1929 JTR(SC) 103
1930 AIR(PC) 57 ; 1929 57 LawReportsInd.App. 71
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT SUMNER, LORD THANKERTON, AND SIR BINOD MITTER.
ATTA MOHAMMAD - Appellant
Versus
THE KING-EMPEROR - Respondents
On appeal from the High Court at Lahore.
Decided On : Dec. 6. 1929.
Procedural irregularities in framing criminal charges do not invalidate a conviction if the accused was not misled and the trial was substantially fair, ensuring no violation of natural justice occurred.
Act
Referred
:CRIMINAL LAW
: .
INDIAN PENAL CODE: S.300, S.149, S.34
(A) Indian Penal Code - Sections 149, 34, 300 and 302 - Code of Criminal Procedure - Sections 221(1), 221(4), 225 and 233 - Framing of charge - Conviction for murder where charge mentioned punishment section but not the defining section - Absence of substantial injustice - Natural justice.
(B) Criminal Procedure - Procedural irregularities in the framing of a charge do not warrant interference by the appellate court if the accused was not misled and there is no substantial injustice or violation of natural justice. (Para 12)
(C) Scope of Review - The highest appellate body in criminal matters does not act as a court of criminal appeal to regulate procedure or criticize mere procedural errors, provided the trial in substance was fair and the prisoner had every real opportunity to understand the charge and make a defense. (Para 12)
Facts of the case:
The appellant was charged as a member of an unlawful assembly for causing death in furtherance of a common object and intention. While the charge mentioned the section providing the punishment for murder, it did not specifically cite the section defining the offence of murder. All other co-accused were acquitted, and the appellant alone was convicted and sentenced to death. It was later contended that this procedural omission misled the appellant and deprived him of the opportunity to raise specific defenses, such as private defense.
Findings of Court:
The court found that the appellant had been legally represented and the nature of the charge was sufficiently known to both the appellant and his advocate. No objection regarding the framing of the charge was raised during the initial appeal to the High Court, and the appellant had pleaded an alibi at trial.
Issues: Whether the omission of the specific section defining murder in the charge, despite the inclusion of the punishment section, constituted a failure of natural justice and a serious procedural error necessitating the setting aside of the conviction.
Ratio Decidendi: In criminal cases, the primary concern is whether the trial was fair and whether the prisoner had a real opportunity to understand the charge and make a defense. Statutory requirements of procedure, if not satisfied, do not invalidate a conviction in the complete absence of substantial injustice or an outrage of natural justice.
Result: Appeal dismissed.
(B) Criminal Procedure - Procedural irregularities in the framing of a charge do not warrant interference by the appellate court if the accused was not misled and there is no substantial injustice or violation of natural justice. (Para 12)
(C) Scope of Review - The highest appellate body in criminal matters does not act as a court of criminal appeal to regulate procedure or criticize mere procedural errors, provided the trial in substance was fair and the prisoner had every real opportunity to understand the charge and make a defense. (Para 12)
Facts of the case:
The appellant was charged as a member of an unlawful assembly for causing death in furtherance of a common object and intention. While the charge mentioned the section providing the punishment for murder, it did not specifically cite the section defining the offence of murder. All other co-accused were acquitted, and the appellant alone was convicted and sentenced to death. It was later contended that this procedural omission misled the appellant and deprived him of the opportunity to raise specific defenses, such as private defense.
Findings of Court:
The court found that the appellant had been legally represented and the nature of the charge was sufficiently known to both the appellant and his advocate. No objection regarding the framing of the charge was raised during the initial appeal to the High Court, and the appellant had pleaded an alibi at trial.
Issues: Whether the omission of the specific section defining murder in the charge, despite the inclusion of the punishment section, constituted a failure of natural justice and a serious procedural error necessitating the setting aside of the conviction.
Ratio Decidendi: In criminal cases, the primary concern is whether the trial was fair and whether the prisoner had a real opportunity to understand the charge and make a defense. Statutory requirements of procedure, if not satisfied, do not invalidate a conviction in the complete absence of substantial injustice or an outrage of natural justice.
Result: Appeal dismissed.
Procedure - Cited by the appellant to argue that serious errors of procedure in criminal matters should lead to the appeal being allowed.
Charge - Referred to by the appellant's counsel regarding the framing of charges and the rights of the accused.
Charge - Referred to by the appellant's counsel regarding the framing of charges and the rights of the accused.
Solicitors for appellant:T. L. Wilson & Co. Solicitor for respondent: Solicitor, India Office.
Judgement
Appeal (No. 9 of 1928) by special leave from a judgment of the High Court (April 29, 1929) which confirmed a judgment of the Sessions Judge at Mianwali (February 1, 1929) convicting the appellant of murder and sentencing him to death.
The material facts appear from the judgment of the Judicial Committee.
Special leave to appeal was granted by the Lord Chancellor, Lord Darling and Lord Tomlin on July 29, 1929. (The terms of the charge, and other material particulars of the case, were not fully before the Board. It appeared that an adjournment of the hearing of the petition over the long vacation might cause delay which would be avoided by granting special leave.—A. M. T.)
1929. Dec. 6. Morey for the appellant. Under s. 221, sub-ss. 1 and 4, of the Code of Criminal Procedure the appellant was entitled to have all the sections under which he was charged clearly stated. He was charged only under ss. 149 and 34 of the Penal Code, which relate respectively to unlawful assembly and the acts done by several persons in furtherance of a common intention. All the other accused being acquitted the appellant could not be convicted under the charge as framed. There was no reference to s. 300 (murder), and though s. 302 was referred to that was only as to the punishment to which he would be liable upon a conviction under either s. 149 or s. 34. The circumstances above stated constitute so serious an error of procedure that this appeal should be allowed; that course would be in accordance with the practice of the Board in criminal matters Dal Singh v. The King-Emperor . (( 1917) L. B. 44 I. A. 137, 146) Further, it was not explained to the appellant that under the charge framed he could be convicted as though he had been charged under s. 300. Had he so understood, he might have put forward the defence that he personally acted in self-defence, but that would have been no defence on the charge framed of causing death in conjunction with others. [Reference was made also to King-Emperor v. Mathura Thakoor (( 1901) 6 Cal. W. N. 72, 78.) and Aiyavu v. Queen-Empress .(( 1885) I. L. R. 9 M. 61.)]
Dunne K.C. and Wallach for the respondent. A charge of murder against the appellant was clearly involved in the charge framed, as it stated that he had committed an offence punishable under s. 302 of the Penal Code, which in terms provides the punishment for murder. The form of the charge was in accordance with that provided by the Code of Criminal Procedure, Sch. V., Form 28. There was no error in stating the charge; if there was, the accused was not misled, and the error was therefore immaterial under s. 225 of the Code of Criminal Procedure. Though the accused was represented by a pleader, he did not raise the present objection upon appeal to the High Court. Even if there was an irregularity, which is not admitted, it was merely one of procedure which resulted in no injustice whatever. Morey replied.
The judgment of their Lordships was delivered by
VISCOUNT SUMNER. As this is a capital case, and as the conviction took place so long ago as February last, their Lordships think it best to give their reasons for the conclusion at which they have arrived, without taking further time to put them into writing.
The appellants conviction and sentence having been confirmed on appeal, he applied to their Lordships last July for special leave to appeal. His petition was allowed, his point being in substance that he had been convicted without having had a fair opportunity of knowing what the charge was that he had to meet, and particularly of raising defences other than the one raised, or of relying on any circumstances which would have reduced the offence to a minor one. Under those circumstances their Lordships did what they rarely have occasion to do, and advised His Majesty in Council to grant special leave ex abundanti cautela, so that it might be discussed at length whether he had in truth been deprived of so important an opportunity.
Mr. Morey has put the case before their Lordships, as he always does, with great clearness and fairness. He complains that the charge recorded was that Atta Mohammad and a number of others, seven in all, Were members of an unlawful assembly armed with deadly weapons and that in prosecution of a common object and in furtherance of a common intention, one of the members, Atta Mohammad, caused the death of Ghulam Mohammad, and all were thereby, under ss. 149 and 34 of the Indian Penal Code, guilty of causing the death of Ghulam Mohammad, and thereby committed an offence punishable under ss. 302, 149, 148 and 34 of the Indian Penal Code. Sect. 34 was introduced by way of amendment or addition afterwards. The phraseology of the charge is common, but it is true that of these sections which are mentioned one after another, some refer to the substance of the offence, and others, or one, at any rate, of them, to the punishment of the offence.
As the result of the trial, the appellant alone was found guilty, but he was found guilty of being the intentional cause of the death of Ghulam Mohammad. He appealed, and admittedly his notice of appeal contained no suggestion whatever of the case that is now made on his behalf. He had pleaded an alibi at the trial, and in his grounds of appeal he embodied various criticisms upon the weight of the evidence, and then he added that an assault under these conditions would amount to private defence, and that the offence does not amount to murder and that the sentence called for should have been much lighter. He appeared by an advocate on the appeal and had been legally defended at the trial, and it is as clear as possible that, with full knowledge of the course which the trial had taken, neither the appellant himself nor those who represented him had any sense whatever of the injustice that is now urged or any idea of his having been deprived of the opportunity of knowing the charge on which he was tried or of raising defences appropriate to that charge.
The argument is that because there was no specific mention of s. 300 of the Indian Penal Code as the section under which he was being proceeded against, and because he was charged, as a member of an unlawful assembly, with acting with a common object and in furtherance of a common intention, he being the person who struck the blow, the acquittal of all the other persons put an end to that charge, and the possibility that he might be nevertheless convicted under s. 300 was one that had never been explained to him properly or at all, and one which it must be taken did him the serious injustice of misleading him as to his true position and depriving him of what might have been a successful defence.
The proceedings on the appeal, however, make it quite clear that in fact he was deprived of no proper opportunity that the nature of the charge was quite sufficiently known to him and to the advocate who appeared for him, and that he was unconscious of having suffered any wrong of that kind until the appeal fell into able hands in this country.
It is well to add that there has been no complaint that he was not separately indicted, and no reliance has been placed on s. 233 of the Criminal Procedure Code; the case has been solely put upon departure from the statutory provisions as to stating and explaining the particular charge, which has been proceeded with.
Under these circumstances their Lordships think it quite plain that there has been no departure from the requirements of natural justice, and that there has been a trial which in all substance was fair and which has given the prisoner every real opportunity that he required to understand the charge and make his defence.
The practice of their Lordships Board is so well settled with regard to such a case that it is unnecessary to cite authorities or to re-state principles. The most that is said here is that certain statutory requirements of procedure were not satisfied, and as their Lordships have so often had occasion to say, India is provided by law with a complete and carefully devised Criminal Procedure Code applicable to the Courts of criminal review, which have considered this case and the functions of which have been discharged. Their Lordships, in advising His Majesty, do not act in criminal matters as a Court of Criminal Appeal, and are not concerned to regulate procedure of Courts in India or to criticize what is mere matter of procedure. Accordingly, their Lordships find it unnecessary to discuss the points which have been raised as to the propriety of such a form of indictment as this, as to the utility and extent of explanations such as the Code refers to, and as to the validity of such sections as
s. 225 as an answer to any irregularity that there may have been. They do not desire it to be understood that they think that the contentions raised on behalf of the appellant on those points could be sustained. No opinion was expressed in the Court below as regards that, and the point was never considered there. Their Lordships have, therefore, nothing to say upon these questions except that they are questions for the Indian Courts in the exercise of their criminal jurisdiction.
In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere. Their Lordships, therefore, will humbly advise His Majesty that for these reasons this appeal should be dismissed.