IS A DEFECTIVE CHARGE NECESSARILY FATAL TO CONVICTION?

EFFECTS OF OMISSION TO FRAME, OR ABSENCE OF, OR ERROR IN CHARGE

Section 215 read with section 464 of the Criminal Procedure Code 1973 deal with the cases where a charge is framed but there are errors, omissions or irregularities in the charge.

The object of these sections is to prevent failure of justice where there has been only technical breach of rules not going to the root of the case as such. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudice caused to the accused.

The mere omission to frame a charge or a mere defect in the charge is no ground for setting aside a conviction.

Section 215 provides that “No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars,shall be regarded at any stage of the case as material, unless the accused was in fact MISLED by such error or omission, AND it has occasioned a FAILURE OF JUSTICE.

The section 215 makes it clear that insignificant irregularities in stating the particulars of the offence in the charge will not affect the trial or its outcome.

From the contents of S. 215, it is clear that an error in stating the offence or the particulars required to be stated in the Charge and an omission to state the offence or those particulars shall be material only if two following situations occur due to such error or omission:

1. The accused was in fact misled by such error or omissions, and

2. It has occasioned a failure of justice.

Unless, both these situations occur simultaneously, the errors or omissions in the charge can not be regarded as material.

An error or omission can be a technical error or an error of substance. Technical Error is an irregularity whereas error of substance is illegality and it hits at the validity of the Charge.

464. Effect of omission to frame, or absence of, or error in, charge.

(1) 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 mis-joinder of charge,

unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, 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.

• in the case of an ERROR, OMISSION OR IRREGULARITY in the charge, direct

a new trial to be had upon a charge framed IN WHATEVER MANNER IT thinks fit:

• Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

• Section 464 make it clear that unless the irregularity in the charge has misled the accused and occasioned a failure of justice, a conviction cannot be set aside.

Kahan Singh v. State of Haryana, (1971) 3 SCC 216:

Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. That does not touch jurisdiction. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective.

Nor could a conviction recorded on charges under wrong provisions be reversed if the accused was informed of the details of the offences committed and thus no prejudice was caused to him. (Kammari Brahmaiah v. Public Prosecutor, (1999) 2. SCC 522: 1999 SCC (Cri) 281.)

Section 464 (2) provides for a retrial of the accused where the charge contains a material error which has occasioned failure of justice.

In determining whether the error or omission has occasioned a failure of justice, the court should have regard to the manner in which the accused has conducted his defence and to the nature of the objection.

Bhupesh Deb v. State of Tripura AIR 1978 SC 1672

It was observed that Section 215 must be read with Section 464. The combined reading of these provisions require that when any error, omission or irregularity has occurred in the framing of a charge, the only question to consider is whether it has occasioned a failure of justice by prejudicing the accused in defence. Where the prosecution tried to make a case different from that stated in the charge, it clearly causes prejudice to accused.

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