In the judgment of the case – Kamil v. State of Uttar Pradesh , delivered on October 31, 2018, Justice R. Banumathi and Justice Indira Banerjee, at the Supreme Court have held that a conviction for the substantive offence can be set aside only if the accused shows that prejudice has been caused to him and that “failure of justice” has occasioned thereby.
The appeal in this case arose from the judgment of July 28, 2014 passed by the Allahabad High Court in criminal appeal 1047/1989 in and by which the HC had dismissed the appeal filed by the appellant- Kamil thereby affirming his conviction under section 302 IPC and for other offences and sentence of life imprisonment imposed upon him by the trial court. The incident had taken place on January 3, 1986 at about 9 am and thereafter actual murder around 4 pm, the same day
The question, which fell before the Apex-Court for consideration was whether non-framing of charge has caused prejudice in this case. In order to judge whether a failure of justice had been occasioned, it was relevant to examine whether the accused was aware of the basic ingredients of the offence for which he was being convicted and whether those were explained to him and whether he got a fair chance to defend. The crux of the issue is whether in this case, omission to frame charge under section 302 IPC vitiated conviction of the appellant/accused.
Charge was not framed against the appellant under section 302 read with section 34 IPC. But it was for the accused to prove that omission to frame charge occasioned in a failure of justice. Though specific charge under section 302 read with section 34 IPC was not framed, the gist of the charge sheet filed against the appellant-accused clearly showed that the accused was charged for the offence under section 302 read with section 34 IPC.
In the charges framed, even if the appellant and accused Nasir were charged only under section 323 read with section 34 IPC, in the gist of the charge sheet it was clearly alleged that sharing of common intention in committing the murder of Akhlaq with the first accused Rashid.
The Court noted that after filing of the charge sheet, the case was committed to the court of Sessions. The trial court has pointed out that the accused persons were charged under sections 302, 302/34, 323 and 323/34 IPC to which they pleaded not guilty and opted for trial. The appellant-accused had thus clearly understood that charge has been framed against him under section 302 IPC read with section 34 IPC.
If really, the appellant was under the impression that no charge was framed against him under section 302 read with section 34 IPC, the appellant would have raised the objection for his committal to the Sessions Court. It is also to be pointed out that the appellant had not raised the objection as to non-framing of charges at the earliest point of time namely the trial court and the first appellate court – High Court.
The submissions by the appellant’s counsel, that even the relevant questioning showing sharing of common intention of the appellant were not put to the accused during questioning under section 313 Cr.P.C. do not merit acceptance. In the gist of the Charge sheet, it was clearly alleged sharing of common intention by the appellant-accused.
In the SC’s considered view, the procedure followed by the Court in this case did neither cause prejudice to the appellant nor deprived him of principles of natural justice.
The SC also noted that in the HC the appellant had not raised any grievance as to non-framing of charge under section 302 read with section 34 IPC and that it caused any prejudice to him. On the other hand the appellant’s counsel only contended that the appellant Kamil ought not to have been convicted by invoking the principle of vicarious liability enshrined by section 34 IPC.
All these aspects clearly show that the appellant clearly understood that charge under section 302 read with section 34 IPC was framed against him and throughout he was defending himself only for the charge under section 302 IPC. In such facts and circumstances, it cannot be said that the failure of justice had occasioned to him and the absence of a charge under section 302 read with section 34 IPC cannot be said to have caused any prejudice to him.
The Apex-Court noted that in one of its earlier decisions –Mohan Singh v. State of Bihar – (2011) 9 SCC 272, where the appellants therein, for the first time raised the points relating to errors in framing of charge before the Supreme Court, it held as under:
“ 14.In a case where points relating to errors in framing of charge or even misjoinder of charge are raised before this Court for the first time, such grievance are normally not considered by this Court. Reference in this connection may be made to a decision of a three-Judge Bench of this Court in Mangal Singh and Others v. State of Madhya Bharat- AIR 1957 SC 199, Imam J. delivering a unanimous opinion of the Court held in para 5 at page 201 of the Report as follows:
“ 5.It was, however urged that there had been misjoinder of charges . This point does not seem to have been urged in the High Court because there is no reference to it in the judgment of that Court and does not seem to have been taken in the petition for special leave. The appellants cannot, therefore, be permitted to raised the question at this stage.”
According to the Court. It is pertinent to point out that the appeal preferred by the similarly situated co-accused Nasir has been dismissed by this Court.
A conviction for the substantive offence without a charge can be set aside only if the accused shows that prejudice has been caused to him and that “failure of justice” has occasioned thereby. No such argument was ever made before the trial court or before the HC.
In the SC’s “considered view”, no prejudice has been caused to the accused nor failure of justice been shown to have been occasioned warranting interference with the impugned judgment delivered by the Full Bench of the Allahabad High Court. In the result, the Supreme Court dismissed the appeal.