BHUPALLI MALLIAH Vs. STATE

JUDGEMENT

(1.) I agree with my learned brothers conclusions and would like to express the reasons in a few words of my own.

(2.) On behalf of accused 1, 3 and 12 the learned counsel, Sri Krishna Reddi, placed in the forefront of his arguments the contention that they have been prejudiced in their defence at the trial. He did not press for a determination of the other points raised in the appeals, if we proposed to give effect to the contention and order a retrial. As comments by us on the evidence would have embarrassed a fair retrial, we have examined the facts for the limited purpose of determining whether a retrial is necessary.

(3.) The first point taken was that the charge did not give the accused proper notice of the offence they had to meet. This problem has to be solved bearing in mind the principles explained by their Lordships of the Supreme Court in W. Slaney v. State of M.P. (S) A.I.R. 1956 S.C. 116 and the provisions of Section 537 Criminal Procedure Code. The relevant portion of Section 537 reads thus:- "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account...... ** * * * (b) of any error omission or irregularity in the charge including any misjoinder of charges, or * * * * * unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Explanation:--In determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in tide proceedings." Here neither the prosecution nor the defence objected to the charge in the court below. But as observed in (S) A. I. R. 1956 S. C. 116 at Page 128: "In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere;"