Section 215 of the Code of Criminal Procedure expounds a salutary rule to the effect that an error in stating either the offence or any other particular required to be stated in the charge, and no omission to state the offence or such particulars, can be regarded as material at any stage of the case, unless the accused was, in fact, misled by such error or omission, and if this has caused a failure of justice.
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Illustration to S. 215:
(a) A is charged under S. 242 of the Indian Penal Code 1860, with “having been in possession of counterfeit coin, having known, at the time when he became possessed thereof, that such coin was counterfeit,” the word “fraudulently” being omitted in the charge.
ADVERTISEMENTS:
Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the matter in which he cheated В is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated В is not set out in the charge. There were many transactions, between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1988. In fact, the murdered person’s name was Haidar Baksh, and the date of the murder was the 20th January, 1988. A was never charged with any murder but one, and had heard the inquiry before Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
ADVERTISEMENTS:
(e) A was charged with murdering Haidar Baksh on the 20th January, 1988 and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 1988. When charged for murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.
S. 464 provides for a retrial of the accused when a charge contains a material error which has occasioned a failure of justice.
The Mumbai High Court has observed that, in determining whether the error or omission in framing the charge has in fact occasioned a failure of justice, the Court should take into consideration the manner in which the accused has conducted his defence and also the nature of the objection. (Ramji,—10 Mumbai 124)
Thus, when the charge did not correctly set out the facts of the case, but it was clear from the answers which the accused gave to the Court, that he understood exactly what the case against him was, it was held that the defect in the framing of the charge did not prejudice the accused in any way. (Gokul,—429 C.W.N. 483)
ADVERTISEMENTS:
Similarly, when the accused did not make any objection to the defect in the form of the charge at the earliest possible occasion, and no protest was made either in the Revisional Court or even in Appellate Court and they knew perfectly well what offences they were charged with, it was held that the irregularity had not occasioned any failure of justice. (Bachchu,—28 Cr. L.J. 409)