Three accused persons namely A, B and C commit the offence of cheating under Section 420 of I.P.C. in furtherance of their common intention. The trial court frames the charge against them under Section 420 but does not mention Section 34 in the charge… Should the appellate court set aside the conviction?

Question: Three accused persons namely A, B and C commit the offence of cheating under Section 420 of I.P.C. in furtherance of their common intention. The trial court frames the charge against them under Section 420 of I.P.C. but does not mention Section 34 of I.P.C. (common intention) in the charge. After trial, the court convicts them. A, B and C prefer an appeal against such a conviction. In the appellate court, the argument was advanced by the convicts that the non-mentioning of Section 34 in the charge misled them.

The appellate court is of the view that in the facts and circumstances of the case omission of Section 34 in the charge by the trial court does not mislead the accused person. Should the appellate court set aside the conviction of appellants on the ground that Section 34 of I.P.C. was not mentioned in the charge? Give reasons, and also refer to the case law, if any, on this point.

Find the answer only on Legal Bites. [Three accused persons namely A, B and C commit the offence of cheating under Section 420 of I.P.C. in furtherance of their common intention. The trial court frames the charge against them under Section 420 but does not mention Section 34 in the charge… Should the appellate court set aside the conviction?]

Answer

Section 215 of the Code of Criminal Procedure, 1973 lays down provisions as to the Effect of errors. It is provided under this section:

“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.”

This section is intended to prevent any failure of justice for noncompliance with the matters required to be stated in the charge. Unless the irregularity in the charge has misled the accused and occasioned a failure of justice, a conviction cannot be set aside.

It was held by the Supreme Court in the case of Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171 that the omission to mention section 34 of the Penal Code in the charge had only an academic significance and had not in any way misled the accused and further that on the evidence in the case the charge of murder had been brought against both the appellants.

Sections 464 and 465 also deal with the same question. Section 464(2) provides for a re-trial of the accused where the charge contains a material error which has occasioned a failure of justice. In judging the question of prejudice, the Courts must act with a broad vision and look to the substance and not to the technicalities.

The main concern should be to see whether the accused had a fair trial and whether he knew what he was being tried for. Where the main facts sought to be established against him were explained to him and he had been given a full and fair chance to defend himself, merely because there had been an omission in the charge of some material facts relating to the offence for which the charge was framed, it could not be said that failure of justice had been caused.

Thus, Section 215 must be read with section 465. The combined reading of these provisions requires 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 his defence.

So, applying the aforesaid provisions and decision of the Hon’ble Supreme Court, it is clear that the appellate court shall not set aside the conviction of appellants on the ground that Section 34 of I.P.C. was not mentioned in the charge as this omission does not cause any failure of justice.

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