence of pre-concert of minds. The common intention can be gathered from the circumstances and the manner in which assault is carried out. The manner in which assault was carried out leaves no manner of doubt in our mind that the appellants had come with the intention to kill the deceased. Their intention was not to cause injuries alone. 

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Civil) No. 9254 of 2001

Decided On: 12.10.2001

 Ramji Singh Vs  State of Bihar

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

 Citation : AIR 2001 SC 3853, MANU/SC/0632/2001,(2001) 9 SCC 528

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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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Whether court can convict accused with the aid of S 149 of IPC even if it has not framed specific charge U/S 149 of IPC against accused?

 A careful reading of charge No. 4 and charge No. 5 leaves no manner of doubt, since the transaction mentioned in charge No. 1 has been made integral part thereof, that all the necessary ingredients of Section 149 IPC are implicit therein except mentioning of Section 149 IPC specifically. The particulars stated in charge No. 4 and 5 are reasonably sufficient to give the appellants adequate notice of Section 149 IPC although not specifically mentioned.

Is non- mentioning of Section 149 in charge No. 4 and charge No. 5 a fundamental defect of an incurable illegality that may warrant setting aside the conviction and sentence of the appellants ? We do not think so. Non-framing of a charge under Section 149 IPC, on the face of the charges framed against the appellants would not vitiate their conviction; more so when the accused have failed to show any prejudice in this regard. The present case is a case where there is mere omission to mention Section 149 in charge No. 4 and 5 which at the highest may be considered as an irregularity and since the appellants have failed to show any prejudice, their conviction and sentence is not at all affected. Tenor of cross-examination of PW-1 and PW-3 by the defence also rules out any prejudice to them.

The offence, in the established facts and circumstances of the case, under Section 302 read with Section 149 IPC is implicit and applying the dictum laid down by the Constitution Bench of this Court in Willie (William) Slaney, the omission to mention Section 149 IPC specifically in the charge No. 4 and 5 cannot affect their conviction. In no way their conviction is rendered bad as the appellants had assembled together armed with axes and eathapululu(sickle) and were parties to the assault on D-1 and D-2 and others. In a situation such as this it was not obligatory upon the prosecution to prove which specific overt act was done by which of the accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 408 of 2007

Decided On: 21.04.2009

 Anna Reddy Sambasiva Reddy  Vs.  State of Andhra Pradesh

Hon'ble Judges/Coram:

D.K. Jain and R.M. Lodha, JJ.

Citation: MANU/SC/0640/2009,(2009) 12 SCC 546, AIR 2009 SC 2661.

R.M. Lodha, J.

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Leading Supreme Court Judgment on the basic concept of failure of justice

 Having dealt with regard to the concept of 'fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in 'failure of justice'. 'Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the Court has referred to Shamnsaheb M. Multtani v. State of Karnataka : (2001) 2 SCC 577 : 2001 SCC (Cri) 358 wherein it has been observed as follows:

23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Department of the Environment (1977) 1 All ER 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

(Emphasis supplied)

39. In Central Bureau of Investigation v. V. K. Sehgal MANU/SC/0650/1999 : (1999) 8 SCC 501, it was observed: -

10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error of irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court.

The concept of failure of justice was further elaborated as follows:

11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplus age. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial. {Para 45}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 223 and 458 of 2008

Decided On: 17.02.2012

 Rattiram  Vs. State of M.P. through Inspector of Police

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Supreme Court: Basic principles for conduct of disciplinary enquiry

In State Bank of Patiala & Ors. vs. S.K. Sharma, MANU/SC/0438/1996 : (1996) 3 SCC 364, the Supreme Court summarized the principles applicable to a domestic inquiry as under:-

"33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar [MANU/SC/0237/1994 : (1993) 4 SCC 727: 1993 SCC (L&S) 1184: (1993) 25 ATC 704]. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

IN THE HIGH COURT OF DELHI

W.P. (C) 3215/2018, CM Nos. 11594 and 11595/2019

Decided On: 18.05.2020

 Rajesh Singh Sehgal  Vs. Ministry of Civil Aviation and Ors.

Hon'ble Judges/Coram:

Navin Chawla, J.

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Whether prosecution under Prevention of Corruption Act is maintainable if it is investigated by a police officer who was not authorised to conduct it?

The last contention of the Appellant is predicated on Section 17 of the Act and the fact that the investigation in the present case was not conducted by the police officer by the rank and status of the Deputy Superintendent of Police or equal, but by Inspector Rohtash Singh (PW-5) and Inspector Shobhan Singh (PW-7). The contention has to be rejected for the reason that while this lapse would be an irregularity and unless the irregularity has resulted in causing prejudice, the conviction will not be vitiated and bad in law. The Appellant has not alleged or even argued that any prejudice was caused and suffered because the investigation was conducted by the police officer of the rank of Inspector, namely Rohtash Singh (PW-5) and Shobhan Singh (PW-7).

20. This Court in Ashok Tshering Bhutia v. State of Sikkim MANU/SC/0156/2011 : (2011) 4 SCC 402 referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1781 of 2009

Decided On: 27.11.2019

Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi)

Hon'ble Judges/Coram:

Indu Malhotra and Sanjiv Khanna, JJ.

Citation: (2020) 2 SCC 88

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When court should not entertain issue of prejudice to accused due to his inadequate examination U/S 313 of CRPC?

But equally there cannot be a generalised presumption of prejudice to an Accused merely by reason of any omission or inadequate questions put to an Accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case including the nature of other evidence available, the kind of questions put to an Accused, considered with anything further that the Accused may state in his defence. In other words, there will have to be a cumulative balancing of several factors. While the rights of an Accused to a fair trial are undoubtedly important, the rights of the victim and the society at large for correction of deviant behaviour cannot be made subservient to the rights of an Accused by placing the latter at a pedestal higher than necessary for a fair trial.

In Sukha v. State of Rajasthan, MANU/SC/0026/1956 : 1956 SCR 288, it was observed as follows:

35. .....We have recently decided that we will be slow to entertain question of prejudice when details are not furnished; also the fact that the objection is not taken at an early stage will be taken into account.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 937, 938 and 939 of 2011

Decided On: 04.10.2019

 Fainul Khan Vs.  State of Jharkhand and Ors.

Hon'ble Judges/Coram:

Navin Sinha and B.R. Gavai, JJ.

Citation: AIR 2019 SC 4858

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Whether accused is entitled to be acquitted if provisions of S 313 of CRPC is not properly complied?

It was further contended by the learned Counsel for the Respondents that material questions regarding marriage, on which the prosecution had allegedly relied upon, were not put to the accused Under Section 313 Code of Criminal Procedure, thereby causing great prejudice to them. We feel that there is no weight in this submission of the learned Counsel for the Respondents since the purpose of Section 313 is only to bring the attention of the accused to all the inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. As has been succinctly held by this Court in Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan MANU/SC/0468/2013 : (2013) 5 SCC 722:

In a criminal trial, the purpose of examining the accused person Under Section 313 Code of Criminal Procedure, is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation.

49. We feel that no such prejudice has been caused to the accused on account of the failure of this Court to examine them Under Section 313 on the facts alleged by the prosecution since they were not incriminating in nature. In any case, Nar Singh v. State of Haryana MANU/SC/1004/2014 : (2015) 1 SCC 496, is an authority for the proposition that accused is not per se entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1482 of 2013

Decided On: 20.10.2016

 Yogesh Singh Vs.  Mahabeer Singh and Ors.

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Whether delay in sending FIR to magistrate is fatal to prosecution case if there is no prejudice to accused?

It has been consistently held by this Court through a catena of judicial decisions that although in terms of Section 157 Code of Criminal Procedure, the police officer concerned is required to forward a copy of the FIR to the Magistrate empowered to take cognizance of such offence, promptly and without undue delay, it cannot be laid down as a Rule of universal application that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the fact that the FIR was recorded without unreasonable delay and investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court, then in the absence of any prejudice to the accused, it cannot be concluded that the investigation was tainted and the prosecution story rendered unsupportable. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1482 of 2013

Decided On: 20.10.2016

 Yogesh Singh Vs.  Mahabeer Singh and Ors.

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How to appreciate evidence in case of subletting of premises by tenant?

The main question that falIs to be determined in the present case is: is High Court justified in non-suiting the landlord on the ground that he has not pleaded that business of the firm M/s. Mandovi Tours and Travels is not conducted by its partners, but by Balaji Lawande and Netravalkar and that tenant has parted with the premises by subletting the same to these two persons under the garb of deed of partnership by constituting a bogus firm? In our judgment, the answer have to  be in negative. In the plaint, the landlord averred that the tenant has sub-let the premises to M/s. Mandovi Tours and Travels, a partnership concern, without his permission and that the sub-lessee has been exclusively running the business in the rented premises although he has not pleaded specifically that the premises have been sublet to Balaji Lawande and Netravalkar but such lack of pleading cannot be held to be fatal. It has to be kept in mind that a transaction such as sub-letting by tenant which is not permissible under lease may be outwardly a deceptive arrangement and landlord may not come to know of true facts. The pleadings in such matters ought not to be construed too technically. The true test, as has been repeatedly said, is to see whether the other side has been taken by surprise or prejudiced.

30. If the purpose of constituting partnership by the tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenant and in such circumstances the evidence let in by the landlord cannot  be ignored on the ground that there is some variance between pleading and proof. In a case such as the present one, the rule of secundum allegata et probata is not strictly applicable as the tenant cannot be said to have been put to any prejudice.

Reportable

Supreme Court of India

Celina Coelho Pereira & Ors vs Ulhas Mahabaleshwar Kholkar & Ors on 30 October, 2009

Bench: Tarun Chatterjee, R.M. Lodha

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Whether investigation U/SC and ST Atrocities Act can be set aside even if there is no prejudice to accused?

 Having given a thoughtful consideration, to the contention advanced on behalf of the appellant - State of Bihar, we are of the view, that the legal position as has been declared by this Court, is in complete consonance and conformity with the postulation contained in Section 465 of the Code of Criminal Procedure. This being the position, we have no hesitation in holding, that the second determination rendered by the High Court, to the extent that the investigation carried out by a police officer below the rank of a Deputy Superintendent of Police, after 31.03.1995 and prior to the issuance of the notification dated 03.06.2002 (on 09.08.2008), would stand vitiated, has necessarily to be set aside.

In our view, the above finding could have been returned only if, the concerned Court expressed its satisfaction, that the investigation carried out, by a subordinate police officer/official, who had no authority to investigate the matter, had caused prejudice to the accused, leading to miscarriage of justice. Since no such finding has been recorded, and since it has also not been established before this Court, that the accused had suffered such prejudice, it is not possible for us, to sustain the above conclusion, of the High Court. The same is accordingly hereby set aside.
SUPREME COURT OF INDIA

State of Bihar and Others etc. Vs. Anil Kumar and Others etc.

[Civil Appeal Nos. 4397-4400 of 2017 arising from SLP (C) Nos. 27524-27 of 2011]

[Civil Appeal No. 4401 of 2017 arising from SLP (C) No.7317 of 2017]

CORAM:Jagdish Singh KheharJ,Dr.

 D.Y. Chandrachud J, Sanjay Kishan Kaul J,

Dated:March 23, 2017.

Citation:AIR 2017 SC 2716

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