the effect of the omission to frame or absence of, or error in the framing of charge

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)

199. We may at this stage refer to Section 464 of the Code of Criminal Procedure which deals with
the effect of the omission to frame or absence of, or error in the framing of charge and inter-alia
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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. It is only if
the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been
occasioned that it may in the case of an omission to frame a charge, order that a charge be framed
and that the trial be recommenced from the point immediately after the framing of the charge. The
omission to frame a charge is, therefore, by itself not enough for the Court of appeal, confirmation
or revision to direct the framing of the charge. What is essential for doing so is that the Court of
appeal in revision or confirmation must record a finding to the effect that failure of justice has in
fact been occasioned on account of the non-framing of charge.
200. The expression failure of justice is not defined, no matter the expression is very often used in
the realm of both civil and criminal jurisprudence. In Shamnsaheb M. Multtani v. State of
Karnataka (2001) 2 SCC 577 this Court while dealing with that expression sounded a note of caution
and described the expression as an etymological chameleon. That simile was borrowed from Lord
Diplocks opinion in Town Investments Ltd. v. Department of the Environment 1977 (1) All E.R. 813.
This Court held that 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.
201. Mr. Tulsi, learned counsel for the victims association was unable to satisfactorily demonstrate
any failure of justice not only because there was no evidence strongly suggestive of the accused
persons having had the knowledge that their acts of omission and commission were likely to cause
death but also because failure of justice cannot be viewed in isolation and independent of the
prejudice that the accused persons may suffer on account of inordinate delay in the completion of
the trial or what may result from an indefinite procrastination of the matter by a remand to the trial
Court. That speedy justice is a virtue recognised an integral and essential part of the fundamental
right to life under Article 21 of the Constitution is well settled by a long line of decisions of this Court
including the three- Judge Bench decision in Hussainara Khatoon and Ors. v. Home Secretary, State
of Bihar, Patna (1980) 1 SCC 81 reiterated in A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225. This
Court in the latter case summed up the nature of the prejudice caused to an accused by a protracted
trial in the following words:
3. The concerns underlying the Right to speedy trial from the point of view of the
accused are:
a) The period of remand and pre-conviction detention should be as short as possible.
In other words, the accused should not be subjected to unnecessary or unduly long
incarceration prior to his conviction;
b) The worry, anxiety, expense and disturbance to his vocation and peace, resulting
from an unduly prolonged investigation, inquiry or trial should be minimal; and
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c) Undue delay may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance or non-availability of witnesses
or otherwise
202. The Court undertook a comprehensive review of the earlier decisions in which a remand for a
fresh trial was considered inappropriate and unfair to the accused persons having regard to the
intervening delay. The following passage is in this regard apposite:
41. In Machander v. State of Hyderabad 1955 CriLJ 1644, this Court observed that
while it is incumbent on the court to see that no guilty person escapes, it is still more
its duty to see that justice is not delayed and accused persons are not indefinitely
harassed. The scales, the court observed, must be held even between the prosecution
and the accused. In the facts of that case, the court refused to order trial on account
of the time already spent and other relevant circumstances of that case. In
Veerbhadra v. Ramaswamy Naickar 1958 CriLJ 1565, this Court refused to send back
proceedings on the ground that already a period of five years has elapsed and it
would not be just and proper in the circumstances of the case to continue the
proceedings after such a lapse of time. Similarly, in Chajju Ram v. Radhey
Sham [1971] S.C.R. 172, the court refused to direct a re-trial after a period of 10 years
having regard to the facts and circumstances of the case. In State of U.P. v. Kapil Deo
Shukla 1972 CriLJ 1214, though the court found the acquittal of the accused
unsustainable, it refused to order a remand or direct a trial after a lapse of 20 years.
It is, thus, clear that even apart from Article 21 courts in this country have been
cognizant of undue delays in criminal matters and wherever there was inordinate
delay or where the proceedings were pending for too long and any further
proceedings were deemed to be oppressive and unwarranted, they were put an end to
by making appropriate orders.
203. In Machanders case referred to in the above passage, this Court had summed up the position
as follows:
We are not prepared to keep persons who are on trial for their lives under
indefinite suspense because trial judges omit to do their duty. Justice is not
one-sided. It has many facets and we have to draw a nice balance between conflicting
rights and duties. While it is incumbent on us to see that the guilty do not escape it is
even more necessary to see that persons accused of crime are not indefinitely
harassed. They must be given a fair and impartial trial and while every reasonable
latitude must be given to those concerned with the detections of crime and entrusted
with the administration of justice, limits must be placed on the lengths to which they
may go.
Except in clear cases of guilt, where the error is purely technical, the forces that are
arrayed against the accused should no more be permitted in special appeal to repair
the effects of their bungling than an accused should be permitted to repairs gaps in
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his defence which he could and ought to have made good in the lower courts. The
scales of justice must be kept on an even balance whether for the accused or against
him, whether in favour of the State or not; and one broad rule must apply in all
cases (emphasis supplied)
204. So also in Ramaswamy Naickars case relied upon by this Court in the above passage, a fresh
inquiry into the complaint after five years was considered inappropriate. This Court observed:
But the question still remains whether, even after expressing our strong
disagreement with the interpretation of the Section by the courts below, this Court
should direct a further inquiry into the complaint, which has stood dismissed for the
last about 5 years. The action complained of against the accused persons, if true, was
foolish, to put it mildly, but as the case has become stale, we do not direct further
inquiry into this complaint. If there is a recurrence of such a foolish behaviour on the
part of any Section of the community, we have no doubt that those charged with the
duty of maintaining law and order, will apply the law in the sense in which we have
interpreted the law. The appeal is therefore, dismissed (emphasis supplied)
205. To the same effect is the decision of this Court in Kantilal Chandulal Mehta v. The State of
Maharashtra and Anr. (1969) 3 SCC 166 where this Court observed:
In our view the Criminal Procedure Code gives ample power to the courts to alter
or amend a charge whether by the trial court or by the appellate court provided that
the accused has not face a charge for a new offence or is not prejudiced either by
keeping him in the dark about that charge or in not giving a full opportunity of
meeting it and putting forward any defence open to him, on the charge finally
preferred against him
206. The incident in the case at hand occurred about 16 years ago. To frame a charge for a new
offence and remand the matter back for the accused to face a prolonged trial again does not appear
to us to be a reasonable proposition. We say so independent of the finding that we have recorded
that the fact situation the case at hand does not suggest that the accused Ansal brothers or any one
of them, had the knowledge that their acts of omission or commission was likely to cause death of
any human being. Question No.3 is accordingly answered in the negative. Re: Question No.IV: