 The first session which was dealt with by Justice Ramkumar regarding the framing of charge and discharge. Now which is a very very crucial and vital step as far as a criminal proceeding is concerned. Now we have Justice Ramkumar after a long spell, limping again towards I mean normalcy in the sense that he is condolencing from his back pain and today's topic as we know that assumes what significance or importance. Now what puzzles me in this particular arena is that now we know framing of a charge is a very easy thing because the court need not give any reasons. This is what the Fx Court says even in a three judge bench headed by Justice Ramkumar. This is Banumati in 2020, the Bhavana by Judgement. Now if you go backwards say around 4-5 decades back DC Shukla which is a four judge bench that says that the very purpose of framing charge is to put the accused in position as to what are the accusations that he is required to face in that particular criminal trial. Why it is so? Because framing of a charge that orderly subject to Section 397 is a reviseable order. And when can an order be revised when there is a perversity or an indigestion? Now if the court can merely say that there is primacy material charge free, whether that could be achieved under 397 is a point which needs much debate and hopefully today we have one of the best legal luminaries we have the Kerala High Court has ever produced Justice Ramkumar who is my very favorite judge and in fact my Dronacharya whom I have all respects and today let us blow our ears to his talk. Thank you so much sir and over to you. Thank you Mr. Prem and thank you Mr. Vikas. I am only confining today's topic to the famous William Slaney's case. Just we analyze, I propose to analyze William Slaney's case. Now anybody undertaking a study into the various nuances of the process of framing of charge by a court should know the celebrated case of William Slaney. When I heard his name for the first time I was under the impression that it is an English case. But it was a pleasant surprise to me to learn that it was a leading Indian case in which there is some interruption. Mr. Vikas, hello? When I was- I was- Prem talking, it's fine now. I was initially under the impression that it is an English case because the name is William Slaney's case. But then it was a pleasant surprise for me to learn that this was a leading Indian case in which the path breaking verdict was rendered by a constitution bench of the Supreme Court of India. This decision, this verdict deals with the intricacies of omission, irregularity and illegality in the framing of charge by a court. The other day we have seen the various provisions regarding framing of charge and a court discharging and accused, the specific provisions. We also went through the confusing legal pronouncement by the apex court saying, giving a lot of definition, unnecessary definition to be wording in the statute. One decision says, primer basic case. Another decision says, strong primer basic case. Another decision says there should be a sort of- there should not be a mini trial. Yes, another decision says that it is a confusion compounded. But then we noted that in a case where the judge wants to discharge an accused, there are enough decisions of the Supreme Court. Likewise, the very same judge wants to frame a charge against the accused in the same case that there are decisions of the Supreme Court. With the result, we have conflicting rulings of the decision of the apex court on this aspect. In a way, it is a boon that we have such a scenario on the legal side, on the judicial side. Anybody dealing with the question of framing of charge or question of discharge has to study this famous William Slaney's case. This case came up before the Constitution bench upon a reference by two honorable judges who felt that there was a conflict of judicial opinion by two earlier three judge bench decisions. In Nana Chand versus Tato Punjab, A.R. 1955 Supreme Court 274 and Suraj Pal versus Tato UP, A.R. 1955 Supreme Court 419. In the same year, two three judge bench decisions, it appears that there is a conflict of decision. So it was to resolve this so-called conflict of view that the two judges referred the matter to a larger bench, to a Constitution bench. That is how the matter came before the Constitution bench. In William Slaney's case, out of the five judges, three of the judges rendered separate but conquering verdicts, judgments in which all of them held that absolutely no conflict is there between Nana Chand and Suraj Pal. Between Nana Chand and Suraj Pal, there is no conflict at all. All the three judges held. So actually the reference to a larger bench was unnecessary. All of them unanimously held that there is no reference. Then we will now straight away deal with the William Slaney's case. The correct citation of the case is Willy William Slaney versus Tato Madhya Pradesh. A.R. 1956 Supreme Court 116 corresponding to 1956 criminal law journal 291, five judges. The five judges were S.R. Das acting Chief Justice, Vivian Bose, a wonderful judge, B. Jagannath Das, yet another wonderful judge, N. Chandrasekhar Ayer, still another great judge, and Sai the Jaffer Imam, another beautiful judge. All the five out of these five judges, three judges, namely Vivian Bose, just is Chandrasekhar Ayer and just is Sai the Jaffer Imam. When they were to separate but conquering judgements. Now three separate judgements out of these three separate judgements, Vivian, Justice Vivian Bose, gave the verdict on his own behalf and on behalf of S.R. Das. That judgment is in a year paragraphs 1 to 73. The judgment by Justice Vivian Bose on behalf of himself and on behalf of Justice S.R. Das. Then by Justice N. Chandrasekhar Ayer on behalf of himself and on behalf of B. Jagannath Das. Then lastly, that is Justice Chandrasekhar Ayer's judgment is from paragraphs 74 to 91. Then lastly, Sai the Jaffer Imam from paragraphs 92 to paragraphs 101. The reason for separate judgment by Justice Imam was that it was he who pronounced the judgment in Nanak Chand was the state of Punjab. And in 55, Supreme Court, 274, three judges. So he felt that he had an obligation to explain that whether there is any conflict or there is any no conflict between Nanak Chand and Suraj Pal. Now these paragraphs numbers are as given in the AAR citation. Now we come to the details of the occurrence in that case. It is discernible from paragraph 89 of Justice Chandrasekhar Ayer's judgment and also paragraphs 72 of Justice Vivian Bose's judgment. Now I have given you a small genealogical chart. One Mrs. Waters was examined as prosecution witness 20, PW 20. Mrs. Waters had a son and a daughter. Her son is Donald Smith, who was the deceased in this case. And her daughter is Beryl, who was examined as PW 13. Beryl is the younger sister of Donald Smith. Then we have another brothers, William Slaney and his younger brother, Ronny Slaney. These are two brothers. Now we will see why how are they connected. The occurrence in this case to place on 12 to 1953 at 7 p.m. in the house belonging to Mrs. Waters. PW 20 at Jabalpur in Madhya Pradesh. Beryl, that is the daughter of Mrs. Waters. Beryl was examined as PW 13. Who was he? And the sister of deceased Donald. Beryl was the daughter of Mrs. Waters and sister of deceased Donald Smith. Beryl was residing in the above house where the occurrence took place. The mother and son Donald Smith were residing elsewhere, of course in the same town. The person who was attacked and killed in the occurrence in this case was William Slaney, who was the upland before the, I'm sorry, the person who was attacked was the Donald Smith. The accused persons in this case were William Slaney and his younger brother, Ronny Slaney. The William Slaney first accused was the upland before the Supreme Court. Even though Beryl was married, was married to a gentleman in England. Beryl, the daughter of Mrs. Waters and the brother of Donald and the sister of Donald Smith, she was married to a gentleman in England. Her husband had turned her out and she had come down to Jabalpur and was living in the house in Kustin, belonging to her mother, Mrs. Waters. The first accused, William, was in love with Beryl. Rather they started a romantic affair. There is a romance between Beryl and William Slaney. That is why in the genealogical chart I have shown Beryl and William Slaney and there is a romantic envelope. But she could not marry him and Beryl also reciprocated her affection towards him, her love and affection towards William. But then she could not marry him because her husband had refused to give her a divorce. Her husband was in England, refused to give her a divorce. This is Donald, the brother of Beryl, did not like the intimacy between his sister and William. Donald used to make attempts to separate Beryl from the first accused, William. On the evening of the date of occurrence, Donald Smith and his mother, Mrs. Waters, went to Beryl's house. There was a quarrel between Donald and William Slaney who was already in the house. And William was asked by Donald to go away from there. Williams left the place. But after some time, he returned a little later with his younger brother Ronny, Ronny Slaney. Williams Slaney asked Beryl, who was in the first floor of the house, to come down to him. Beryl, his lover, to come down to him, to the ground floor. But she did not come down. Instead, the person who came down was her brother Donald Smith, who came down to the courtyard. During the quarrel that ensued, Williams slapped Donald across his face. When Donald shook his fist in the face of William, the latter snatched a hockey stick from his brother, Ronny. William snatched a hockey stick from his brother, Ronny and gave one blow over the head and two blows over his hips. The first blow which was given on the head was a strong blow. It had fractured, the skull of Donald was fractured and he died in the hospital 10 days later. Not immediately, there was no instant in his death, but he died from the hospital 10 days later. William and his brother were subsequently charged by the police for an offence punishable under section 302, red with section 34, which is one of the vicarious liability sections for vicarious liability. Section 302, section 302 murder, red with section 34 of the Indian Penal Code for intentionally or knowingly committing murder of Donald in furtherance of the common intention of the two brothers, William and Ronny. During the trial of the case, it was proved that the fatal blow was dealt with by William, the first accused, after snatching the hockey stick from the hands of Ronny. Even though the skull of the deceased was fractured, he had survived for 10 days in the hospital. The post-mortem doctor deposed that the head injury sustained by Donald was of a very serious nature and it was likely to result in fatal consequences. The trial judge acquitted Ronny because according to trial judge there was no over attack on the part of Ronny to prove that he was acting in furtherance of the common intention of both. But convicted William, that is first accused, for murder and sentenced him to imprisonment for life. This was affirmed by the High Court of Madhya Pradesh. It was agreed by the said conviction and sentenced that William approached the Supreme Court. In the Supreme Court, William Slaney, the first accused, argued that since he along with his brother Ronny was charged for the offense of murder punishment under section 302, red with section 34 of the IPC, and when Ronny, the second accused, was acquitted, the library of William, that is first accused, for murder, ceased to be constructive and it became direct. And therefore it was impermissible to convict him without a separate and independent charge under section 302. Suppose you got the point. Both of them were charged under section 302, red with section 34, that is both of them in furtherance of their common intention to murder Donald had committed murder. That was the charge. Therefore his argument before the Supreme Court was that when his brother Ronny was acquitted, there's no common intention. Then without a separate charge for murder against A1, William, he could not have been convicted under section 302 alone because 302, red with section 34 was the court charge. He relied on Nanna Chandu as a state of Punjab. A year 1955 Supreme Court 274, three judges. Those three judges who decided Nanna Chandu were the Sardars, Ennich Bhagavati and Saeed Jaffer Imam, who is the last judge in this constitution bench with justice as Imam rendering the judgment. In Nanna Chandu, it was held that where the charge against the accused was under section 302, red with section 149, IPC. 149 is the other provision for vicarious liability, constructive liability. 149 is where five or more persons commit an offense in prosecution of the common object of an unlawful assembly. Five or more persons constituting an unlawful assembly committed an offense in prosecution of the common object of this assembly. Then each one of them will be deemed to have committed that offense, even though only one of them committed, even if one of them alone committed the offense. And there the section 149, the offender need not be a participant even. He need not even actually participate in the occurrence. It is enough that he said the common object and he was a member of the unlawful assembly. This was relied on by Mr. William and he said that without a separate charge under section 302 against him, he could not have been convicted under section 302 by the courts below, by the session judge as well as the High Court. And the, he also the, but then the in an urgent case, it was 302, red with 149. What is the main distinction between 304 and 149? 304 is though is a constructive liability, it is not a penal offense. It is only called into aid by courts for roping in persons who shared the common intention, who acted, who participated in the occurrence in persons of the common intention. But 149, 149 itself is a separate penal offense. And it has to be proved that each one of the member of the unlawful assembly, which is not less than five, they shared the common object, even though they all of them need not, did not have been participated in the occurrence. That is the distinction. The, the, the in Nanachand's case, the court charges, the accused Nanachand was called upon to meet. The allegation was, he was vicariously responsible for the act of killing by a member of the unlawful assembly. And the accused in that case contended that he did not elaborately, because even though the act, the actual act of murder was committed by Nanachand himself. But then he was charged here under section 302, right to section 149 on the footing that a member of the unlawful assembly committed the offense. And since he shared the common object of that assembly, he is also vicariously liable. That was the charge against him. He argued that it was not specifically told, he was not specifically told that he was the person who committed the offense. It was only said that he, along with the five others, along with four others, committed the offense of murder as, as, as a member of the unlawful assembly and sharing the same common object. Therefore, he said that in the absence of a specific charge for murder under section 302 IPC, he could not have been convicted. And he also argued that when the postmortem doctor and other witnesses were examined, since there was no independent charge of murder against him, he did not elaborately crosses them in those witnesses. And therefore he suffered a prejudice in, because of the wrong court to charge framed against him. In fact, the three judge bench, speaking through justice Imam found the merit in his contention and the bench ultimately remanded the case for retrial after framing an independent charge against him under section 302. So mind you, there the charge was 302, right to section 149 as a member of an unlawful assembly sharing the same common object. Now, when Nana Jinn was cited before the Supreme Court, it was brought to the notice of the court that another three judge bench of the same year, namely Suraj Pal versus State of UP, a year 1955 Supreme Court 419, in which the judges were Justice Vivian Bose, Jagannath Das and VP Sinha. Though that three judge bench had held that on a charge of four section 302 reduced section 149, if the constructive liability under section 149 had become inapplicable, either due to the fact that there were no five or more persons, there were only less than five, etc. And if 149 became inapplicable, then failure to frame a separate charge under section 302 alone was only a curable irregularity, not an illegality as held in Nana Jinn. It is only a curable irregularity which can be cured and a conviction under section 302 alone without a separate charge under section 302 IPC would be permissible unless the accused had suffered a prejudice. That was the argument in this Suraj Pal. There the judgment was rendered by Jagannath Das. And the learner judges accepted that it is only a curable irregularity, but then in that case also, since the charge against him works by virtue of the constructive liability, and he was not told that he was responsible for the murder. He did the act of causing death and he therefore he could not elaborately cross-examine the doctor and other witnesses, therefore he had suffered prejudice. This conviction of Suraj Pal was accepted by the Supreme Court and they accordingly acquitted him. So in the first case, in both the cases, this conviction was accepted, but in the first case, it was held that the case was remanded to the trial court with a direction to frame a separate independent charge under 302. Otherwise, he could not have been convicted under 302 simply sit down. In the second case, this conviction was accepted in Toto and since he had, the court had found that, three judges had found that he had suffered prejudice. He was acquitted. Suraj Pal was acquitted. Since it was felt that there was a conflict in the two decisions, Nana and Suraj Pal, the match was referred to a constitutional bench as I mentioned earlier. That is how William Slaney's case came up before a constitutional bench of five judges referred to. Now, the findings by the Supreme Court in William Slaney's case, I'll take you to the findings. All the judges unanimously found that the principle that when the charge under section 149 IPC becomes inapplicable, the accused cannot be convicted for murder. In the absence of an independent charge under section 302 IPC, simply sit there, cannot be extended to a case involving a charge under section 302 red with section 34 IPC as in William Slaney's case. In Nana and Suraj Pal, the charge was under section 302 murder, red with section 149. Murder committed as a member of an unlawful assembly, consisting of five or more persons. That cannot be compared with a charge under section 302 red with section 34. Taking into consideration the admitted case of the prosecution and the testimony of the IV judges, the judges held that, William Slaney, the first accused, had not come there armed with any weapon, thereby rolling out any premeditated plan. The judges further held that his act of hitting on the head of Donald Smith with the hockey stick snatchers in the hands of his brother was an instinctual act, consequent on the deceased shaking his fist on the face of William Slaney. When the deceased was shaking his fist, William Slaney had to defend himself. So it was an instinctual act of self-preservation. Therefore it was held that the medical evidence showed that after sustaining the fracture, Donald survived for 10 days. It was not an instantaneous death, 10 days in the hospital and that the injury inflicted was likely to cause death only falling under the earlier part of section 299 of the Indian Penal Code. It was also held that the medical evidence showed that after sustaining the fracture, Donald survived for 10 days in the hospital and the injury was only likely to cause death. Taking into consideration that the over-act of hitting the deceased was done by William Slaney alone, the bench held that it could not be said that failure to frame an independent charge against him under section 302 IPC had caused any prejudice to him and that no prejudice had in fact been suffered by him. William Slaney was accordingly acquitted of the charge of murder because there was no intentional killing causing death by an intentional act was not there. It was virtually an instinctual act of self-preservation. When the deceased waved his fist against him, he was confronted with a very despicable person. Therefore, fearing death or fearing injury, grievous hurt at the hands of this person, he immediately snatched the hockey stick from the hands of his brother and hit him once on the head and twice on his hips. But unfortunately for him, that proved fatal. Even there, the victim survived in the hospital for 10 days. So all the judges held that this only amounts to culpable homicide, not amounting to murder and punishable under part two of section 304 IPC. And the sentence was reduced to rigorous imprisonment for five years from murder. He was sentenced to imprisonment for life. Until that he was sentenced to, the sentence was altered to, since the conviction was altered from 302 to 304 to part two, the punishment was also, the sentence was also altered from imprisonment for life to rigorous imprisonment for five years. These are the facts of the case. Now the legal issues decided in William Slaney's case. This is the learning for every lawyer and every judge. In the independent judgment of justice, Vivian Bose, these are the observations. The code of criminal procedure is a code of procedure. And like all other procedural laws, it is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the code is to ensure that an accused person gets full and fair trial, along with certain well established and well understood lines that accord with our notions of natural justice. If he does, if he's tried by a competent court, if he's told and clearly understands the nature of the offense for which he's being tried, if the case against him is fully and fairly explained to him, if he's afforded a full and fair opportunity of defending himself. If there has been substantial compliance with the outward forms of the law, then mere mistakes in procedure, mere inconsequential errors and omissions in the trial are not regarded as venal by the court and the trial is not appreciated. So if he had substantial compliance with the provisions of the trial and he had a fair trial, he was told what he is being tried for and he was informed the case which he had to face. Then, and if he was given an opportunity to remodel the prosecution evidence, he was given an opportunity to abuse rebuttal evidence, etc. And he had a fair opportunity of hearing, etc. Then merely because there is some violation here or there, that will not be shaped the trial. Beautiful statement of law, unless the accused is able to show substantial prejudice, in spite of substantial compliance with the procedure. If he's able to show that even though the omissions are the omissions are irregularities are really minor, he had suffered prejudice or failure of justice, then only the court will lean in his favor. Then the second principle, where there is an expression in the court, full effect must be given to the plain meaning of the words as as held in Babu Lal Chauhani versus Emperor A.R. 1938 Privy Council 130 that was relied on paragraph 8. Then third, third proposition, where there is no express function in the court in the CRPZ, when there is ambiguity, the question for consideration would be whether the trial was conducted in substantial compliance with the court. If the trial is conducted substantially in the manner prescribed by the court and some irregularity occurs in the courts of conducting such trial, the irregularity can be cured under section 437 of the old court corresponding to 465 of the present court. And as was held in Pulukuri Kotea versus Emperor A.R. 1947 Privy Council 67, all of you must be knowing Pulukuri Kotea is the leading case of the Privy Council on on confession section 27 recovery. But if the trial was held in a manner substantially different from that prescribed by the court, as was held in N.A. Subramani A.R. versus King Emperor 28 Indian Appeals 257 Privy Council, the trial is bad and the question of curing any irregularity does not arise. If the trial was held substantially different from the procedure established by the court, CRPZ, then you can't say that he did not suffer any prejudice, etc. The trial is mischeated, that is paragraph 9 of the Privy and both schedule. Then the fourth principle was the question of curing an irregularity can arise only when one or more of the express provisions of the court has been violated. The question in such a case is whether the departure is so violent as to strike at the root of the trial and make it no trial at all as if it is of a less vital character. It is impossible to lay down any hard and fast rule but taken by enlarge the question usually narrows down to one of prejudice. In any case, the court must be guided by the plain provisions of the court without straining at its language wherever there is an express provision. When there is an express provision, courts are not expected to strain the language and make a departure from the express provision. Then fifth principle, some violations of the court may be so vital as to cut at the root of the jurisdiction or so abhorrent to what one might term natural justice. In which case there may be ex-physiology prejudice. The accused doesn't have to prove prejudice. Prejudice is writ large or presumed. Prejudice is presumed in the following cases. For example, a refusal to give the accused a hearing. If the accused was not given a hearing, so it is a violation of the cardinal principle of natural justice. No person shall be condemned unheard. Audio altruism is important. Second then, second a refusal to allow him to defend himself. Prosecution has adduced evidence, incriminating evidence has been adduced. He denied an opportunity to rebut that evidence. He denied an opportunity to demolish the prosecution evidence by effective cross examination. This is vital violation. Third, a refusal to explain to him the nature of the charge so forth and so forth. Supposing the charge is very, very cryptic. Charge is a non-faking charge and he does not know what the case against him is. That is also a violation of the principles of natural justice. And this also will wish you the trial. Then sixth, the real question is not whether a matter is expressed positively or is stated in negative terms, but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the court and understood by the comprehensive expression of natural justice. Then the effect of charging two persons with murder committed in furtherance of common intention, falling under section 34, as was done in Slaney's case, William Slaney's case, is that each of the accused is unmistakably told that he participated in the crime, unlike section 149. Section 34 when the charge is framed with the aid of section 34, he is unmistakably told that he participated in the crime pursuant to a meeting of minds, a common intention. Therefore, he cannot say that there is no charge against me that I committed often. Every one of them, there is a charge against every one of them that he committed, he participated in the crime. Exactly, how did he participate is not a matter for the charge to be set out in the circumstances in which the murder was committed, etc. That is not a requirement of the charge. It also means that the accused is informed about the murder and it is immaterial as to who struck the fatal blow. He need not even be told that who has to who struck the fatal blow. If the charge is with the aid of section 34 of the Indian penal code, then the charge against each of the accused brought into the arena with the aid of section 34 is that he along with others committed the act in furtherance of the common intention of all. So all of them participated, all of them participated, pursuant to the pre-concert common intention, a meeting of the minds they met before the occurrence and it was pursuant to the meeting of minds that each of them participated in the occurrence. Their role need not be the same but participation in action is a wider ingredient of section 34 unlike section 149. Now here is the distinction between section 34 and 149. Under section 34, IPC, prior concert and element of participation in action should be there. Each of the accused person should be sharing the same intention and should be a participant in the occurrence in some way or the other. But under section 149, the leading feature is only membership of the assembly. It is enough that he was a member of the assembly and each of the members shared the same common object at the time of committee. Participating in the criminal act may or may not be there in section 149. Common object under section 149 does not require prior concert and a common meeting of minds before the attack unlike in section 34. In section 34, there should be a prior concert and common meeting of minds before the attack but here that is not necessary. An unlawful object can develop after the people get there. Even though the object of all the members of the assembly may be common in that their aim may be to commit any of the offenses enumerated under section 141 of the Indian Penal Code. The intention of each and every member of the assembly need not necessarily be common unlike in the case of section 34. The element of participation action also is not necessary under section 149. This is the vital distinction between section 34 and 149. Then another proposition. A man may be convicted of an offense although there has been no charge in respect of it. If the evidence before the code is such as to establish a charge that might have been made. If the evidence is such that a charge might have been made but no charge has been made. Even though they were not charged with that formality they were tried on evidence which brings the case under section 237 of the old code corresponding to section 221 clause 2 of the present code. That is the view taken by the Privy Council in Begu vs. Emperor, AR 1925, Privy Council 130, 130 and Lechman Singh vs. State, AR 1952, Supreme Court 167. Both these rulings were relied on by Jethish Vivian Bose. Then we come to the judgement of Chandrasekhar here. Concurrent judgement. In Nanak Chand's case, omission to frame a specific charge in section 302. In a case where the charge originally framed was under section 302 right with section 114 in an IPC. And then section 114 in an IPC became inapplicable. It was held to be illegal whereas in Surajpal's case such an omission was held to be only irregular and curable if no prejudice. Had been caused to the accused. Such a conflict does not arise in a case where two or more accused persons are charged in for murder under section 302 right with section 34 IPC. And if one of two persons are charged and if one of them is acquitted the other can be convicted of murder even without an independent charge. That is the fundamental distinction between 34 and 14 to land. In 34 there is the participation in action therefore if two persons have been charged under section 302 right with section 34. And if out of the two one is acquitted the other can be convicted of murder under section 302 without an independent charge format. Yes of no prejudice has been suffered by one proposition beautifully laid on by Chandrasekhar Iyer. Then while section 34 does not by itself create an offence. Section 149 IPC does create an offence as held in Karnayal Singh versus Tato Pajap. A year 1954 to bring gold 234. There it was this distinction was brought out. 34 does not create any offence. Whereas 149 itself creates an offence. There can be a conviction under section 149 right with the main offence. Of course punishment can only be section 149 does not prescribe any punishment. But there can be conviction under section 149. And the punishment will be that of the main offence which has been committed as a as a consequence of the common object to the unlawful assembly. Karnayal Singh was that was a three judge bench decision a year 1954 to bring good 234 was relied on. In a charge under section 34 there is active participation in the commission of the criminal act. But under section 149 the liability arises by reason of the membership of the unlawful assembly with a common object. And there may not be any active participation at all in the perpetration or commit of the crime. The overlapping arises in those cases where two or more persons commit a murder in furtherance of the common intention. But it is not possible to say which of them was responsible for the fatal injury or whether anyone injury by itself was responsible for the death. Two persons are charged under section 302 reduce section 34 and 149. But it is not possible to show which among them committed the fatal act or performed the fatal act of killing. Once a member of an unlawful assembly commits the fatal act of killing all other members of the assembly who shared the common object are responsible for murder. But if in a given case it is not possible to say who among the five or who among the two in a 34 case was responsible for inflicting the fatal injury. There comes the overlapping. There may be also case where it is known that out of the assailant one particular assailant was responsible for the fatal injury and the others are thought to be made liable for the result owing to the common intention to involve. In this case that is in this case the apparent has been individually charged with murder and there is proof that his hand caused the injury and the cracks of the question. He was charged for murder reduced section 34. The charge was you as well as your younger brother Ronnie committed murder in prosecute of the common intention of the common intention. But then the charges with the adult section 34 participation in action is assumed is to be presumed. And there is proof about the fact that it was his hand which caused the injury. There was evidence to show that he who snatched the hockey stick from the hands of Ronnie and struck at the deceased. So it was his hand. So this is not a case where the actual culprit is not cannot be discernible. He can be discernible. It was found out the charge also in person. So the common intention of the out to commit murder of Ronald. You the first time he was hitting with a with a hockey stick and since both of it was done in further in in prosecute of the common intention of both you A1 and A2 are charged for murder punishable under section 302. Section 304 was the court charge. So this was a clear case where apart from participation in action there was the clear evidence as well as allegation also that it was his hand. Hand of William which had committed the fatal act of causing the death. The fact that his brother was also thought to be made liable going to the existence of common intention is neither here nor there. So far as the legality of the condition is concerned as there has been no prejudice by your failure objective. He cannot bleed prejudice. William could not have pleaded prejudice because he cannot say I was confused because when when my brother was acquitted there was no there was I was there was no specific charge. It was I who committed the murder. It was his charge. Oh and the charge of charge further than that you committed the injury the fatal injury in in prosecute of the common intention in in further in the common intention of both of you. But the court found on the evidence that the the Ronnie the younger brother had no common intention to commit murder. Therefore he was acquitted. So he's acquitted. He's of no consequence as far as for taking William is concerned. Then lack of competency of jurisdiction absence of a complaint by a proper person authority specified want to sanction prescribed as a condition present for a prosecutor etc. are defects that strike at the very root of the jurisdiction. For example, the court is totally inherently lacking in jurisdiction to try that case. Supposing it is a box of case and is a the case is sought to be tried before his new judicial magistrate is inherently lacking in jurisdiction to try that box of case. Special court under the box of act alone can try the case the case of inherent lack of jurisdiction. Likewise, supposing a person can be prosecuted on the strength of a complaint by a designated authority by under the statue. And instead of doing that, a person who is not a statutorily designated files a complaint or a police officer files a chart. These are all cases where there's the inherent lack of jurisdiction. Even the cognizant is bad. Then in the case of public servant, as you all know, a public servant can be prosecuted only when there is a sanction for prosecuting by the competent authority. Supposing a public servant is prosecuted without a sanction, it is inherent one of jurisdiction. And if that trial is allowed to continue, that trial will be appreciated. Trial will be null and void. That's what the court will end. Trial will be null and void if the public servant is prosecuted without the requisite prosecution sanction by the competent authority. Then where there is complete absence of charge covered by section 535 of the old court, complete access of charge, 535 of the old court, that is corresponding to section 454 of the present court. It is for the court to determine whether there is any failure of justice. Court has to decide whether there has been, although there is no charge for him, there is total absence of framing of charge. But then court will have to decide under section 454 of the present court whether the absence of charge has caused the prejudice to the accused or failure of justice. Where there is an error or omission in the charge covered by section 535 of the present court. The court is bound to have regard to the fact whether the objection could have been or should have been raised at a nearly stage of the proceedings. If that objection was won, which the accused could have raised when the charge was framed, defect in the charge. He could have, because he was the charge was framed by the court, charge was read over to the accused, explained to the accused and he was taken. If at no stage, because he is represented by counsel, if at no stage he had pointed out the defect in the charge, then he cannot at the fag end of the trial turn round and say that see the charge is defecting. It contains such and such defect. No, he cannot say. He should have raised it at the earliest opportunity available. In the generality of cases omission to frame a charge is per se fatal. In the generality of cases omission to frame a charge is per se, that is on the face of it, fatal. Then in the case of a sexual style, the court requires that there should be a charge and it should be in writing. A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and to the assessors of the jurors and there was no possible or probable prejudice. In a case traveled by a court of defense, where the punishment is very stringent, if there has been no charge framed, the prosecution cannot explain that omission by saying that, of course, charge was not framed. But accused was told orally by the judge that you are charged before murder. In grave offenses, a failure to frame a charge, that too by in writing, is incurable, illegal. It strikes at the root of the jurisdiction. Where conviction is for totally different offence from the one charged and not covered by sections 236 to 237 of the old code corresponding to section 2211 and section 2212 of the present code. If the charge is for minor offense, then there cannot be a conviction for a major offense. Then the like a grievance or writing or murder. The omission to frame a separate and specific charge in such cases will be an incurable illegality, incurable irregularity amounting to an illegal. The constitution makes a distinction between irregularity and illegality. If it is only an irregularity, it is curable. But if the irregularity becomes incurable, then they call it an illegality. At one stage, one of the judges says that there is no much difference between irregularity and illegality. Both are against law, contrary to law. Then you go to the, go to find out whether to what action there is a failure of justice. There is to what action there is a denial of fair trial. That's all. Where the charge is a rolled up one involving direct liability or constructive liability without specifying who is directly liable and who is thought to be made constructively liable. The absence of a charge under one or the other or the various sets of criminal liability for the open cannot be said to be fatal by itself. And before a conviction for substantive offense without a charge can be set aside, prejudice will have to be proved, will have to be made out. The charge is in a way weighed in the sense that it does not say who among the two persons, who among the two persons is responsible for the fatal act. From that alone you cannot infer prejudice. Prejudice is something will have to be made out. In that Suraj's case, even though they held that it is the three judgments, held that it is irregular. It is irregular that failure to frame the charge is irregular. Independent charge under 302 without the aid of 149 is irregular. They held that he had suffered prejudice because he was under the impression that he was not the person who had committed the independent act of murder. Therefore, he did not effectively cross-examine the post-mortem doctor etc. To that extent, he was able to show prejudice. That is why the three judge bench acquitted him. Then they come to the last judgment, third judgment by Sai the Jaffer Imam. This judge gave a separate judgment because he was a party to Nanachal. He had an obligation to explain whether there is a conflict between Nanachal and Suraj. The appellant Willy William Slaney was charged with murder and nothing short of it. Although it was stated in the chart that the offense was committed by him in furtherance of a common intention. If the evidence failed to prove that the offense committed by him was in furtherance of the common intention, it would nonetheless be his offense. If the prosecution failed to prove that the offense was committed by him in furtherance of the common intention, still going by the chart, it was his offense, namely murder. If his act in law amounted to murder, the law does not require in such a case that a separate charge for murder should be framed because the charge of murder was already on record with the age of section 34. So participation is there. Strictly speaking, there is no substantial conflict between Nanachal's case and Surajpal's case. And the question raised by the reference does not arise in this case. So this was an unnecessary reference to the constitution bench. There was no need for a reference because both Nanachal and Surajpal involved section 149 of the Indian People Board, not section 34, as in the case of William Slaney. As per the provisions of this year PC, a charge must be framed for trial of warrant cases and cases before a court session and high court. See, if it is a trial before a court session or if it is a warrant case or if it is a trial before the high court, a charge should be framed. There should be a written charge while section 233 of the court corresponding to section 218 for the present court insists upon a separate charge for every distinct offense. It permits a single trial on several charges in the cases mentioned in sections 234, 235, 236 and 239 of the old code corresponding to sections 290, 220, 2211 and 223 of the present court. We will discuss all these sections in the coming lectures. So there is no problem. It is a mandatory provision and the force of this direction is not weakened by the fact that another provision of the code permits a conviction of the accused warrant offense with which he had not been charged. In such a case, that is, where the code permits a single trial on several charges, no question of illegality or irregularity arises as the conviction is excessively authorized by the court. Then the framing of charge in a trial of cases in which a charge is required to be framed is one of the important elements in the mode of a trial. On the charge framed after it has been explained to the accused, the plea of guilty or not guilty is recorded. If the accused pleads guilty, certain consequences follow. If he pleads not guilty, the trial must proceed according to law. When a charge is not framed, obviously no plea of the accused with reference to it is taken and the trial has proceeded without a plea. Framing of a charge and the recording of the plea of the accused is a fundamental provision of the code concerning the procedure in a criminal trial and not merely a ritual. 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 provision of the code as to the mode of trial. Conviction of the accused of an offense in such a case is invalid and the question of prejudice does not arise. So the Lenin judges said, if it is a oral trial, if it is a sexual trial, if it is a trial before the icon, there should be a charge, that is a written charge. Failure to frame a charge in itself is not only illegal, it is itself prejudice. The accused need not have to prove prejudice or failure of prejudice, that itself is failure of charges. It will be illegal to convict the accused for the offense under section 302 IPC without a charge for the same in a case where the charge was for a section 302 Redway section 149 IPC. That is the difference between 34 and 149. The omission to frame a charge under section 302 must be regarded as a deliberate act of the court. By way of notice to the accused that he was not being tried for section 302 Simplicitor. Because if he is charged in only under section 302 Redway section 149 and if ultimately turns out that he was responsible for the fatal act for inflicting the fatal act, then he cannot be convicted under section 302 without an independent charge under section 302. The section 149 cannot come to the rescue or the prosecution to contend that he can be convicted under section 302. Independent charge under section 302 unlike in the case of section 24. And the conviction of the accused for the offense under section 302 IPC alone will be invalid in such a case. But I have one fundamental doubt. Of course anyone of you can clear my doubt. I may be wrong. Suppose in a case where the charge is framed against A1 to A6, 6 accused persons for murder punishable under section 302 Redway section 149 IPC. And the charge also says that it was A1 who inflicted the fatal injury on the deceased. Then on the court either holding that A2 to A6 were not members of the unlawful assembly or that the common object shared by A2 to A6 was only for giving a beating to the victim but never to commit murder. Will it be open to A1 to contend that he cannot be convicted for murder without an independent charge under section 302 IPC? According to me he cannot argue that there should be an independent charge because if the charge read along with section 149 specifically says that he was the person who inflicted the fatal injury. That is my view. I don't know whether I am right or wrong. Then ultimately Justice Imam also agreed that the conviction of Willy-William be altered from section 302 to section 304 IPC part to 304. And sentence imposed on him should be rigorous imprisonment for 5 years. This is the sum and substance of Ronnie-William. Ronnie-William, Willy-William Ronnie and William Slaney versus state of Madhya Pradesh. Any court or any judge or any advocate, any legal practitioner who practices on the criminal side should be thorough with William Slaney's case. This is the Bible. This is the leading case on framing of charge. In what all situations the charge can be defective. Even if it is defective, whether it is fatal to the prosecution or not. How far it is curable? How far it is not curable? Beautiful judgments by three great judges. And by a constitutional bench on the Supreme Court. Way back in 1955. 1956. And in 1956, Supreme Court. Yes. This is by, for a chance, he's my namesake. What is the remedy available to the accused with framing of charge in case evidence of accused was collected during investigation by the IU and not made part of the charge? Evidence of the accused, what? But collected during investigation by the IU but not made part of the charge. It need not be part of the charge. Part of the charge. Yes. What is the remedy? His remedy is to prove it at the time of when he is called upon to enter on his defense. There is a stage under the infinity session scale under section 233. In the section 233, the accused is called upon to enter on his defense. He will have to suggest to the prosecution witnesses and to the investigating officer particularly that he had deliberately shut out the evidence that used by him before him. And then when it comes to his, his evidence, when he is called upon to enter on his defense under section 233 CRPC, he can add use that defense and tell the court that all these materials had produced before the investigating officer. But he had out of some sinister motive kept these suppress these evidence from the scope. Once you were talking off, this is on the YouTube by Shivam Singhla. What is the difference between common intention, a wet pen and IPC? Common intention and. And a wet pen. A wet pen, we are not dealing with a wet pen. By dealing with a wet pen, I'll give you the distance. Common intention and common object. We dealt with common intention, common intention to section 34 and common object. In fact, there should be a separate lecture on common intention, common object, abetment and community conference. They are, they are, they are all watertight compartments at least first to blush, but then they have their, their play also. In the community. It means he has given us a fodder to think over. For a session. That we can have a session on this. So on the Facebook, they have only appreciated that is by Shekhar Prashanta. Shekhar says what a deliberation associated with historical case. Historically, historically get it. Historically, every, every council arguing on the beyond a discharge or framework of charge will have to have in his mind. Williams Lange's case. So thank you, sir. And we all pray that you should get more and more healthier because we know that we always get a healthy talk and insights from you. In fact, my, this is my passion turned addiction. Therefore, I will, I will select from the bed and come to me webinar lecture. Just like they say that you can be down but not out. So thank you, sir. Thank you. Thank you, everyone. Thank you. Stay, stay, stay blessed. Thank you.